State v. Ashby

Decision Date11 March 2008
Docket NumberNo. DA 07-0228.,DA 07-0228.
Citation2008 MT 83,179 P.3d 1164,342 Mont. 187
PartiesSTATE of Montana, Plaintiff and Appellee, v. Eugene Howard ASHBY, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Gregory Hood (argued), Assistant Public Defender, Kalispell, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, Mark Mattioli (argued), Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Kalispell, Montana.

For Amicus Curiae: Merle Raph, Montana County Attorneys Association, Shelby, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Eugene Howard Ashby (Ashby) entered a guilty plea to the offense of Issuing a Bad Check, a Felony Common Scheme. The Eleventh Judicial District Court sentenced Ashby to a term of three years, all deferred, and imposed numerous conditions on his deferred sentence including a prohibition from consuming alcohol or other intoxicants and a prohibition from gambling. Ashby objected to these conditions on the ground that they had no nexus to his underlying offense. The District Court declined to remove the conditions. Ashby appeals. We reverse in part and affirm in part.


¶ 2 A restatement of the issue on appeal is:

¶ 3 Did the District Court err in forbidding Ashby from consuming or possessing intoxicants and alcohol and from gambling or frequenting casinos?


¶ 4 Ashby is a self-employed construction laborer who at the time this case was briefed on appeal lived and worked in Bigfork, Montana. During late 2005 and the first half of 2006, Ashby wrote seventeen checks for which he did not have funds to cover. He maintained that several of the checks were written in anticipation of an outstanding account receivable. In August 2006 the Flathead County Attorney charged Ashby by Information with Issuing a Bad Check, a Felony Common Scheme. A public defender was appointed and Ashby was arraigned in October 2006. The record shows that at arraignment Ashby entered not guilty pleas to two counts of Issuing a Bad Check — one count was from a 2005 charge and the other was the August 2006 charge.

¶ 5 In late November Ashby entered into a plea agreement under which he changed his plea for the 2006 count but maintained a not guilty plea to the 2005 count. The District Court ordered a presentence investigation (PSI) and scheduled a hearing "in aggravation or mitigation of sentence" for January 2007. The PSI revealed that, over fifteen years, Ashby had sixteen traffic citations, one misdemeanor accountability offense and one misdemeanor issuing a bad check offense in 2001 that was dismissed. None of Ashby's driving violations involved alcohol but rather were speeding/careless driving, seatbelt and insurance violations.

¶ 6 At the January hearing the District Court dismissed the 2005 count and accepted Ashby's plea agreement to the other count. The court adopted the PSI-recommended sentence — three years, deferred — and imposed the conditions recommended in the PSI. At the sentencing hearing, Ashby objected to the prohibitions on alcohol and gambling. Characterizing the alcohol and gambling prohibitions as "standard conditions of probation," the District Court denied his request that these conditions be omitted. Ashby appeals.

¶ 7 In response to multiple received cases, including the case at bar, challenging the imposition of "stock" or "standard" probation conditions and relying on our rule in State v Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, we deem it appropriate and necessary to revisit the "nexus" analysis in Ommundson. As a result of this review, and as explained below, we now expand Ommundson's "nexus" rule to include a nexus to either the offense or the offender, rather than to the offense alone. We also announce a change in the standard under which we will review such probation conditions.


¶ 8 For several years we have reviewed criminal sentences strictly for legality.1 We have applied this same "legality" standard to cases in which defendants are challenging certain probation conditions. State v. Malloy, 2004 MT 377, ¶ 6, 325 Mont. 86, ¶ 6, 103 P.3d 1064, ¶ 6; State v. Moody, 2006 MT 305, ¶ 9, 334 Mont. 517, ¶ 9, 148 P.3d 662, ¶ 9; State v. Greeson, 2007 MT 23, ¶ 6, 336 Mont. 1, ¶ 6, 152 P.3d 695, ¶ 6. However, in State v. Herd, 2004 MT 85, 320 Mont. 490, 87 P.3d 1017, we acknowledged that some criminal sentences required review beyond legality alone, specifically sentences that are ineligible for review by the Sentence Review Division because the offender is not sentenced to at least one year of incarceration. We stated that in such cases, we first review the sentence for legality to determine whether it falls within statutory parameters and, if so, we then examine whether the sentencing court abused its discretion in imposing the sentence. Herd, ¶¶ 18-23; accord State v. Armstrong, 2006 MT 334, ¶ 8, 335 Mont. 131, ¶ 8, 151 P.3d 46, ¶ 8. This two-prong standard recognizes that some criminal sentences invoke both legality considerations and elements of judicial discretion.

¶ 9 We now conclude that the Herd standard of review is appropriate for cases challenging the legality and/or propriety of probation conditions. We will first review a sentencing condition for legality. Then, because sentencing statutes authorize sentencing judges to impose conditions on deferred or suspended sentences that constitute "reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society,"2 the "reasonableness" of such conditions will be reviewed for an abuse of discretion.


¶ 10 Did the District Court err in forbidding Ashby from consuming or possessing intoxicants and alcohol and from gambling or frequenting casinos?

¶ 11 We first address the District Court's order prohibiting Ashby from consuming or possessing intoxicants and subjecting him to regular or random drug and alcohol testing.

¶ 12 As noted above, at his sentencing hearing, Ashby objected to the inclusion of an alcohol prohibition in his sentencing conditions, arguing that it had no nexus to his "bad check" offense. The State argued that such a condition facilitated payment of restitution and therefore had the requisite nexus. The District Court judge, characterizing the alcohol prohibition as a "standard condition of probation," refused to remove it.

¶ 13 It is well-established that when a court defers imposition of sentence, it may impose reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society. Section 46-18-201(4)(o), MCA (before July 1, 2006, § 46-18-201(4)(n), MCA); see also § 46-18-202(1)(f), MCA (A court may impose any "limitation reasonably related to the objectives of rehabilitation and the protection of the victim and society."). The statute also provides specific examples of such "reasonable restrictions or conditions" which include payment of various costs, community service, and house arrest. Sections 46-18-201(4)(d)-(g), (j), and (k), MCA.

¶ 14 Our analysis in Ommundson has been frequently invoked in cases challenging sentence conditions. In Ommundson, we explained that it is insufficient that a condition of sentence relate generally to rehabilitation; rather, "there must be a correlation between the crime for which the defendant was convicted and the condition imposed." Ommundson, ¶ 4. Ommundson pled guilty to a charge of felony driving or in actual physical control of a motor vehicle while under the influence of alcohol (DUI). The district court sentenced Ommundson to fifty-four months at the Department of Corrections, forty-eight months suspended, conditioned upon Ommundson's participation in a sex offender treatment program. The court also prohibited him from having any contact with children without adult supervision. These conditions were based upon previous criminal convictions for indecent exposure. On appeal, Ommundson argued that these conditions were unlawful because they were not reasonably related to his DUI conviction. We agreed and reversed the judgment of the district court to the extent that it imposed sex offender treatment as a condition of sentence. We explained:

[Section] 46-18-202(1)(e), MCA, only allows the imposition of limitations "reasonably related to the objectives of rehabilitation and the protection of the victim and society." Section 46-18-202(1)(e), MCA. Although this grant of sentencing authority is broad, it is not without limit. We hold that, in order to be "reasonably related to the objectives of rehabilitation and protection of the victim and society," . . . a sentencing limitation or condition must have . . . some correlation or connection to the underlying offense for which the defendant is being sentenced. The "rehabilitation" and "protection of the victim and society" referenced in the sentencing statute must be read in the context of the charged offense. Section 46-18-202(1)(e), MCA. That is, the objectives are: (1) to rehabilitate the offender by imposing restitution or requiring treatment so that he or she does not repeat the same criminal conduct that gave rise to the sentence; and (2) to protect society from further similar conduct. (Emphasis in original.) In the instant case, the District Court was authorized to impose conditions designed to rehabilitate Ommundson's drinking and driving and to protect society from future manifestations of such conduct. However, there is no evidence in this case that indecent exposure leads to increased occurrences of DUI, nor any evidence that treatment for indecent exposure will reduce the recurrence of alcohol abuse or lessen the incidence of DUI in society at large. In the present case, therefore, there simply is no nexus between the requirement that Ommundson participate in a sex offender program and the...

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