State v. Flanagan, 02-183.

• Decision Date: 29 April 2003
• Docket Number: No. 02-183.,02-183.
• Citation: 2003 MT 123,68 P.3d 796,316 Mont. 1
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jack Wayne FLANAGAN, Defendant and Appellant.
• Court: Montana Supreme Court

68 P.3d 796

2003 MT 123

316 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Jack Wayne FLANAGAN, Defendant and Appellant.

No. 02-183.

Supreme Court of Montana.

Submitted on Briefs February 27, 2003.

Decided April 29, 2003.

John Bohlman, Attorney at Law, Roundup, Montana, For Appellant.

Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Catherine Truman, Musselshell County Attorney, Roundup, Montana, For Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Jack Wayne Flanagan pled guilty to felony sexual assault. The Fourteenth Judicial District Court, Musselshell County, imposed a 10-year prison sentence, suspended on conditions. Flanagan appeals. We affirm in part, reverse in part and remand.

¶ 2 We address the following issues:

¶ 3 1. Did the District Court err in making findings based on a presentence investigation report not offered or admitted as an exhibit?

¶ 4 2. Did the District Court err by giving inadequate reasons for imposing the 10-year suspended sentence?

¶ 5 3. Did the District Court err in imposing probation conditions with no nexus to the offense committed?

¶ 6 4. Did the District Court err in imposing restitution as a condition of Flanagan's suspended sentence?

¶ 7 5. Does the presentence investigation report provide an adequate basis for the determination of—and did the District Court err in imposing restitution without specifying—the timing of Flanagan's restitution payments?

¶ 8 6. Did the District Court err in ordering that all of Flanagan's assets in the marital estate and probate estate after his death be used to pay restitution?

BACKGROUND

¶ 9 In 2001, Flanagan pled guilty to sexually assaulting a 15-year-old girl in his home in 1998. The District Court accepted his plea and ordered a presentence investigation. Sally McRae, the probation and parole officer who performed the presentence investigation and prepared the associated report, testified at the sentencing hearing in January of 2002. She did not recommend sending Flanagan, a 75-year-old married man, to prison because he appears amenable to outpatient treatment. Instead, McRae recommended a suspended sentence of at least five years, sex offender treatment, and restitution to the victim of $4,945.31 for medical and counseling costs not covered by insurance. Flanagan also testified.

¶ 10 Much of the testimony at the sentencing hearing related to Flanagan's ability to pay restitution as reflected in the income and expense figures in the presentence investigation report. Flanagan testified his monthly income was $624 in social security benefits and listed monthly expenses of $150 for supplemental health insurance, $200 for prescription drugs, and $210 for sex offender treatment. In describing his assets, Flanagan testified he and his wife each had paid half of the $47,000 down payment on their home and she had made all of the subsequent mortgage payments from her wages. The couple owned three vehicles with a total value of $6,000, and otherwise kept their finances separate.

¶ 11 Reports on a psychological evaluation of Flanagan by Dr. Donna Veraldi and a psychosexual evaluation of him by Marla North, a sex offender therapist, also were before the court for sentencing purposes. North deemed Flanagan amenable for specialized outpatient sex offender treatment and recommended that he enter and complete such treatment for a minimum of two years. She also recommended that he be prohibited from consuming alcohol or illegal drugs or misusing prescription drugs; restricted from pornography in any form, from time alone with minors and from any contact with the victim and her family unless pre-approved by the victim's therapist and his treatment team; and financially responsible for any counseling or treatment costs needed by the victim regarding this incident.

¶ 12 The District Court sentenced Flanagan to 10 years in prison, suspended on numerous conditions including sex offender treatment. It also ordered Flanagan to pay $4,945.31 to the victim for treatment costs not covered by insurance and "all future costs for the next two years only which may be incurred if related to this offense."

DISCUSSION

¶ 13 1. Did the District Court err in making findings based on a presentence investigation report not offered or admitted as an exhibit?

¶ 14 Flanagan contends no factual finding may be made based on a presentence investigation report not offered as an exhibit or made part of the record at the sentencing hearing. He cites no authority for this contention as required by Rule 23(a)(4), M.R.App.P., and, as a result, it is not necessary that we address it. See State v. Olson, 2002 MT 211, ¶ 18, 311 Mont. 270,

¶ 18, 55 P.3d 935, ¶ 18. In any event, Flanagan's contention is without merit.

¶ 15 Section 46-18-113, MCA, mandates that the presentence investigation be part of the court record. In this case, the written presentence investigation report was filed in the District Court record as required by statute.

¶ 16 Because the presentence investigation report was already part of the District Court record in Flanagan's case, it was not required to be separately offered or admitted into evidence at the sentencing hearing. We hold the District Court did not err in making findings based on the presentence investigation report.

¶ 17 2. Did the District Court err by giving inadequate reasons for imposing the 10-year suspended sentence?

¶ 18 Sexual assault by a person 3 or more years older than a victim under the age of 16 is punishable by life imprisonment or imprisonment for not less than 2, or more than 100, years. Section 45-5-502(3), MCA. The mandatory minimum sentence does not apply if the sentencing court determines treatment of the offender in the local community affords a better opportunity for rehabilitation and the ultimate protection of the victim and society. Section 46-18-222(6), MCA. ¶ 19 Pursuant to § 46-18-102(3)(b), MCA, a sentencing court must clearly state the reasons for the sentence it imposes. Flanagan contends in a conclusory fashion that the District Court did not give adequate reasons for imposing a 10-year suspended sentence instead of a shorter sentence which would still allow him time to complete sex offender treatment. We disagree.

¶ 20 The District Court stated it suspended Flanagan's entire 10-year sentence because it agreed with North's evaluation and found mitigating circumstances in that Flanagan was 75 years old, had significant health problems and was amenable to community treatment. The court further stated that requiring Flanagan to be under supervision for 10 years could effectively extend for the remainder of his natural life.

¶ 21 We do not insist on extensive statements of sentencing reasons under § 46-18-102(3)(b), MCA. State v. Goulet (1996), 277 Mont. 308, 310, 921 P.2d 1245, 1246. On this record, we hold the District Court's stated reasons for Flanagan's 10-year suspended sentence satisfy the statutory requirements.

¶ 22 3. Did the District Court err in imposing probation conditions with no nexus to the offense committed?

¶ 23 Sections 46-18-201 and -202, MCA, allow a district court to impose sentencing restrictions or conditions that are "reasonable" and that the court considers necessary "to obtain the objectives of rehabilitation and the protection of the victim and society." District courts are afforded broad discretion in sentencing criminal defendants and we will not overturn a court's sentencing decision absent an abuse of discretion. State v. Christianson, 1999 MT 156, ¶ 31, 295 Mont. 100, ¶ 31, 983 P.2d 909, ¶ 31 (citation omitted).

¶ 24 Flanagan contends three conditions of his probation, relating to alcohol or drugs, have no nexus to his offense of felony sexual assault and the environment in which it was committed. The three conditions to which he objects are that he submit to alcohol and drug testing at his probation officer's request; obtain a chemical dependency evaluation and, if recommended, chemical dependency treatment; and not frequent places where liquor or beer is the chief item of sale or possess alcohol or dangerous drugs. Flanagan relies primarily on State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, in arguing the District Court erred in imposing these conditions.

¶ 25 In Ommundson, the defendant pled guilty to driving under the influence of alcohol (DUI). The district court suspended his prison sentence on conditions, including that he participate in a sex offender treatment program. Ommundson, ¶ 1. In imposing that restriction, the district court considered a presentence investigation report that documented Ommundson's criminal history, including more than ten convictions for indecent exposure. Ommundson, ¶ 3. On appeal, we noted the absence of evidence that indecent exposure leads to increased occurrences of DUI or that treatment for indecent exposure will reduce the reoccurrence of alcohol abuse or lessen the incidence of DUI in society at large. We concluded no nexus had been established between the requirement that the defendant participate in a sex offender program and the charged DUI offense. Ommundson, ¶ 12.

¶ 26 The factual situation in this case is readily distinguishable from that in Ommundson. Early on, Flanagan himself connected the charge against him to his alcohol consumption by requesting a mental evaluation on the grounds that he has been a long-time consumer of alcoholic beverages to the extent that he has wine for breakfast, and that he needed to determine whether he was capable of acting knowingly due to the ingestion of alcohol. The presentence investigation report notes Flanagan admitted that, except for intermittent periods of abstinence, he usually consumes up to six drinks per day.

¶ 27 At Flanagan's request prior to entry of his guilty plea, the District Court appointed Veraldi, a clinical psychologist, to report on Flanagan's mental...