State v. Oropeza

• Decision Date: 28 January 2020
• Docket Number: DA 18-0410
• Citation: 398 Mont. 379,456 P.3d 1023,2020 MT 16
• Parties: STATE of Montana, Plaintiff and Appellee, v. Adrian David OROPEZA, Defendant and Appellant.
• Court: Montana Supreme Court

398 Mont. 379

456 P.3d 1023

2020 MT 16

STATE of Montana, Plaintiff and Appellee,

v.Adrian David OROPEZA, Defendant and Appellant.

DA 18-0410

Supreme Court of Montana.

Submitted on Briefs: December 18, 2019

Decided: January 28, 2020

For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Marcia J. Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Adrian David Oropeza appeals a Nineteenth Judicial District Court order revoking Oropeza’s deferred sentence for criminal possession of illicit drugs. We affirm.

¶2 We address the following issue on appeal:

Whether the District Court abused its discretion when it revoked Oropeza’s deferred sentence after he failed to report to his probation officer for three months.

FACTUAL AND PROCEDURAL BACKGROUND

Montana Criminal Justice Reform

¶3 In 2015, the State of Montana was suffering from prison overcrowding, high recidivism of first-time criminal offenders, and a growing impact of substance abuse on people in the state’s criminal justice system. Since 2008, state spending on corrections had increased by 16 percent, causing annual spending of approximately $180 million. Governor’s Office, Governor Bullock Signs Bills to Reform Montana’s Criminal Justice System , State of Montana Newsroom (July 19, 2017), https://perma.cc/KS7J-YGKR [hereinafter Criminal Justice Reform Bills ]. Further, the state’s prison population was projected to increase 13 percent by 2023, requiring additional spending of tens of millions of dollars for prison contract beds and hundreds of millions to construct and operate new prison facilities. Council of State Gov’t, Justice Reinvestment in Montana: Report to the Montana Commission on Sentencing 1-2 (2017), https://perma.cc/Y7X3-EHP6 [hereinafter Report to the Montana Commission on Sentencing ]. Among the primary causes of prison overcrowding included probation and parole revocations. Report to the Montana Commission on Sentencing , at 3.¹ In June 2015, to address these problems, Montana’s Governor, the Chief Justice of the Montana Supreme Court, the Attorney General, members of the House of Representatives and Senate, and the Director of the Department of Corrections ("DOC") requested intensive technical assistance from Montana’s Council of State Governments Justice Center to use a justice reinvestment approach in the state. Report to the Montana Commission on Sentencing , at 1. In addition, in April 2015, the Montana Legislature enacted S.B. 224 to establish a bipartisan, interbranch Commission on Sentencing ("Commission") to study the state’s criminal justice system, review its findings, and discuss policy options. 2015 Mont. Laws ch. 343.

¶4 In 2017, based on the Commission’s findings, the Montana Legislature passed sweeping criminal justice reform legislation aimed at utilizing data driven decisions and evidence-based practices to reduce incarceration, statewide pressure on detention facilities, and the accompanying burden on taxpayers.² Criminal Justice Reform Bills . Included among these reforms, S.B. 59 required the DOC to adopt, maintain, and implement a policy known as the Montana Incentives and Interventions Grid for Adult Probation & Parole ("MIIG") to guide community supervision of offenders. 2017 Mont. Laws ch. 390, § 5. In addition, S.B. 63 modified the process of revoking a probationer or defendant’s deferred or suspended sentence for violations of probation conditions. 2017 Mont. Laws ch. 391, § 1. In May 2017, Governor Bullock approved these reforms, codifying S.B. 59 as § 46-23-1028, MCA, and S.B. 63 as § 46-18-203(7) through (12), MCA. Probation and parole reforms are retroactively applied to all suspended and deferred sentences, regardless of the original conviction date. Section 46-18-203(12), MCA.

Montana Incentives and Intervention Grid for Adult Probation &

Parole

¶5 The MIIG grid "provides a consistent approach for Probation & Parole Officers to provide interventions to offenders for compliance and non-compliance violations with the goal of promoting accountability and long-term behavioral change." Montana Incentives/Intervention Grid for Adult Probation & Parole, Dep’t. of Corr. Prob. & Parole Div. Operational Procedure, Procedure No. PPD 6.3 101(A), at 2 (DOC May 29, 2018), https://perma.cc/LM3R-2YLT [hereinafter PPD 6.3 101(A) ]. Officers consult MIIG to select either an incentive or intervention response based on the offender’s behavior, progress, targeted behavior, motivation to change, risk category, and case plan, considering any aggravating and mitigating circumstances. PPD 6.3 101(A), at 2. To encourage and reinforce an offender’s current desired behavior, officers select incentive responses that, in most cases, are temporary. PPD 6.3 101(A), at 3. Incentives are to be individualized, graduated, meaningful to the offender, and appropriate for the behavior being reinforced. PPD 6.3 101(A), at 2. However, when an offender has violated the conditions of his or her community supervision or rules of the probation or parole department facility, officers can use an intervention response, including verbal reprimand, a case management response, an intervention hearing, conditional release or on-site hearing, short jail time, or report of violation. PPD 6.3 101(A), at 4.

¶6 Along with providing a host of case-specific incentive and intervention responses, the implementation of MIIG effectively bifurcated probation and parole condition violations into either compliance or non-compliance violations. Section 46-18-203(7) through (12), MCA. A compliance violation is any violation of a condition of supervision, save for five exceptions constituting non-compliance violations: a new criminal offense, possession of a firearm, harassing a victim or someone close to the victim, absconding, and failure to complete sex offender treatment. Section 46-18-203(11)(b)(i)-(v), MCA. Compliance violations no longer result in automatic revocation of a deferred or suspended sentence; instead, the offender is subject to the appropriate intervention or incentive response. Section 46-18-203(8)(a), MCA. However, an offender’s probation or parole can be revoked for a compliance violation if three criteria have been met: (1) MIIG procedures have been exhausted, (2) violations have been documented, and (3) a probationer’s conduct suggests he or she will be unresponsive to further MIIG efforts. Section 46-18-203(8)(c), MCA.

¶7 Conversely, non-compliance violations are not subject to MIIG procedures and revocation proceedings may occur directly.

Section 46-18-203(7)(a)(iii), MCA. "Absconding" constitutes a non-compliance violation and is defined as "when an offender deliberately makes the offender’s whereabouts unknown to a probation and parole officer or fails to report for the purposes of avoiding supervision, and reasonable efforts by the probation and parole officer to locate the offender have been unsuccessful." Section 46-18-203(11)(a), MCA. If a judge determines that an offender has violated the terms and conditions of his or her suspended or deferred sentence and the violation is a non-compliance violation, the judge may: continue the suspended or deferred sentence without a change in the conditions; continue the suspended sentence with modified or additional conditions; revoke the suspended sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed if it is not a longer imprisonment or commitment than the original sentence; or impose any sentence that might have been originally imposed if the sentence was deferred. Section 46-18-203(7)(a)(i)-(iv), MCA.

Factual and Procedural History: Oropeza

¶8 On March 13, 2017, Oropeza pleaded guilty to Criminal Possession of Dangerous Drugs, a felony, pursuant to a plea agreement. In May 2017, the District Court accepted the plea agreement and sentenced Oropeza to a two-year deferred imposition of sentence, subject to twenty-four conditions of supervision. These conditions included requiring Oropeza to submit written monthly reports to his probation officer, mandating that Oropeza personally contact his probation officer at the officer’s direction (condition five), and ordering Oropeza to abstain from using or possessing alcohol and illegal drugs and submit to testing for drugs or alcohol on a random or routine basis (condition ten).

¶9 On October 11, 2017, Darrell Vanderhoef, Oropeza’s probation officer,³ met with Oropeza at his home after learning he had visited the hospital because of an explosion. On the same day, Vanderhoef obtained a urine sample from Oropeza that tested positive for methamphetamine, marijuana, and opiates.⁴ The sample was later confirmed by testing in a crime lab. Vanderhoef told Oropeza to report to him the next day. Oropeza did not report. On November 30, 2017, after still having had no contact with Oropeza, Vanderhoef attempted to contact Oropeza at his residence, but he was not home. Vanderhoef did not leave a note. On December 2, 2017, Vanderhoef again attempted unsuccessfully to contact Oropeza at home, but still did not leave a note. On December 5, 2017, Oropeza’s former probation officer encountered Oropeza in the grocery store and told him to contact Vanderhoef. Oropeza did not. On January 16, 2018, Vanderhoef called Oropeza’s employer twice, but did not receive an answer. Vanderhoef then called Oropeza’s girlfriend, who said he had just driven her to work and that she would contact him immediately and tell him to contact Vanderhoef. Oropeza again never contacted Vanderhoef. On January 25, 2018, having not had any contact with Oropeza since October 11, 2017, Vanderhoef submitted a Report of Violation to the District Court, alleging that Oropeza violated condition...