172 P3D 827 - Garland v. State

¶1OPINION

STEWART, Judge.

¶2Terrance A. Garland appeals the superior court's denial of his request to strike a portion of the presentence report prepared following his change of plea. Garland sought to exclude a report that was compiled by a California sheriffs office as a result of an investigation into a possible sexual assault committed by Garland. We affirm the superior court because Garland declined to enter a testimonial denial of the assertions in the report.

¶3Background facts and proceedings

¶4In December 2005, a Sand Point policeman filed a complaint charging Garland with one count of first-degree sexual abuse of a minor.1 On May 16, 2006, Garland filed a request for a change of plea, informing the court that the parties had reached a plea *828agreement. According to the request, Garland would enter a plea to one count of second-degree sexual abuse of a minor.2 Garland also agreed to concede that statutory aggravator AS 12.55.155(c)(10) applied (Garland's conduct constituting the offense was among the most serious within the definition of the offense). According to the plea agreement, Garland agreed that the court would impose a 6-year term with 3 years suspended if the court accepted the plea agreement. The agreement called for the Department of Corrections to prepare a standard presentence report and for the court to impose, and Garland to agree to, the usual conditions of probation imposed for sex offenders.

¶5The State filed an information charging second-degree sexual abuse of a minor. Garland waived indictment and entered a no contest plea. Superior Court Judge pro tem Daniel Schally ordered a presentence report.

¶6The presentence report included a report from the Shasta County Sheriffs Department in California that was more than thirty pages long. The report addressed a 1997 sexual assault in which Garland was the identified suspect.

¶7Pursuant to Criminal Rule 82.1(d)(5), Garland objected to the Shasta County report, claiming that the report was irrelevant, that it was hearsay, and that the sentencing judge's reliance on this information would violate Garland's right to confrontation. In its opposition, the State pointed out that if Garland intended to dispute this information, he had to enter a testimonial denial and submit to cross-examination. In reply, Garland elaimed that the information in the Shasta County report was not relevant to the court's sentencing decision because the parties had reached a plea agreement. Therefore, Garland argued, the Shasta County report should be deleted because it was not relevant to the court's decision whether to accept the plea agreement or the court's decision on what probation conditions to impose. Judge Schally declined to delete the Shasta County report.

¶8Discussion

¶9Garland renews his argument on appeal. Garland relies on our discussion in Evans v. State3 of the responsibility of a sentencing judge when a defendant disputes allegations in a presentence report of misconduct other than the offense for which the defendant was convicted.4 Garland points out that we held in Evans that former Criminal Rule 32.1 required a judge to resolve disputed allegations in a pre-sentence report, or, if the judge expressly elected not to resolve a disputed allegation, to delete the allegation.5

¶10However, in Evans, unlike this case, the defendant took the stand, denied the allegations under oath, and subjected himself to cross-examination.6 Furthermore, the Alaska Supreme Court substantially amended Criminal Rule 82.1 after the Evans decision.7 Criminal Rule 32.1(f)(5) provides in pertinent part as follows:

The court shall enter findings regarding any disputed assertion in the presentence report. Any assertion that has not been proved shall be deleted from the report; any assertion that has been proved only in part shall be modified in the report. Alternatively, if the court determines that the disputed assertion is not relevant to its sentencing decision so that resolution of the dispute is not warranted, the court shall delete the assertion from the report without making any finding.

¶11The present rule requires a sentencing court to enter findings on disputed assertions in the presentence report. If an assertion in the presentence report is not relevant to the court's sentencing decision, the court has the option to avoid resolution of the issue by simply deleting the assertion. However, Garland does not argue that the amendment to the rule enacting Rule 82.1(f)(5) eliminated *829the requirement that a defendant take the stand and testify subject to cross-examination in order to deny a hearsay allegation of verified misconduct contained in a presen-tence reports.8

¶12Because Garland did not take the stand and deny the allegations in the Shasta County report, the superior court was not faced with a "disputed assertion" that the superior court was required to resolve. Accordingly, the superior court was not required to delete the Shasta County report.

¶13Conclusion

¶14The judgment of the superior court is AFFIRMED.

¶15. AS 11.41.434(a)(3)(A), (B).

¶16. AS 11.41.436(a)(2).

¶17. 23 P.3d 650 (Alaska App.2001).

¶18. Id. at 651-52.

¶19. Id. at 651.

¶20. Id.

¶21. See Supreme Court Order No. 1464, effective March 5, 2002.

¶22. See Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989); see also Nukapigak v. State, 576 P.2d 982, 984 (Alaska 1978) (accepting the use of verified hearsay information at sentencing).