State v. Hall, 02-469.

• Decision Date: 23 September 2003
• Docket Number: No. 02-469.,02-469.
• Citation: 77 P.3d 239,2003 MT 253,317 Mont. 356
• Parties: STATE of Montana, Plaintiff and Respondent, v. Timothy T. HALL, Defendant and Appellant.
• Court: Montana Supreme Court

77 P.3d 239

2003 MT 253

317 Mont. 356

STATE of Montana, Plaintiff and Respondent, v. Timothy T. HALL, Defendant and Appellant.

No. 02-469.

Supreme Court of Montana.

Submitted on Briefs April 10, 2003.

Decided September 23, 2003.

For Appellant: Jeremy S. Yellin, Attorney at Law, Fort Benton, Montana.

For Respondent: Honorable Mike McGrath, Attorney General, Ilka Becker, Assistant Attorney General, Helena, Montana, David Rice, Hill County Attorney, Havre, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant, Timothy T. Hall (Hall), appeals his convictions of misdemeanor theft, felony theft, and designation as a persistent non-violent felony offender and corresponding sentence of eleven years.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Did the District Court err in denying Hall's pre-trial motion to suppress evidence?

¶ 4 2. Did the District Court err in denying Hall's proposed jury instructions?

¶ 5 3. Did the District Court err in denying Hall's motion for a directed verdict on the close of evidence? Was there sufficient evidence to support the convictions for theft?

¶ 6 4. Did the District Court violate Hall's due process rights by punishing him for going to trial, when the sentence given was harsher than that offered before trial?

¶ 7 We affirm the convictions and remand for re-sentencing.

FACTUAL and PROCEDURAL BACKGROUND

¶ 8 Hall admits to having problems with gambling, drugs, and alcohol. To pay for these activities, Hall has committed numerous and sundry nonviolent property crimes. He has spent substantial periods of his life incarcerated.

¶ 9 In January of 2001, the District Court modified the conditions of Hall's release on a previous matter. Hall was to remain law abiding, avoid alcohol and controlled substances, and reside with his friend, Seth Nelson (Nelson), at 1715 Second Street, Havre. As a condition of the modification, the District Court had Nelson explicitly agree to supervise Hall, report any violations, and allow law enforcement to search the premises as needed to ensure compliance with the conditions.

¶ 10 Greg Baltrusch (Baltrusch) owns the old Farmer's Grain Exchange in Havre. He uses the back half of the structure for grain storage and a seed cleaning business and leases the front half to a professional photographer, Richard Ervin (Ervin), for his R & R Studio. On January 12, 2001, Ervin discovered his studio had been burglarized and notified Baltrusch and the Hill County Sheriff. Deputies Reichelt and Dwyer went to the studio where Ervin told them he was missing almost all of his camera equipment worth approximately $40,000, his Compaq Presario computer, a portable CD player, a paper shredder, and about $300 in cash. Baltrusch was missing an FM two-way radio, an electronic scale, a telephone headset, and a charger for the radio.

¶ 11 Baltrusch's building has no insulation and is essentially comprised of sheets of tin screwed onto a wood frame. The investigation revealed a corner of tin sheeting had been pried open in the back corner of the elevator office, sufficient to allow entry for a small person. Inside the office, laying on the floor near the opening was a black Harley Davidson baseball cap. The opening and cap were photographed, and the cap was seized as evidence. Baltrusch and Ervin did not lock the inside doors between their businesses, so that when entry was made into one, movement could easily be had between the two. On the other side of the building, laying on the ground was a bolt, which was normally used to prevent the opening of an overhead garage door. On the threshold of that door was a clear footprint in grain dust, later determined by the Montana State Crime Lab to match a left size fifteen Adidas shoe.

¶ 12 When Deputy Federspiel arrived at work on the evening of January 12, he was informed of the burglary and that Hall was a suspect, because Hall had previously done odd jobs for Ervin. Deputies Federspiel and Marden went to the 1715 Second Street address with a warrant for Hall's arrest for an unrelated charge of forgery. Hall answered the door and was arrested. Hall protested that he had already taken care of the forgery charge and had the paperwork to prove it. Hall asked Nelson, who was also present, to go and get his paperwork. While Marden kept Hall in custody, Federspiel accompanied Nelson to a bedroom to get Hall's paperwork. While in the bedroom, Federspiel saw a laptop computer with an external zip drive on the bed. The deputies then took Hall to the station. However, Federspiel returned shortly thereafter to double-check Hall's paperwork. Once again, he accompanied Nelson into the bedroom where he saw a CD player, and noted the laptop was playing music.

¶ 13 Federspiel then left to prepare an application for a search warrant. He posted an officer on the street outside the residence to make sure nothing was removed until he could return with the warrant. Approximately three hours later, Federspiel returned with Deputy Dwyer and a search warrant. Officers searched Nelson's home and found Ervin and Baltrusch's missing equipment and other items of contraband. The computer was in a bag behind the couch. Some of the photography equipment was in the south bedroom shared by Nelson and Hall, while the rest was discovered in a storage closet.

¶ 14 Hall was charged by information with two counts of burglary and one count each of misdemeanor and felony theft. Hall moved to suppress and dismiss, claiming the evidence underlying probable cause for the search warrant was itself obtained by an illegal search, and therefore should be suppressed. The District Court rejected this argument because Federspiel was lawfully in the bedroom. He not only had Nelson's express permission to search the premises as a condition of Hall's previous release, but further, Federspiel's presence in the bedroom was acceptable procedure to ensure officer safety.

¶ 15 Plea bargaining negotiations took place, and a deal was almost struck. At an omnibus hearing, the District Court noted that Hall had just been sentenced to eleven years in Montana State Prison on a charge of forgery. The court indicated:

if a plea bargain arrangement were reached, whereby Mr. Hall were to plead guilty to receiving stolen property, which I believe is a theft charge; and the State would recommend a sentence of five years, and a persistent felony offender status, or sentence for five years running concurrent. And both of these running concurrent with the eleven years on the other case. The Court would be inclined to accept that.

¶ 16 Hall rejected the plea-bargain, and trial was held. The State presented the aforementioned facts. In addition, two Montana State Crime Lab employees testified. The first employee testified that DNA taken from the Harley Davidson baseball cap found at the scene matched samples taken from Hall and Nelson, as well as indicating the presence of DNA from an unknown third party. The second employee testified that Nelson's left, size fifteen Adidas shoe was a match to the print found at the scene. At the close of the State's case-in-chief, Hall moved for a directed verdict. The District Court denied the motion. The jury found Hall guilty of one count of misdemeanor theft and one count of felony theft. At sentencing, the District Court sentenced Hall to six months in the county jail for the misdemeanor to be served concurrently with the sentence of six years at Montana State Prison for the felony theft. Also, Hall was found to be a persistent felony offender and was sentenced to an additional five years. The sentences were ordered to run consecutively to each other, creating a total sentence of eleven years.

DISCUSSION

¶ 17 1. Did the District Court err in denying Hall's pre-trial motion to suppress evidence?

¶ 18 This issue is set forth in the brief as being raised by Hall individually rather than by his counsel on appeal. There is no discussion of the issue or citation to authority. Appellant's counsel states the issue is brought "pursuant to" Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In its answer brief, the State questions the propriety of raising an Anders issue in the context of other nonfrivolous appeal issues. Despite appellant counsel's reference to Anders, we do not deem this to be an Anders issue.

¶ 19 Anders sets forth a standard for effective representation of counsel on appeal for indigent clients when counsel believes no meritorious issues exist. "[T]he Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may" and, we are confident, will "craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders." Smith v. Robbins (2000), 528 U.S. 259, 276, 120 S.Ct. 746, 759, 145 L.Ed.2d 756, 774. Montana adheres to Anders as codified in statute and adopted in case law. Section 46-8-103, MCA; State v. Swan (1982), 199 Mont. 459, 469, 649 P.2d 1297, 1302.

¶ 20 The statute provides, in relevant part:

(2) If counsel finds the defendant's case on appeal to be wholly frivolous, counsel shall advise the court of that fact and request permission to withdraw. The request to withdraw must be accompanied by a memorandum referring to anything in the record that might arguably support the appeal. The defendant is entitled to receive a copy of counsel's memorandum and to file a reply with the court.

Section 46-8-103(2), MCA.

¶ 21 The Montana statute only contemplates an Anders procedure where the appeal is otherwise wholly frivolous and counsel seeks to withdraw. Furthermore, counsel must supply a memorandum citing anything in the record which might support the appeal. State v. Adams, 2002 MT 202, ¶ 15, 311 Mont. 202, ¶ 15, 54 P.3d 50, ¶ 15.

¶ 22 At its heart, any Anders procedure is asking permission for counsel to withdraw while still providing the defendant with the benefits of an...