State v. Brendal

• Decision Date: 20 July 2009
• Docket Number: No. DA 08-0324.,DA 08-0324.
• Citation: 2009 MT 236,213 P.3d 448,351 Mont. 395
• Parties: STATE of Montana, Plaintiff and Appellee, v. Laura BRENDAL, Defendant and Appellant.
• Court: Montana Supreme Court

213 P.3d 448

2009 MT 236

351 Mont. 395

STATE of Montana, Plaintiff and Appellee, v. Laura BRENDAL, Defendant and Appellant.

No. DA 08-0324.

Supreme Court of Montana.

Argued and Submitted May 20, 2009.

Decided July 20, 2009.

For Appellant: Kathleen Foley (argued), Attorney at Law, Missoula, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour (argued), Assistant Attorney General, Helena, Montana.

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

¶ 1 Laura Brendal (Brendal) appeals from her sentence in the Fourth Judicial District Court. Brendal pleaded guilty to fraudulently obtaining dangerous drugs (second offense), a felony in violation of § 45-9-104, MCA, and was sentenced to the Montana Women's Prison (MWP) for a period of 25 years, with 15 suspended. Prior to her sentencing, the State notified Brendal of its intent to have her sentenced as a persistent felony offender (PFO) pursuant to § 46-18-501, MCA, based on prior convictions for fraudulently obtaining dangerous drugs. The District Court sentenced Brendal as a PFO, and imposed a mandatory minimum of 10 years in prison. Brendal maintains that the District Court was proceeding under a mistake of law when it imposed this sentence, and that it should have considered sentencing her to a drug treatment program pursuant to its authority under the alternative sentencing authority (ASA) statute, § 45-9-202, MCA. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On December 31, 2006, Officer Trowbridge of the Missoula Police Department responded to a report that a female was trying to obtain drugs with a fraudulent prescription at a Walgreen's pharmacy in Missoula. Officer Trowbridge's investigation led to the arrest of Brendal, who was subsequently charged with one felony count of fraudulently obtaining dangerous drugs on January 16, 2007. Brendal initially pleaded not guilty to the charge.

¶ 3 Brendal subsequently filed a motion to suppress. On October 19, 2007, the State notified Brendal that it would seek increased punishment pursuant to the PFO statutes, codified in Title 46, chapter 18, part 5. Prior to the instant charge, Brendal had previously been convicted of fraudulently obtaining dangerous drugs on nine occasions. Two of the most recent two convictions had occurred on December 17, 2003. Accordingly, Brendal could be sentenced as a PFO under § 46-18-502(2), MCA, since these two convictions had occurred within 5 years of the instant charge. The relevant portion of that statute reads as follows:

(2) Except as provided in 46-18-219, an offender shall be imprisoned in a state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if:

(a) the offender was a persistent felony offender, as defined in 46-18-501, at the time of the offender's previous felony conviction;

(b) less than 5 years have elapsed between the commission of the present offense and:

(i) the previous felony conviction; or

(ii) the offender's release on parole, from prison, or from other commitment imposed as a result of the previous felony conviction; and

(c) the offender was 21 years of age or older at the time of the commission of the present offense.

(3) Except as provided in 46-18-222, the imposition or execution of the first 5 years of a sentence imposed under subsection (1) of this section or the first 10 years of a sentence imposed under subsection (2) of this section may not be deferred or suspended.

Section 46-18-502(2) and (3), MCA.

¶ 4 After the District Court denied her motion to suppress, Brendal entered a plea of guilty. At that time, the State again provided noticed that it sought to sentence Brendal as a PFO. A sentencing hearing was held on May 7, 2008. Prior to the hearing, Brendal was arrested on March 24, 2008, by her pretrial supervision officer for allegedly trying to alter the results of a urinalysis test by substituting another person's urine for her own.

¶ 5 At the sentencing hearing, Brendal argued that she should receive a 5 to 10 year suspended sentence and be sent to the Teen Challenge residential drug addiction treatment program in Missoula, instead of being incarcerated in the MWP.¹ Brendal presented four witnesses in support of her sentencing proposal. Brendal argued that the ASA statute gave the District Court the discretion to consider such a sentencing option, and that it was not required to sentence her as a PFO and impose the 10-year mandatory minimum. The ASA statute reads in pertinent part as follows:

45-9-202. Alternative sentencing authority. (1) A person convicted of a dangerous drug felony offense under this chapter may, in lieu of imprisonment, be sentenced according to the alternatives provided in subsection (2).

(2) If the court determines, either from the face of the record or from a presentence investigation and report, that incarceration of the defendant is not appropriate, the court may, as a condition of a suspended or deferred sentence, impose one or more of the following alternatives:

(a) imposition of a fine not to exceed the maximum amount provided by statute for those offenses that specify a fine as part of the penalty or $1,000 for those offenses that do not specify a fine;

(b) commitment to a residential drug treatment facility licensed and approved by the state for rehabilitative treatment for not less than the minimum recommended time determined necessary by the facility and not more than 1 year;

(c) mandatory service of not more than 2,000 hours in a community-based drug treatment or drug education program with compliance to be monitored by the probation and parole bureau of the department of corrections based upon information provided by the treatment or education program....

¶ 6 The State asserted that the District Court was required to sentence Brendal as a PFO, and was therefore without the discretion to deviate from the mandatory minimum found in § 46-18-502(2), MCA. Brendal did not challenge the evidence in support of her designation as a PFO, or otherwise argue that any of the statutory exceptions in § 46-18-222, MCA, applied; rather, she asserted that the ASA statute was a more specific statute in this case—as it related specifically to the type of drug offense for which she was being sentenced—and that the District Court was not precluded from sentencing her under the ASA statute.

¶ 7 The District Court ultimately sentenced Brendal to 10 years at the MWP, concluding that the statutory scheme required it to impose the mandatory minimum. In imposing the sentence, the District Court judge reasoned that he was required to impose the mandatory minimum sentence, since there was no factual dispute as to the applicability of the PFO statutes and her case did not fall into one of the exceptions listed in § 46-18-222, MCA. See Opinion, ¶ 3. Furthermore, the District Court specifically concluded that incarceration would be appropriate for Brendal. The District Court noted that Brendal had been appearing before it on and off since 1996 and that the District Court had imposed a variety of sentences, but had failed to reach the "right mix" so that Brendal would be able to succeed in the community. The District Court observed that the MWP had an approach to treating chemical dependency which would be appropriate for Brendal, and that she could be considered for participation in the Teen Challenge program, or other applicable program, upon her parole. The District Court noted that the length of the sentence imposed was a reflection of her long-standing problem with drugs, and specifically noted that incarceration at the MWP would keep her "safe."

You're not going to be found some morning by your daughter or some other relative dead in the community, which has happened a lot here, and so you're going to be safe. You're going to be in a program that tries to utilize all the modern strategies to get you off opioids and become a productive member of society.

. . .

So my sentence is designed to be the least amount of time available that I think to make sure that you're protected, the community is protected, and your family has someone that they can enjoy over a longer period of time.

In its written order issued after the pronouncement of sentence, the District Court set forth further factual findings in support of its decision to incarcerate Brendal. These included her extensive criminal history, extreme difficulty in rehabilitation, and the conclusion that her needs would be better served in a prison or correctional center as opposed to a community facility.

¶ 8 Brendal now appeals from this sentence. She maintains that the District Court was proceeding under an error of law when it imposed this sentence and reasoned that it had no choice but to impose the mandatory 10-year sentence under the PFO statutes. Brendal argues that the ASA statute is more specific than the PFO statutes and gives the District Court the authority to consider sentencing her to the Teen Challenge program. Brendal argues her sentence should be reversed and remanded for the District Court to consider giving her an alternative sentence in accordance with its authority under the ASA statute.

¶ 9 The State urges us to affirm. The State argues that the District Court's sentence was statutorily authorized and legal, and that the District Court correctly determined an alternative sentence was not available to Brendal, since none of the exceptions listed in the PFO statutes applied. The State also asserts that the District Court found that incarceration was appropriate for Brendal, and that an alternative sentence under the ASA statute was not available to her.

¶ 10 We state the issue presented by Brendal's appeal as follows:

Did the District Court err in sentencing Brendal to the mandatory minimum under the PFO statutes?

STANDARD OF REVIEW

¶ 11 We review a criminal sentence for legality only, to determine whether the...