*1 MONTANA, STATE OF Appellee, Plaintiff and v. LEWIS, ROBIN
CHRISTOPHER
Appellant.
Defendant
DA 11-0388.
No.
on Briefs June
2012.
Submitted
July 24,
Decided
BACKGROUND charged aggravated March Lewis was with one count of assault for the abuse of his son L.L. and one count of assault on a initially minor for the abuse of his other son A.L. pled guilty not charges against to the January parties him. On entered agreement, an “appropriate plea” pursuant §46-12-211(l)(b), MCA, agreed plead guilty wherein Lewis either or no contest to the aggravated assault charge exchange for the State’s of dismissal charge of parties agreed assault on minor. The further that their separate appropriate recommendations for an sentence would fall within the following range: (20)
The twenty State: The State will recommend a year (10) Prison, commitment to Montana State ten years with suspended.
Defendant: may The Defendant recommend a sentence no less (10) year restrictive than a ten Department commitment to the of (5) Corrections, years suspended. with five Nothing in the addressed the District Court’s to restrict Lewis’ it parole, and contained no commitment from regarding the State such a restriction. Section “otherwise free to agreement provided parties also were of and/or argue any recommend and other lawful term sentence thereto, subject by to a final decision the court.” conditions January change plea hearing The District Court held a of on of and their During parties confirmed the terms also stated obligations plea agreement. individual under the The State seeking explained it restriction. The court then would be that, plea agreement, due to the nature of the Lewis could to Lewis plea agreement. if the court did not follow the withdraw pled he and no consequences stated understood assault. charge aggravated contest to the until after a presentence The District Court deferred (PSI) officer investigation report completed. probation could be completed twenty- who the PSI recommended that the court (DOC) year fifteen Department commitment to of Corrections with years suspended. The PSI also recommended that Lewis “not be eligible community considered for release into the until he has treatment, completed anger chemical in-patient dependency all and management, phases Cognitive Principles Restructuring assessed for mental health be concerns.” *3 recommendation, Lewis took issue with this and filed a written ¶5 sentencing memorandum, argued memorandum. Lewis Burch, pursuant to State v. early release, had no to impose restrictions on his grant privilege early and that the determination of whether to the belonged solely only argument release to the DOC. This was Lewis’ against parole restriction; argue a he did not that the plea agreement prohibited parole agreed a that the State such a restriction would not that imposed, required be the court would be reject impose to in order to such a restriction. 23,2011, sentencing On March the District Court held a hearing.
¶6 State, At the plea agreement, accordance with the recommended a twenty years sentence of at the Montana State Prison (MSP) years suspended. prosecutor responded with ten also to §46-18-202(2), MCA, Lewis’ memorandum and stated that reasonably parole authorizes a district court to restrict a defendant’s eligibility, regarding but made no recommendation to the court Lewis’ Instead, parole eligibility. prosecutor explicitly stated that he impose parole would leave the decision of whether to restriction to again argued the discretion of the court. Defense counsel once impose court should a DOC and that the court not was ability to release impose any to restrictions on the DOC’s authorized early under such a commitment. Lewis imposed and accepted plea agreement, The District Court ¶7 years suspended, commitment to MSP with ten but twenty-year the MSP commitment “without benefit of ordered that Lewis serve severity of what parole.” The court’s conclusion was ‘based on the victim,” and it helpless occurred and the utter nature of the believed within the limits given that Lewis “shouldbe most severe sanction” this, its plea agreement. Beyond of the the court did discuss parole ineligibility reasons for restriction.1 specific Although required a District Court is to set forth its reasons for §46-18-202(2),MCA, pursuant restriction imposing parole Lewis objected never to his sentence for this reason. did, however, objection make one to his sentence. He
objected grounds on the that the District had exceeded the agreement by declaring ineligible bounds of the In response, sentencing judge plea agreement stated that the parole eligibility,’’whichpermitted impose “didn’taddress the court “to up including restrictions to and the entire sentence.” Defense regarding Counsel then admitted that the silent was parole ineligibility, objection. the issue of maintained his but April specific On Lewis filed a motion for performance alternative, plea agreement, or in the a motion for brief, reconsideration of the order. In response the State’s argued it the District Court was free Notably, reply restriction. in Lewis’ brief he asserted that “[i]f advocating State is that the Court should rule in a manner that results parole restriction, in retention of the position arguably could plea agreement.” constitute a breach The District Court denied May timely the motion on 2011. Lewis appealed, raised the following issues: imposition Issue One: Whether the District Court’s violated the ?
restriction prosecutor plea agreement? Issue Two: Whether the breached the Three: Issue Whether the District Court erred when it failed *4 specifically imposing parole state its reasons restriction? for 1 order, 5, 2011, similarly April The written issued did not contain a specific imposition rationale for the court’s restriction.
435
STANDARD OF REVIEW
essentially
subject
A
a contract and is
plea agreement
McDowell,
75,
14,
v.
2011 MT
360
contract
law standards. State
¶
83,
interpretation
Mont.
DISCUSSION imposition Issue One: Whether the District Court’s agreement? restriction violated the plea State, argues through prosecutor’s representations that he would not seek a restriction and that he court, agreed would leave that decision to the encompassed parole eligibility a condition that Lewis’ would not be Therefore, argues, restricted. the District Court erred it simultaneously accepted parties’ agreed disposition, but still imposed no-parole eligibility restriction on Lewis’ sentence without affording opportunity Lewis the plea. withdraw his no contest argues prosecutor’s representations State verbal did not alter the plea agreement. A plea agreement is a contract subject to contract law standards.
McDowell, 14. Contract law principles “‘[w]here mandate that language face, contractual is clear and unambiguous on its it is this duty by Court’s to enforce the contract as drafted and executed parties.’ Shepard, ’’State v. (citing Goulding, Felska v.
(1989)). clearly The written between Lewis and the State parties
demonstrates did not come to an agreement as to whether Lewis’ sentence would include restriction on his silent, The agrees, as defense counsel regarding parole ineligibility. Additionally, Section 3 agreement unambiguously permitted party either “torecommend and argue any other term of lawful sentence and/or conditions thereto.” Thus, plain language of the plea agreement demonstrates that the District Court could lawful conditions on the as *5 fell the long agreed upon disposition. as the sentence within Nevertheless, argues prosecutor’s representations plea agreement provision either clarified the or amended it to include a 11- eligible Shepard, that Lewis would be Lewis cites to ¶¶ prior that a can proposition party’s statements however, plea agreement. Shepard, amend a written This Court in did Instead, not reach that conclusion. we concluded that the State could parole part plea agreement not assert that a restriction was not of the appeal change theory on because it constituted a from the trial appeal. Shepard, which we would not consider on 12. ¶ Moreover, Lewis’ reliance on the prosecutor’s statements is misplaced. prosecutor, pursuant The to Section 3 of the plea agreement, was free to either seek a or not. prosecutor opted promised for the latter and he would not seek a restriction; sought, represented a restriction he never and never agreement. addition, part prosecutor was made it clear to the court that it was within court’s discretion to prosecutor’s restriction if it saw fit. The comments did not modify plea agreement any way, unambiguous thus the language controlling. Accordingly, of the contract the court was its accept plea agreement impose parole within and offering restriction opportunity without Lewis the to withdraw his plea. Issue Two: Did the prosecutor plea agreement? breach the prosecutor Lewis maintains that the breached the plea agreement sentencing hearing again
at the when he opposed the State’s motion for specific performance plea agreement. of the The State argues that we cannot portion appeal review this of Lewis’ due position opposite argument fact that Lewis’ he advanced at the District Lewis, Court. After the District Court sentenced he filed a motion for specific performance plea agreement, and in reply brief, stated that he “does not contend that the State breached at He sentencing.” prosecutor now asserts that the sentencing. breached the at [2] ‘It is well settled that ‘[a] party may change its theory on appeal court; may from that advanced in the trial party nor raise an ” argument appeal.’ Shepard, for the first time on 12 (quoting State ¶ 983). Anderson, 60, 25, v. 1999 MT will We not fault a district court for an action in which the appealing party acquiesced actively Holt, participated. State v. 2011 MT Micklon, (citing P.3d 470 State v. 2003 MT 559). may, however, We review claimed errors failing that implicate rights, fundamental constitutional to do so may question leave unsettled the of the fundamental fairness of the Rardon, 345, 16, 313 proceeding. trial or Mont. Given claimed error in this case does not raise a question concerning the fundamental fairness of the trial court proceeding and that Lewis to the purposefully acquiesced prosecutor’s actions, we will not further consider the matter of whether prosecutor’s comments at constituted a breach of the agreement. *6 additionally argues prosecutor plea breached the advocated,
agreement response brief, when he in his that the District deny Court Lewis’ motion for specific performance. order to retain plea, the benefit derived from a defendant’s the State must fulfill its contractual obligations strictly meticulously. McDowell, 14. ¶ Upon agreeing sentence, to recommend a specific prosecutor a becomes obligated approach to sentencing in a manner that will not undermine agreement. McDowell, the 14. Prosecutorial violation of the ¶ is unacceptable, inadvertently, even if done in a good faith pursuit justice. McDowell, 14. Each case turns on its unique own ¶ facts, thus there are no ‘hard and fast determining criteria for a McDowell, has been breached.” The facts of this case demonstrate that the prosecutor did not breach or undermine the plea agreement by defending the District Court’s impose parole decision to a restriction. In responding to Lewis’ specific performance motion for of the plea agreement, prosecutor the urging restriction, was not the impose parole rather, court to but rebutting parole Lewis’ contention that the plea restriction violated the agreement. analogous situation, In an this Court has held that “[i]fa present defendant chooses to support information in of a sentence he for, argues may testimony the State counter with to the effect that untrue, such misleading information is breaching without the agreement.” Bartosh, 59, 22, State v. Though
P.3d 58. dueling testimony, analysis Bartosh concerned is equally applicable to this matter: when a defendant presents legal argument sentence, favor of his recommended the prosecutor may point legal argument out the flaws in that breaching without agreement. To find otherwise would lead to an absurd result. A merely allege defendant would to misinterpreted have the court the plea agreement, prosecutor and if the responded, prosecutor would be in of the plea agreement. Accordingly, breach we conclude by responding did not prosecutor breach specific performance. motion for
to Lewis’ specifically Did the District Court err when it to Issue Three: failed restriction? state its reasons for provide argues specific the District Court failed to §46-18-202(2), MCA, reasons, required by as for restriction, illegal. and therefore his sentence is The District Court is sentences, impose imbued with exclusive to criminal including a restriction that the offender is power 46-18-103, -202(2), If, however, ineligible Sections MCA. imposes sentencing judge District “shall writing,” “necessary state the reasons for it in or if the restriction is protection society[,] ... the must contain a statement 46-18-202(2), of the reasons for the restriction.” Section MCA. As noted above, appeal. Lewis raises this issue for the first time on rule, a general appeal As we will not review an issue on if the party raising object the issue did not at the trial court. State v. Kotwicki, exception P.3d 892. An general Lenihan, rule hi this was enunciated 997, 1000 (1979), where held that an appellate court may objected review if not at the trial even if it alleged illegal statutory that such sentence is or exceeds mandates. illegal A sentence is not if it statutory parameters. falls within Kotwicki, 13. A court’s by statutory failure to abide requirements objectionable sentence, an necessarily illegal an *7 Kotwicki, 13; Swoboda, 479, 482, 918 one. See also State v. 276 Mont. 296, (1996); Nelson, 663, 298 906 P.2d (1995). 668 Kotwicki, 22, This court declined apply to the Lenihan rule in merely objectionable,
because the defendant’s sentence was and not illegal. drug charges, Kotwicki was convicted of numerous part and as $25,000 fine, of his he required pay sentence was to which fell within $50,000 impose up court’s to to a fine. At the trial object Kotwicki did not grounds to the fine on the the district court failed inquire ability pay. Kotwicki, to whether he had the to ¶¶ 3-4. appeal, argued illegal On Kotwicki that his sentence was because specific findings, required by court failed to make as 46-18- § 231(3), MCA, on Kotwicki’s resources before the fine. This sentence, however, Court declined to review the because the district specific findings court’s failure to make rendered the sentence objectionable, Kotwicki, illegal. concluding, but not 21. In so this
439 Kotwicki, “although alleging illegal noted that an claim that his sentence fell outside the present fail[ed] to colorable statutory parameters as to warrant our review under Lenihan Kotwicki, rule.” Nelson, failed Similarly, in Swoboda and the trial court to §46-18-225,
explicitly
prison,
required by
consider alternatives to
as
MCA,
prison
before
sentence on a nonviolent offender.
Swoboda,
480-81,
297; Nelson,
cases Lewis relies are distinguishable present from the Garrymore, matter. State v. inapposite because the issue was not whether the proper statutory
requirements were followed -as it is here -but whether the eligibility restriction in and of Garrymore’s itself violated federal and state statutory constitutional and rights. Similarly, in State v. Olivares-Coster, we reviewed, acquiescence, with the State’s whether an offender under the age of eighteen subject mandatory parole eligibility §46-23-201(4),MCA, in restrictions §46-18-222(1), contravention of Garrymore Olivares-Coster, MCA. Unlike both Lewis’ failure to object in this case is not based on the statute or the sentence being illegal or exceeding statutory mandates, merely but that the District Court did not statutory requirements 46-18-202(2), follow the of § MCA. reasoning Kotwicki, Based on our Nelson, Swoboda and apply
decline to the Lenihan rule in the present matter. The District Court, had it findings required by 46-18-202(2), MCA, made the § legally imposed parole could have eligibility restriction. Section 46- 18-202(2), MCA, authorizes a district court to a restriction *8 limiting an parole during offender’s the offender’s term ineligibility parameters falls within the imprisonment.
of Lewis’ statute, sentence for illegal thus Lewis’ sentence is not an of that the Lenihan rule and we will not consider this invoking purpose appeal. issue on
CONCLUSION above, affirm sentence and For the reasons stated we Lewis’ judgment. McGRATH, JUSTICE JUSTICES MORRIS and RICE
CHIEF concur. specially
JUSTICE NELSON concurs. I concur in the Court’s decision on Issues one and two and MCA, three, §46-18-115, specially concur on Issue three. As to Issue part, in pertinent requires: making any disposition
Before sentence or other acceptance finding guilty, of a or a verdict or upon upon sentencing court shall conduct without delay, unreasonable as follows:
(6) felony cases, specifically the court shall state all reasons restrictions, conditions, including open enhancements in court on the in the imposed, record and judgment. written Osterloth, In statute,
interpreted
this
and held that since the
did
court
not set forth the reasons
for the sentence
imposed
its written
extent,
not, however,
judgment,
to that
the court erred. We did
require
defendant,
that
the court re-sentence
but we did remand with
instructions
judgment
setting
court enter a modified written
forth the reasons for the sentence as stated in the District Court’s oral
judgment. Osterloth,
Christianson,
see also State v.
39-41;
¶¶
(holding
MCA, 46-18-115(6), MCA, mandatory like is a direction to the § provide, judgment, court to the written the reasons for I imposed. judges restriction continue to believe that must *9 mandatory requirements of laws. Where comply with the judge particular thing, do some the black-letter law mandates defendant, to do so that it is no excuse for his or her failure attorney judge failed to ‘tell” the to do what prosecutor, or the defense plainly requires. the law we, Indeed, laypeople that “know the law.”1 Should presume
then, they know the law? presume judges-i.e., less of that don’t obligation and his Presuming judge the trial here knew law law, have in the according specified to sentence to the the court should judgment written his reasons for restriction. Osterloth, reason, would, in For that I as we did remand this entry a modified written cause to the court of setting forth the reasons for restriction. two, and, reasons, I concur in Issues one and for the above
specially
subject
remanding
concur in the result of Issue three
to our
entry
to the District Court
judgment.
of modified written
length
presumption
Payne,
Indeed we went on at
about that
in State v.
2011 MT
35, 22,
359 Mont.