Wheelis may reject plea deal in assault case; defense attorney alleges improprieties in pre-sentence procedures

District Judge James Wheelis is poised to reject a plea agreement that would allow David Milano to avoid jail time for deliberately shooting into the woods near his home in Libby knowing at least two people were hunting there.

Milano was arrested Nov. 24, 2014, by deputies of the Lincoln County Sheriff’s Office, acting on a complaint filed by his landlord, John Shotzberger. Shotzberger and his daughter, Amanda Oedekoven, were hunting in the woods on property they own near the land and cabin Shotzberger rented to Milano.

Deputy Boyd White wrote in his report Milano fired three volleys of three rounds each out of the cabin window into the woods near Shotzberger and Oedekoven. 

“I believe that by firing a firearm in the direction of John and Amanda in such a way that the bullets were striking within 50 feet of them, that he was purposely aiming in their direction and could have very easily struck one of them directly or with a ricochet,” White wrote.

Milano was arrested and charged with two counts of felony assault with a weapon, one for Shotzberger and one for Oedekoven, and one misdemeanor count of assault. Pursuant to the plea agreement reached Mar. 16, Milano pleaded guilty to one count of assault with a weapon against both parties. The second assault with a weapon felony and the misdemeanor assault charge were to be dropped by the state. The state also recommended a three-year deferred imposition of sentence for the crime.

At the sentencing hearing May 11, Wheelis informed Milano and his attorney, public defender William Managhan, he was not inclined to accept the plea agreement. He gave Managhan three weeks to persuade him otherwise.

“My inclination at the moment is not to go along with the plea agreement,” Wheelis said. “Although I think that some of your arguments, Mr. Managhan, may be well taken. At this stage I basically just think three years deferred is an insufficient reaction to someone actually shooting towards people where there’s a possibility they could be struck. And if I recall, that is what Mr. Milano agreed to, admitted to. I would go along with the pre-sentence recommendation at this stage. We can set it for further argument if you want to convince me that the deferred is acceptable.”

Managhan said Wheelis’ decision in this case is unusual, but not unwelcome. Judges generally either accept or reject plea agreements. Scheduling an additional hearing to entertain arguments about the sentence is rare.

“It is unusual, at least it has been in my practice,” Managhan said. “But it doesn’t surprise me with this judge. He’s very thoughtful and very fair.”

The deferred imposition of sentence is very much like probation for defendants in these cases. They are released without jail time, but are subject to several conditions and are monitored accordingly. Any violation of the conditions could result in the revocation of the deferred status and allows the judge to impose the maximum penalty proscribed for the initial offense. In Milano’s case, the maximum sentence is 20 years in prison.

The rules of evidence and procedure are also different in deferred imposition cases, they are handled like probation or parole revocation hearings, not trials, as the defendants have already admitted to the crime and received sentence. All the prosecution needs to show is a preponderance of evidence that the defendant violated any of the conditions of the release, even if violating the condition isn’t necessarily breaking the law. Prosecutors don’t need to meet the legal standard of proving guilt beyond a reasonable doubt, they just need to convince the judge it’s likely the defendant violated a condition. Hearings are held before a judge, not a jury, although witnesses can be called and the defendant maintains the right to legal counsel.

The full details of the pre-sentence investigation and the conditions of the deferred sentence in Milano’s case are not available in public records and Managhan would not comment on any specifics in the case, citing ethical restrictions and attorney-client privilege. However, Managhan filed a brief objecting to several elements of the pre-sentence investigation which shed some light on the issue.

Managhan’s primary objection is rooted in the means by which the report was prepared and presented. He objected to statements included from both victims and non-victims that were unsubstantiated by evidence and had no relevance to the issue at hand.

He further claimed the Adult Probation and Parole officer who prepared the report, Officer Steve Watson, used undue pressure to convince Shotzberger and Oedekoven to not support the plea agreement.

“It is also worth noting that Amanda was not willing to submit a written statement to the court and would not give a specific recommendation regarding sentencing (page 4),” Managhan wrote in his objection brief. “However, after being pressed by Mr. Watson, he claims she does not support a deferred sentence. This clearly goes outside of Montana Code Annotated 46-18-115(4). As a victim, Amanda has a right to either testify at sentencing or submit a written statement. Mr. Watson has no right to attempt to put words in her mouth.”

Managhan expressed the same concerns regarding Watson’s handling of Shotzberger.

“Exactly like Amanda, John ‘didn’t want to make a recommendation to the court,’ and provides no written statement. Mr. Watson, however, states, “After I explained the pros and cons of a deferred imposition…’ Talking victims into not supporting a plea agreement, that they already told the prosecution they are OK with, is not supposed to be part of a pre-sentence investigation. Nothing in Montana Code Annotated 46-18-112 supports a probation officer advocating or trying to change victims’ minds,” he wrote.

Managhan also objected to what he called “Mr. Watson’s attempts to color Milano’s criminal record,” noting the 64-year-old Milano has only one past driving under the influence conviction, in New Jersey, and one misdemeanor assault charge.

Officer Watson declined to comment on the case and his recommendation, citing confidentiality requirements and a department policy requiring all media contact to be handled by the supervisor’s office in Kalispell.

In his argument before Wheelis May 11, Managhan asserted Milano’s troubles began with the death of his wife, approximately eight years ago. He acknowledged Milano’s mistakes, but argued it was not a pattern of behavior likely to pose a threat to the public.

Wheelis did not seem moved by Managhan’s argument.

“What I am concerned with is unleashing somebody with some instability who is willing to shoot towards people regardless of the grounds for it,” he said.

 Wheelis did, however, indicate he could be convinced to go along with the deal.

“What I would like to do is give you some time to prepare, if you can negotiate this with the Department of Corrections folks. You can think about whatever witnesses you might want. I am not saying I am not persuadable, I am just saying I’m doubtful so far,” Wheelis said.

Milano is next scheduled to appear in Wheelis’ courtroom June 1.