Background
In 2018, a Ravalli County jury convicted Alan Peter Twardoski of three counts of sexual intercourse without consent, one count of sexual assault, and one count of sexual abuse of children, all felonies. The charges arose from Twardoski’s use of a “Truth or Dare” game to sexually abuse I.A., who was thirteen years old at the time. The district court sentenced Twardoski to concurrent 50-year prison terms and imposed treatment-based parole restrictions. On appeal, the Montana Supreme Court reversed and remanded for a new trial, holding that the district court’s application of the rape shield statute had unconstitutionally denied Twardoski the right to present evidence that a different man, Cody Hill, had sexually abused I.A. in a “unique and identical manner” two weeks before Twardoski’s alleged abuse. State v. Twardoski, 2021 MT 179.
At the May 2022 retrial—conducted before a different judge—the State dropped the sexual abuse of children charge but otherwise prosecuted the same theory. Twardoski’s defense was that I.A. fabricated her accusations against him by attributing Hill’s prior conduct to Twardoski, motivated by a desire to remove Twardoski from her mother’s life. During the State’s case in chief, pediatric nurse practitioner Mary Pat Hansen testified as an expert on child sexual abuse, explaining victim-selection patterns and grooming. She also stated that research shows previously abused children are approximately 47% more likely to be abused again than children who have never experienced abuse. Defense counsel did not object to this testimony. The jury convicted Twardoski on all remaining counts.
At resentencing, both the State and defense counsel recommended the same sentence Twardoski had received after the first trial. The district court nonetheless imposed a 25-year parole restriction on top of the treatment-based restrictions, effectively ensuring Twardoski would die in prison. The court explained that it believed Twardoski could “check the box” to satisfy treatment requirements, that both psychosexual evaluations found him unmotivated for programming, that he expressed no guilt or insight, and that he deserved a “life sentence” equivalent to the one he imposed on his victim. The court also referenced the fact that “twenty-four individual people”—the jurors from both trials—had found him guilty.
The Court’s Holding
On the ineffective assistance of counsel (IAC) claim, the court declined to review it on direct appeal. Applying Strickland v. Washington, the court found that Hansen’s statistical testimony about re-victimization rates was not clearly inadmissible because it was meaningfully distinct from the prohibited category of statistical testimony about false-reporting rates. Unlike testimony stating that sexual assault accusations are rarely fabricated—which impermissibly vouches for a victim’s credibility—Hansen’s statistic explained the process of victimization without commenting on whether I.A. was telling the truth. Because the testimony was not clearly objectionable, several plausible tactical explanations exist for defense counsel’s silence, including the possibility that counsel viewed the statistic as helpful: a 47% increased risk means the majority of previously abused children are not re-abused, potentially undermining I.A.’s claim that she was abused by two different men. Without a record explaining counsel’s reasoning, the claim is better suited for postconviction proceedings.
On the due process claim, the court held that Twardoski failed to prove actual judicial vindictiveness. The court agreed that the North Carolina v. Pearce presumption of vindictiveness did not apply because a different judge imposed the second sentence. Without the presumption, the burden rested on Twardoski to show that the harsher sentence was actually motivated by a desire to punish him for exercising his right to appeal. The court acknowledged that the second judge’s references to the first jury’s verdict were “improvidently offered” and potentially troubling in isolation, but concluded they were not the operative basis for the 25-year parole restriction. The court found ample, legitimate, on-the-record justifications for the increased sentence: Twardoski’s consistent refusal to accept responsibility, two psychosexual evaluations finding him unmotivated for treatment, the victim’s lifelong harm, and the court’s concern that Twardoski could manipulate treatment requirements to obtain early parole.
Justice Shea authored the majority opinion, joined by Chief Justice Swanson and Justices Baker and Rice. One justice concurred in declining to resolve the IAC claim on direct appeal but dissented on the sentencing issue, arguing that the district court’s own explanation—expressly counting both juries’ verdicts—made the constitutionally infirm first verdict part of the rationale for the more severe sentence, and that the absence of any materially changed sentencing information rendered this reliance on the first verdict a due process violation warranting vacatur of the 25-year parole restriction.
Key Takeaways
- Expert testimony that previously abused children face statistically higher re-victimization rates is permissible educational testimony about the victimization process, not inadmissible statistical vouching for a victim’s credibility; the prohibition targets statistics about false-reporting rates that directly imply a victim is telling the truth.
- When a defendant is resentenced by a different judge after a successful appeal, the Pearce presumption of vindictiveness does not arise; the defendant must affirmatively prove actual vindictiveness, a heavy burden, and a court’s references to the original jury’s verdict—while ill-advised—do not automatically satisfy that burden where ample independent justifications for the harsher sentence exist.
- IAC claims based on counsel’s failure to object are frequently unsuitable for direct appeal when the record does not reveal counsel’s reasoning; such claims are better preserved for postconviction relief, where a fuller record can be developed.
- A second sentencing judge is not required to point to new evidence or changed circumstances to justify a harsher sentence; a wholly logical, nonvindictive on-the-record explanation drawn from the existing record is sufficient under McCullough.
Why It Matters
This decision clarifies the boundary between permissible and impermissible expert testimony in child sexual abuse prosecutions under Montana law. Prosecutors and defense attorneys now have clearer guidance that statistical evidence bearing on the likelihood of re-victimization occupies different doctrinal ground than statistics bearing on the probability that an accusation is truthful. The former informs the jury’s understanding of victimization dynamics; the latter effectively decides the case for the jury and is inadmissible.
The sentencing holding—and the notable dissent—will draw attention from defense practitioners navigating resentencing after a successful appeal. The majority’s conclusion that judicial references to an unconstitutionally obtained first verdict do not automatically demonstrate vindictiveness, so long as other legitimate grounds support the sentence, sets a high bar for defendants seeking relief under the actual-vindictiveness standard. The dissent’s argument that the court’s own words made the invalid verdict load-bearing in the sentencing rationale articulates a narrower but potentially powerful counter-theory for future cases with similarly damaging on-the-record statements by a resentencing judge.