State v. Goff

• Decision Date: 25 January 2011
• Docket Number: No. DA 10–0082.,DA 10–0082.
• Citation: 247 P.3d 715,359 Mont. 107,2011 MT 6
• Parties: STATE of Montana, Plaintiff and Appellee,v.Preston GOFF, Defendant and Appellant.
• Court: Montana Supreme Court

359 Mont. 107

247 P.3d 715

2011 MT 6

STATE of Montana, Plaintiff and Appellee,

v.Preston GOFF, Defendant and Appellant.

No. DA 10–0082.

Supreme Court of Montana.

Submitted on Briefs Nov. 4, 2010.Decided Jan. 25, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Thomas J. Esch, Deputy County Attorney, Kalispell, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.

[359 Mont. 108] ¶ 1 Preston Goff appeals an order of the District Court for the Eleventh Judicial District, Flathead County, revoking his suspended sentence. We affirm, but remand for further proceedings consistent with this Opinion.

¶ 2 Goff raises two issues on appeal which we have restated as follows:

¶ 3 1. Did the District Court abuse its discretion in revoking Goff's suspended sentence?

¶ 4 2. Did the District Court abuse its discretion in setting new terms and conditions on Goff's sentence?

Factual and Procedural Background

¶ 5 In 1987, Goff pled guilty to felony robbery for purposely and knowingly putting two hotel clerks in fear of bodily injury during the course of committing a theft at the Ramada Inn in Somers, Montana. The District Court sentenced Goff to 40 years at Montana State Prison (MSP) with 20 years suspended for the robbery, and an additional 10 years at MSP for the use of a weapon during the robbery. The latter sentence was to run consecutively to the first sentence. The court also designated Goff a dangerous offender for purposes of parole eligibility.

¶ 6 At the time of sentencing, the District Court did not impose any conditions of probation upon Goff with respect to his suspended sentence. In the same way, the Pre–Sentence Investigation (PSI) did not recommend any conditions of probation. The PSI did recommend a “lengthy term of incarceration in Montana State Prison” due to the seriousness of the offense and Goff's extensive criminal history.

¶ 7 In 2001, Goff filed a petition in the District Court to “vacate, set aside, or correct sentence,” challenging his 10–year sentence for the use of a weapon and his designation as a dangerous offender. The District Court denied his petition. Goff appealed to this Court, but he subsequently moved for dismissal of his appeal.

¶ 8 Goff was released from prison in November 2007 to serve the suspended portion of his sentence. Upon his release, Goff signed the standard Conditions of Probation and Parole as required by the Department of Corrections (DOC). However, no steps were taken by the State or the District Court to modify the original judgment to include and require any probation conditions. Goff also registered as a violent offender.

¶ 9 Goff got a job with a carnival and left Montana without advising his probation officer. Consequently, in December 2007, Goff's probation officer filed a report contending that Goff had violated his probation, and, in January 2008, the State filed a petition for revocation of Goff's suspended sentence. Additional probation violations relating to charges of issuing bad checks and writing threatening letters were added to the report in July 2008.

¶ 10 Goff was arrested in Virginia and returned to Montana. He filed a motion to dismiss the petition for revocation in July 2008 arguing that no conditions of probation were set by the sentencing court in 1987, thus he could not violate conditions that “did not, and do not, exist.” About a week after filing this motion, Goff failed to appear at a hearing and a bench warrant was issued for his arrest. Goff's counsel subsequently withdrew the motion when Goff jumped bail. Goff was eventually apprehended and arraigned on charges of felony bail jumping. The State filed an updated affidavit in support of the petition for revocation of Goff's suspended sentence wherein the State cited the bail jumping charge as the reason for revocation.

[359 Mont. 110] ¶ 11 On June 4, 2009, Goff pled guilty to felony bail jumping. He also admitted that he knew it was against the law to jump bail and to leave the state and that pleading guilty to bail jumping would result in a violation of the Conditions for Probation and Parole that he signed upon his release from prison. Based on Goff's guilty plea and admissions, the District Court determined that Goff violated the terms of his suspended sentence and sentenced him to 20 years at MSP without any suspension of sentence. The court also sentenced Goff to five years for the bail jumping offense to run consecutively to the other sentence, and suspended all five years.

¶ 12 The District Court entered its Order of Revocation, Judgment and Sentence on November 16, 2009. The court later amended its order on the State's motion to suspend any financial obligations relative to the sentence for bail jumping, as determined at the sentencing hearing. Goff now appeals the District Court's Amended Order of Revocation, Judgment and Sentence.

Standard of Review

¶ 13 The standard for revocation of a suspended or deferred sentence is whether the trial judge is reasonably satisfied that the conduct of the probationer has not been what the probationer agreed it would be if the probationer were given liberty. State v. Belanger, 2008 MT 383, ¶ 9, 347 Mont. 61, 196 P.3d 1248 (citing State v. Averill, 2001 MT 161, ¶ 22, 306 Mont. 106, 30 P.3d 1059). We review a district court's decision to revoke a deferred or suspended sentence to determine whether the court's decision was supported by a preponderance of the evidence in favor of the State and, if it was, whether the court abused its discretion. Belanger, ¶ 9 (citing § 46–18–203(6), (7), MCA; State v. Price, 2008 MT 319, ¶ 13, 346 Mont. 106, 193 P.3d 921; State v. Muhammad, 2002 MT 47, ¶ 17, 309 Mont. 1, 43 P.3d 318).

Issue 1.

¶ 14 Did the District Court abuse its discretion in revoking Goff's suspended sentence?

¶ 15 The State argues that Goff raises, for the first time on appeal, the argument that the District Court was powerless to revoke his suspended sentence based on the bail jumping violation because there were no conditions of probation set in his 1987 judgment. The State notes that although Goff did raise that argument as to two earlier reports of violation in a motion to dismiss the revocation petition, he withdrew that motion after the bail jumping incident and never raised the argument again in the District Court.

¶ 16 As a general rule, a party may raise on direct appeal only those issues and claims that were properly preserved by timely objection in the trial court. State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683 (citing § 46–20–104(2), MCA). However, we have also held that we will accept jurisdiction of a timely filed appeal which alleges that a sentence is illegal or exceeds statutory authority even when a criminal defendant fails to contemporaneously object at sentencing. State v. Kroll, 2004 MT 203, ¶ 19, 322 Mont. 294, 95 P.3d 717 (citing State v. Brister, 2002 MT 13, ¶ 16, 308 Mont. 154, 41 P.3d 314, overruled on other grounds by State v. Tirey, 2010 MT 283A, 358 Mont. 510, 247 P.3d 701; State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979)).

¶ 17 Goff argues on appeal that the 2003 version of the revocation statute (§ 46–18–203, MCA) applies in this case because the 2003 Legislature specifically inserted a subsection in that statute which provides:

The provisions of this section apply to any offender whose suspended or deferred sentence is subject to revocation regardless of the date of the offender's conviction and regardless of the terms and conditions of the offender's original sentence.

Section 46–18–203(9), MCA (2003). Goff further argues that under the 2003 version of § 46–18–203, MCA, a judge may issue an order for a hearing on revocation, only if the offender has violated a condition of a sentence, and since there were no conditions in his sentence to violate, his suspended sentence could not be revoked. The State argues on the other hand that the revocation statute in effect at the time Goff committed the violation requiring revocation (the 2007 version) would apply. Neither Goff nor the State is correct in this case.

¶ 18 The law in effect at the time an offense is committed controls as to the possible sentence for the offense, as well as the revocation of that sentence. Tirey, ¶ 26 (citing State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297). We held in Tracy, that imposition of a sentence under statutes not in effect at the time an offense was committed is an ex post facto application of the law and therefore unconstitutional. Tracy, ¶ 16. “It is a violation of Article I, Section 10, of the United States Constitution and Article II, Section 31, of the Montana Constitution, to apply a statute enacted subsequent to the time a defendant commits an offense, which increases a defendant's punishment.” Tracy, ¶ 16 (citing State v. Suiste, 261 Mont. 251, 253, 862 P.2d 399, 400 (1993)). Therefore, we look to the statute in effect at the time Goff committed his crime to determine whether the court had authority to revoke his suspended sentence.

¶ 19 Because Goff committed his crime in May 1987, we apply the 1985 revocation statute which provides:

A judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46–18–201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court.

Section 46–18–203(1), MCA (1985) (emphasis added).

¶ 20 Contrary to Goff's arguments on appeal, the District Court was authorized in its...