State v. S. Lehrkamp
2017 MT 203
Mont.2017Background
- Defendant Scott Lehrkamp was convicted by a Lewis and Clark County jury of felony possession of dangerous drugs after two hydrocodone pills were found in his pocket following an October 2014 arrest for a probation violation. He does not appeal the conviction.
- At sentencing the State introduced jail phone recordings in which Lehrkamp repeatedly threatened his public defender and the prosecutor; the prosecutor recommended 20 years with 10 suspended and said such a sentence would give him and his family “solace.”
- Defense counsel did not object to admission of the recordings or to the prosecutor’s remarks; two intended defense witnesses (mother and sister) left before testifying and no continuance was requested.
- The State sought to sentence Lehrkamp as a persistent felony offender (PFO) under § 46-18-502(2) (10-year minimum) based on prior felonies; defense argued § 46-18-502(1) (5-year minimum) should apply. The court designated him a PFO and imposed a 10-year prison term to run consecutive to a prior assault sentence.
- The written judgment, however, included 23 recommended community-supervision conditions not mentioned orally and a handwritten note stating defendant was not appropriate for community supervision.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lehrkamp) | Held |
|---|---|---|---|
| 1. Prosecutor remarks — plain error? | Remarks were proper argument supporting a longer sentence given safety concerns; not reversible. | Remarks were improper, personal, and prejudicial; request plain-error review. | Remarks were improper (advocate-witness, personal plea) but did not prejudice sentence; no reversal. |
| 2. Ineffective assistance at sentencing | Counsel’s decisions (no continuance, no objection) were reasonable strategic choices; no prejudice. | Counsel was ineffective for failing to continue to secure witnesses and for not objecting; prejudice likely. | No ineffective assistance — performance not shown deficient and no reasonable probability of a different outcome. |
| 3. Misapplication of PFO statute | Court properly designated PFO and 10-year sentence falls within permissible statutory ranges; outcome lawful. | § 46-18-502(2) requires a prior PFO designation at earlier conviction; thus 10-year minimum cannot apply. | Sentence lawful: 10 years is within the range of either PFO subsection and court stated sentence would be the same under either provision. |
| 4. Conflict between oral sentence and written judgment | Written conditions were explanatory, not additional terms; only unlawful conditions should be removed. | 23 written community-supervision conditions and the handwritten parole note conflict with oral sentence and must be stricken. | The 23 recommended community-supervision conditions are unlawful and must be stricken; the handwritten explanatory note is not a parole restriction and may remain. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance test)
- State v. Whitlow, 285 Mont. 430, 949 P.2d 239 (prosecutorial misconduct reversible only if it prejudices substantial rights)
- State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (prohibits lawyers from asserting personal opinions as to guilt)
- State v. Heafner, 356 Mont. 128, 231 P.3d 1087 (remand to strike illegal portions of written judgment)