State v. WinkelState v. Winkel
delivered the Opinion of the Court.
¶1 Brittеn Winkel, Jr. (‘Winkel”), appeals from the sentence imposed by the Thirteenth Judicial District, Yellowstone County, following
¶2 We restate the issues as follows:
¶3 I. Did the District Court err in prohibiting Winkel, as a condition of his suspended sentence, from possessing or consuming alcohol or other intoxicants?
¶4 II. Did the District Court err in prohibiting Winkel, as a condition of his suspеnded sentence, from entering any casinos or playing games of chance?
BACKGROUND
¶5 On October 27, 2005, police executed a search warrant for the residence shared by Winkel and his girlfriend, Shеlly Pete. Police searched the couple’s bedroom, and found a glass pipe with suspected methamphetamine residue, 1.2 grams of methamphetamine, baggies of white powder suspected to be methamphetamine, and 13.3 grams of marijuana, divided into individually sealed bags. The police also found various drug paraphernalia, including a drug ledger, scales, plаstic baggies, razors, and bindle material.
¶6 Winkel was charged with one felony count of possession of a dangerous drug in violation of
12. The Defendant shall not possess or consume intoxicants/alcohol, nor will hе enter any place intoxicants are the chief item of sale. He will submit to Breathalyzer testing or bodily fluid testing for drugs or alcohol as requested by his Probation & Parole Officer.
23. The Defendant will not enter any casinos or play any games of chance.
At the sentencing hearing, Winkel objected to these two conditions and asked that they be stricken. Winkel argued that since alcohol and gambling were not factors in his crime, the conditions were not rationally related to his offense.
¶7 Winkel’s pre-sentence investigation report (PSI) revealed that he had a somewhat lengthy сriminal history, including a prior conviction for a DUI in 1989. Winkel also had a prior drug-related felony conviction for custodial interference: he supplied a sixteen-year-old girl with marijuana and methamphetamine and had sexual intercourse with her. Winkel reported to the PSI officer that his alcohol use was “rare,” but admitted to using various illicit drugs over the course of the last thirty years. The PSI recommended that Winkel complete a chemical dependency evaluation, and enroll in an appropriate treatment and relapse prevention program. Nothing in the PSI report suggested that Winkel ever gambled, much less had a gambling problem.
¶8 The District Court refused to strike condition twelve and explained that it prohibited Winkel from using both alcohоl and drugs. The court held that since Winkel’s offense was drug-related, the condition had a sufficient nexus to his offense. The court also refused to strike condition number twenty-three, stating simply: “Number 23, I will not delеte. You need to stay out of casinos and not do that.”
¶9 On appeal, Winkel renews his objections to these two sentencing conditions. We affirm.
STANDARD OF REVIEW
¶10 In our recent decision in
State v. Ashby,
we announced a dual standard of reviеw for probation conditions.
State v. Ashby,
DISCUSSION
¶11 Under
¶12 I. Did the District Court err in prohibiting Winkel, as a condition of his suspended sentence, from possessing or consuming alcohol or other intoxiсants?
¶13 The District Court attached the following condition to Winkel’s suspended sentence: “The Defendant shall not possess or consume intoxicants/alcohol, nor will he enter any place intoxicants are the chief item of sale. He will submit to Breathalyzer testing or bodily fluid testing for drugs or alcohol as requested by his Probation & Parole Officer.” Winkel argues that this condition is illegal, bеcause alcohol played no role in his offense. Further, he attests, he never sold methamphetamine in bars. Finally, Winkel claims he has no history of alcohol abuse that would affeсt his rehabilitation.
¶14 Winkel pled guilty to possession of a dangerous drug, methamphetamine. He also pled guilty to possession of drug-related paraphernalia. The drug-related nature of Winkel’s offense alone suffices as a sufficient nexus to this condition. This condition, which prohibits Winkel from possessing or ingesting intoxicants, and requires him to submit to drug testing, clearly serves the purpose оf rehabilitating the offender and protecting society. Ommundson, ¶ 11.
¶15 The District Court’s restriction on possessing or ingesting intoxicants is especially appropriate in the instant case. Winkel’s PSI repоrt reveals a long history of chemical dependency. Winkel began using illegal drugs at age sixteen, when he first tried marijuana. In a 2002 PSI report, the Columbus Police Department characterizеd Winkel as a “regular user” of marijuana and methamphetamine. Winkel also admitted to using crystal meth, mushrooms, and hash. Perhaps most troubling is Winkel’s tendency to minimize his chemical dependency. In the PSI, Winkel reported he had never had any problems with alcohol use, despite his DUI conviction. Winkel claimed that October 24, 2005, was the first time he had tried meth, despite clear evidence in the record to the contrary. Winkel’s PSI reflects a pattern of substance abuse that is both recent and chronic.
¶16 In sum, the District Court’s condition prohibiting Winkel from using intoxicants has a nexus to both thе underlying crime and the offender. Winkel was sentenced for possession of illegal drugs, thus the condition prohibiting him from using drugs or alcohol is related to his offense. This nexus to the underlying offense is enough to satisfy
Ommundson.
However, given Winkel’s significant history of substance abuse, the no-intoxicants condition is also justified by a strong nexus to the offender in the instant case. The condition is within the parameters set by
¶17 II. Did the District Court err in prohibiting Winkel, as a condition of his suspendеd sentence, from entering any casinos or playing games of chance?
¶18
¶ 19 The District Court found that Winkel’s rehabilitation would be jeopardized if he had access to intoxicants like alcohol. Further, the District Court found that it was necessary for the protection of society to prohibit Winkel from access to any intoxicants-whether alcohol or illegal drugs. The additional condition prohibiting Winkel from entering casinos, where alcohol is universally and conspicuously available, is consistent with the сondition prohibiting him from possessing or consuming intoxicants. The objectives of this condition meet both prongs of the Ommundson test. Ommundson, ¶ 11. First, the condition furthers Winkel’s rehabilitation by restricting his access to intoxicants. Second, it protects society by preventing Winkel from consuming intoxicants, especially relevant in this case because all of Winkers offenses were drug or alcohol-related.
CONCLUSION
¶20 In сonclusion, we uphold both of the challenged conditions of Winkel’s sentence. The condition restricting Winkel from use of intoxicants has a nexus to both his offense and the offender himself; thus, it satisfiеs the requirements of
Ommundson
and