*1 MONTANA, STATE OF Appellee, Plaintiff and v.
LAURA BRENDAL, Appellant. Defendant No. DA 08-0324. May 20, Submitted on Briefs 2009. July Decided 2009.
For Attorney General, Assistant (argued), T. Cochenour Matthew Helena. of the Court. Opinion COTTER delivered
JUSTICE *2 (Brendal) Fourth sentence in the from her appeals 1 Laura Brendal fraudulently to guilty Brendal pleaded Court. Judicial District (second of offense), felony a in violation § dangerous drugs obtaining Prison the Montana Women’s MCA, 45-9-104, and was sentenced (MWP) Prior to her suspended. 15 years, of period for a 25 its to have her Brendal of intent sentencing, the State notified (PFO) pursuant felony §46-18- offender persistent sentenced a fraudulently obtaining MCA, 501, prior on convictions based PFO, a and Brendal as The District Court sentenced dangerous drugs. prison. Brendal years of 10 in a imposed of under a mistake proceeding the Court was District maintains considered sentence, that it should have imposed law when authority to its program pursuant treatment sentencing her a (ASA)statute, §45-9-202, authority the alternative under MCA. affirm. We BACKGROUND
FACTUAL AND PROCEDURAL 31,2006, the Missoula Police Trowbridge Officer of On December trying obtain that a female was responded report Department pharmacy at prescription Walgreen’s fraudulent drugs with a of Trowbridge’s investigation led arrest Officer Missoula. felony count of charged with one Brendal, subsequently was who 16,2007. Brendal drugs January on fraudulently obtaining dangerous guilty charge. the initially pleaded not suppress. On October subsequently filed motion Brendal increased Brendal it would seek the notified State 46, chapter in Title to the PFO codified pursuant punishment previously been Brendal had charge, 5. Prior to the instant part on occasions. fraudulently obtaining dangerous drugs nine of convicted had occurred on December convictions Two of the most recent two a PFO under sentenced as Accordingly, § Brendal could be within 5 had occurred 46-18-502(2), since these two convictions portion that statute reads The relevant of years charge. the instant as follows:
(2) 46-18-219, an offender shall be provided in Except as years 10 term of less than prison for a not imprisoned in a state years or more than 100 or shall be fined an amount exceed $50,000, both, or if:
(a) persistent felony offender, the offender awas as defined in 46-18-501, previous felony conviction; at time ofthe offender’s
(b) years elapsed less than 5 have between commission of present offense and: (i) felony conviction; previous or (ii) prison, the offender’s release on or parole, from other imposed felony commitment as a the previous conviction; result of (c) years or age offender was older at the time present commission of the offense.
(3) Except as imposition years imposed execution of the first a sentence under (1) of years subsection this section or the first 10 of a sentence (2) imposed may under subsection of this section not be deferred or suspended. 46-18-502(2) (3), and MCA. After the District Court denied her to suppress, motion time,
entered a At plea guilty. again provided noticed that it sentence Brendal as a A sentencing hearing PFO. *3 7,May held on 2008. Prior to hearing, the Brendal was arrested on 24,2008, by pretrial March her supervision officer for allegedly trying urinalysis by to alter the of a substituting person’s results test another urine for her own. sentencing hearing, At the argued Brendal that she should receive year
a to 10 suspended and sent to the Teen Challenge residential addiction Missoula, treatment program in instead of being in incarcerated the MWP.1 presented Brendal four witnesses in support of her sentencing proposal. argued that the ASA gave statute the District Court the discretion consider such a sentencing option, and that was not required sentence her as a 10-year PFO and impose mandatory the minimum. The ASA statute pertinent reads in part as follows: (1)
45-9-202. Alternative sentencing authority. A person dangerous drug felony convicted of a chapter offense under this may, imprisonment, in lieu of according be sentenced the (2). alternatives in provided subsection Challenge program teenagers. The Teen. treats adults as well as (2) the face of the record determines, either from If court the report, that incarceration investigation presentence from a or condition may, the court as a appropriate, not the defendant is of of the sentence, impose one or more suspended a or deferred following alternatives:
(a) maximum amount a to exceed the fine not imposition a as specify part that fine for those offenses by statute provided specify that do not $1,000 or for those offenses penalty of the fine;
(b) facility drug treatment to a residential commitment treatment approved by the state for rehabilitative licensed and recommended time determined than the minimum not less year; than 1 necessary by facility the and not more (c) 2,000 of not more than hours in mandatory service program community-based drug treatment or education probation parole the bureau by to be monitored compliance upon information the ofcorrections based department program .... education treatment required District Court was The State asserted that PFO, therefore without the discretion as a and was sentence Brendal 46-18-502(2), mandatory found in from the minimum § to deviate challenge support of her did not evidence MCA. Brendal PFO, any statutory argue or otherwise designation §46-18-222,MCA, rather, that the she asserted exceptions applied; in this it related a more statute case-as ASA statute was being she offense specifically type precluded the District Court was sentenced-and sentencing her under the ASA statute. years ultimately Brendal to 10 at the The District Court sentenced impose it to
MWP, concluding required that the scheme sentence, the District Court mandatory imposing minimum. required reasoned that he was judge sentence, dispute no factual as to the since there was fall into one of PFO statutes and her case did not applicability Opinion, MCA. See listed in exceptions § Furthermore, specifically concluded the District Court *4 Court for Brendal. The District appropriate would be incarceration on appearing before it and offsince noted that Brendal had been variety sentences, but had of imposed that the District Court able to “right so that Brendal would be failed to reach the mix” had that the MWP community. The District Court observed succeed in the approach had an to chemical which would be treating dependency Brendal, be for appropriate and that she could considered in participation Challenge the Teen or other program, applicable program, upon parole. length her The Court noted that the District problem the sentence imposed long-standing was a reflection her drugs, and specifically noted that incarceration at the MWP keep her would “safe.” morning
You’re going by your daughter be found some or some other community, relative dead in the which has here, happened you’re going going lot and so to be safe. You’re in a program strategies be that tries utilize all the modern you opioids off get productive society. and become a member of my So designed sentence is the least amount time I available that think to make you’re protected, sure that community protected, your family they has someone that enjoy longer can over a period time.
In its written order issued after the pronouncement sentence, District Court set forth further findings support factual of its decision incarcerate These Brendal. included her extensive criminal history, difficulty extreme rehabilitation, and the conclusion that her needs would be better served in a prison correctional center as opposed community facility. appeals Brendal now sentence. She maintains that proceeding
District Court was under an error of law imposed when it this sentence and reasoned that it had no choice but to mandatory 10-year sentence under the PFO argues statutes. Brendal that the ASA statute is more than the gives PFO statutes and authority the District Court the to consider her Teen Challenge program. argues her sentence should be reversed and remanded for the District Court to giving consider her an alternative sentence in authority accordance with its under the ASA statute. The State urges us affirm. The argues that the District
Court’s statutorily sentence was legal, authorized and and that District Court correctly determined an alternative sentence was not Brendal, available to since none exceptions listed in the PFO statutes applied. The State also asserts that the District Court found Brendal, incarceration was appropriate and that an alternative sentence under the ASA statute was not available to her. We state the presented by issue appeal Brendal’s as follows:
400 to the sentencing Brendal err in the District Court
Did
the PFO statutes?
under
OF REVIEW
STANDARD
only, to determine
legality
a criminal sentence
review
We
Clark,
v.
statutory parameters. State
falls within
the
whether
a district
8,
461,
DISCUSSION the PFO and interpretation of argues the District Court’s Brendal could incorrect, District Court have and that the ASA statutes was Challenge drug program to treatment her the Teen committed argues Brendal the authority under the ASA statute. pursuant to its which she offense for specifically tailored ASA statute convicted, to her case than the PFO statutes. specific and is more argues options that the treatment-related Brendal defendants, her, like to apply statute were enacted under the ASA addiction rather than criminal crimes related to appear whose contrast, by general sentencing The PFO predilection. PFOs, the crime or regard as designated for those without statutes that since the argues Brendal they were convicted. crimes case, PFO ASA clash in this the statutes PFO and the statute it would be the Brendal asserts that yield must ASA statute. statutory principles interpretation allow illogical contrary and PFO, i.e., limit the ofthe general statutes, applicability the more precise application. given ASA in this case its statute ASA that annotations to the statute further notes Brendal it “toprovide behind was specifically legislative purpose state sentencing possibility where curative, purely punitive, rather than or amounts to addiction.” approaches the defendant use her chronic addiction to that evidence of Here, argues Brendal District Court was both drugs presented prescription demonstrating unchallenged, thus further extensive Additionally, argues case. in her application of statute that the ASA statute contemplates applying alternative sentences to qualification, repeat any offenders without and that would be illogical only to suggest applies repeat drug that it offenders whose discharge last conviction or date them place would outside reach of the PFO statutes. urges First, The State us argues to affirm. the State legal
Brendal’s sentence was because it fell within the parameters for her crime. points The State out that Brendal satisfies PFO, the definition of a statutorily and that the District Court was authorized to impose Second, its sentence. the State maintains ASA statute simply inapplicable Brendal in this The case. *6 notes that the ASA statute apply does not as a factual matter because the District Court specifically found that incarceration at MWP would appropriate given be an long history Brendal’s ofoffenses and pattern chronic use. Additionally, argues a
¶15 State that as matter of interpretation application, and the alternative sentences under the ASA statute are not to given available Brendal her a designation as PFO and the fact that the PFO statutes do not exception authorize an mandatory to the mínimums under the ASA statute. The State notes that while the PFO statutes exceptions mandatory include from the pursuant minimum sentence 46-18-222, to none of § those exceptions applicable are in the instant case.2 Since the State to sentence Brendal as a PFO and she met the designation, the State argues that exempt she could be mandatory only from the minimum if she met one of statutory exceptions. these The State further asserts that the PFO and ASA statutes are not in conflict. The State asserts that the ASA statute gives district courts ability impose to a non-prison sentence on repeat felony offender, a provided he or she does not fall narrow, into the time-dependent definition of a PFO. So long as a repeat offender is not sentenced aas PFO, then If, however, the ASA statute apply. can the offender meets the PFO such, definition and the State seeks to sentence her as then the district court is required mandatory to rely cannot upon the ASA statute. Accordingly, the State argues the ASA and PFO statutes are not actually conflict, as claimed Brendal, but are simply designed to apply in different sentencing situations. 2 46-18-222, MCA, provides exceptions minimum under variety
a present of circumstances not in the instant case. 402 conflict, the to be in perceived are Alternatively, if these statutes control because nonetheless the PFO statutes would argues connection, In this ASA statute. than the
they specific are more when an offender triggered only that the PFO statutes State notes With relatively of time. period a short felony within commits a second applies ASA felonies, argues that the statute the State respect only apply the PFO statutes of crimes whereas spectrum to a broad years previous 5 committed within felonies specific those a previous resulted from a commitment which felony or release from felony. give effect statutes possible, interpret we ‘When the statute as also read and construe intent. We will
Legislature’s
give
effect to
statute’s
an absurd result and
whole to avoid
28, 12,
Marriage of Shirilla, 2004
purpose.”
¶
In re
MCA).
under the
operates
This Court
(citing
§
meaningless
Legislature
pass
does
presumption
subject
to the same
relating
and we will harmonize
legislation,
Co., 2006 MT
Valley
statute. Oster v.
give
effect
each
in order
76, 140
presumes that
P.3d 1079. This Court also
existing
knowledge
full
of all
with deliberation and
Legislature acts
276, 17,
Falls,
City
v.
Great
1998 MT
subject.
on a
Ross
laws
general
specific
P.2d 1103.
situations where
Mont.
both,
give
effect
and the two cannot be harmonized
statutes exist
Oie,
328, 17, 340
v.
2007 MT
Mont.
controls. State
statute
205,
code, patent specifically that the ASA statute is for give imprisonment district courts alternatives Legislature to 45, in Title dangerous offenses individuals convicted 45-9-202(1), initially ASA MCA. The statute chapter 9. See § 1969, of refinements over the undergone and has a series enacted 771; 3129-31. The Laws 1991 Mont. Laws years. See 1969 Mont. purpose states that its note to the ASA statutes annotator’s sentencing authority” district provide “alternative rehabilitative provide commit these offenses and to for individuals who courts sentencing possibility where “curative, purely punitive, rather than or amounts to addiction.” by approaches use the defendant the offender must have committed apply, order for the ASA statute to that the offenses, court must determine one of these district 45-9-202(2), appropriate. See of the defendant is not § incarceration MCA.
403 46, The PFO procedure” statutes occur in Title “criminal code, of specific any particular section the criminal and are not impose mandatory offense. PFO statutes if the sentences criteria, the PFO exceptions offender meets save for the enumerated 46-18-222, originally MCA. The PFO statutes were enacted in § 1973, years four after the ASA Mont. statutes. See 1973 Laws 1399- Initially, 1400. provide any exceptions the PFO statutes did not however, years, minimum sentences. Over the the PFO provide exceptions statutes were amended to in certain situations. See 1962, 1965; present Laws 1981 Mont. Laws 517. The form §46-18-222, MCA, was enacted the Legislature in 2007. See 2007 Mont. Laws 2171-72. Our previous entirely case law has not been on the question clear
of whether the designed give PFO statutes are district courts sentencing options, additional or whether the State’s decision to seek PFO sentencing effectively divests district courts of sentencing discretion if the PFO Damon, criteria are established. In v. 218, instance, P.3d a defendant (DUI) driving convicted of under the influence was sentenced as a PFO. He contended that the specific sentencing provisions the DUI statutes, §61-8-731,MCA, see should have applied precluded punishment enhanced Damon, available under the PFO statutes. This disagreed. Court While we noted that the DUI statutes had specific provisions which were at odds with those set forth in the PFO we held that the sentences in the PFO were applicable.
We follow the basic principle construction that Twjhere provisions there are particulars, several such a is, construction if possible, adopted as will give effect to all.” 1-2-101, In general, persistent felony MCA. offender statute, §46-18-502, MCA, conflicts specific sentencing with all provisions. Indeed, by very its purpose § provides penalties severe, more and therefore inconsistent, specific criminal question statutes. But the not whether the sentencing provisions crimes are §46-18-502, inconsistent with question MCA.The is whether “the underlying charge meets felony, the definition and the State provided proper has notice persistent felony of its intent to seek offender status.”
Damon, (quoting Yorek, 18, 309 State v. 2002 MT Mont. 872). *8 the PFO fell the ambit of the DUI statutes We held that authority
statute, possesses district court “[a] and stated that felony pursuant offender persistent §46- sentence a designate and definition of a charge meets the 18-502, MCA, underlying when notice of its intent seek proper provided the State has felony and §46-13-108, Damon, MCA.” ¶ status under felony offender persistent 14, 15, added); Mainwaring, 2007 ¶ State v. (emphasis accord language seemingly from Damon 53. This give courts additional statutes the district implies that the PFO the PFO necessarily compel the conclusion that authority, does not but ability to consider other of their strip the district courts statutory alternatives. (Shults) Damon, Shults, the defendant subsequent a case In not involve the use of theft an which did escape convicted of felony convictions.
force, previous a PFO based on and sentenced as Shults, here, history. Shults, lengthy had a criminal like court violated argued that the district had appeal, On Shults §46-18-225(1),MCA, court to first consider required district felony of non-violent in the imprisonment alternatives Shults, this Court to remand his sentence 35. Shults asked offenders. Shults, 36. of such an alternative sentence. for further consideration rejected argument his as follows: We granted held that a district court is broad previously
We have
punishment, as it is in the
appropriate
to determine the
discretion
evidence,
credibility of
weigh
judge
best position
Alden,
witnesses,
conflicts in the evidence.
and resolve
case,
Court
at
Shults, 37-38. ¶¶ Shults, that the district court was Notably, in we did not hold because the considering imprisonment alternatives to
precluded from Instead, apparently we Shults as PFO. to sentence consider statutory authority of the district court to recognized the imprisonment alternatives to agreeing before with the State’s efforts to sentence Shults as a PFO. *9 The difference between present
¶25 Shults and the case is that the imprisonment. District Court here did not consider alternatives As out, points the District Court did observe that it felt bound to PFO, sentence her as a given designation that the State a PFO and she met the statutory Notwithstanding observation, criteria. however, it hearing is clear from the transcript and the District Court’s findings written that the District Court concluded incarceration was appropriate otherwise, for Brendal. Had the Court District concluded it could have stated as much for imposed the record and then premise incarceration on the PFO statute forced the court’s However, hand. the District Court no thing, choosing did such instead to elaborate upon the reasons it felt necessary incarceration was for safety. Brendal’s Opinion, health and See 7. Because the ASAstatute is if only invoked and when a court concludes that incarceration is not appropriate, §45-9-202(2), see we conclude for the foregoing nothing reasons that reasoning in the District Court’s supports application Thus, ofthat statute Brendal. the District Court did not err in Brendal to incarceration at MWP. As a statutory construction, however, matter of
¶26 the District Court could have sentenced Brendal under the ASA to a program treatment if it had determined that incarceration not appropriate. Under the provisions, PFO prosecution if the “seeks treatment accused as a persistent felony offender,” given. notice must be Section 46-13- 108(1), MCA. After hearing, if the judge any allegations finds prior true, convictions are “the accused must be sentenced as by law.” 46-13-108(4), Section MCA. Both the ASA and PFO statutes provisions set forth sentencing that are "provided by law.” above, As noted when a general statute conflicts with a more statute, specific specific Oie, 17; the more §1-2-102, statute controls. MCA. The ASA statute was enacted specifically apply offenses and is codified as Part 2 the scheme pertaining to 45-9-202(1), MCA, offenses. Section states:
A person a dangerous drug convicted of felony offense under this may, chapter in lieu of imprisonment, according be sentenced (2). the alternative provided in subsection Thus, on question “specific” which statute is more in this case, the ASA statute controls specifically because it was enacted to provide an imprisonment only alternative to those convicted of offenses under chapter statutes, by contrast, Title 9. The PFO are offenses, regardless they to all criminal apply general because more in Title 45. they where occur way. It has another can also be reconciled statutory schemes The courts should harmonize jurisprudence a maxim of
long been Oster, there are ‘Where subject. same relating statutes is, if possible, construction such a particulars, provisions several The MCA. to all.” Section adopted give will effect as once PFO provide imprisonment PFO statutes provisions provisions permissive. The The ASA been made. designation has according to the be sentenced “may, imprisonment, in lieu of defendant statute, finds if the district court provided under the ASA alternatives” (2) 45-19-202(1), MCA. inappropriate. that incarceration a sentence imposed could have the District Court Holding that gives effect both ASA statute a construction under the ability have the here, the District Court would at issue hand, that the holding the other either scheme. On sentence under thus to the exclusion of more control PFO statutes are *10 precludes as it ASA, give effect to both statutes does not a statute, ASA even if district court under the opportunity sentence appropriate. is not as a factual matter that incarceration determines State, construction, urged by purpose the whole as Under this unnecessarily defeated. the ASA statute Thus, harmonizing PFO and ASA in the interests of ¶31 both, we hold the District Court gives effect to them in a manner that it the ASA statute if had sentenced Brendal under could have the fact spite inappropriate, incarceration was determined that the PFO statutes and she to sentence her under required designation. met the PFO
CONCLUSION reasons, affirm the District Court. foregoing For the we ¶32 a preclude PFO statutes do However, we further hold that the the ASA an sentence under providing court from alternative district 45, drug-related of a offense in Title an individual convicted statute for an alternative 9, criteria chapter required are satisfied. NELSON, McGRATH, LEAPHART JUSTICES CHIEF JUSTICE MORRIS concur. WARNER concurs. JUSTICE However, I should be affirmed. agree I that Brendal’s sentence analysis.
disagree with the Court’s view, my sentencing authority alternative statute does not override the language persistent felony offender only provides statute and an a person designated alternative when is not persistent felony a plain, mandatory offender. The language felony persistent legislative offender statute reveals a intent to sentence strictly more repeatedly individuals who commit felonies a given within time period. legislature contemplated exceptions, The provided by felony persistent however, offender none of the exceptions apply to Brendal’s situation. agree I with the District Court designated that when an offender is persistent
a felony offender and statutory criteria, meets the the court is bound to sentence persistent felony under the offender statute. Once the State files its seeking persistent notice that it is felony offender designation, the defendant opportunity object has the allegations and the court allegations determines if the are true. If the allegations true, the “accusedmust be provided by sentenced as law.” 46-13-108(3), (4), MCA. The persistent felony offender statute provides, persistent felony “[A] imprisoned offender shall be ....’’Section 46-18-502(1),MCA. language This removes the district court’s sentencing discretion once a designated persistent defendant is felony offender precludes it considering alternative sentences. As we have explained cases, in our prior that once a person designated felony offender, persistent all of the other sentencing statutes are superseded by §46-18-502,MCA, persistent because the felony offender statute does not make a distinction types between the felonies Damon, See applies. 218, 39, State v. 276, 2005 MT 328 Mont. 1194; 119 P.3d Yorek, 74, State v. 2002 MT P.3d (followed Pettijohn, 12-14, in State v. 2002 MT ¶¶ 870). The Court should not strain so mightily §45-9-202, to harmonize MCA, the statute, alternative authority persistent with the felony statutes-they offender are written to dove-tail each other. The *11 scheme is meant to be simple. When an offender is designated a persistent felony offender, §45-9-202,MCA, superseded orhe she §46-13-108(3), (4), sentenced -under MCA. I result, concur with the ¶37 but would affirm Brendal’s sentence on grounds. different joins
JUSTICE RICE in foregoing concurrence.
JUSTICE RICE, concurring. I agree with Justice Warner’s concurrence and offer these additional thoughts. The Court’s treatment of the PFO statutes is not a fair one. §46-13-108(4),MCA, provides selectively quotes The Court completed, be has been process the PFO must, after the accused isolation, upon phrase Seizing “providedby law.” sentenced as the ASA mean either that it could leaps to the conclusion Court then hardly by law.” This is are “provided as both the PFO reading a fair obvious for which should be justifiable interpretation, PFO provision. the entire seeks 46-13-108(1), MCA, prosecution that “if instructs felony offender,” prosecutor as a persistent the accused
treatment of hearing. the omnibus fact at or before give notice of that must first 108(2) added.) the notice must provides (Emphasis Subsection 108(3) provides that prior convictions. Subsection the accused’s specify allegations if the hearing to determine may conduct a the court (4) judge finds Then, provides “[i]f are true. subsection notice true, must convictions are accused any allegations prior added.) (Emphasis law.” sentenced as by a initiated procedural process, PFO sets forth the This statute and, upon PFO” the accused as a treatment of who “seeks prosecutor sentence4;he accused “must be clearly leads completion, process this PFO leads Court’s assertion that as PFO. The sentenced” any under accused can be sentenced ambiguous conclusion that an rejected by the PFO can then be statute-and that a sentencing court-is untenable. from the Court’s in the result but dissent I concur
interpretation.