State v. Pennington
| Decision Date | 20 September 2022 |
| Docket Number | DA 20-0608 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Kayla Dawn PENNINGTON, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Katie Jerstad, Deputy County Attorney, Helena, Montana
¶1 Kayla Dawn Pennington (Pennington) appeals from a December 3, 2020 District Court order revoking her deferred sentence and imposing a ten-year suspended sentence without any reduction for elapsed time. We restate the issues on appeal as follows:
¶2 We affirm in part and reverse and remand for the limited purpose of amending the sentence to reflect 335 days of credit for elapsed time.
¶3 Pennington provided care to Walter Holland. On September 10, 2015, Walter's grandson reported unusual charges and possibly forged checks to the Lewis and Clark County Sheriff's Office. The Deputy assigned to the case concluded that Pennington had written checks to herself from Walter's account without his consent and used his credit card for purchases he did not authorize.
¶4 On May 24, 2016, the State filed an Information charging Pennington with Count I: exploitation of older person, a felony, and Count II: deceptive practices, a felony. Pursuant to a plea agreement, the State dismissed Count II and Pennington pled guilty to an amended Count I, felony theft. On January 4, 2018, the court deferred imposition of sentence for a period of six years to provide her with enough time to pay the $15,385.89 restitution obligation. The sentence placed Pennington on formal probation and she was required to abide by numerous conditions and requirements.
¶5 On December 4, 2018, Pennington consumed alcohol, a compliance violation, which she admitted to her Probation and Parole Officer, Erica Schell (Schell). On December 23, 2018, Pennington was arrested and cited by Helena Police for Driving While Privilege To Do So Was Suspended or Revoked. On January 3, 2019, Pennington told Schell that she was cited for a DUI.
¶6 On January 8, 2019, Pennington's failure to make restitution payments in November and December 2018 resulted in a probation hearings officer conducting an intervention hearing. The officer imposed additional sanctions.
¶7 On March 12, 2019, Pennington was found guilty of the December 23, 2018 driving without a license charge.
¶8 On June 26, 2019, a police officer witnessed Pennington drinking at a bar. The blood test sample that Pennington completed at the officer's request indicated that she had a blood alcohol content of .112. On June 27, 2019, another intervention hearing was held. Pennington admitted to two violations during that hearing. As sanction for those violations, Pennington was required to serve two days in jail, comply with 30 days of a 24/7 alcohol monitoring program, perform 10 hours of community service in place of a third day in jail, and refrain from traveling for 30 days. On February 9, 2020, Pennington was observed drinking alcohol. Pennington later admitted to drinking on that date as well as to being at a bar on February 8 and 9, 2020.
¶9 On February 10, 2020, a case management response was conducted by Pennington's probation officer. Schell documented the January 8, 2019, June 27, 2019, and February 10, 2020 interventions held in response to separate incidents of probation violations by drinking alcohol. Sanctions designed to address Pennington's individualized needs were imposed. Schell noted that Pennington had twice been placed on the 24/7 Alcohol Monitoring Program within the span of seven months. Despite these interventions, Schell concluded that Pennington persisted in violating her probation by drinking alcohol.
¶10 On April 10, 2020, Pennington was cited for driving under the influence of alcohol—her second offense, failing to carry proof of insurance, habitual offender operation of a motor vehicle, and driving while suspended or revoked.
¶11 Schell filed a formal Report of Violation (ROV). The ROV contained five alleged violations of Pennington's deferred sentence. Furthermore, the ROV asserted that Pennington "is not in compliance with her probation and blatantly disregards the rules of supervision." Pennington's disregard for the rules led Schell to conclude that Pennington was "not capable of being a law-abiding citizen." On April 21, 2020, the State filed a petition to revoke Pennington's deferred sentence based on Schell's ROV. Pennington entered denials of all five alleged violations.
¶12 On June 9, 2020, the State filed Schell's addendum ROV containing two additional counts of alleged violations: the first, arising from Pennington's use of cocaine; the second, arising from Pennington's failure to inform Schell that she had been fired from her job. In that ROV, Schell reported that Pennington had persisted in her "blatant disregard of the rules of supervision." On August 11, 2020, the State filed Schell's second addendum ROV that contained one additional alleged violation: Pennington's admission to consuming alcohol on August 1, 2020, and noted Schell's opinion that Pennington "does not take conditions of probation supervision along with court orders seriously ...." The State concurrently filed an Amended Petition to Revoke Defendant's Deferred Sentence.
¶13 At a hearing on October 27, 2020, the State moved to dismiss the first five counts, arising from Pennington's April 2020 DUI arrest. Pennington admitted to Counts VI through VIII—drug use, alcohol use, and failure to notify over an employment change, which were all compliance violations. The court found that Pennington violated the latter three counts and revoked her previously deferred imposition of sentence.
¶14 On November 12, 2020, the Court held a sentencing hearing. Officer Schell testified that the myriad interventions had not been effective. Schell acknowledged that while all Montana Incentives and Intervention Grid (MIIG) interventions had not been exhausted, it was her opinion that Pennington would not be responsive to further efforts under the MIIG.
¶15 The court sentenced Pennington to the Montana Women's Prison for a period of ten years, all suspended.
¶16 This Court applies an abuse of discretion standard when reviewing a district court's decision to revoke a suspended sentence. State v. Jardee , 2020 MT 81, ¶ 5, 399 Mont. 459, 461 P.3d 108. Only where a criminal sentence is alleged to be illegal or in excess of statutory mandates will this Court review an issue on appeal. So long as a sentence falls within the statutory parameters the sentence will be regarded as legal. State v. Kotwicki , 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892.
¶17 An appellate court reviews an issue of statutory interpretation as a question of law to determine whether a district court's interpretation is correct. A judge's role in statutory interpretation is to ascertain and declare what is in terms or substance contained therein, not to insert what is omitted or to omit what has been inserted. Section 1-2-101, MCA. A court's function is to determine legislative intent, and where that can be determined from the plain meaning of the words used, the plain meaning controls and the court need not go further or apply other means of interpretation.
¶18 Calculating credit for time served is not a discretionary act, but a legal mandate. State v. Tippets, 2022 MT 81, ¶ 10, 408 Mont. 249, 509 P.3d 1 (citation omitted). As such, a lower court's determination of credit for time served is reviewed for legality and we exercise de novo review. Tippets , ¶ 10 (citation omitted).
¶19 Issue One: Does a district court have the authority to revoke a deferred sentence for a felony offense based on compliance violations and a determination that the offender would not be responsive to additional incentives and interventions under the Montana Incentives and Interventions Grid?
¶20 Section 46-23-1028, MCA, requires the Department of Corrections to establish the MIIG to guide responses to behavior by people under Department supervision. See State v. Oropeza , 2020 MT 16, ¶ 5, 398 Mont. 379, 456 P.3d 1023. Sections 46-18-203(7) and -203(8), MCA, pertain to violations of suspended or deferred sentences. Subsection (7) applies in the context of violations that are not considered compliance violations. Section 46-18-203(7), MCA. These behaviors involve serious violations of supervision including 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. See Tippets , ¶ 10 n.3 (). Notably, upon a finding of a non-compliance violation with respect to a deferred sentence, the sentencing judge may "impose any sentence that may have been originally imposed." Section 46-18-203(7)(a)(iv), MCA.
¶21 Section 46-18-203(8), MCA, applies in the context of compliance violations—failure to follow the terms and conditions of probation. Tippets , ¶ 13. Upon a finding of a compliance violation, the sentencing judge generally has two options: "continue the suspended or deferred sentence without a change in conditions; or continue the suspended or deferred sentence with...
To continue reading
Request your trial