State v. Stephenson
| Decision Date | 26 February 2008 |
| Docket Number | No. DA 07-0162.,DA 07-0162. |
| Citation | 2008 MT 64,179 P.3d 502,342 Mont. 60 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Barry Roger STEPHENSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Brian C. Smith, Public Defender, Missoula, Montana.
For Appellee: Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana.
¶ 1 This is a timely appeal by Barry Roger Stephenson from the District Court for the Fourth Judicial District, Missoula County, which denied his motion to withdraw his guilty plea. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.
¶ 2 On February 14, 2006, Stephenson, represented by counsel, entered into a plea agreement wherein Stephenson agreed to plead guilty to the offenses of two counts of partner or family member assault, misdemeanors, in violation of § 45-5-206, MCA,1 and one count of tampering with witnesses and informants, a felony, in violation of § 45-7-206, MCA, committed on or about August 15, 2005, and September 6 through December 13, 2005. In exchange for Stephenson's plea of guilty, the State agreed that, on the charge of tampering with witnesses and informants, Stephenson would be sentenced to the Montana State Prison for three years, all suspended, and on the two counts of partner or family member assault, Stephenson would be sentenced to twelve months in the Missoula County jail, with all but time served since the date of his arrest suspended. The sentences were to run concurrently.
¶ 3 The parties agreed to a number of conditions of probation and to any probation conditions recommended by the probation/parole officer in the presentence investigation report, but there was no agreement that the court would impose any particular fine. However, in the "ACCEPTANCE" paragraph immediately preceding the signatures of Stephenson, his counsel, and the prosecutor, Stephenson acknowledged the following:
¶ 4 The presentence investigation report ("PSI") was filed with the court on April 6, 2006. In the section of the PSI captioned "EVALUATION/RECOMMENDATION," the probation/parole officer listed "the conditions contained in the plea agreement, along with those I recommend for any period of community supervision." Of relevance to this appeal, one of the recommended conditions stated as follows: "The Defendant shall pay a fine of $85.00 to the Community Service Program."
¶ 5 On December 19, 2006, Stephenson, his counsel, and the prosecutor appeared in court for sentencing. The minute entry of that date recites that the court had received and reviewed the PSI. At the outset of the hearing, the District Court stated that it would follow the plea agreement. Thereafter, at the court's invitation, defense counsel objected to certain recommended conditions of probation that counsel claimed were not included in the plea agreement, including the $85 fine to the community service program. The transcript of the sentencing hearing reflects the following colloquy:
....
¶ 6 The court then proceeded to impose a three-year suspended sentence on Count III and two six-month suspended sentences on Counts I and II, all to run concurrently. In addition, the court imposed certain conditions:
The conditions that will be imposed are those that are listed on pages 7 and 8 of the presentence report with the following exceptions: Condition 6 is deleted since there are no fines being imposed in this case. I will, however, impose all of the normally imposed surcharges and — although, I guess it's denominated the fine of $85 to the community service program, I view that more in the nature of the surcharge fee. I will impose that.
The court also deleted or amended certain other conditions that are not at issue here.
¶ 7 After the court imposed the sentence, defense counsel addressed the court:
¶ 8 On January 2, 2007, the court entered its written judgment, which set forth various terms and conditions of probation, including Condition No. 10, which stated as follows: "The Defendant shall pay a fine to go to the community service program in the amount of EIGHTY FIVE DOLLARS ($85)."
¶ 9 Stephenson timely filed his notice of appeal on February 28, 2007. In due course he filed his opening brief on appeal, articulating the following issue: Did the District Court err in not allowing the defendant to withdraw his guilty plea, given that the court imposed a fine not included in the plea agreement and that the State did not support the plea agreement? The State filed its response brief, arguing against the merits of Stephenson's position.
¶ 10 Then, nearly seven months later (on January 11, 2008), the State filed a "Notice of Concession and Waiver of $85 Fine for Community Service Program." The State's Concession and Waiver document stated that, after consultation with the Missoula County Attorney, the State was acknowledging and conceding that the $85 fine was "improperly imposed" and the State was waiving its enforcement in this case. However, the State explicitly did not concede that Stephenson should be permitted to withdraw his guilty plea. Rather, the State asserted that because of its concession and waiver of enforcement of the improperly imposed $85 fine, the issue of Stephenson's withdrawal of his guilty plea "is moot." The State noted that Stephenson did not agree to dismiss this appeal by stipulation on the grounds of the State's concession. The State concluded its notice requesting that this Court, "with or without entertaining the merits of the issues already briefed in this appeal," remand this case to the District Court for the limited purpose of striking Condition No. 10 from Stephenson's sentence.
¶ 11 Given that this case had been briefed for some seven months and had already been submitted to the Court for decision three days prior to the State's filing its Notice of Concession and Waiver, given that Stephenson did not agree to dismiss this appeal by stipulation on the grounds of the State's concession, given that the State does not concede that Stephenson should be permitted to withdraw his guilty plea (the relief that Stephenson requests in this appeal), and given the State's equivocal request that we proceed "with or without entertaining the merits of the issues already briefed in this appeal," we conclude that it is appropriate to address the merits of this appeal.
¶ 12 Did the District Court err in not allowing Stephenson to withdraw his guilty plea, given the court's imposition of the $85 fine/surcharge2 payable to the community service program and the State's alleged failure to support the plea agreement?
¶ 13 With respect to appeals from denials of motions to withdraw guilty pleas, we review the trial court's findings of fact to determine if they are clearly erroneous and the court's conclusions of law to determine if they are correct. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, ¶ 24, 114 P.3d 254, ¶ 24.
¶ 14 Here, Stephenson claims that the plea agreement did not contemplate the imposition of an $85 fine and that there was no statutory authority for the District Court to impose an $85 surcharge fee payable to the community service program. Thus, he argues, by imposing this fine/surcharge, the court did not follow the plea agreement, the State did not support the plea agreement, and the court, therefore, should have allowed him to withdraw his plea pursuant to § 46-12-211(4), MCA.
¶ 15 Accordingly, inasmuch as Stephenson's argument goes to the District Court's authority to impose the $85 fine/surcharge and the court's failure to follow the affirmative mandates of § 46-12-211(4), MCA, we review the sentence imposed by the court and, more specifically, Condition No. 10 for legality only, confining our review to determining whether the court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. This determination is a question of law and, as such, our review is de novo. State v Ariegwe, 2007 MT 204, ¶¶...
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