State v. T.ThibeaultState v. T.Thibeault
COUNSEL OF RECORD:
For Appellant:
Shannon Sweeney, Attorney at Law, Anaconda, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Ed Zink, Deputy Chief County Attorney, Billings, Montana
Filed:
Clerk
Justice
¶1 Terence J. Thibeault appeals the May 2019 judgment of the Thirteenth Judicial District Court, Yellowstone County, affirming his January 2019 judgment of conviction in Yellowstone County Justice Court on the offense of criminal possession of drug paraphernalia, a misdemeanor in violation of
Whether the Justice Court illegally imposed a 10-day jail term as a condition of a deferred imposition of sentence?
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 In the late evening of July 14, 2018, a Montana Highway Patrol Trooper responded to a recklеss driving report on Interstate-90 near the Interstate-94 interchange in the City of Billings, Montana. The citizen report included a vehicle description, license plate number, and reported that the driver was speeding, nearly lost control, and had used the authorized-vehicles-only turnaround. The responding Trooper soon located a vehicle matching the reported description and plate number traveling westbound on I-94. Upon stopping the vehicle, the Trooper identified the driver as 19-year-old Thibeault, who stated that he and his passenger, the registered owner of the vehicle, were returning from an overnight trip to Denver, Colorado, where they had visited a friend. Based on circumstantial suspicion of possible drug activity, the Trooper asked for and obtained consent to search the vehicle.1 The subsequent search revealed a bag in the trunk containing a pipe used for smoking marijuana concentrate (i.e., hash oil) and a small, commercially-labelled medical marijuana receptacle containing an apparent marijuana product. The Trooper issued Thibeault a traffic violation warning, but cited him into Yellowstone County Justice Court for misdemeanor possession of drug paraphernalia. He disregarded the citation, however, and failed to appear as directed.
¶3 When Thibeault later appeared on an unrelated criminal matter in August 2018, the Justice Court took notice of the prior matter and conducted an initial appearance and arraignment on the paraphernalia charge. Asked why he failed to comply with the earlier notice to appear, Thibeault explained that he simply “forgot” about it. At the conclusion of the arraignment, the Justice Court specifically warned Thibeault that he would be subject to arrest and jail-time if he did not timely appear at his upcoming Omnibus Hearing. Despite the warning, Thibeault failed to appear for the Omnibus Hearing and a bench warrant issued for his arrest.
¶4 On January 29, 2019, however, Thibeault appeared with counsel for his previously scheduled bench trial. After quashing the bench warrant and proceeding with trial, the Justice Court found him guilty of criminal possession of drug paraphernalia, as charged. At sentencing, the State acknowledged that it was Thibeault‘s first paraphernalia conviction and that, pursuant to
¶5 On appeal to district court, however, he asserted that the jail-time condition was an illegal condition of a deferred sentence in violation of
STANDARD OF REVIEW
¶6 On appeal from a justice court of record, district courts function as intermediate appellate courts with review confined to the record and questions of law. Sections
district court to this Court, we independently review the justice court findings of fact, conclusions and applications of law, and discretionary rulings under the same standards as if directly appealed here. Stanley, ¶ 26.
¶7 Criminal sentences eligible for statutory sentence review are subject to review on direct appеal only for legality, i.e., whether the court sentenced the defendant in accordance with governing statutory and constitutional parameters and requirements. State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978; State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815; State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206; State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017; State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937. See also State v. Greeson, 2007 MT 23, ¶¶ 6-10, 336 Mont. 1, 152 P.3d 695 (in re constitutionality of probationary search condition—citing State v. Moody, 2006 MT 305, 334 Mont. 517, 148 P.3d 662).3 In contrast, sentences not subject to sentence review are subject to review on direct appeal both for threshold legality and, to the extent discretionary, an abuse of discretion. State v. Ashby, 2008 MT 83, ¶ 8, 342 Mont. 187, 179 P.3d 1164; Herd, ¶¶ 22-23. Accord City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 12, 396 Mont. 57, 443 P.3d 504. As distinct from the predicate sentence to which they pertain, discretionary conditions of deferred and suspended sentences are subject to review both for threshold legality and an abuse of
discretion, regardless of eligibility for sentence review. State v. Robertson, 2015 MT 266, ¶ 7, 381 Mont. 75, 364 P.3d 580; Ashby, ¶ 9.
DISCUSSION
¶8 Whether the Justice Court illegally imposed a 10-day jail term as a condition of a deferred imposition of sentence?
¶9 As a general rule, issues not preserved by contemporaneous objeсtion are waived, and therefore not subject to review on subsequent appeal.
¶10 The sentencing authority of a criminal court derives solely from and is constrained by statutory law. State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. Courts accordingly have no authority to impose a sentence or sentencing provision not authorized by statute. Hicks, ¶ 41 (citing State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, 112 P.3d 1001); Nelson, ¶ 24; State v. Hatfield, 256 Mont. 340, 346, 846 P.2d 1025, 1029 (1993). Moreover, courts may exercise granted sentencing authority only to the extent and in the manner authorized by statute. Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (citation omitted). A sentence or sentencing provision not authorized by statute, or that otherwise exceeds the statutorily authorized range or limit for that type of sentence or condition, is a facially illegal sentence or sentencing provision. State v. Zimmerman, 2010 MT 44, ¶ 13, 355 Mont. 286, 228 P.3d 1109; State v. Heddings, 2008 MT 402, ¶ 11, 347 Mont. 169, 198 P.3d 242; Ruiz, ¶ 12.4
¶12 Generally, the maximum penalty for criminal possession of drug paraphernalia is a term of “imprison[ment] in the county jail for not more than 6 months.”
¶13 In common usage, a deferred imposition of sentence is seemingly not a sentence at all, but rather a specified period of deferral preceding the actual impositiоn of sentence at some later date. However, as a technical matter of law, a deferred imposition of sentence is a final dispositive judgment of conviction and sentence, i.e., a type of probationary sentence where the primary disposition is community release subject to conditions of the deferral (i.e., conditions of probation). See §§
¶14 A deferred sentence differs from a suspended sentence, however, in two significant regards. First, the options on revocation of a suspended sentence are limited to either “requir[ing] the offender to serve . . . the sentence [originally] imposed” or resentencing to “any sentence that could have been [originally] imposed that does not include a longer [term of] imprisonment or commitment . . . than the original sentence.”
Woodbury v. Mont. Thirteenth Jud. Dist. Ct., 159 Mont. 128, 134, 495 P.2d 1119, 1122 (1972) (noting similar distinguishing aspect and effect under then-governing statute providing for expungement of the defendant‘s “record” on dismissal following successful completion of the deferred sentence).7
¶15 Like persons convicted of first-offense criminal possession of dangerous drugs (CPDD), those convicted of first-offense criminal possession of drug paraphernalia (CPDP) are “presumed to be entitled to a deferred imposition of sentence of imprisonment.” Sections
to avoid the devastating consequences of a . . . conviction [on an illegal drug-related possession charge] where a defendant is young or . . . has shown [the prior] ability to maintain a law-abiding lifestyle. [They] provide[] incentive for a defendant who has shown the ability to maintain a law-abiding lifestyle to demonstrate . . . [the ability] to adjust his or her conduct accordingly following аn [apparently] aberra[nt] [incident] while still permitting the court to
impose a period of supervision and other conditions during the deferral period.
State v. Doubek, 2021 MT 76, ¶ 14, 403 Mont. 514, 483 P.3d 1095. Accord
However, as with the identical CPDD presumption, the CPDP presumption:
is not conclusive and may be overcome by evidence on the trial or sentencing hearing record of some substantial aggravating circumstance such as . . . evidence that either elevates the circumstances of the offense itself beyond a typical prima facie case in nature, degree, or effect or involves subsequent post-оffense, presentence conduct indicating continued criminal propensity. . . . The sentencing court has broad discretion to determine whether an aggravating factor exists based on evidence on the trial or sentencing hearing record and pertinent correctional and sentencing policies defined by statute.
See State v. Wilkes, 2021 MT 27, ¶ 18, 403 Mont. 180, 480 P.3d 823 (citing State v. Bolt, 204 Mont. 261, 264, 664 P.2d 322, 324-25 (1983)—internal punctuation and other internal citations omitted). Accord Doubek, ¶¶ 15-20 (applying Wilkes but holding that the record was insufficient upon which to find substantial aggravating circumstances overcoming the presumption).9 In the absence of substantial aggravating circumstances overcoming the presumption, the otherwise broad discretion of the court to determine whether a deferred sentence is an appropriate sentence under the facts and circumstances of a particular case is constrained by the identical presumptions of entitlement to a deferred sentence provided in §§
¶16 In addition to generally authorizing sentencing courts to “impose . . . any reasonable restrictions or conditions during the period of the defer[al]” deemed “necessary for rehabilitation or . . . protection of . . . society,” the Legislature has specifically enumerated a non-exhaustive list of “[r]easonable restrictions or conditions” that a court may impose “[w]hen deferring imposition of sentence.”
that
¶17 When “general and particular [statutory] provision[s] are inconsistent,” the particular generally controls over the general.
applies.
¶18 We have long recognized the subtle, but technically significant statutory interplay between the nature of a deferred imposition of sentence, a statutory presumption thereto, and statutory authorization for imposition of jail-time as a condition thereof. In 1971, we considered whether the statutory presumption of entitlement of first-offense CPDD offenders to a deferred imposition of sentence under Section
sentence.” Drew, 158 Mont. at 217, 490 P.2d at 232-33.12
¶19 However, faced with the same issue on a petition for postconviction relief under the same pre-1973 statutory scheme a year later, we expressly “clarified” Drew under a more discriminate analysis. See Woodbury, 159 Mont. at 128-33, 495 P.2d at 1119-21. Upon the guilty plea of an 18-year-old defendant to first-offense criminal sale of dangerous drugs (based on the sale of “hits” of LSD to two teenage girls), the district court deferred imposition of sentence for a period of two years, subject to various conditions of probation including, inter alia, that the defendant serve 30 days in the county jail. Woodbury, 159 Mont. at 130, 495 P.2d at 1120. Finding the circumstances and issue “on ‘all fours‘” with Drew, we revisited the issue of whether “the concept of a ‘deferred imposition of sentence,‘” as imposed in accordance with a presumption of entitlement thereto, was inconsistent with imposing “a period of incarceration in jail . . . as a condition thereof.” Woodbury, 159 Mont. at 133, 495 P.2d at 1121. This time, however, we noted “a valid [tеchnical] distinction under the [pre-1973] law” between “granting a deferred imposition upon conditions” and “imposing a jail sentence with conditions.” Woodbury, 159 Mont. at 133-36, 495 P.2d at 1121-23 (noting the distinguishing aspect of deferred sentences as the opportunity for subsequent withdrawal of guilty plea or striking of guilty verdict and
dismissal of the charged offense(s)). While we did not directly overrule Drew, we further noted that it involved an anomalous combination of a sentence and a deferred imposition of sentence, and thus held that it was “distinguishable on its facts” and therefore “clarified” “to the extent . . . in conflict with what is herein stated.” Woodbury, 159 Mont. at 137, 495 P.2d at 1123 (emphasis added).13
¶20 In In re Williams, 145 Mont. 45, 399 P.2d 732 (1965), in the context of an original habeas corpus proceeding, we considered whether the resentencing to prison upon revocation of a previously imposed deferred imposition of sentence that was conditioned, inter alia, upon incarceration in the county jail during required alcohol treatment, subjected the offender to unconstitutional double jeopardy of imprisonment. Williams, 145 Mont. at 49-51, 399 P.2d at 734-36. In holding that it did not, we noted that a probation condition requiring the probationer to be “jail-based” did not “transform a probationary rule into a term of imprisonment” and that the condition was reasonably related “to [the] promot[ion] [of] the rehabilitation of an alcoholic as an alternative to sentencing . . . and punish[ment].” Williams, 145 Mont. at 56-57, 399 P.2d at 738-39.
¶21 In State v. Maldonado, 176 Mont. 322, 578 P.2d 296 (1978), citing Drew, the convicted offender asserted on petition for postconviction relief that the district court illegally imposed a jail term as an additional condition of a deferred imposition of sentence upon continuing the deferred sentence following adjudicated probation violations. Maldonado, 176 Mont. at 331, 578 P.2d at 301.14 We held to the contrary, noting that:
Drew merely stated that [the court] may not actually impose a sentence and defer the imposition of part of that sentence. The [court] may, however, defer imposition of sentence and make a jail term a condition of probation . . . There is a valid distinction
under the law in granting a deferred imposition upon conditions, rather than imposing a jail sentence with conditions.15
Maldonado, 176 Mont. at 331, 578 P.2d at 301 (quoting Woodbury, 159 Mont. at 136, 495 P.2d at 1123 in part—internal punctuation omitted and emphasis added).16
¶22 Contrary to Thibeault‘s assertion, nothing in the language of
expressly authorized by
¶23 The Justice Court‘s imposition of 10-day jail term as a condition of a deferred imposition of sentence imposed pursuant to the statutory presumption of
Affirmed.
/S/ DIRK M. SANDEFUR
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
Justice Ingrid Gustafson, dissenting.
¶24 I would hold the sentencing condition of incarceration on Thibeault‘s deferred sentence for criminal possession of drug paraphernalia was an illegal sentencing condition because the Justice Court did not adhere to the affirmative mandates of
¶25 “A sentencing condition is illegal if the sentencing court lacked statutory authority to impose it, if the condition falls outside the parameters set by the applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of the applicable sentencing statutes.” Heddings, ¶ 11. The applicable statutes in this case are §§
¶26 “When interpreting a statute, [this Court‘s] objective is to implement the objectives the legislature sought to achieve.” Mont. Vending, Inc. v. Coco-Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. “[T]he starting point for interpreting a statute is the language of the statute itself.” Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056 (1980). When interpreting a statute, a court may not “insert what has been omitted or . . . omit what has been inserted.”
provisions to “give effect to all.”
¶27
¶28 This statute provides sentencing judges with the authority to impose incarceration as a condition of a deferred imposition of sentence “except as otherwise specifically provided by statute.”
¶29 Four statutes in Title 45 create a presumption for a deferred sentence in certain cases: §§
¶30 The other two statutes creating a presumption in favor of a deferred sentence do not include the “of imprisonment” language. See
¶31 What‘s more, the holding of today‘s Opinion could lead to absurd results in the future. Under
¶32 On a final note, regardless of this Court‘s holding today, Thibeault will likely be entitled to an expungement of his conviction in the future, as the voters of Montana decriminalized possession of marijuana paraphernalia when they approved Ballot Initiative No. 190 in the 2020 general election and the Montana Legislature has since provided a mechanism for the expungement of marijuana convictions such as Thibeault‘s. See 2021 Mont. Laws ch. 576, § 48. Today‘s Opinion simply forces Thibeault to serve jail time for something which is no longer a crime in Montana and for which he will be entitled to expungement in the future.
¶33 I dissent.
/S/ INGRID GUSTAFSON
Justice James Jeremiah Shea joins in the dissenting Opinion of Justice Gustafson.
/S/ JAMES JEREMIAH SHEA