State v. Piller

• Citation: 378 Mont. 221,2014 MT 342,343 P.3d 153
• Decision Date: 30 December 2014
• Docket Number: No. DA 12–0742.,DA 12–0742.
• Parties: STATE of Montana, Plaintiff and Appellee, v. James PILLER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

378 Mont. 221

343 P.3d 153

2014 MT 342

STATE of Montana, Plaintiff and Appellee

v.James PILLER, Defendant and Appellant.

No. DA 12–0742.

Supreme Court of Montana.

Argued June 25, 2014.

Submitted July 2, 2014.

Decided Dec. 30, 2014.

Amended Feb. 10, 2015.

Rehearing Denied Feb. 10, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Kristen L. Larson (argued), Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General; Helena, Montana, Scott Twito, Yellowstone County Attorney; Ingrid Rosenquist, Deputy County Attorney; Billings, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

¶ 1 James Piller appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, which upon revoking Piller's suspended sentence for his 1988 conviction for sexual intercourse without consent, resentenced Piller to ten years at Montana State Prison (MSP) with five years suspended, and imposed 14 new conditions on his suspended sentence. We affirm.

¶ 2 The sole issue on appeal is whether the District Court's imposition of 14 new conditions on Piller's suspended sentence violates ex post facto principles.¹

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In 1988, James Piller was charged by information for sodomizing a three-year-old girl whom he was babysitting. Piller pled guilty to sexual intercourse without consent, a felony. The District Court sentenced Piller to 30 years at MSP with ten years suspended.

¶ 4 Piller escaped from MSP on June 11, 1992, and was apprehended the same day. He was charged with escape, intimidation, and possession of a weapon by a prisoner. The Third Judicial District Court, Powell County, sentenced Piller to ten years for each count, to run concurrent with each other.

¶ 5 Piller did not complete sex offender treatment while incarcerated at MSP. In April and June of 2007, probation officer John Boyd made several requests to the county attorney to amend Piller's conditions of probation because he considered Piller an “untreated sex offender.” On April 21, 2007, Piller was discharged to serve the suspended portion of his sentence. The conditions for his suspended sentence were based on the original 1988 sentencing as follows:

1. The defendant shall not frequent any place where intoxicating liquor or beer is the chief item of sale nor shall he use intoxicants or beer; nor shall he purchase, use, possess, give, sell or administer any narcotic or dangerous drugs or have in his possession same without proper prescription by a doctor.

2. The defendant shall not enter into any game of chance nor shall defendant frequent any place where gambling may be taking place.

3. The defendant shall conduct himself in a law abiding manner and shall not violate any law of the United States or of the State of Montana or any other State, or the ordinance of any city or town of this State or other State during the said term.

4. The defendant shall maintain as steady employment as possible [during] said term, and he shall to the best of his ability fully and completely contribute to the support of his family.

5. The defendant is placed under the supervision and control of the Adult Probation and Parole Field Services and is to abide by their rules and regulations.

6. The defendant shall enroll in and successfully complete the sex offenders program at the Montana State Prison prior to parole.

¶ 6 The first report of violation of probation conditions was filed against Piller on January 18, 2011, for failing to give his probation officer a current address, calling his probation officer a “bitch,” using threatening language in a meeting, and for living with another convicted felon. Piller's probation officer recommended that Piller's sentence be revoked, that he be resentenced to the Department of Corrections for six years with three years suspended, and that Piller have 14 additional conditions added to his suspended sentence. At a hearing on June 29, 2011, the District Court orally found that Piller had substantially violated the conditions of his probation.

¶ 7 Piller later filed a disposition memorandum objecting to the probation officer's recommendation that new conditions be placed on his suspended sentence. On November 10, 2011, the District Court filed an order imposing a new sentence of ten years with all time suspended, and imposing the 14 new conditions to Piller's suspended sentence, as recommended by the probation officer.

¶ 8 Piller appealed the November 10, 2011 order to this Court. However, the parties stipulated that Piller's matter was not ripe for appeal because Piller's sentence had not been orally pronounced from the bench in Piller's presence. In an order dated May 31, 2012, we remanded Piller's case back to the District Court for oral pronouncement of the sentence and a written judgment including credit for time served, as well as a specific provision considering and granting or denying credit for Piller's street time.

¶ 9 On March 22, 2012, Piller was again cited for probation violations, including a privacy in communications charge. The State petitioned to revoke Piller's suspended sentence, and the District Court held a revocation hearing on August 13, 2012. On September 6, 2012, the District Court held a disposition hearing. On October 18, 2012, the District Court entered an order of revocation and sentenced Piller to ten years at MSP with five years suspended, and reimposed the following 14 new conditions on his suspended sentence:

1. The Defendant will enter and successfully complete sex offender treatment with a MSOTA clinical member or associate member with supervision, or equivalent, who is approved by the State and the Probation Officer and at his own expense. The Defendant shall abide by all treatment rules and recommendations of his treatment provider.

2. The Defendant shall not frequent places where children congregate. 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 unless accompanied by an approved and appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and approved by his Probation Officer and sex offender treatment provider. The Defendant shall obtain permission from his Probation Officer prior to going to any of the above places.

3. The Defendant will not access or have in his possession or under his control any material that describes or depicts human nudity, the exploitation of children, consensual sex acts, non-consensual sex acts, sexual acts involving force or violence, including but not limited to; computer programs, computer links, photographs, drawings, video tapes, audio tapes, magazines, books literature, writings, etc. without prior written approval of his Probation Officer and therapist. The Defendant will not frequent adult book [ ] stores, topless bars, massage parlors or use the services of prostitutes.

4. The Defendant will not view television shows or motion pictures, which are geared towards his sex offending cycle, or as a stimulus to arouse deviant thoughts or fantasies. (i.e., shows based on sexualization of underage girls or boys, etc.)

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

6. The Defendant shall not involve himself in any type of employment, service or recreational pursuit that involves the supervision of children. Under no circumstances should the Defendant be in a position of power and authority over children.

7. Pursuant to MCA 46–18–255(1), 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.

8. The Defendant's residence, changes and any co-habitants must have prior approval of his Probation Officer. The Defendant will not reside in a residence where there are any children under the age of 18 without the written approval of his therapist and Probation Officer.

9. The Defendant shall not access “900” number telephone sex lines and shall have a “900” number block on his telephone.

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

11. The Defendant shall remain in Aftercare or Relapse Prevention Class for the entirety of his supervision unless released at the discretion of the Probation Officer and therapist.

12. The Defendant shall reenter treatment at any time if deemed appropriate by the Probation Officer and therapist.

13. The Defendant shall submit to annual polygraph testing.

14. The Defendant will not date, live with, or otherwise align himself with any person with children under the age of 18 without the express prior approval of his therapist and Probation Officer. If this approval is granted, they shall both be involved with his treatment to the extent that his treatment provider recommends.

¶ 10 Piller appeals the imposition of the 14 new conditions placed on his suspended sentence.

STANDARD OF REVIEW

¶ 11 We review a criminal sentence only for legality—that is, whether the sentence falls within the statutory parameters. State v. Tirey, 2010 MT 283, ¶ 19, 358 Mont. 510, 247 P.3d 701.

DISCUSSION

¶ 12 Whether the imposition of 14 new...