State v. Burch
| Decision Date | 09 April 2008 |
| Docket Number | No. DA 07-0308.,DA 07-0308. |
| Citation | 182 P.3d 66,2008 MT 118,342 Mont. 499 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Kenneth Edward BURCH, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jim Wheelis, Chief Appellate Defender, Shannon L. McDonald, Assistant Appellate Defender, Helena, Montana.
For Appellee: Hon. Mike McGrath, Montana Attorney General, Jesse A. Laslovich, Assistant Attorney General, Helena, Montana, Cyndee L. Peterson, Hill County Attorney, Havre, Montana.
¶ 1 Kenneth Edward Burch (Burch) appeals from an order of the Twelfth Judicial District, Hill County which revoked a suspended sentence for sexual assault originally imposed on Burch on April 13, 2000. We affirm.
¶ 2 On December 20, 1999, Burch voluntarily pled guilty to the following felonies: sexual intercourse without consent, in violation of § 45-5-503, MCA; criminal sale of dangerous drugs, in violation of § 45-9-101(1), MCA; and sexual assault, in violation of § 45-5-502, MCA. On April 13, 2000, he was sentenced for these offenses and designated as a level III sex offender. The District Court sentenced Burch to eight years for sexual intercourse without consent, and five years for criminal sale of dangerous drugs. The District Court sentenced Burch to sixteen years for sexual assault, but suspended the last eight years of that sentence so long as Burch complied with a total of nineteen conditions. These sentences were to run concurrently with one another. The conditions of Burch's suspended sentence for sexual assault, designated as (a) through (s) in the sentencing order, applied to Burch "[d]uring the suspended portion of the sentence, and upon any parole...." Of particular relevance to the present appeal is condition (f), which states that "Defendant shall have no pornographic material, i.e., magazines, books or access to the internet." Further, condition (b) required Burch to comply with all county, state and federal laws and conduct himself as a good citizen.
¶ 3 On December 22, 2005, the Board of Pardons and Parole (Board) paroled Burch to the Intensive Supervision Program (ISP) in Billings, Montana. He completed the program on July 6, 2006, and was then assigned to standard community supervision and subjected to the standard rules of parole as set by the Board. On February 1, 2007, Burch's probation officer filed a report alleging that Burch had violated the conditions of his parole. The report alleged that Burch had written two bad checks on a closed account to his sex offender treatment provider leading to his termination from the program. The report also alleged that probation officers discovered adult pornography and pictures of naked children on his computer at work, and that Burch admitted to using his computer to view pornography.
¶ 4 Although the document setting forth the parole conditions imposed by the Board has not been provided in the record, those conditions relevant to Burch's parole violation are listed in the violation report, and are not disputed or challenged by Burch. They read as follows:
Parole Condition # 8: LAWS & CONDUCT: I shall comply with all city, county, state, federal laws, ordinances, and conduct myself as a good citizen.
Parole Condition # 15: The Defendant shall enter into and complete an approved sexual offender treatment program.
Parole Condition # 16: The Defendant shall comply with all of the rules and policies in place at his treatment program.
Parole Condition # 19: The Defendant shall not have access to the internet, unless expressly approved in writing by his therapist and supervising officer, nor shall he have on any computer he has access to, any software that is intended for data elimination, encryption or hiding data.
Parole Condition # 28: The Defendant shall not use or have pornography or sexually explicit material within his control and will not frequent establishments whose primary business pertains to sexually orientated or erotic material.
¶ 5 As a result of the violation report, the State filed a petition to revoke Burch's suspended sentence on February 5, 2007. The State alleged Burch violated judgment condition (b) and parole condition eight by writing two bad checks on a closed account. The State also argued parole conditions fifteen and sixteen were violated because Burch was terminated from his sex offender treatment program as a result of writing the bad checks. Lastly, the State asserted that Burch violated parole conditions nineteen and twenty-eight because he had been caught using his work computer to view pornography and had admitted to viewing pornography on at least twelve occasions.
¶ 6 An evidentiary hearing on this petition was held on May 1, 2007. At the conclusion of the hearing, the District Court granted the petition and revoked the suspended portion of Burch's sixteen year sentence for the sexual assault conviction.
¶ 7 At the revocation hearing, Burch argued that the District Court could not revoke the suspended portion of his sentence, because he was released on parole until April 5, 2008, which was prior to the date upon which the suspended sentence would actually begin to run (i.e., eight years from the April 13, 2000 date of sentence). However, the District Court rejected that argument, citing to State v. Vallier, 2000 MT 225, 301 Mont. 228, 8 P.3d 112, and held that § 46-18-203, MCA, "does not prohibit the revocation of a suspended sentence before the defendant actually begins serving the suspended sentence ...." The District Court further found that a preponderance of the evidence demonstrated a sufficient basis for revoking Burch's suspended sentence, and ordered that Burch be committed to the Montana State Prison for the remainder of his sixteen year sentence on the sexual assault conviction.
¶ 8 Burch now timely appeals the revocation of his suspended sentence by the District Court. Burch argues that the District Court lacked the authority to impose any parole conditions on him, and further exceeded its authority when it revoked his sentence for the violations occurring while he was on parole. The State urges us to affirm the District Court, arguing the District Court had the authority to impose conditions on Burch's parole and that it was acting within its authority when it revoked Burch's suspended sentence.
¶ 9 We state the issues on appeal as follows:
¶ 10 Issue One: Did the District Court have the authority to impose conditions on Burch's parole?
¶ 11 Issue Two: Did the District Court err in revoking Burch's suspended sentence?
¶ 12 We review a sentence in a criminal case for legality, in order to determine whether it is within statutory parameters. State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (citing State v. Ruiz, 2005 MT 117, ¶ 8, 327 Mont. 109, ¶ 8, 112 P.3d 1001, ¶ 8). Because a district court's authority to sentence a defendant is "defined and constrained by statute, and the court has no power to impose a sentence in the absence of specific statutory authority ... `[a] sentence not based on statutory authority is an illegal sentence.'" Hicks, ¶ 41 (quoting Ruiz, ¶ 12).
¶ 13 Issue One: Did the District Court have the authority to impose conditions on Burch's parole?
¶ 14 Burch argues that the District Court did not have the statutory authority to impose conditions on his parole. In support of his argument, Burch points to § 46-18-201(4), MCA, which provides: "When deferring imposition of sentence or suspending all or a portion of execution of sentence, the sentencing judge may impose upon the offender any reasonable restrictions or conditions during the period of the deferred imposition or suspension of sentence." Burch points out that while the statute does give the sentencing judge the authority to impose conditions on the "deferred imposition or suspension of sentence," this statute makes no mention of a sentencing judge's authority to impose conditions on parole. Additionally, Burch points to § 46-12-202(2), MCA, which states:
Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term. If the restriction is to be imposed, the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction.
¶ 15 Burch argues these statutes do not give sentencing judges statutory authority to impose conditions upon parole. Instead, Burch maintains, the statutes governing parole demonstrate that the Board has the sole authority to impose parole conditions. First, Burch notes that § 46-23-1001(3), MCA, explicitly defines "parole" as "the release to the community of a prisoner by the decision of the board prior to the expiration of the prisoner's term, subject to conditions imposed by the board and subject to supervision of the department." Burch also notes that § 46-23-215(1), MCA, states that "[a] prisoner while on parole remains in the legal custody of the department [of corrections] but is subject to the orders of the board." Further, § 46-23-218(1), MCA, provides that the Board is given the authority to "adopt any rules that it considers proper or necessary with respect to the eligibility of prisoners for parole ... [and] the conditions to be imposed upon parolees...." These statutes, Burch maintains, show that the general authority to impose parole conditions rests with the Board, and not with sentencing judges in district courts.
¶ 6 Burch concedes...
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