State v. McDowellState v. McDowell
delivered the Opinion of the Court.
¶1 Shаwn McDowell pleaded no contest in the District Court of the First Judicial District, Broadwater County, to assault with a weapon and burglary. He appeals his sentences. We affirm in part, reverse in part and remand to the District Court.
ISSUES
¶2 McDowell raises two issues on appeal:
1. Whether the prosecutor breached the plea agreement.
2. Whether the District Court erred by not crediting McDowell for time served.
BACKGROUND
¶3 On October 15, 2008, McDowell broke into the house of Amy Peters, his ex-girlfriend. He brought a gun and fired it while
¶4 The State initially charged McDowell with attempted deliberate homicide and aggravated burglary. On April 29, 2009, McDowell and the State entered into a plea agreement. McDowell agreed to plead no contest to assault with a weapon,
¶5 On June 4, 2009, Probation Officer Darrell Vanderhoef prepared a Pre-Sentence Investigation report (PSI). It included the details of the offense and McDowell’s сriminal history, including four prior felonies and previous failures at supervised release. Vanderhoef recommended sentences of 20 years, with 5 suspended, for assault with a weapon, and 20 years, with 5 suspended, for the burglary.
¶6 On the day of sentencing, Peters decided she wanted to testify. The prosecutor called her to the stand and asked her to give a statement with regard to McDowell’s sentence. Peters proceeded to explain:
I had to give up my home here that I was buying. And I had to move my son completely away because of all of this. It’s been really nerve-racking. I can’t sleep at night still. I have panic attacks. I check my doors and my windows like five, six times a night before I even go to bed. It’s very hard.... And I don’t think that he should get off on a minimal sentence. I mean, I got a phone call saying that he could be going away for 2 years, and I have to deal with this for the rest of my life for what he’s done.... I can’t come back to Townsend and visit my family because I get confronted by people, I get harassed by people. It’s hard. And I don't think he should get off on this.... I think he should be punished for what he’s done to me and he’s done to my son.
¶7 The State’s only other witness was Vanderhoef. He testified that he had prepared the PSI, which included a sentеnce recommendation. The State did not ask for, and Vanderhoef did not offer, the specifics of the PSI’s recommended sentence. The prosecutor then asked Vanderhoef if there was anything, not in the PSI, that he would like to add. Vanderhoef answered affirmatively and recommended a fine of $5,000. Hе explained that McDowell had self-reported a monthly income of $2,000 from Workers’ Compensation Benefits, which had accumulated to nearly $10,000 while he was incarcerated.
¶8 McDowell called three character witnesses, on his behalf. The prosecutor declined to cross-examine twо of them. The third, he asked two brief questions with regard to how McDowell came to possess a firearm.
¶9 At summation, the prosecutor recommended the sentence set forth in the plea agreement. He emphasized that the crimes were premeditated, serious and that McDowell had a prior criminal history. He pointed to the PSI as confirmation of these assertions. Finally, he recommended both prison time, and supervised release, subject to conditions set forth in the PSI. In response, McDowell argued that the PSI only told one side of the story, and recommended a total sentence of five yeаrs.
¶10 The District Court generally agreed with the PSI’s recommendations. The sentencing judge explained his concern with McDowell’s prior felonies and inability to comply with supervised release. The District Court further noted that during the course of the current action, McDowell’s pre-trial release had been revoked. For the charge of burglary, McDowell received 20 years, with 10 suspended. For assault with a weapon, McDowell received 20 years, with 5 suspended. The sentences were to run consecutively.
STANDARDS OF REVIEW
¶11 ‘Where a defendant was sentenced to more than one year of actual incarceration, and therefore is eligible for sentence review, we review the sentence for legality only.”
State v. Bullplume,
¶12 Whether the State has breached a plea agreement is a question of law this Court reviews de novo. Bullplume, ¶ 10.
DISCUSSION
¶13 Whether the prosecutor breached the plea agreement.
¶14 A plea agreement is essentially a contract and is subject to contract law standards.
State v. Manywhitehorses,
¶15 McDowell asserts two theories regarding the State’s alleged breach. He argues that the prosecutor’s presentation at sentencing undermined the State’s sentencing recommendation. Additionally, he asserts that the prosecutor breached the agreement by recommending the PSI’s sentence conditions. We address each in turn.
¶16 McDowell first asserts that the prosecutor merely paid “lip service” to the plea agreement’s sentencing recommendation, while actively eliciting testimony undermining that recommendation. A prosecutor enjoys wide latitude in submitting evidence at sеntencing, but must temper his or her case by adhering to obligations or restrictions contained in a plea agreement. Rardon III, ¶ 19. Here, the plea agreement did not limit the prosecutor’s ability to call or cross-examine witnesses. It required that he recommend an agreed-to sentence.
¶17 This Court has previоusly addressed circumstances where a prosecutor was accused of undercutting a sentencing recommendation. In
State v. Rardon,
¶18 Conversely, in
Rardon III,
this Court concluded that the prosecutor’s presentation did not undermine the plea-bargained sentence dеspite the State’s elicitation of evidence similar to
Rardon
II. Rardon III,
¶¶ 20-22. The State’s witnesses offered testimony regarding Rardon’s abusive history and support for a lengthy sentence.
Rardon III,
¶¶ 16-17, 22. However, the mere fact
¶19 In the case at hand, the prosecutor’s conduct at sentencing did not undercut the plea agreement. Peters, the State’s first witness, was the victim of McDowell’s offenses. Montana law provides that a victim may “present a statement concerning the effects of the crime on the victim, the circumstances surrоunding the crime, the manner in which the crime was perpetrated, and
the victim’s opinion regarding appropriate
sentence.”
¶20 Furthermore, Vanderhoef s recommendation of the $5,000 fine did not undermine the plea agreement. The parties were aware that the District Court had ordered a PSI. As the author of that report, Vanderhoef was an appropriate witness to call at sentencing. Although there is no legal requirement that the State present testimony from the person who prepared the PSI, this Court has recognized that failure to do so can result in a weak or incomplete presentation to the sentencing judge.
State v. LeMere,
¶21 Finally, the prosecutor’s summation did not undermine the plea agreement’s recommended sentence. McDowell argues that the
prosecutor ‘telegraphed” support for the PSI’s recommended sentence because he relied on facts contained in the PSI. This argument is without merit. The State recommended that McDowell receive a total sentence of 30 years, with 20 suspended. McDowell argued for a total of five years. In other words, the prosecutor had to both advocate against McDowell’s recommended sentence and argue for the sentence in the plea agreement. To do so, the prosecutor appropriately pointed out that McDowell had pled no contest to two felonies and had a prior criminal history. These facts were set forth in the PSI, as required by law.
¶22 McDowell’s second argument is that the State expressly breached the plea agreement when the prosecutor recommended that the District Court impose conditions on the suspended portion of McDowell’s sentence. He contends that this recommendatiоn was contrary to the plea agreement and constituted breach. The State responds that this argument was not raised below and was waived. On appeal, parties are permitted to bolster preserved issues with new legal authority or make further arguments within the scope of the legal theory advanced in the district court.
State v. Montgomery,
¶23 Prosecutors are held to striсt and meticulous standards because, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
State v. Rardon,
¶25 Moreover, we agree with the State that it is unreasonable for McDowell to argue that he expected no conditions would be placed оn a 20-year suspended sentence. Conditions on suspended sentences are commonplace, especially for prior felons like McDowell, who have proven themselves poor candidates for unsupervised release. McDowell received the benefits he bargained for. Hе cannot now argue that his plea was based “to a significant degree” on any unfulfilled promise. Based upon the facts of this case, the prosecutor did not breach the plea agreement.
¶26 Whether the District Court erred by failing to credit McDowell for time served.
¶27 Each day of incarceratiоn prior to or after a conviction must be credited against a defendant’s sentence.
¶28 We remand this case to the District Court for a determination of the correct amount of credit to be given for time served.