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Pasquinzo v. State

Supreme Court of Montana

October 15, 2019

DOUGLAS P. PASQUINZO, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: September 25, 2019

          District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DV 2017-101 Honorable Luke Berger, Presiding Judge.

         For Appellant:

          Douglas P. Pasquinzo, Self-Represented, Deer Lodge, Montana

         For Appellee:

          Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

          Steven C. Haddon, Jefferson County Attorney, Boulder, Montana

          OPINION

          Mike McGrath, Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Douglas P. Pasquinzo appeals a Fifth Judicial District Court order denying his petition for post-conviction relief. We affirm.

         ¶3 On September 30, 2015, the State charged Pasquinzo with two counts of sexual intercourse without consent, felonies, pursuant to § 45-5-503(4)(a), MCA. The victim was a seven-year-old girl. Both charges carried a minimum sentence of 100 years, 25 which could not be suspended, and a minimum 25-year parole eligibility restriction. Section 45-5-503(4)(a), MCA (2013).

         ¶4 On June 15, 2016, Pasquinzo and the State entered into a plea agreement. The State agreed to dismiss both counts of sexual intercourse without consent in exchange for Pasquinzo pleading no contest to two counts of sexual assault, felonies, pursuant to § 45-5-502(3), MCA (sexual assault of a victim under the age of 16 by an offender at least 3 years older than the victim). Prior to sentencing, Mariah Eastman, Pasquinzo's appointed counsel, met with Pasquinzo. She informed him that the State would recommend Pasquinzo be sentenced to the Department of Corrections ("DOC") for 20 years, with 15 years suspended on both counts, each to run concurrently; completion of phases one and two of the sexual offender treatment program at the Montana State Prison ("MSP"); and registration as a sex offender.

         ¶5 At the change-of-plea hearing, the State explained that it entered into the plea agreement to avoid having the victim testify at trial. Before accepting the plea, the District Court informed Pasquinzo that it was not bound by the sentencing recommendations in the plea. The court also advised Pasquinzo of his rights and confirmed that by entering into the plea agreement, Pasquinzo knowingly and voluntarily waived these rights, including his right to appeal. Pasquinzo then pleaded no contest to each count. The prosecutor provided an offer of proof, detailing the abuse. Pasquinzo confirmed that the State would be able to prove the allegations in the offer of proof beyond a reasonable doubt. He also asked for forgiveness and stated, "I am sorry."

         ¶6 A pre-prepared psychosexual evaluation was provided to the court, labeling Pasquinzo as a tier two sexual offender, and admitted without objection. The court then proceeded to sentencing. The court declined to adopt the recommendation of the plea agreement and instead imposed a 15-year sentence in the MSP, with 5 years suspended on each count, both to run concurrently, with 268 days credit for time served. In addition, ...


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