*1
OF MONTANA,
STATE
Appellee,
Plaintiff and
JONES,
MICHELLE LARAE
Appellant.
Defendant
DA 07-0490.
No.
August
Submitted on Briefs
2008.
December
Decided
MT
For Jim Defender, Appellate Chief Helena. Appellee: McGrath, For Hon. Mike Attorney Montana General; Mattioli, Mark W. Attorney General; Assistant Helena; Wyatt Glade, County Attorney, Custer City. Miles
CHIEF Opinion JUSTICE GRAY the delivered of the Court. (Jones) Michelle Larae appeals judgment Jones from the entered by the Court, Sixteenth Judicial County, District Custer on her conviction and felony sentence for the offense criminal distribution of dangerous drugs. We affirm in part, part reverse in and remand with instructions. following
¶2 Jones the raises issues on appeal: 1. Did the District Court err in failing suppress recording telephone of a conversation Jones between confidential informant? 2. Did the Court err in various conditions on
Jones’s sentence?
BACKGROUND 22, 2005, On the morning Maijorie December Marie Brown (Brown), previously who agreed had to act as a confidential informant (Task for the Drug Eastern Montana Force), Task Force contacted (Brewer) Agent Ben Brewer arranged to inform him that she had buy (Butler). one-half marijuana ounce of Cody from Butler At the time, boyfriend Butler was Jones’s together. and the resided Later two that morning, telephoned Brown Butler’s home to confirm arrangements purchase. for the drug telephone Jones answered the people Butler from and had hiding
and told Brown that was some asked her to transaction with Brown. Jones and complete day. Brown to meet later that This arrangements made tape-recorded by conversation was Brewer with Brown’s consent in a a search Jones and Brown later met restroom without warrant. Community College provided where Jones Brown one-half Miles marijuana in exchange $100. ounce of (State) charged subsequently of Montana Jones The State dangerous felony with count of criminal distribution information one drugs. charge Jones moved District Court dismiss suppress recording and to grounds entrapment tape evidentiary telephone conversation. The District Court held it both of motions. Jones and hearing, following which denied Jones’s agreement in plea agreed the State then entered into a which charged exchange offense in for the State’s plead guilty imposition of agreement District Court defer recommend the agreement also that Jones years. plea provided sentence for three The Task Force and that she reserved would restitution to the ruling pretrial on her motions. right appeal the District Court’s hearing guilty set a accepted plea, District Court *3 (PSI). report investigation of preparation presentence and ordered of 3-year imposition in the deferred sentence The PSI concurred ¶7 Following the 25 conditions. and set forth recommended imposition of hearing, the District Court ordered that The years subject two to 24 conditions. be deferred for sentence The to the Task Force. court also ordered Jones restitution appeals. on and sentence. Jones judgment court entered the conviction
DISCUSSION failing suppress err 1. Did the District Court in and conversation between Jones recording telephone of Brown? recording of tape suppress Court to Jones moved the District Brown, on two relying she and conversation between telephone 2005) (Mont. State 12, and Goetz, filed Oct.
cases -State v. No. 05-676 2005)-which (Mont. 4, then Aug. filed were v. No. 05-539 Hamper, essentially She Court, yet but decided. appeal in this pending on rights her under recording violated asserted that the warrantless 11 the Montana Constitution. II, Article Sections 10and concluding that the warrantless suppress, Court denied motion to the party of one with the consent recording of conversation
515 conversation is lawful. Jones asserts error. We review a district court’s suppress on a to determine whether the court’s ruling motion findings clearly interpretation of fact are erroneous and its and 182, Copelton, 8, of the law correct. State v. 2006 MT 333 application ¶ 1074, 8, 140 P.3d ¶ ¶ Jones facts issue in this appeal, again On asserts substantially in Hamper, case are similar to those Goetz and argues conformity this should resolved in with the outcome in case be Although pending those cases. those cases were still the time of briefing in appeal, recently this we issued our decision those cases 421, 191 Goetz, Goetz, in State v. 2008 MT 345 Mont. 489. In P.3d appealed respective defendants from the denials of their motions recordings one-on-one, suppress tape in-person conversations confidential between the defendants and informants which occurred and, instance, Goetz, in the defendants’ homes in one in a vehicle. ¶¶ 5-8. previously specific We have addressed the issue of whether
warrantless monitoring consensual recording conversation constitutes an unreasonable search violation of the Coleman, Montana Constitution. so in State v. 189 Mont. 502-03, 616 Canon, 1090 (1980); P.2d 212 Mont. 162-63, (1984); Brown, 687 P.2d 1, 6-7, and State v. 232 Mont. (1988) (overruled 24). Goetz, other grounds on ¶ to, analyze Canon, Jones does not cite Coleman, discuss or Brown. Nor present any analysis of the applicable factors determining whether unreasonable-or unlawful-search occurred as contemplated by II, Article Sections 10 and 11 of the Montana Constitution, those being factors whether Jones had an actual expectation privacy society willing recognize which is as objectively reasonable and the nature of upon the state’s intrusion expectation privacy. Goetz, See The appellant bears the establishing burden of error Hicks,
district court. 71, 22, State v. 471, 22, 2006 MT 331 Mont. 133 P.3d Furthermore, obligation it not this Court’s legal conduct research an appellant’s legal or develop behalf *4 analysis supporting Hicks, an appellant’s position. 22. We conclude ¶ Jones has failed establish that the District Court refusing erred in to suppress the recording a conversation between Jones and a confidential informant. 2. Did the District Court err imposing various conditions
on Jones’s sentence? for 2 imposition District Court deferred of Jones’s sentence payment
years, subject to 24 enumerated conditions 4 of appeal, restitution. On Jones asserts that the enumerated 12, 7, 13 and 22-are conditions-specifically, illegal Conditions they no from her sentence because have nexus to should be stricken of dangerous drugs or offense of criminal distribution either Jones that the condition that pled guilty. to which she Jones also contends illegal Force is because it is restitution to Task pay $125 statutory sentencing authority. ofthe District Court’s scope outside in a conditions included criminal generally We review first, determining fall legality they for whether within sentence 187, 83, 9, statutory Ashby, v. 2008 MT 342 Mont. parameters. ¶ State 9, 1164, recognize that, 9. if the are P.3d We even conditions ¶ ¶ legal, sentencing statutes authorize reasonable otherwise additional necessary suspended on or sentences considered conditions deferred society. We review protection or the of the victim rehabilitation under an abuse of discretion the reasonableness such conditions reasonable, must “a 9. such conditions have Ashby, standard. To be ¶ sentenced, being the offender is to either the offense for which nexus himself 15. Ashby, or herself.” the offender ¶ above, 7, 12, 13 22 of challenges Conditions As stated nexus to either her or her they on the basis that have no sentence during 13 and 22 object She did not to Conditions offense. however, generally to address sentencing hearing, and we refuse v. objection in the trial court. State on absent an appeal issues 344, 8, 151 An Kotwicki, 8, 335 2007 MT Mont. ¶ ¶ ¶ exists, general rule We will review to this however. exception statutory illegal, or in excess of alleged sentence to be criminal object to the sentence where the defendant failed parameters, even 338, 343, Lenihan, Mont. 602 P.2d See in the trial court. (1979). held, however, “a court’s that We have objectionable statutory rises an requirement to abide failure the Lenihan illegal invoke sentence, necessarily one would Kotwieki, exception.” to a challenge recently held that defendant’s have of record establishes no evidence
sentencing condition the basis that or the defendant’s the condition and the defendant a nexus between objectionable, his sentence merely a contention that offense “is 14, 344 Hameline, 2008 MT State v. illegal.” isit Therefore, arguments 14, 188 P.3d they 7, 13 and 22 because Conditions Court erred *5 517 nexus her or her the conditions have no offense are assertions that illegal. result, are rather than As a the Lenihan objectionable, raising is and Jones is barred from exception inapplicable these arguments on appeal. 12, object prohibits to Condition which her from
consuming alcohol/intoxicants entering or establishments where sale, are the item intoxicants chief of This trial court. among statutorily-enumerated sentencing condition-while 46-18-201(4)(a)-(n), conditions set forth be MCA-may § nevertheless reasonably objectives rehabilitating related to the and the offender - 46-18-201(4)(o) protecting the society victim and under and §§ 202(1)(f), MCA, it if has a nexus to either the for offense which being offender is sentenced or to Ashby, the offender herself. See ¶ If a sentencing nexus, condition does not have such a court has abused its discretion it. Here, it undisputed is a alcohol was not factor in—or related way
in any to—Jones’s offense of criminal distribution of dangerous drugs. question remains whether a nexus exists between prohibition alcohol condition and Jones herself. previously have cautioned may
courts impose only offender-related conditions those cases in which or history pattern of conduct to be restricted recent, significant isolated, and or A passing, chronic. or stale instance of behavior or conduct will be to support insufficient probation restrictive imposed condition in the name offender rehabilitation.
Ashby, 15. Where a significant ¶ defendant has a recent and or chronic history drug abuse dependency, and we have alcohol- upheld restriction having conditions as offender-regardless nexus to the whether the defendant a specific history has of alcohol abuse-based the possibility defendant’s addictive or causing tendencies him her to Winkel, substitute alcohol for drugs. e.g. See v. MT 89, 15-16, 15-16, 182 342 Mont. 15-16; ¶¶ ¶¶ P.3d State v. ¶¶ Brotherton, 119, 23, 342 MT 511, 23, 182 88, 23; P.3d ¶ ¶ ¶ State Greensweight, 2008 MT 343 Mont. contrast, In where there is no evidence that drug
defendant has a or dependency problem, alcohol an alcohol- probation restriction condition has no nexus to the offender its and imposition is an abuse of Ashby, discretion. See Here, history PSI indicated that Jones’s criminal consisted of two prior traffic-related misdemeanor offenses. She has no prior convictions. The PSI further drug-
felonies and no alcohol-related self-reported indicated that Jones use alcohol marijuana years being prior had not used three arrested for parole prepared offense. The officer who the PSI instant sentencing hearing, or at the suggestion, made no either in the PSI discussing when alcohol appeared that Jones untruthful evasive drugs has There is no evidence that Jones used other use. noted, however, that marijuana any time. The PSI than questioning by the Upon deceased father was an alcoholic. *6 officer stated the sentencing hearing, at the the Court underlying the appropriate alcohol-restriction condition was because agreed. No for drug was a offense and the court other reason offense given, sentencing hearing or in the the condition was either the judgment. court’s written that, evidentiary hearing on Jones’s points out at the suppress, to informant Brown testified that she
motions dismiss and prior to the date on which drugs maybe had “done twice” with Jones However, also testified that she drug the transaction occurred. Brown years, testify did for three or more and she as had known Jones Thus, drugs” had with Jones. during years when those she “done that she had testimony not contradict Jones’s assertion Brown’s Furthermore, prior to her arrest. marijuana years not used for three isolated, of behavior or conduct” is an or stale instance passing, “[a] restrictive upon ground which to an offender-related insufficient basis Ashby, probation condition. case evidence and circumstances this We conclude that the recent, significant a or chronic
do not that Jones has establish problem establishing a nexus between dependency and abuse rehabilitative probation condition and her restrictive alcohol-related its conclude, therefore, the District Court abused that needs. discretion in Condition that Finally, her sentence argues requirement beyond Force is the District to the Task pay $125
she restitution therefore, and, illegal because statutory authority Court’s dangerous her criminal distribution Force is not a victim of Task 229, 20, 339 Krum, MT offense. She cites State drugs defendant proposition for the 168 P.3d organizations such third-party restitution to pay cannot be ordered victims are not actual entities which community local as state and Task that, although the asserts Jones further underlying offense. 46-18-243(2)(a)(vi), pursuant to § considered victim Force could be MCA, agreement pay agreement her restitution in the plea $125 given was under duress. Under the facts and circumstances of this case, she we conclude is incorrect. any suffering It that full undisputed restitution to victim statutorily
pecuniary permissible part loss is a a sentence under § 46-18-241(1), 46-18-243(2)(a)(vi), MCA, MCA. Section the term defines “victim,” person as part, “any entity whom the offender has voluntarily agreed bargain.” part voluntary plea reimburse as of a present case, plea In agreement-signed by both Jones and counsel, provided her as as the counsel-expressly well State’s Jones “will restitution the amount of to the Eastern $125.00 Drug Task Force.” appended Montana Documentation to the PSI that the repayment provided indicated restitution included the $100 by purchase marijuana the Task Force to Brown from Jones and paid $25 Brown her a confidential services as informant. Jones that, has time not established at the her signed counsel plea agreement agreeing pay the Force, restitution to Task any so; she was under to do nor attempt duress did she to withdraw guilty plea that, any, Finally, basis. Krum involve a situation where agreed plea agreement and, restitution was to in a therefore, that is inapplicable Krum, case here. See 5-8. ¶¶ that, ¶27 We conclude agreed agreement because Jones her plea Force, to pay restitution to the Task the Task Force is a “victim” as 46-18-243(2)(a)(vi), MCA, defined § to whom the District Court *7 could require pay result, Jones to restitution. As a the District Court did not in imposing err the obligation $125 restitution on Jones’s sentence. In summary, we hold that challenging Jones is barred from
Conditions 13 and 22 her they of sentence on the basis have no nexus to her or the underlying offense because she to object failed to those conditions in the District Court. further hold that the District Court abused its in discretion Condition prohibiting consuming from alcohol/intoxicants or entering establishments where sale, intoxicants are the chief item because there is no nexus between the condition and either Jones herself the offense of dangerous criminal distribution of drugs. Finally, we hold that the District Court not err in in ordering Jones to restitution to the agreed Task Force because to do in plea agreement. so her in part, Affirmed in part reversed and remanded instructions with to the District Court to strike Condition 12 from Jones’s sentence. COTTER,
JUSTICES NELSON, LEAPHART and MORRIS concur. in RICE, concurring part dissenting part. and
JUSTICE I concur with the result under Issue under a different rationale the and with most of Issue 2. I dissent from Court’s reversal of the condition, Condition under Issue 2. alcohol tape recording to her challenge telephone Jones’ the Brown an this has with informant is issue Court conversation the the cites contrary position. to her In cases Court previously decided telephone challenged held conversations the kind we requirement. were subject holdings here not to a warrant These are to delegates consistent with the deliberations of the the right privacy, the to as regarding explained Constitutional Convention by Delegate Dahood: all, any way phone does relate to the obscene
First of this not situation, ability telephone relate the of the call nor does it to logic and the this: all company to make the traces. reason is otherwise, Lady rights, maybe waived. personal constitutional right She and receiving phone A is the obscene call. waives right grants company intercept the the call making The individual that’s the communication. the privacy respect violating with law right have calls, we are making phone consequence, so as obscene anyone’s rights by having telephone company interfering with is; discover and determine who the caller attempt intercept and consequence, may as privacy. So protecting right we are would have to objection I would not be one that we say that the law .... worry about under Convention, Transcript, March Verbatim
Montana Constitutional the constitutional upon specific statements of p. Based cases, I would affirm holdings of our delegates convention Issue 1. Conditions, challenged 2, I affirm all of Under Issue would was convicted condition. Jones
including Condition alcohol criminal a crime related substance abuse-the proceeding this herself, illegal drug user drugs. She dangerous is distribution relationships that she has maintained evidence demonstrates view, including my Butler. In dealers, Brown and with users and of the justify imposition by the record presented a sufficient nexus -under our cases. alcohol condition *8 concurring dissenting Opinion joins the
JUSTICE WARNER of JUSTICE RICE.