State v. Savage, 2011 MT 23

Savage pled guilty in 1988 to three counts of sexual intercourse without consent; sentenced to forty years on each count, with all counts running concurrently and ten years suspended subject to terms and conditions.
Savage was discharged from MSP in 2005; before discharge a DOC form modifying conditions was offered under § 46-23-1011, and Savage agreed to the modifications.
In 2005 the State moved to amend the judgment to add DOC-modified conditions; Savage objected and the motion was withdrawn, leaving original judgment conditions in place.
In 2006 the State petitioned to revoke the suspended sentence; the court revoked it and resentenced Savage to ten years on each count, with five years suspended, incorporating original and DOC-modified conditions and an added no-contact-with-minors condition, while Savage received time to object but did not file.
In 2007 a supplemental petition led to revocation of the suspended sentences and re-sentencing to five years on each count with five years suspended, with all prior conditions reaffirmed.
Savage was discharged in 2009 and, post-discharge, a DOC modification form added additional conditions (avoid contact with minors and vulnerable populations absent an approved adult, avoid places where children congregate, refrain from nudity material, avoid victims’ family) which Savage consented to; the State later sought to add these conditions without a hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the District Court err by delegating sentencing authority to the executive branch?	Savage argues the DOC form effectively delegated sentencing to the DOC.	State contends modifications were allowed under statutory procedure and did not violate due process.	Not justiciable; issues deemed moot.
Does DOC modification procedure violate due process and counsel rights?	Savage contends the modification process deprived him of due process and counsel.	State asserts no proper hearing was required given consent and lack of objection.	Not justiciable; issues deemed moot.
Are no-contact with vulnerable populations and no nudity access conditions vague or overbroad?	Savage challenges vagueness/overbreadth of the added conditions.	State defends the conditions as properly tailored.	Not justiciable; issues deemed moot.
Did Savage receive ineffective assistance of counsel?	Savage claims counsel failed to object to new conditions, violating Strickland burdens.	State argues claim is undeveloped or meritless on direct appeal.	Remanded for postconviction relief; not suitable for direct appeal.

Clark v. Roosevelt Co., 336 Mont. 118 (2007 MT) (requires justiciable controversy; avoids advisory opinions)
State v. Gunderson, 357 Mont. 142 (2010 MT) (Strickland standard; direct appeal vs. postconviction relief)