State v. Muhammad

• Decision Date: 18 March 2002
• Docket Number: No. 00-663.,00-663.
• Citation: 2002 MT 47,43 P.3d 318,309 Mont. 1
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Carlos A-Lail MUHAMMAD, Defendant and Appellant.

43 P.3d 318

2002 MT 47

309 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Carlos A-Lail MUHAMMAD, Defendant and Appellant.

No. 00-663.

Supreme Court of Montana.

Submitted on Briefs August 9, 2001.

Decided March 18, 2002.

Kristina Guest, Appellate Defender Office, Helena, Montana, For Appellant.

Hon. Mike McGrath, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Great Falls, Montana, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Carlos A-Lail Muhammad ("Muhammad") appeals from the June 7, 2000, Order entered by the Montana Eighth Judicial District Court, Cascade County, revoking his deferred sentence for violating its sentencing condition requiring that he not reside or work within Cascade County. Additionally, Muhammad appeals from the District Court's imposition of the following conditions in its June 7, 2000, Order requiring that: he post a prominent sign at every entrance of his residence stating, "CHILDREN UNDER THE AGE OF 18 ARE NOT ALLOWED BY COURT ORDER", he pay $5,000.00 in restitution, and he obtain the approval of an interstate compact agreement from treatment providers in Montana and the District Court. We affirm in part, vacate in part and remand for proceedings consistent with this Opinion.

¶ 2 The issues presented on appeal are as follows:

¶ 3 1. Whether the District Court abused its discretion when it revoked Muhammad's deferred sentence based upon finding Muhammad violated its sentencing condition that he not reside or work within Cascade County?

¶ 4 2. Whether the District Court illegally sentenced Muhammad to post a prominent sign at every entrance of his residence stating, "CHILDREN UNDER THE AGE OF

18 ARE NOT ALLOWED BY COURT ORDER"?

¶ 5 3. Whether the District Court illegally sentenced Muhammad to pay $5,000.00 in restitution?

¶ 6 4. Whether the District Court had statutory authority to restrict future interstate compact agreements entered into by Muhammad?

BACKGROUND

¶ 7 On April 16, 1998, the State filed an Information charging Muhammad with the offense of sexual intercourse without consent, a felony, alleging Muhammad committed the offense upon a fourteen year old female on or about April 5, 1998.

¶ 8 On August 14, 1998, Muhammad signed a plea agreement. Therein, the State agreed to recommend that the District Court impose a sentence of ten years in the Montana State Prison with all ten years of the term suspended based upon Muhammad's compliance with seven conditions, including having no contact with the victim, having no contact with children under age 18, obtaining a sexual offender evaluation by a Montana Sexual Offender Treatment Association ("MSOTA") recognized therapist and abiding by all of the conditions and recommendations for sexual offender treatment made by the therapist, paying for the costs of his own treatment and the costs of the treatment of the victim, abstaining from the use of drugs and alcohol, submitting a blood sample, and registering as a sexual offender.

¶ 9 On September 24, 1998, the District Court held a hearing on Muhammad's motion to change his plea of not guilty and enter a plea of guilty pursuant to the non-binding plea agreement. The District Court granted Muhammad's motion and ordered a pre-sentence investigation ("PSI") and a sexual offender evaluation.

¶ 10 State Probation and Parole Officer Judy Reimann ("Reimann") prepared the PSI dated February 12, 1999. In the PSI, Reimann comments that pursuant to the plea agreement the State will recommend to the District Court that Muhammad pay restitution to the victim for any of her counseling. Also, Reimann states in the PSI that she contacted the victim and her mother on two occasions regarding bills for counseling and was informed by the victim's mother that the victim was not in counseling. The PSI does not document the victim's pecuniary loss or Muhammad's future ability to pay restitution.

¶ 11 On May 17, 1999, the District Court held a sentencing hearing. The District Court ordered that the imposition of the sentence be deferred for a period of six years, contingent upon Muhammad's compliance with the terms and conditions imposed by the District Court and the Adult Probation and Parole Bureau. Based upon the sexual offender treatment evaluation conducted by Dr. Michael J. Scolatti, the District Court classified Muhammad as a Level 2 sexual offender.

¶ 12 In the District Court's May 28, 1999, Order, the District Court imposed twenty-six conditions upon Muhammad's deferred sentence, among which were the following:

1. "The Defendant shall be under the supervision of the Adult Probation and Parole Bureau and thereby subject to all of their rules and regulations. The Court will not approve an interstate compact unless it is approved by Dr. Scolatti or Ron Silvers." [Condition # 1]

2. "The Defendant may not reside within Cascade County or work here." [Condition # 10]

3. "The Defendant shall be liable for payment of restitution in the sum of $5,000.00, together with the 10% restitution fee of $250.00, which may not, under law, exceed $250.00. This shall be made in monthly payments of at least $75.00 per month. This shall go towards the victim's counseling costs. Any balance that the victim doesn't use will go into the County Victim Reparation Fund." [Condition # 13]

4. "The Defendant must post a prominent sign on every entrance of his residence that `CHILDREN UNDER THE AGE OF 18 ARE NOT ALLOWED BY COURT ORDER'." [Condition # 19]

¶ 13 On January 7, 2000, Reimann filed a Report of Violation, alleging Muhammad committed three probation violations. The alleged violations included:

Montana State Rule # 2 Travel: "You shall not leave your assigned district without first obtaining written permission from your Probation/Parole Officer. Your assigned district is: Lewis and Clark County."

Supporting Evidence: On December 31/January 1, 2000, the Defendant admitted to traveling to Great Falls, Montana, Cascade County for the new year [sic] without written permission from a probation officer in Helena.

Montana State Rule # 8 Laws and Conduct: "You shall comply with all city, county, state, and federal laws and ordinances and conduct yourself as a good citizen. You shall report any arrests or contacts with law enforcement to your Probation/Parole Officer within 72 hours."

Supporting Evidence: On January 1, 2000, at 4:30 a.m. on a Saturday morning, the Defendant's friend, Gina Leah Russell of Helena filed a complaint of a Misdemeanor Assault against her by the Defendant. A misdemeanor warrant was issued on Monday, January 3rd and was served on the Defendant on Wednesday, January 5th of the year 2000 along with a no bond probation warrant.

Special Condition: "That the Defendant may not reside within Cascade County or work here."

Supporting Evidence: The Defendant has returned to Cascade County on two (2) occasions, the first being December 24, 1999 in which he had a travel permit from his probation officer in Helena. He missed his ride and he did not return to Helena until December 29, 1999. The second occurrence was when the Defendant traveled to Cascade County on December 31, 1999/January 1, 2000 for New Years. His friend did not give him a ride back to Helena and therefore has been in Great Falls, Montana, Cascade County since January 1, 2000. He was arrested by this officer on Wednesday, January 5, 2000 and a no bond warrant was placed on him at that time as well as a misdemeanor warrant for a[sic] assault being served on him by Great Falls Police Officer, Mike Stimac.

¶ 14 On January 18, 2000, the State filed a petition for revocation of deferred sentence. The District Court held a revocation hearing on June 5, 2000. Muhammad admitted he traveled to Cascade County without a travel permit and denied violating the other two conditions. The District Court determined that Muhammad did not violate Montana State Rule # 8 Laws and Conduct, but did violate its special condition that he not reside or work within Cascade County.

¶ 15 Thereafter, the District Court revoked Muhammad's deferred sentence and sentenced Muhammad to the Department of Corrections ("DOC") for twenty years, with fifteen years suspended. In its June 7, 2000, Order, the District Court imposed the same twenty-six conditions on Muhammad as it had in its May 28, 1999, Order.

¶ 16 Muhammad filed a notice of appeal in the District Court on July 26, 2000.

STANDARD OF REVIEW

¶ 17 We review a district court's decision to revoke a deferred or suspended sentence by determining whether the court abused its discretion and whether the court's decision was supported by a preponderance of the evidence. State v. Brister, 2002 MT 13, ¶ 12, 308 Mont. 154, ¶ 12, 41 P.3d 314, ¶ 12 (citations omitted). See also State v. Docken (1995), 274 Mont. 296, 298, 908 P.2d 213, 214 (citations omitted). However, where the issue, as here, is whether the court followed applicable statutory requirements, the question is one of law over which our review is plenary. Brister, ¶ 12 (citation omitted).

¶ 18 Our review of a district court's criminal sentence is limited to questions of legality. State v. Pritchett, 2000 MT 261, ¶ 6, 302 Mont. 1, ¶ 6, 11 P.3d 539, ¶ 6 (citing State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15.) Therefore, our review is confined to whether the sentence is within the parameters provided by statute. Pritchett, ¶ 6, 11 P.3d 539 (citing Montoya, ¶ 15).

DISCUSSION

ISSUE 1

¶ 19 Whether the District Court abused its discretion when it revoked Muhammad's deferred sentence based upon finding Muhammad violated its sentencing condition that he not reside or work within Cascade County?

¶ 20 Muhammad alleges the District Court illegally sentenced him and violated his fundamental constitutional rights, including his freedom of travel, association, and assembly, without articulating a compelling governmental...