State v. Leyva

• Decision Date: 12 June 2012
• Docket Number: No. DA 11–0414.,DA 11–0414.
• Citation: 365 Mont. 204,2012 MT 124,280 P.3d 252
• Parties: STATE of Montana, Plaintiff and Appellee, v. Anthony Joe LEYVA, Defendant and Appellant.
• Court: Montana Supreme Court

365 Mont. 204

280 P.3d 252

2012 MT 124

STATE of Montana, Plaintiff and Appellee,

v.Anthony Joe LEYVA, Defendant and Appellant.

No. DA 11–0414.

Supreme Court of Montana.

Submitted on Briefs April 17, 2012.

Decided June 12, 2012.

For Appellant: Wade Zolynski, Chief Appellate Defender; Garrett R. Norcott, Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney, Helena, Montana; Scott Twito, Yellowstone County Attorney; Rodney E. Souza, Deputy County Attorney, Billings, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[365 Mont. 204]¶ 1 Anthony Leyva was convicted of burglary under § 45–6–204, MCA, by the Thirteenth Judicial District Court following his plea of guilty. The District Court sentenced him to twenty years in prison, fifteen years of which it suspended on numerous conditions. Leyva appeals the conditions of his suspended sentence. We affirm in part, reverse in part, and remand for correction of the sentence.

¶ 2 Leyva raises the following issues on appeal:

¶ 3 1. Whether Conditions 24, 25, 26, 33, and 35 of Leyva's sentence are lawful conditions of his sentence for burglary.

¶ 4 2. Whether Conditions 17, 28, 29, 31, 32, 38, and 41 of Leyva's sentence had a sufficient nexus to Leyva or to his offense.

¶ 5 3. Whether Condition 31 of Leyva's sentence is impermissibly vague.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 6 On August 20, 2009, the State charged Leyva with Sexual Intercourse Without Consent. The State alleged Leyva had sexual intercourse with M.N. while she was intoxicated and passed out on her living room couch. Leyva entered into a plea agreement with the State in which he agreed to plead guilty to an amended charge of Burglary and to undergo a psychosexual evaluation by a certified evaluator of his choosing. The State agreed to dismiss the charge of Sexual Intercourse Without Consent, withdraw its notice of intent to have Leyva designated as a persistent felony offender, and recommend a twenty-year prison sentence with fifteen years suspended.

¶ 7 The State filed an Amended Information charging Leyva with burglary by remaining unlawfully in the victim's home “with the purpose to commit a sexual assault therein[.]” Leyva appeared in District Court for his change of plea hearing and stated, “I was invited to a residence and I exceeded the scope of my invitation by remaining with the intent to commit unwanted sexual contact with the victim.”

¶ 8 Upon defense counsel's motion, Marla North, a licensed clinical professional counselor and clinical member of the Montana Sex Offender Treatment Association (MSOTA), completed a psychosexual evaluation of Leyva. North found Leyva's testing “showed normal sexual interests in adult and adolescent females. He has no recorded or reported history of child molestation.” However, North noted that Leyva's prior criminal record included three other sexually related charges. She also observed that Leyva has poor impulse control as a result of his drug and alcohol abuse and he exhibits prominent antisocial personality traits. North also noted Leyva struggles with accountability:

He does not acknowledge ever having acted out rape assault behaviors. However, he was found to use different kinds of excuses to defend against the accusation that he committed a sex offense as noted by responses such as, ‘Sexual things just seemed to happen between me and the person who accused me, and I did not plan it,’ and ‘The sex thing that happened between me and the person who accused me has been made out to be worse tha[n] it really was.’ He was also found to attempt to explain why his sexual behavior was justified as noted by responses such as, ‘My sexual offense happened because the person was sexually loose or easy’. And, ‘My sexual offense happened because I knew the person already had sexual experience and that they wanted it.’

¶ 9 North described Leyva as a “[m]orally indiscriminate, situational offender. This type of offender is a user of people, has a ‘why not’ attitude, and looks for opportunity and vulnerability. They often use lure, force or manipulation.” North concluded with a number of recommendations. Those pertinent to this discussion include:

Mr. Leyva would benefit from completing Phase I, II, and III of specialized sex offender treatment .... he has not had sex offender treatment to date and has a history of sexually inappropriate charges.

As an additional precaution, he should have no unsupervised time or employment or activities with vulnerable persons (minors, elderly, intoxicated, or disabled). Supervisors should be pre-approved by his treatment team.

Avoid pornography, magazines, videos, (including explicit R-rated and cable channels) 900 numbers.

No Internet access as porn and vulnerable people are easily accessed through the Internet.

If a cell phone is used, all bills and records will be made available to the treatment team/probation officer.

¶ 10 Probation and Parole Officer, Laura McKee, compiled Leyva's presentence investigation report (PSI). The PSI indicated Leyva had prior felony convictions for Attempted Sexual Assault, Burglary, and Failure to Register as a Sex Offender. Leyva also was convicted of several misdemeanor offenses including Assault, Criminal Mischief, Obstructing a Peace Officer, Prostitution, and Driving under the Influence of Alcohol or Drugs.

¶ 11 Officer McKee concluded that the plea agreement's recommendation of a twenty-year sentence, with fifteen years suspended, was an appropriate sentence for Leyva. She stated that Leyva could “request parole to a prerelease center to address his sexual offender treatment after completing Phase I of sex offender treatment in Montana State Prison.” Officer McKee recommended a number of conditions for Leyva's community supervision, nearly all of which the District Court adopted verbatim at sentencing. Leyva challenges the following conditions of the suspended portion of his sentence:

17. The Defendant shall successfully RE–complete Cognitive Principles & Restructuring (CP & R) or similar cognitive and behavioral modification program.

. . . . .

24. The Defendant shall enter and successfully complete sexual offender treatment with an MSOTA clinical member or associate member with supervision, or equivalent, who is approved by the State and the Probation & Parole Officer, at the Defendant's expense. The Defendant shall abide by all treatment rules and recommendations of the treatment provider.

25. The Defendant shall obtain a psychosexual evaluation by an MSOTA certified or Department-approved treatment provider, at the Defendant's expense, and follow all recommendations of said evaluation.

26. The Defendant shall undergo annual HIV testing for the next five (5) years and make the results of each test available to the Probation & Parole Officer and the victim(s). [Section 46–18–256, MCA.]

. . . . .

28. The Defendant shall not have contact with any individual under the age of 18 unless accompanied by an appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and is approved by the Probation & Parole Officer and sexual offender treatment provider. The Defendant shall sign a “No Contact” contract and abide by all conditions of the contract.

29. The Defendant shall not frequent places where children congregate unless accompanied by an appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and is approved by the Probation & Parole Officer and sexual offender treatment provider. This includes, but is not limited to, schools, parks, playgrounds, malls, movies, fairs, parades, swimming pools, carnivals, arcades, parties, family functions, holiday festivities, or any other place or function where children are present or reasonably expected to be present. The Defendant shall obtain permission from the Officer prior to going to any of the above places.

. . . . .

31. The Defendant shall not view television shows or motion pictures geared toward his sexual offending cycle, or as a stimulus to arouse deviant thoughts or fantasies (i.e., shows based on sexualization of underage girls or boys, etc.).

32. The Defendant shall not have access to the internet without prior permission from the Probation & Parole Officer and sexual offender therapist, nor can the Defendant have on any computer he owns any software that is intended for data elimination, encryption or hiding data. If Internet access is allowed, the Defendant must allow the Department to install rating control software and conduct random searches of the hard drive for pornography or other inappropriate material.

33. The Defendant shall be designated a Level 2 sexual offender based on the psychosexual evaluation and other pertinent documentation. [Section 46–23–509, MCA.]

35. The Defendant shall be subject to reasonable employment or occupational prohibitions and restrictions designed to protect the class or classes of persons containing the likely victims of further offenses. [Section 46–18–255(1), MCA.]

38. The Defendant shall not have a cell phone, or such other technology/device with photo, video, or Internet capabilities. If cell phone use is allowed, all bills and records shall be made available to the Probation & Parole Officer.

41. The Defendant shall not date, live with, or otherwise be aligned with any person with children under the age of 18 without the express prior approval of the therapist and Probation & Parole Officer. If this approval is granted, they shall both be involved with the Defendant's treatment to the extent recommended by the treatment provider. The Court makes an exceptionand will allow Defendant to live with his wife and son.

[Emphasis in original.]

¶ 12 Leyva provided a sentencing memorandum to the District Court, recommending a ten-year commitment to the Department of Corrections, with seven years suspended. Leyva argued that several of the...