State v. Denny: PSIs for Misdemeanors Permitted Only When the Misdemeanor Itself Was Originally Charged as a Sexual or Violent Offense; Unlawful PSI Terms in Plea Agreements Are Void

Introduction

In State v. K. Denny, 2025 MT 62, the Montana Supreme Court addressed whether a district court may order a presentence investigation report (PSI) for misdemeanor convictions when those misdemeanors were not originally charged as sexual or violent offenses. The case arose after the Eighth Judicial District Court ordered a PSI and, based on the defendant’s purported non-cooperation with that PSI, treated a binding plea agreement as converted to non-binding, resulting in a harsher sentence than the parties had agreed upon.

The Court held that Montana’s PSI statute, § 46-18-111(2), MCA, strictly limits a court’s ability to order a PSI in misdemeanor cases to situations in which the misdemeanor of conviction was itself originally charged as a sexual or violent offense as defined by § 46-23-502, MCA. Because neither of Denny’s misdemeanors (partner or family member assault and destruction/tampering with a communication device) was originally charged as a sexual or violent offense, the district court lacked authority to order a PSI. The Court further ruled that a plea-agreement condition requiring cooperation with an unauthorized PSI is unlawful and unenforceable, and it ordered specific performance of the binding plea agreement on remand. A dissent viewed the majority’s interpretation as unduly narrow and cautioned against allowing litigants to disregard standing court orders.

Summary of the Opinion

• Issue: Whether a district court may order a PSI for misdemeanor convictions when those misdemeanors were not originally charged as sexual or violent offenses.
• Holding: No. Under § 46-18-111(2), MCA, a court may order a PSI for a defendant convicted of a misdemeanor only if that misdemeanor was originally charged as a sexual or violent offense as defined by § 46-23-502, MCA. Because Denny’s misdemeanors were not, the PSI order was erroneous.
• Plea Agreement Consequence: The plea’s boilerplate condition requiring cooperation with a PSI was unlawful in this context and could not convert a binding plea agreement (§ 46-12-211(1)(b), MCA) into a non-binding one. The State breached by recommending a harsher sentence than agreed.
• Remedy: The Court reversed and remanded for resentencing with specific performance of the plea agreement unless the district court rejects the agreement, in which case Denny may withdraw his pleas. The Court further ordered the unlawfully obtained PSI destroyed and stricken from the record.
• Dissent: The dissent would allow PSIs where the case originally included a sexual or violent charge arising from the same conduct, even if the misdemeanors were not themselves originally charged as such, and warned against sanctioning non-compliance with court orders pending appeal.

Procedural and Factual Background

Denny was charged in 2021 with (1) felony partner or family member strangulation (PFM Strangulation), (2) misdemeanor partner or family member assault (PFMA), and (3) misdemeanor destruction/tampering with a communication device. In exchange for dismissal of the felony, he entered nolo contendere pleas to the two misdemeanors under a “binding” plea agreement as defined by § 46-12-211(1)(b), MCA.

The district court reserved acceptance of the binding agreement but ordered a PSI based on its view that the case had originally included a violent offense. Defense counsel objected; the State initially agreed that § 46-18-111(2), MCA, did not authorize a PSI because the misdemeanors were not originally charged as sexual or violent offenses. The court nevertheless ordered the PSI, later revoked bond for non-cooperation with the PSI process, and ultimately treated Denny’s asserted non-compliance as converting the binding plea to non-binding. The court imposed a harsher sentence than the State later recommended, explicitly relying on PSI content and Denny’s PSI-related non-cooperation.

Analysis

Precedents and Statutes Cited

• Statutory interpretation baseline:
  • State v. Heath (2004): Legislative intent governs; start with statutory text.
  • State v. Wolf (2020), State v. Gatts (1996), Swearingen v. State (2001), and Montana Sports Shooting Ass’n v. State (2008): Plain-meaning approach; where text is unambiguous, courts do not add to it.
• PSI authority:
  • § 46-18-111, MCA: Generally authorizes PSI for felony pleas and limits PSI orders for misdemeanors to those originally charged as sexual or violent offenses.
  • § 46-23-502, MCA: Defines “sexual offense” and “violent offense.”
• Plea agreement law:
  • § 46-12-211, MCA: Framework for “binding” and “non-binding” plea agreements and the right to withdraw if a binding agreement is rejected.
  • State v. Collins (2023), Santobello v. New York (1971), State v. Rardon (2002), State v. Allen (1981): Plea agreements construed as contracts; defendants have a right to fairness in plea bargaining.
  • State v. Arellano (2024), State v. Cleveland (2014), Mont. Petroleum Tank Release Comp. Bd. v. Crumley’s, Inc. (2008): Courts do not enforce illegal contract terms; unlawful provisions in plea agreements are void and cannot be the predicate for “breach.”
  • §§ 28-2-701, 28-2-707, 28-2-604, 28-2-601, 28-2-603, MCA: Contract illegality and severability principles.
  • State v. Munoz (2001), State v. Warner (2015): Specific performance is an available remedy for plea-agreement breaches absent a miscarriage of justice.
• Sentencing scope:
  • State v. Hill (2009): A sentencing court may consider facts underlying dismissed charges; but it must act within statutory bounds regarding information sources (e.g., PSIs).
• Nolo contendere:
  • State v. Spreadbury (2011) and North Carolina v. Alford (1970): A nolo plea allows punishment as if guilty.

Legal Reasoning

The Court’s analysis proceeds textually. Section 46-18-111(2), MCA, states that a district court may order a PSI for a defendant convicted of a misdemeanor “only if the defendant was convicted of a misdemeanor that the state originally charged as a sexual or violent offense as defined in § 46-23-502.” The majority reads “originally charged” to modify “that misdemeanor,” not the case as a whole. Because Denny’s PFMA and communication-device misdemeanors were never originally charged as sexual or violent offenses, § 46-18-111(2) did not authorize a PSI. The court rejected the district court’s broader “case-level” interpretation, emphasizing the statute’s “only if” limitation and the specificity of the definitional cross-reference.

The opinion also addresses a perceived practical concern: that no misdemeanor could ever qualify for a PSI under this reading. The Court clarifies that PSIs remain permissible where an originally charged sexual or violent felony is amended down to a misdemeanor and the misdemeanor of conviction is the same offense originally charged as sexual or violent. In contrast, simply including a separate sexual or violent charge in the case does not satisfy the statute if the misdemeanor of conviction was not itself originally charged as sexual or violent.

Turning to the plea agreement, the Court treats its terms under contract principles. Because the PSI was unauthorized by statute in this context, the plea’s boilerplate condition requiring cooperation with the PSI process was unlawful. A contractual condition requiring performance of an act the law forbids a court from ordering cannot be enforced. The unlawful condition was severable, so the remainder of the binding plea agreement remained intact. Consequently:

• Denny’s “non-cooperation” with the unauthorized PSI could not convert the plea into a non-binding agreement or relieve the State of its obligation to recommend the agreed disposition.
• The State breached the binding agreement by recommending a harsher sentence.
• The district court compounded the error by relying on the unauthorized PSI both to justify departure and to increase the sentence beyond even the State’s (now improper) recommendation.

For remedy, the Court orders reversal, resentencing, and specific performance: the State must honor its original recommendation under the binding agreement. If the district court rejects that agreement at resentencing, Denny may withdraw his pleas, consistent with § 46-12-211(4), MCA. Notably, the Court also orders the PSI destroyed and stricken from the record because it was unlawfully obtained and considered.

The Dissent

Justice McKinnon (joined by Justice Baker) rejects the majority’s “narrow” reading. In the dissent’s view, the statute permits a PSI where the case was originally charged as a sexual or violent offense and the misdemeanors arose from the same episode, even if those misdemeanors were not themselves originally charged as sexual or violent. The dissent warns that the majority’s approach produces an anomaly: if the prosecutor had initially charged only the felony strangulation and later amended to a misdemeanor PFMA, a PSI would be permitted; but where the prosecutor charged both felony and misdemeanor counts from the outset, a PSI would be barred—even though the conduct is identical. The dissent also cautions that the Court’s decision risks emboldening litigants to defy court orders rather than comply and seek appellate review.

Impact

On Sentencing Practice and Judicial Authority

• Strict statutory gatekeeping: District courts cannot order PSIs for misdemeanors unless the misdemeanor of conviction was itself originally charged as a sexual or violent offense under § 46-23-502, MCA. A case’s inclusion of a separate sexual or violent count is insufficient.
• Alternative information gathering: Courts may require sentencing memoranda or other permissible submissions to obtain background information for misdemeanor sentencing when a PSI is not authorized.
• Record sanitation: Ordering destruction of the unauthorized PSI underscores that courts must not rely on statutorily barred materials to select a sentence.

On Plea-Bargaining and Agreement Drafting

• Boilerplate caution: Routine plea terms requiring cooperation with a PSI cannot be enforced when the PSI is not authorized by statute. Prosecutors and defense counsel should tailor conditions to the case and statutory prerequisites, avoiding one-size-fits-all clauses.
• Severability and conversion clauses: Unlawful conditions cannot trigger conversion of a binding agreement to non-binding, nor foreclose a defendant’s withdrawal right if the court rejects the bargained-for sentence.
• Specific performance exposure: The State’s deviation from a binding agreement, premised on an unenforceable condition, exposes it to specific performance on appeal absent a showing of “miscarriage of justice.”

On Probation and Parole (P&P) Processes

• P&P involvement must track statutory authorization. Initiating PSI processes for misdemeanors requires confirming that § 46-18-111(2), MCA, is satisfied. Absent authorization, defendants cannot be compelled to cooperate.

Potential Legislative Response

• If the Legislature intends to authorize PSIs whenever a misdemeanor conviction arises from the same episode as a charge originally filed as a sexual or violent offense (even if the misdemeanor was not itself originally charged as such), § 46-18-111(2), MCA, could be amended to say so expressly. The current text ties PSI authorization to the misdemeanor itself having been originally charged as sexual or violent.

Complex Concepts Simplified

• Presentence Investigation Report (PSI): A report typically prepared by Probation and Parole to inform sentencing, detailing background, criminal history, victim input, and risk assessments. In Montana, PSIs are tightly regulated by § 46-18-111, MCA.
• Sexual or Violent Offense Definitions: § 46-23-502, MCA, lists what counts as “sexual offense” and “violent offense.” Only misdemeanors that were originally charged as one of these can trigger PSI authorization in misdemeanor cases.
• Binding Plea Agreement (§ 46-12-211(1)(b), MCA): The defendant’s plea is conditioned on the court’s acceptance of a specific agreed sentence; if the court rejects it, the defendant may withdraw the plea.
• Non-Binding Plea Agreement (§ 46-12-211(1)(c), MCA): The parties’ recommendations are not binding on the court; if the court disagrees, the defendant may not withdraw the plea.
• Nolo Contendere: “No contest” plea; the defendant does not admit guilt but accepts conviction and punishment as if guilty.
• Specific Performance: An equitable remedy requiring a party (here, the State) to honor its plea-agreement promises, typically to make the agreed sentencing recommendation.
• Illegal Contract Provision: A term that requires conduct contrary to law (e.g., cooperation with an unauthorized PSI). Such terms are void and cannot justify treating a plea as breached.
• Severability: Courts can excise unlawful terms while enforcing the remainder of a contract or plea agreement when the illegal term is distinct from the agreement’s lawful objectives.

Key Takeaways

• PSIs in misdemeanor cases are authorized only when the misdemeanor of conviction was originally charged as a sexual or violent offense.
• Plea-agreement conditions requiring cooperation with an unauthorized PSI are unlawful, void, and cannot trigger conversion to a non-binding plea.
• When the State departs from a binding plea without a lawful basis, specific performance is an appropriate remedy absent a demonstrated miscarriage of justice.
• Courts must avoid relying on statutorily impermissible information at sentencing; unauthorized PSIs must be excluded—and here, destroyed.
• The dissent underscores concerns about information deficits at sentencing and about maintaining compliance with court orders pending appellate review.

Conclusion

State v. Denny clarifies, with textual precision, the narrow circumstances in which a Montana court may order a PSI for a misdemeanor conviction: only when that misdemeanor was originally charged as a sexual or violent offense under § 46-23-502, MCA. The ruling also reaffirms that plea agreements are governed by contract principles—courts will not enforce unlawful conditions, and such conditions cannot be used to recast a binding plea as non-binding or to justify harsher recommendations. The Court’s remedial directive—specific performance and destruction of an unauthorized PSI—signals a firm boundary around the sources of information a sentencing court may use.

While the dissent favors a broader, episode-based reading to preserve judicial access to PSIs where violent conduct underlies the case, the majority’s interpretation hews to the statutory text and provides a clear ex ante rule for judges, counsel, and P&P. Unless and until the Legislature amends § 46-18-111(2), MCA, practitioners should assume that PSI authority in misdemeanor cases rises and falls with how the misdemeanor itself was originally charged and should draft plea agreements accordingly.