City of Bozeman v. Cantu

• Decision Date: 19 February 2013
• Docket Number: No. DA 12–0361.,DA 12–0361.
• Parties: CITY OF BOZEMAN, Plaintiff and Appellee, v. David Sky CANTU, Defendant and Appellant.
• Court: Montana Supreme Court

369 Mont. 81

296 P.3d 461

CITY OF BOZEMAN, Plaintiff and Appellee,

v.David Sky CANTU, Defendant and Appellant.

No. DA 12–0361.

Supreme Court of Montana.

Submitted on Briefs Jan. 23, 2013.

Decided Feb. 19, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender; Nicholas Domitrovich, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Susan Wordal, Bozeman City Attorney, Bozeman, Montana.

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 David Sky Cantu was convicted of two misdemeanor sexual assaults, in violation of § 45–5–502, MCA, following pleas of guilty to both offenses in Bozeman Municipal Court. The Municipal Court deferred imposition of sentence for a period of two years on each charge, with the terms to run consecutively. Over Cantu's objection, the Municipal Court imposed a condition of probation that required Cantu to obtain a psychosexual evaluation and to follow through with “a minimum of 6 months of therapy unless sooner released by the counselor/therapist.” Cantu appealed to the Eighteenth Judicial District Court, Gallatin County, challenging the Municipal Court's imposition of this condition, as well as a second condition not at issue in this appeal.¹ The District Court upheld the requirement that Cantu undergo a psychosexual evaluation and receive counseling. Cantu now appeals to this Court. We affirm.

¶ 2 Cantu raises the following issues on appeal:

¶ 3 1. Whether the Municipal Court exceeded its statutory authority by requiring Cantu to obtain a psychosexual evaluation as a condition of probation following his conviction for two misdemeanor sexual assaults.

¶ 4 2. Whether the Municipal Court imposed an unreasonable condition of probation by requiring Cantu to obtain a psychosexual evaluation following his conviction for two misdemeanor sexual assaults.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On September 7, 2011, Cantu was riding his longboard outside the Gallatin Valley Mall while he waited for his bus to arrive. He saw a “pretty lady” and decided to ride past her and grab her buttocks. The following day, Cantu was riding his bicycle in downtown Bozeman when he saw another woman and decided to ride past her and grab her breast. As a result of these incidents, Cantu was charged in the Municipal Court with two counts of misdemeanor sexual assault, in violation of § 45–5–502, MCA (2009). Cantu pleaded guilty to both charges.² The Municipal Court set sentencing for December 8, 2011.

¶ 6 At the sentencing hearing, the Municipal Court heard testimony from one of the victims, as well as Cantu's mother and step-grandfather. Cantu's mother explained that Cantu had a very difficult past year due to the breakup of his mother and stepfather. Moreover, in February 2011, when Cantu was 17 years old, his mother had him admitted to Shodair Children's Hospital for treatment of “stress.” Cantu spent two weeks at the hospital.

¶ 7 The prosecutor asked that a condition be imposed on Cantu's sentence requiring him to obtain a psychosexual evaluation. The prosecutor explained that Cantu might benefit from specialized treatment given the sexual nature of the offenses, the fact that Cantu had committed two such offenses in quick succession, his age, and the fact that Cantu apparently was having difficulty dealing with stressors in his life. The prosecutor noted that Cantu's recent admission to Shodair indicated that he was suffering from mental health issues. Neither the prosecutor nor the Municipal Court, however, had received any information regarding the results of Cantu's evaluation, diagnosis, or treatment plan. The prosecutor asked that Cantu first be assessed by a professional who could determine what type of therapy, if any, was needed. Cantu objected to any condition that he obtain a psychosexual evaluation.

¶ 8 As a result of the testimony and argument presented at the sentencing hearing, the Municipal Court imposed a deferred sentence of two years on each sexual assault offense, to run consecutively. The Municipal Court also committed Cantu to jail for ten days on each offense, to run concurrently, in order “to emphasize to you the gravity of the situation, and the pain that you have caused [the victims].” Finally, the Municipal Court imposed a number of probation conditions, including the following:

8) The defendant shall obtain:

a. A chemical dependency evaluation (concurrent with required evaluation from ADSGC for PODD conviction)

b. A psycho-sexual evaluation and a minimum of 6 months of therapy unless sooner released by the counselor/therapist

at the defendant's own expense and shall follow all recommendations, if requested by the supervising officer.

9) The defendant shall execute a waiver for his counselor/therapist to allow the counselor/therapist to communicate to the Court and/or Defendant's Probation Officer with regard to his attendance and compliance with all required therapy.

10) The defendant shall participate in any other counseling or treatment deemed appropriate by the supervising officer.

¶ 9 Cantu appealed his sexual assault sentences to the District Court. As noted, the District Court affirmed the Municipal Court's imposition of Condition 8b. Cantu appeals that decision.

STANDARDS OF REVIEW

¶ 10 On Cantu's appeal from the Municipal Court, the District Court functioned as an intermediate appellate court. See§§ 3–5–303 and 3–6–110, MCA. On Cantu's appeal to this Court, we review the case as if the appeal originally had been filed in this Court. State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citing Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643). We examine the record independently of the district court's decision, applying the appropriate standard of review. Ellison, ¶ 8.

¶ 11 The challenge in the present case is to a criminal sentence. With two narrow exceptions, our review of criminal sentences is for legality only. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137, 243 P.3d 435;State v. Lewis, 2012 MT 157, ¶ 13, 365 Mont. 431, 282 P.3d 679. Under the first exception, if a defendant is sentenced to serve less than one year of actual incarceration, we review the sentence both for legality and for abuse of discretion. Hafner, ¶ 13;State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. Under the second exception, if a defendant challenges a sentencing condition, we first review the condition's legality, and then review for an abuse of discretion the condition's reasonableness under the particular facts of the case. Hafner, ¶ 13;State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164. Because Cantu challenges a condition on his deferred sentence, the second exception applies here.

DISCUSSION

¶ 12 Issue 1. Whether the Municipal Court exceeded its statutory authority by requiring Cantu to obtain a psychosexual evaluation as a condition of probation following his conviction for two misdemeanor sexual assaults.

¶ 13 Upon a defendant's conviction of one or more felony offenses, the district court is required to direct the probation and parole officer to make a presentence investigation report, which the court is then required to consider prior to sentencing, unless the court makes a finding that the report is unnecessary. Section 46–18–111(1)(a), (2) MCA. In the event the defendant was convicted of certain offenses listed in subsection (1)(b) of the statute, the presentence investigation “must include a psychosexual evaluation of the defendant and a recommendation as to treatment of the defendant in the least restrictive environment ....” Section 46–18–111(1)(b), MCA. Finally, if the defendant was convicted of a misdemeanor, the statute provides that the district court may order a presentence investigation “only if the defendant was convicted of a misdemeanor that the state originally charged as a sexual or violent offense as defined in 46–23–502.” Section 46–18–111(2), MCA.

¶ 14 Cantu contends that the psychosexual evaluation required by § 46–18–111(1)(b), MCA, is a legislative creation intended to assist the court in sentencing felony offenders or, in the case of misdemeanors, only those misdemeanor offenders who were charged with a sexual or violent offense as defined in § 46–23–502, MCA. Cantu argues that because his offenses do not fall into either category, the Municipal Court lacked statutory authority to order a psychosexual evaluation. The State, on the other hand, cites §§ 46–18–201(4) and –202(1), MCA, as authority for the Municipal Court to order a psychosexual evaluation. We agree with the State.

¶ 15 When deferring imposition of sentence, the sentencing judge may impose upon the offender “any reasonable restrictions or conditions” during the period of the deferred imposition of sentence. Section 46–18–201(4), MCA. These include the restrictions and conditions specifically enumerated in §§ 46–18–201(4) and –202(1), MCA, plus “any other reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society.” Section 46–18–201(4)(p), MCA; accord§ 46–18–202(1)(g), MCA (“any other limitation reasonably related to the objectives of rehabilitation and the protection of the victim and society”).³

¶ 16 Cantu misinterprets § 46–18–111(1)(b), MCA—which is a statutory directive that a psychosexual evaluation must be prepared in conjunction with a presentence investigation in certain cases—as a limitation on the sentencing court's authority to impose restrictions and conditions designed to maximize the prospects of rehabilitation and the protection of the victim and society. A similar argument was made and rejected by this Court in State v. Leyva, 2012 MT 124, ¶ 19, 365 Mont. 204, 280 P.3d 252 (“Leyva misinterprets a statutory directive for a particular condition as a proscription against the court's discretionary authority to impose such...