07/07/2026
DA 23-0452
Case Number: DA 23-0452
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 142
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ALAN PETER TWARDOSKI,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 17-59
Honorable Jennifer B. Lint, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael Dougherty,
Assistant Attorney General, Helena, Montana
Bill Fulbright, Ravalli County Attorney, Angela Auch, Deputy
County Attorney, Hamilton, Montana
Submitted on Briefs: June 17, 2026
Decided: July 7, 2026
Filed:
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Alan Peter Twardoski appeals the October 26, 2022 Amended Judgment and
Commitment Order of the Twenty-First Judicial District Court, Ravalli County, following
his felony convictions for Sexual Intercourse Without Consent and Sexual Assault, in
violation of §§ 45-5-503 and -502, MCA. We restate and address the following issues:
Issue 1: Whether Twardoski received ineffective assistance of counsel when
his attorney failed to object to statistical expert testimony.
Issue 2: Whether the District Court’s imposition of a more severe sentence
after retrial on remand violated Twardoski’s right to due process.
¶2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In June 2018, a jury found Twardoski guilty of three counts of sexual intercourse
without consent, one count of sexual assault, and one count of sexual abuse of children, all
felonies. The District Court sentenced Twardoski to the following concurrent prison terms:
50 years, with none suspended, for each count of sexual intercourse without consent and
50 years, with 25 years suspended, for the counts of sexual assault and sexual abuse of
children. The District Court designated Twardoski as a Tier II Sexual Offender and
restricted Twardoski’s eligibility for parole until he completed Phases 1 and 2 of Sexual
Offender Treatment.
¶4 Twardoski appealed, and we reversed and remanded for a new trial. State v.
Twardoski, 2021 MT 179, ¶¶ 37-38, 405 Mont. 43, 491 P.3d 711. We held that the District
Court erred by interpreting Montana’s rape shield statute as prohibiting Twardoski from
presenting evidence that his accuser, I.A., had been sexually abused in a “unique and
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identical manner” by a different person two weeks before Twardoski’s alleged abuse.
Twardoski, ¶ 36. We held that barring evidence of a different abuser in those circumstances
denied Twardoski’s constitutional right to confront his accuser and present a complete
defense. Twardoski, ¶ 36.
¶5 In May 2022, Twardoski’s case was retried before a different judge. The State
dropped the sexual abuse of children charge on remand but otherwise prosecuted
Twardoski using the same theory of the case and presenting evidence similar to the first
trial. I.A. testified that when she was thirteen years old, Twardoski used a game called
“Truth or Dare” to sexually abuse her. Twardoski’s defense was that I.A. fabricated the
allegations by accusing Twardoski of the same abusive conduct perpetrated against her two
weeks earlier by a different man, Cody Hill. Twardoski maintained that I.A. disliked him
for supplying her mother with drugs and that I.A. hoped that she could protect her mother
by removing Twardoski from her life.
¶6 During its case in chief, the State called Mary Pat Hansen, APRN, as an expert
witness. Hansen is a pediatric nurse practitioner and the clinical supervisor at First STEP
Resource Center at St. Patrick Hospital in Missoula. Hansen testified about the forensic
interview and medical evaluation she conducted with I.A. after I.A. disclosed Twardoski’s
alleged sexual abuse. Based on her expertise, the State asked Hansen to explain, generally,
the process of victim selection. Hansen testified that people who sexually abuse children
may select a particular target based on the child’s characteristics. These characteristics
include access, the opportunity to be alone with the child, and the child’s vulnerabilities.
When asked about her experience with children who are victimized multiple times, Hansen
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explained that her office “frequently” sees children more than once. Hansen considered it
“not actually that surprising,” because “if a kid is vulnerable for some reason and they’re
abused once, those vulnerabilities still exist, and so they may be victimized a second time.”
The State asked Hansen to summarize any research that she had reviewed indicating a
“victim’s likelihood to be reoffended on by a different offender once they’ve been a victim
of abuse.” Hansen responded:
The short summary is that the research shows that if you have been a victim
of abuse you are way more vulnerable to being abused again than the kid
who has never experienced abuse.
There was one summary study I looked at, and I don’t have it with me, and I
don’t remember the name. But it’s around -- I think it was 47 percent more
likely to be abused. But that was a study that looked at over a thousand
articles and tried to come to a number. Generally speaking, I think the
take-away that I want you all to have is that if you’ve already experienced
abuse once you are way more likely to be at risk for experiencing abuse a
second time.
The State then questioned Hansen about the concept of “grooming” victims and concluded
its direct examination.
¶7 Defense counsel did not object to Hansen’s testimony. On cross-examination,
counsel asked Hansen to distinguish between the frequency that children are abused
multiple times by the same person and the frequency that children are abused by different
people:
[DEFENSE COUNSEL:] Is there any -- Again, asking for numbers. Either
they are coming back with the same abuser or they’re coming back with a
different abuser. Can you tell me how frequently or tell the jury how
frequently it’s the same abuser or a different abuser?
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[HANSEN:] I don’t know that. I think more often than not it’s a different
abuser, and I say that because we try not to interview children multiple times
about the same incident. That said, occasionally we do get asked to
reinterview a kid . . . .
Defense counsel concluded his cross-examination after this exchange.
¶8 The jury found Twardoski guilty of all charges in the Amended Information: three
counts of sexual intercourse without consent and one count of felony sexual assault. Before
sentencing, the District Court ordered a second psychosexual evaluation to be completed
by a different evaluator than the one who conducted Twardoski’s 2018 psychosexual
evaluation. The District Court also received an updated Pre-Sentence Investigation Report
(PSI) based on the PSI completed for Twardoski’s 2018 sentencing.
¶9 At the 2022 sentencing hearing, the State initially recommended that the District
Court sentence Twardoski as he was sentenced in 2018. The State took the position that
Twardoski did not deserve the opportunity to return to the community due to Twardoski’s
“adamant denial of any responsibility,” his continued blame of I.A., and his “pretty clear
statements” that he did not intend to accept treatment or engage in programming. The State
recognized that Twardoski’s previous sentence included suspended time for some of the
charges, but it advocated that Twardoski not be released “in this lifetime” per I.A.’s wishes.
The State recommended that Twardoski’s parole eligibility be restricted until he completed
Phase 1 and Phase 2 of Sex Offender Treatment.
¶10 Defense counsel proposed the same sentence as was pronounced after the first trial,
including the treatment-based parole restriction. Counsel argued that there were no
substantial changes between the first and second trial, as the recent evaluator recommended
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the same Tier II Sexual Offender designation. Counsel pointed to Twardoski’s improved
mental health and lack of drug use in prison and hoped that Twardoski would quickly
complete the recommended sexual offender treatment. Twardoski addressed the court to
express regret about how drugs had influenced his life. He stated that he would not refuse
sexual offender treatment and that he would “do whatever it takes if there was suspended
time or anything.”
¶11 After complimenting I.A.’s personal growth and poise during the second trial, the
District Court remarked,
And I am concerned also. We have two sexual offender evaluations that say
exactly the same thing. I understand, Mr. Twardoski, you’re standing here
today saying you will engage in treatment, but both of the evaluators found
you were not motivated for any programming. A specific quote, you
expressed no insight, guilt, or shame into your part in the rape of your victim.
You continue to portray your victim as the sexual aggressor. Twenty-four
individual people who knew nothing about you and nothing about her found
you guilty. And I’m not sentencing you on the first trial. I’m sentencing you
on the second. But we’ve got 24 people that heard those facts, and all of
them agreed that it happened the way [I.A.] said it happened.
The District Court noted that the 2018 evaluator believed that Twardoski needed “rather
aggressive methods of confrontation to address [his] culpability,” in addition to sexual
offender treatment while in custody.
¶12 As to each count of sexual intercourse without consent and to the count of felony
sexual assault, the District Court sentenced Twardoski to prison for 50 years, with no time
suspended, with the sentences to run concurrently with each other. The District Court
designated Twardoski as a Tier II Sexual Offender and required successful completion of
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Phases 1 and 2 of Sexual Offender Treatment for Twardoski to become eligible for parole.
The District Court also placed a 25-year parole restriction, explaining:
I think you have the ability to check the box and make it through sexual
offender treatment. So I am going to put a 25-year parole restriction. That
effectively means you will die in prison. You have placed this victim with a
life sentence, and I only think it’s appropriate that the same occurs to you.
In its Amended Judgment and Commitment Order, the District Court identified both PSIs,
the 2018 and 2022 psychosexual evaluations, the State’s sentencing recommendations,
Twardoski’s behaviors, and the harm caused to I.A. as the reasons for the sentence.
STANDARDS OF REVIEW
¶13 Ineffective assistance of counsel claims are mixed questions of fact and law, which
we review de novo. State v. Quiroz, 2022 MT 18, ¶ 21, 407 Mont. 263, 502 P.3d 166.
Whether a district court violated a defendant’s constitutional rights at sentencing is
reviewed de novo. State v. Keefe, 2021 MT 8, ¶ 11, 403 Mont. 1, 478 P.3d 830.
DISCUSSION
¶14 Issue 1: Whether Twardoski received ineffective assistance of counsel when
his attorney failed to object to statistical expert testimony.
¶15 Article II, Section 24, of the Montana Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution guarantee a criminal defendant’s right to
effective assistance of counsel. Quiroz, ¶ 22. We review ineffective assistance of counsel
(IAC) claims by applying the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). Quiroz, ¶ 23. Under Strickland, the defendant must
demonstrate that (1) counsel’s performance was deficient or fell below an objective
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standard of reasonableness and (2) the deficiency prejudiced his defense. State v. Secrease,
2021 MT 212, ¶ 13, 405 Mont. 229, 493 P.3d 335.
¶16 When a defendant claims IAC on direct appeal, we must first determine whether the
claims are more appropriately addressed in a postconviction proceeding. Secrease, ¶ 14.
We review IAC claims on direct appeal if the record explains “why” counsel acted or if
there is no “plausible justification” for counsel’s action or inaction. State v. Mikesell,
2021 MT 288, ¶¶ 20, 22, 406 Mont. 205, 498 P.3d 192. “Claims involving alleged
omissions of trial counsel are often ill-suited for consideration on direct appeal.” State v.
Sinz, 2021 MT 163, ¶ 22, 404 Mont. 498, 490 P.3d 97 (quoting State v. Hinshaw, 2018 MT
49, ¶ 21, 390 Mont. 372, 414 P.3d 271).
¶17 Twardoski argues that his trial counsel’s performance was deficient by failing to
object to Hansen’s testimony that children who were previously abused are 47% more
likely to be abused again than a child who has never experienced abuse, and that this
inadmissible testimony prejudicially bolstered I.A.’s credibility. Twardoski contends that
there is no plausible justification for counsel’s failure to object to this testimony, making
his IAC claim reviewable on direct appeal. The State responds that counsel’s lack of
objection can be plausibly explained as a tactical decision, as Hansen’s testimony was not
clearly inadmissible.
¶18 It is well settled that expert testimony about the “frequency of false accusations in
sexual assault or rape cases” is inadmissible as an improper comment on the credibility of
a complaining witness. Quiroz, ¶ 25; accord State v. Brodniak, 221 Mont. 212, 222, 718
P.2d 322, 329 (1986) (establishing rule), overruled in part on other grounds by State v.
8
Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. But we have also consistently
recognized that expert testimony can help explain the complexities of child sexual abuse,
which are often outside of the jury’s common experience, and aid the jury in understanding
and evaluating a victim’s testimony. Sinz, ¶ 30 (citing M. R. Evid. 702). Educational
testimony regarding “general causes of false reports” in child sexual abuse cases is
admissible, but “statistical testimony regarding false reporting” is not. Sinz, ¶ 30 (quoting
State v. Reams, 2020 MT 326, ¶ 16 n.1, 402 Mont. 366, 477 P.3d 1118). This distinction
rests on the “clear inference” that can be made from the statistical rarity of false sexual
assault reports to a high probability that the victim’s accusations are true. See, e.g., State
v. Grimshaw, 2020 MT 201, ¶ 24, 401 Mont. 27, 469 P.3d 702 (Grimshaw I). Unlike expert
witness testimony that assists the jury in understanding a victim’s behaviors and symptoms,
statistical testimony about false reporting essentially “vouche[s]” for the credibility of the
victim’s accusations of sexual assault. Grimshaw I, ¶¶ 25, 27.
¶19 Twardoski asserts that the clear inference from Hansen’s 47% statistic was that there
was a statistical probability that I.A. was abused by both Twardoski and Hill, stamping her
allegations with “scientific legitimacy” that improperly bolstered her credibility. See State
v. Harris, 247 Mont. 405, 409-10, 808 P.2d 453, 455-56 (1991). But Hansen’s statistical
testimony did not describe the rarity of false reports of sexual assault or rape, unlike in
Brodniak and its progeny. E.g., Brodniak, 221 Mont. at 222, 718 P.2d at 329; Quiroz, ¶ 25.
Hansen did not impermissibly comment on whether I.A. was telling the truth, either
directly or indirectly. See, e.g., Harris, 247 Mont. at 409-10, 808 P.2d at 455-56 (expert
impermissibly testified that victim was an “honest, open country boy” and a “trustworthy
9
child”); Grimshaw I, ¶ 24 (“The clear inference of the statistical testimony in this case was
that there is a 92-98% probability that [Defendant] was guilty of the charged offense such
that [the victim] was telling the truth as compared to a 2-8% probability [the victim] had
made a false accusation.”). Hansen described the process of victimization and explained
that children who experience sexual abuse are 47% more likely to be abused again
compared to a child who has never been abused. This statistic did not vouch for I.A.’s
credibility by suggesting that it was statistically likely that she was making a truthful
accusation. See Grimshaw I, ¶ 24. Rather, the statistic permissibly aided the jury in
understanding and evaluating I.A.’s testimony that she was sexually abused by two
different men. See Sinz, ¶ 31 (holding that educational expert testimony explaining process
of victimization was not improper or inadmissible).
¶20 As Hansen’s statistical testimony was not clearly inadmissible, several tactical
reasons could explain defense counsel’s lack of objection. The State points out that
Twardoski’s counsel may have reasonably wanted to avoid calling “undue attention to the
prosecution’s case.” Clausell v. State, 2005 MT 33, ¶ 20, 326 Mont. 63, 106 P.3d 1175.
The prosecution immediately moved on from this line of questioning and did not emphasize
the 47% statistic. Defense counsel may have believed that the statistic would benefit
Twardoski’s defense, as it could be interpreted that for more than half of children with
previous abuse histories, the likelihood of being abused again is virtually the same as the
likelihood of a child being abused for the first time. In fact, defense counsel pursued this
line of inquiry on cross-examination when he asked Hansen “for numbers” distinguishing
how frequently children are abused multiple times by the same person or by different
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people. The jury could have reasonably inferred from this expert testimony that I.A. was
more likely than not abused by a single person, which may have undermined her credibility
and bolstered Twardoski’s contention that I.A. fabricated her allegations against him by
accusing him of the same abusive conduct first perpetrated against her by Hill. These are
plausible justifications for defense counsel’s lack of objection to Hansen’s statistical
testimony. See Mikesell, ¶ 22.
¶21 Without a complete record explaining defense counsel’s actions, we can only
speculate as to whether the lack of objection to Hansen’s testimony was a tactical decision.
See Mikesell, ¶¶ 21-22. Twardoski’s IAC claim is better suited for consideration in
postconviction proceedings, and we decline to review it on direct appeal. See Sinz, ¶ 26.
¶22 Issue 2: Whether the District Court’s imposition of a more severe sentence
after retrial on remand violated Twardoski’s right to due process.
¶23 The Montana and U.S. constitutions guarantee the right to due process at sentencing.
State v. Santoro, 2024 MT 136, ¶ 30, 417 Mont. 92, 551 P.3d 822 (quoting State v. Webb,
2005 MT 5, ¶ 18, 325 Mont. 317, 106 P.3d 521). Punishing a defendant for exercising a
statutory or constitutional right is a due process violation “of the most basic sort.” State v.
Knowles, 2010 MT 186, ¶ 28, 357 Mont. 272, 239 P.3d 129 (quoting United States v.
Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488 (1982)). A court denies a defendant
due process by imposing a heavier sentence as punishment for successfully attacking his
original conviction. State v. Redfern, 2004 MT 277, ¶ 12, 323 Mont. 225, 99 P.3d 223
(citing North Carolina v. Pearce, 395 U.S. 711, 722-24, 89 S. Ct. 2072, 2079-80 (1969),
overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201
11
(1989)). Such judicial vindictiveness “must play no part” in resentencing after a new trial.
Pearce, 395 U.S. at 725, 89 S. Ct. at 2080.
¶24 To protect against judicial vindictiveness, the Pearce Court established a
prophylactic requirement that “whenever a judge imposes a more severe sentence upon a
defendant after a new trial, the reasonings for . . . doing so must affirmatively appear.”
Pearce, 395 U.S. at 726, 89 S. Ct. at 2081. The U.S. Supreme Court has since restricted
Pearce’s “presumption of vindictiveness” to apply only in circumstances where there is a
reasonable likelihood that the sentencing authority’s actual vindictiveness produced the
increase in sentence. Smith, 490 U.S. at 799, 109 S. Ct. at 2204-05. Where the
presumption does not apply, it is the defendant’s burden to prove actual vindictiveness.
Smith, 490 U.S. at 799-800, 109 S. Ct. at 2205 (citing Wasman v. United States, 468 U.S.
559, 569, 104 S. Ct. 3217, 3223 (1984)).
¶25 Twardoski concedes that because he was resentenced by a different judge upon
retrial, the Pearce presumption of vindictiveness does not apply. State v. Forsyth,
233 Mont. 389, 422, 761 P.2d 363, 384 (1988), abrogated in part on other grounds by State
v. Curtis, 241 Mont. 288, 787 P.2d 306 (1990); Texas v. McCullough, 475 U.S. 134, 140,
106 S. Ct. 976, 979-80 (1986). Twardoski argues that the second judge’s comments at
resentencing and imposition of an additional 25-year parole restriction without new
evidence demonstrate actual vindictiveness. The State responds that the second judge did
not punish Twardoski for exercising his constitutional rights because she provided an
12
“on-the-record, wholly logical, nonvindictive reason” for the second sentence.1
McCullough, 475 U.S. at 140, 106 S. Ct. at 980.
¶26 We have not previously evaluated a defendant’s claim of actual vindictiveness by a
second sentencing judge. See, e.g., Forsyth, 233 Mont. at 422, 761 P.2d at 384 (summarily
holding that defendant made no showing of actual vindictiveness); State v. Bullplume,
2011 MT 40, ¶¶ 18-21, 359 Mont. 289, 251 P.3d 114 (resolving vindictiveness allegation
on the basis that second sentence was not more burdensome than first); State v. Grimshaw,
2025 MT 250, ¶ 35, 424 Mont. 445, 578 P.3d 890 (Grimshaw II) (applying presumption of
vindictiveness to resentencing by same judge). When evaluating actual vindictiveness,
other jurisdictions assess whether the second sentence was intended to punish the defendant
for exercising a right. See, e.g., United States v. Valdez-Lopez, 4 F.4th 886, 893-94 (9th
Cir. 2021) (holding that the judge’s comments in the second sentencing did not indicate
punishment for defendant’s decision to go to trial); State v. Brown, 435 P.3d 546, 552 (Kan.
2019) (holding that actual vindictiveness motivated resentencing because 12-month
increase was based solely on victims’ additional pain and suffering caused by appeal). This
standard echoes our inquiry into actual prosecutorial vindictiveness, which requires
“objective proof ‘that the prosecutor’s charging decision was motivated by a desire to
punish [the defendant] for doing something that the law plainly allowed him to do,’ or
1
The State does not dispute that the additional 25-year parole restriction made Twardoski’s second sentence more severe than his first.
13
evidence of the prosecutor’s bad faith or malicious actions.” State v. Roundstone, 2011 MT
227, ¶ 39, 362 Mont. 74, 261 P.3d 1009 (internal citations omitted).
¶27 Twardoski analogizes the District Court’s comments to those determined to be
vindictive in Grimshaw II, ¶¶ 36-37, and State v. Robledo, 386 P.3d 136, 140 (Or. Ct. App.
2016). But unlike the present case, the Pearce presumption of vindictiveness applied in
both Grimshaw II and Robledo because the defendant was resentenced by the same judge.
Grimshaw II, ¶ 35; Robledo, 386 P.3d at 138, 140-41. The Grimshaw II and Robledo
judges also stated a clearly vindictive reason for imposing an increased sentence: that the
defendants’ appeals and retrials on remand required the victims to testify multiple times.
Grimshaw II, ¶¶ 36-37; Robledo, 386 P.3d at 138, 140-41. To be sure, the District Court’s
comments that “[t]wenty-four individual people” found Twardoski guilty and agreed “that
it happened the way [I.A.] said it happened” were, at best, improvidently offered. Out of
context, they could at least suggest that the District Court resentenced Twardoski in part
by relying on the first jury’s verdict, which resulted from erroneous rulings that violated
Twardoski’s constitutional right to confront his accuser and present a complete defense.
But unlike the clearly vindictive rationale for imposing increased sentences in Grimshaw
II and Robledo, the second judge in this case did not tie the 25-year parole restriction to
any additional burden put on I.A. or other witnesses by Twardoski’s appeal or retrial.
¶28 The District Court’s references during resentencing to the first jury do not
demonstrate that it impermissibly relied on the unconstitutional first verdict or Twardoski’s
successful appeal, as the District Court provided ample legitimate justification for the
25-year parole restriction. See Valdez-Lopez, 4 F.4th at 893-94 (holding that second
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sentencing judge’s comments about defendant’s decision to go to trial did not indicate
punishment for defendant’s exercise of Sixth Amendment right to trial, as comments were
not entire basis for sentence). The District Court’s “[t]wenty-four . . . people” comments
were only one part of its discussion of Twardoski’s continued unwillingness to take
responsibility for causing lifelong harm to I.A. The District Court observed that despite
Twardoski’s statement during the resentencing hearing that he would engage in treatment,
the 2018 and 2022 psychosexual evaluations both found that Twardoski was not motivated
to do so. The District Court elaborated that Twardoski “expressed no insight, guilt, or
shame into [his] part in the rape of [his] victim,” that he “continue[d] to portray [his] victim
as the sexual aggressor,” and that the 2018 psychosexual evaluation indicated Twardoski
needed “rather aggressive methods of confrontation to address [his] culpability.” Before
pronouncing the 25-year parole restriction, the District Court explained that it believed that
Twardoski could “check the box and make it through sexual offender treatment.” The
District Court explained that the 25-year parole restriction was appropriate to ensure that
Twardoski received the same “life sentence” that he placed on I.A. by sexually abusing
her. Considered in their entirety, the District Court’s comments indicate that the 25-year
parole restriction was motivated by a desire to punish Twardoski for the severity of his
offenses and refusal to accept accountability, and to mitigate Twardoski’s ability to
circumvent the treatment-based parole restrictions. Given the ample explanations for the
25-year parole restriction—and absent a presumption of vindictiveness—Twardoski has
failed to carry his burden of proving that the District Court’s references to the first
15
unconstitutional verdict indicate an intent to punish Twardoski for successfully appealing
his first conviction.
¶29 Twardoski relies on McCullough to assert that the additional parole restriction was
intended to punish Twardoski for appealing his original conviction, as the appeal was the
only changed circumstance between his first and second sentencing hearings. As the State
observes, McCullough interpreted Pearce as requiring a second sentencing judge to
provide “no more” than an “on-the-record, wholly logical, nonvindictive reason for the
sentence.” McCullough, 475 U.S. at 140, 106 S. Ct. at 980. In McCullough, the second
sentencing judge was not determined to be vindictive because she relied on new evidence
presented at the second trial to impose a harsher sentence following retrial. McCullough,
475 U.S. at 143-44, 106 S. Ct. at 981-82. But the Court did not require that a second
sentencing judge’s rationale be based on new evidence or changed circumstances between
the first and second sentencings. See McCullough, 475 U.S. at 138-40, 106 S. Ct.
at 979-80; Valdez-Lopez, 4 F.4th at 892 (“[T]he law does not require the second sentencer
to offer reasons that were unavailable to the first sentencer.”); accord Macomber v.
Hannigan, 15 F.3d 155, 157 (10th Cir. 1994) (“[I]t is not necessary that the second
sentencing judge rely on and provide facts not available at the time of the first sentence to
support the more severe sentence.”).
¶30 The District Court provided several on-the-record, wholly logical, nonvindictive
reasons for Twardoski’s 25-year parole restriction based on the second sentencing hearing,
the 2018 and 2022 PSIs, and the 2018 and 2022 psychosexual evaluations. See
McCullough, 475 U.S. at 140, 106 S. Ct. at 980. During the second sentencing hearing,
16
the State took the position that Twardoski did not deserve the opportunity to return to the
community because of his continued denial of responsibility, blaming the victim, and his
stated intent to decline treatment. The State also communicated I.A.’s wishes that
Twardoski not be released “in this lifetime.” Both PSIs reported that Twardoski’s actions
would have a lifelong impact on the victim. The District Court reasoned that “[v]ery little
has changed” with Twardoski since the first sentencing judge wrote, “The [c]ourt believes
Defendant is a danger to society and likely can never be rehabilitated.” The District Court
noted that the second psychosexual evaluation by a provider of Twardoski’s choosing
indicated that he was “not motivated to engage in any programming or rehabilitative
training.” The District Court concluded that “Defendant’s utter lack of accountability and
willingness to victimize a vulnerable girl 48 years his junior requires that the only
appropriate sentence is one which results in the Defendant spending the rest of his life in
prison.” These nonvindictive reasons, plus the District Court’s concern that Twardoski
could circumvent the treatment-based parole restrictions by “check[ing] the box,”
adequately explain the second sentencing judge’s imposition of a 25-year parole restriction.
¶31 Twardoski has failed to carry his burden of proving that actual vindictiveness
motivated the District Court’s increased sentence. Smith, 490 U.S. at 799-800, 109 S. Ct.
at 2205.
CONCLUSION
¶32 We decline to review Twardoski’s IAC claim on direct appeal. Twardoski has not
proved that his second sentence was the product of actual judicial vindictiveness. We
affirm his conviction and sentence.
17
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ CORY J. SWANSON
/S/ BETH BAKER
/S/ JIM RICE
¶33 I concur in the Court’s resolution of Issue One because the Court declines to decide
Twardoski’s ineffective-assistance claim on direct appeal. I would make explicit that our
disposition is without prejudice to Twardoski’s ability to raise the claim, if otherwise
timely and properly pleaded, in postconviction proceedings. I respectfully dissent from
Issue Two. The District Court imposed a concededly more severe sentence after Twardoski
successfully appealed a constitutionally infirm conviction, after both parties recommended
the original sentence, after the State dismissed one charge, and after the court
acknowledged that the relevant sentencing information had not materially changed.
Because the court expressly relied on the fact that “twenty-four individual people” had
found Twardoski guilty—including the first jury whose verdict followed a trial this Court
held unconstitutional—I would vacate the 25-year parole restriction and remand for
resentencing before a different judge.
¶34 I agree with the Court that Twardoski’s ineffective-assistance claim is better suited
for postconviction proceedings. The record shows counsel did not object to Hansen’s
testimony, but it does not explain why counsel remained silent. Claims alleging trial
counsel’s failure to object often require a developed record explaining counsel’s reason for
action or inaction. State v. Mikesell, 2021 MT 288, ¶¶ 20-22, 406 Mont. 205, 498 P.3d
18
192; State v. Sinz, 2021 MT 163, ¶ 22, 404 Mont. 498, 490 P.3d 97. The distinction
between impermissible statistical credibility testimony and permissible educational
testimony also complicates the direct-appeal inquiry. See State v. Quiroz, 2022 MT 18,
¶¶ 24-31, 407 Mont. 263, 502 P.3d 166. I therefore would not decide on this record
whether counsel performed deficiently or whether prejudice resulted.
¶35 I part company with the Court on sentencing. Due process requires that
“vindictiveness against a defendant for having successfully attacked his first conviction
must play no part” in the sentence imposed after retrial. North Carolina v. Pearce,
395 U.S. 711, 725, 89 S. Ct. 2072, 2080 (1969), overruled in part on other grounds by
Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989). Montana law recognizes the
same constitutional limit. A court denies due process when it imposes a heavier sentence
to punish a defendant for setting aside the original conviction. State v. Jackson, 2007 MT
186, ¶ 14, 338 Mont. 344, 165 P.3d 321.
¶36 The Court correctly concludes that the Pearce presumption does not apply because
a different judge resentenced Twardoski after retrial. Texas v. McCullough, 475 U.S. 134,
140, 106 S. Ct. 976, 979-80 (1986); State v. Forsyth, 233 Mont. 389, 422, 761 P.2d 363,
384 (1988). But that conclusion does not end the inquiry. When the presumption does not
apply, a defendant still may obtain relief by showing actual vindictiveness. Smith,
490 U.S. at 799-800, 109 S. Ct. at 2204-05; McCullough, 475 U.S. at 138, 106 S. Ct. at
978-79. I do not dispute that a different sentencing judge may independently evaluate the
record and impose a harsher lawful sentence. The due process violation here is narrower:
the court’s own explanation made the constitutionally invalid first verdict part of the
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rationale for making the sentence more severe by adding the 25-year parole restriction. In
my view, the objective record makes that showing here.
¶37 The State does not dispute that the added 25-year parole restriction made
Twardoski’s second sentence more severe. That concession is correct. A sentence may
become more burdensome even when the term of years remains the same. Jackson, ¶ 15.
Before remand, Twardoski’s parole eligibility depended on successful completion of
Phases 1 and 2 of sex-offender treatment. After remand, the District Court added a 25-year
parole restriction and told Twardoski that the restriction “effectively means you will die in
prison.”
¶38 Although a different sentencer is not categorically required to identify new
information, the absence of any materially changed sentencing information matters here
because the sentencing court itself supplied an impermissible explanation for the increase.
The State asked the District Court to impose the same sentence Twardoski received after
the first trial, stating that the new psychosexual evaluation “really mirrors in most ways”
the 2018 evaluation. Defense counsel likewise asked the court to impose “the same
sentence that was imposed the first time around,” with “the only parole restriction being
that he needs to complete SOP 1 and 2” before parole eligibility. The District Court
acknowledged that “we have two sexual offender evaluations that say exactly the same
thing.” The State also dismissed the sexual abuse of children charge before retrial. Thus,
Twardoski stood before the second sentencing judge convicted of fewer charges, facing
materially unchanged sentencing information, and supported by a joint recommendation
for the original parole restriction.
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¶39 Against that record, the District Court stated:
Twenty-four individual people who knew nothing about you and nothing
about her found you guilty. And I’m not sentencing you on the first trial.
I’m sentencing you on the second. But we’ve got 24 people that heard those
facts, and all of them agreed that it happened the way I.A. said it happened.
The sequence matters. The court did not merely note that the second jury convicted
Twardoski. It counted both juries. It invoked the combined force of “twenty-four
individual people.” It did so even though this Court reversed the first conviction because
the first trial violated Twardoski’s constitutional right to confront his accuser and present
a complete defense. State v. Twardoski, 2021 MT 179, ¶ 36, 405 Mont. 43, 491 P.3d 711.
¶40 The majority acknowledges that the “24 people” comment was, “at best,
improvidently offered,” and that it could suggest reliance on the first jury’s verdict. I would
not minimize the constitutional significance of the remark, view it in isolation, or take it
out of context. In context, the remark was part of the court’s explanation for why
Twardoski’s denial of responsibility justified a parole restriction. The court first stated that
both psychosexual evaluators found him unmotivated for treatment and that he expressed
“no insight, guilt, or shame.” It then counted “twenty-four individual people” who found
him guilty. The sequence shows that the court used both verdicts as proof that Twardoski’s
continued denial was aggravating. But one of those verdicts—the first one—resulted from
a trial this Court held unconstitutional because that jury reached its verdict without
evidence this Court later held Twardoski had a constitutional right to present. Twardoski,
¶ 36. A constitutionally invalid verdict may not be used as part of the premise for
increasing punishment after a successful appeal. Using a constitutionally infirm conviction
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to establish the premise for a harsher sentence is incompatible with due process. Due
process does not permit a sentencing court to rely on a reversed, unconstitutional
conviction to justify a harsher penalty; it protects the right to appeal only if a defendant can
exercise that right without facing a sentencing penalty for having obtained reversal.
¶41 The majority gives dispositive weight to the District Court’s other stated reasons:
the seriousness of the offenses, the harm to I.A., Twardoski’s lack of accountability, his
treatment needs, and the court’s concern that he could “check the box” by completing
treatment. Those are legitimate sentencing considerations. But legitimate considerations
do not cleanse an impermissible one. Pearce requires that vindictiveness for a successful
appeal “must play no part” in the sentence imposed after retrial. The question is not
whether the court could have imposed a severe sentence in the first instance. The question
is whether the increased parole restriction after remand rested, in part, on Twardoski’s
successful appeal and retrial. The District Court’s own words show that it did not. A
sentence may be supported by many lawful considerations, but it cannot stand if the
sentencing court also relied on a constitutionally impermissible one that increased the
punishment.
¶42 The District Court’s “check the box” concern does not cure the constitutional
problem. The first sentence already addressed treatment by conditioning parole eligibility
on successful completion of Phases 1 and 2 of sex-offender treatment. If the court believed
a treatment-completion condition was inadequate because Twardoski could complete
treatment without genuine accountability, that concern may have supported a parole
restriction in the first instance. But the court did not explain why the same evaluations and
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same treatment concern justified adding 25 years only after Twardoski successfully
appealed and was retried. The court’s own explanation supplies the missing link: it counted
both verdicts.
¶43 I do not question the sentencing court’s authority to consider Twardoski’s denial of
responsibility, treatment needs, danger to the public, or the harm caused to I.A. Those
considerations may support a severe lawful sentence. They do not, however, explain why
the court added a 25-year parole restriction after a successful appeal when the State
recommended the original sentence, the defense recommended the original sentence, the
State had dismissed one charge, and the court recognized that the two evaluations “say
exactly the same thing.” Those objective facts reinforce why the District Court’s express
reliance on both verdicts matters.
¶44 The majority reads McCullough too broadly. McCullough holds that the Pearce
presumption does not apply when a different judge imposes the second sentence and the
record provides an on-the-record, logical, non-vindictive reason for the increase. The
majority does not give adequate weight to the facts that made the increased sentence
permissible in McCullough. The second sentencing judge in McCullough relied on new
objective evidence presented at the second trial that had not been presented at the first and
that showed the defendant’s greater role in the killing. McCullough, 475 U.S. at 143-44,
106 S. Ct. at 981-82. Here, the record contains no comparable new objective aggravating
information. The psychosexual evaluations “say exactly the same thing.” McCullough
removes the presumption here; it does not insulate an increased sentence from
actual-vindictiveness review when the sentencing court expressly relied on a
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constitutionally invalid first verdict. On this record, that combination is sufficient to
establish actual vindictiveness. I do not suggest the sentencing judge acted from personal
animus. Actual vindictiveness in this context is an objective due process inquiry: whether
the increased sentence was based, in whole or in part, on Twardoski’s successful exercise
of appellate and trial rights.
¶45 The majority’s reliance on United States v. Valdez-Lopez, 4 F.4th 886 (9th Cir.
2021), and Macomber v. Hannigan, 15 F.3d 155 (10th Cir. 1994), does not answer the due
process problem here. Those cases stand for the proposition that, absent a presumption of
vindictiveness, a second sentencer need not identify facts unavailable to the first sentencer
before imposing a harsher sentence. I agree with that proposition. But neither case permits
a sentencing judge to count a constitutionally invalid verdict as part of the reason for
increasing punishment. Indeed, Valdez-Lopez recognizes that, if the stated reason is
vindictive, “there is no need for a presumption”; the defendant may show actual
vindictiveness. Valdez-Lopez, 4 F.4th at 892 (citing Smith, 490 U.S. at 799-800,
109 S. Ct. at 2204-05). Valdez-Lopez therefore confirms the narrower point relevant
here: the absence of a presumption does not foreclose relief when the sentencing
court’s own stated reason shows actual vindictiveness. That is the due process problem
I see in this record.
¶46 The Court also distinguishes State v. Grimshaw, 2025 MT 250, 424 Mont. 445,
578 P.3d 890 (Grimshaw II), and State v. Robledo, 386 P.3d 136 (Or. Ct. App. 2016), too
narrowly. I do not rely on Grimshaw II or Robledo to import a same-judge presumption
into this different-judge case. I rely on them for the more basic proposition that a
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sentencing increase after a successful appeal cannot rest on the defendant’s having obtained
the appeal and forced the State to prove its case again. Grimshaw II, ¶¶ 31-36;
Robledo, 386 P.3d at 140-41. The District Court did not say that it punished Twardoski
because I.A. had to testify again. But the court did rely on the fact that two juries had
convicted him. By explicitly invoking the combined weight of two juries immediately
before imposing a 25-year parole restriction, the District Court made Twardoski’s
successful appeal and retrial part of the rationale for increasing his sentence.
¶47 This is a narrow dissent. I would not disturb the jury’s verdicts. I would not decide
the ineffective-assistance claim on direct appeal. I would not hold that every harsher
sentence imposed by a different judge after retrial requires new evidence or changed
circumstances. I would hold only that, when a sentencing court adds a 25-year parole
restriction after a successful appeal and expressly counts a constitutionally invalid first
verdict as part of its explanation for doing so, due process requires resentencing.
¶48 I would vacate the 25-year parole restriction and remand for resentencing before
a different judge on that restriction. That remedy leaves intact the convictions, the 50-year
concurrent prison terms, the Tier II designation, and the treatment-based parole condition.
I therefore concur in part and dissent in part.
/S/ KATHERINE M. BIDEGARAY
Justices Ingrid Gustafson and Laurie McKinnon join in the concurring and dissenting Opinion of Justice Katherine M. Bidegaray.
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
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