State v. Shults

• Decision Date: 09 May 2006
• Docket Number: No. 05-279.,No. 05-278.,05-278.,05-279.
• Citation: 332 Mont. 130,136 P.3d 507,2006 MT 100
• Parties: STATE of Montana, Plaintiff and Respondent, v. Johnnie SHULTS, Defendant and Appellant.
• Court: Montana Supreme Court

136 P.3d 507

2006 MT 100

332 Mont. 130

STATE of Montana, Plaintiff and Respondent, v. Johnnie SHULTS, Defendant and Appellant.

No. 05-278.

No. 05-279.

Supreme Court of Montana.

Submitted on Briefs: February 14, 2006.

Decided: May 9, 2006.

COPYRIGHT MATERIAL OMITTED

R. Stan Peeler, Peeler Law Firm, Bozeman, for Appellant.

Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Marty Lambert, County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 This decision stems from two separate appeals consolidated for this Court's review. In unrelated proceedings, the State charged Johnnie Albert Shults by information with escape (from Gallatin County Detention Center), a felony in violation of § 45-7-306, MCA, and theft, a felony in violation of § 45-6-301, MCA. During the theft proceeding, the State provided Shults notice of its intention to have him designated a persistent felony offender (PFO). Shults pled guilty to both charges at separate hearings before the Eighteenth Judicial District Court, Gallatin County. The court sentenced Shults as a PFO, imposing a fifty-year sentence in Montana State Prison (MSP) to run concurrently with his sentence for escape. Shults subsequently filed a notice of appeal. We affirm.

¶ 2 We restate the issues as follows:

¶ 3 1. Did the District Court err in denying Shults's motion to suppress evidence?

¶ 4 2. Did the District Court correctly determine that the State provided adequate notice of its intention to seek treatment of Shults as a PFO pursuant to § 46-13-108, MCA?

¶ 5 3. Are Montana's PFO statutes unconstitutional on their face and/or as applied to Shults?

¶ 6 4. Did the District Court err by sentencing Shults to prison for ten years, rather than imposing an alternative sentence?

BACKGROUND

¶ 7 On December 10, 2003, law enforcement received a report that a white minivan had been driving around the rental units at Abba Dabba Storage in Bozeman, Montana, before business hours. The caller stated that he noticed several storage units missing locks after the driver and his female passenger drove from the premises. Deputy Sheriff Ryan Stratman ran the license plate number through dispatch and learned that the white minivan belonged to Shults, who was on probation at the time.

¶ 8 Deputy Stratman drove to Shults's residence two days later to question Shults as to why his vehicle had been at the storage unit on the morning of December 10, 2003. After Deputy Stratman knocked on the front door and received no answer, he left the premises. The next day, Deputy Stratman returned to Shults's home with Deputy Tom Madsen. As the officers approached Shults's trailer house, a gated property located within a trailer park, Deputy Madsen observed property in the yard that resembled items stolen from storage unit break-ins under investigation. Although Shults maintains that the entry gate had a "No Trespassing" sign, Deputy Stratman testified that he did not see such a notice. The officers knocked on the front door, but received no answer even though Shults was inside the house. The officers then walked to the rear of the house where they observed a pitched tent. Still receiving no answer, Officer Madsen left the premises, while Deputy Stratman stayed, sitting in his vehicle in front of Shults's residence. After a few moments, Shults appeared from his home and approached Deputy Stratman, who told Shults that he was investigating a criminal trespass complaint. Upon request, Shults granted Deputy Stratman permission to search the tent, at which time the officer observed what he believed to be stolen property. Deputy Stratman arrested Shults and read him his Miranda rights. Shults consented to a search of his home, waiving his rights verbally and in writing; the search resulted in law enforcement seizing stolen property.

¶ 9 Following Shults's arrest for theft, but before the State filed the information, Shults was held in the Gallatin County Detention Center on a petition to revoke in a separate case unrelated to this appeal. With the help of his girlfriend, Shults managed to escape jail, only to be captured by law enforcement several hours later.

¶ 10 The State first charged Shults with felony escape and then with theft. The court held an omnibus hearing where the attorneys for both sides signed an order in which the State checked a box indicating its intention to seek treatment of Shults as a PFO. At the change of plea hearing on the escape charge, the State filed a notice to seek increased punishment under the PFO statutes, specifying that the alleged prior conviction consisted of issuing a bad check. Shults nonetheless pled guilty, evidently with the court having fully informed Shults that he could be sentenced as a PFO.¹ Before the change of plea, Shults filed a motion to suppress physical evidence, as well as statements he had made to law enforcement. The court denied the motion and entered oral findings.

¶ 11 Shults was sentenced to fifty years in MSP on the escape charge. The court also sentenced Shults as a PFO on the theft charge, imposing a fifty-year sentence to run concurrently with the escape charge. Shults appeals both sentences.

DISCUSSION

¶ 12 1. Did the District Court err in denying Shults's motion to suppress evidence?

¶ 13 A district court's denial of a criminal defendant's motion to suppress is reviewed on appeal to determine whether the court's findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Kintli, 2004 MT 373, ¶ 8, 325 Mont. 53, ¶ 8, 103 P.3d 1056, ¶ 8.

¶ 14 Law enforcement drove to Shults's property on December 13, 2003, to question Shults as to why his vehicle was at Abba Dabba Storage three days earlier. In an attempt to communicate with Shults, Deputies Stratman and Madsen knocked on Shults's front door, necessarily reaching the door by entering through the run-down wire fence lining the periphery of the property. At this time, Deputy Madsen observed in plain view items on the lawn that resembled reported stolen property. Shults argues that he had an actual expectation of privacy with regard to the items identified by Deputy Madsen because he had posted a "no trespassing" sign on the fence surrounding his home.

¶ 15 In State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d 61, 75-76, we held that "in Montana a person may have an expectation of privacy in an area of land that is beyond the curtilage which the society of this State is willing to recognize as reasonable, and that where that expectation is evidenced by fencing, `No Trespassing,' or similar signs, or by some other means which indicates unmistakably that entry is not permitted, entry by law enforcement officers requires permission or a warrant." (Emphasis added; citations omitted.) Our statutory law additionally states that the "[p]rivilege to enter or remain upon [another's] land . . . is extended. . . by the failure of the landowner or other authorized person to post notice denying entry onto private land." Section 45-6-201(1), MCA. "This Court's recognition of a legitimate expectation of privacy has been based on various factors, such as the place of the investigation and the control exercised by the person over the property investigated." State v. Scheetz (1997), 286 Mont. 41, 48, 950 P.2d 722, 726.

¶ 16 "A criminal defendant who seeks to suppress evidence has the burden of proving that the search was illegal." State v. New (1996), 276 Mont. 529, 537, 917 P.2d 919, 924. In Bullock, we concluded that the defendant had a reasonable expectation of privacy because he took numerous precautions to ensure that others would not enter the property without permission. Bullock, 272 Mont. at 385, 901 P.2d at 76. The same cannot be said regarding the case at hand. While Shults maintains that his property had a "No Trespassing" sign on the wire fence surrounding it, Deputy Stratman testified that he never saw such a sign. In addition, the State offered photographs indicating that no sign existed. Although the photographs do not clearly show the entirety of the fence, as it is partially obstructed by Shults's van in the image, Shults did not meet his burden in that he failed to offer other photographs showing the alleged "No Trespassing" sign; nor did he offer witness testimony other than his own stating that such a sign existed. We conclude that the District Court correctly determined that Shults had no reasonable expectation of privacy with regard to items in plain view in his yard.

¶ 17 Shults also argues that the District Court erred in denying his motion to suppress because his consent to the search of his property was not voluntary or freely given. "In order to determine whether consent to a search was given voluntarily, this Court has adopted the same test used by the Supreme Court, which is the `totality of the circumstances' test." State v. Wetzel, 2005 MT 154, ¶ 16, 327 Mont. 413, ¶ 16, 114 P.3d 269, ¶ 16, citing State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355. Shults insists that he was intoxicated at the time he consented to the search, as well as under the misguided impression that, as a probationer, he had to consent. This Court has previously held that a subject's knowledge of a right to refuse consent is only one of the factors to be taken into account and is not determinative of the questions of voluntariness. Wetzel, ¶ 19. Here, no evidence supports Shults's assertion that he was intoxicated at the time Deputy Stratman requested his consent to the search. Moreover, the transcription of Deputy Stratman's taped interview with Shults prior to the search shows that Deputy Stratman specifically stated: "[W]hat I'm going to do is ask you for consent to search your trailer, okay? What that means is I'm going to read you this form right here and if you'd like to give us consent to search,...