State v. Waters, 98-087.

• Citation: 1999 MT 229,987 P.2d 1142
• Decision Date: 28 September 1999
• Docket Number: No. 98-087.,98-087.
• Court: United States State Supreme Court of Montana
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Christopher M. WATERS, Defendant and Appellant.

987 P.2d 1142

1999 MT 229

The STATE of Montana, Plaintiff and Respondent, v. Christopher M. WATERS, Defendant and Appellant.

No. 98-087.

Supreme Court of Montana.

Submitted on Briefs February 11, 1999.

Decided September 28, 1999.

Chad Wright, Appellate Defender Office, Helena, Montana, For Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Lee R. Kerr, Rosebud County Attorney, Forsyth, Montana, For Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶ 1 Christopher M. Waters (Waters) appeals from the Sentencing Order of the Sixteenth Judicial District Court, Rosebud County. We reverse and remand.

Issues Presented

¶ 2 There are two issues on appeal:

¶ 3 (1.) Does the new judicial rule that oral pronouncement of sentence is the legally effective judgment apply retroactively to Waters' appeal?

¶ 4 (2.) Do the extra conditions imposed in the written Sentencing Order conflict with the oral pronouncement of sentence?

Factual and Procedural Background

¶ 5 Waters and his common law wife, April King, moved from Texas to Forsyth, Montana, in 1997. The State of Montana (the State) charged Waters by Information, on August 11, 1997, with the offense of Issuing a Bad Check as Part of a Common Scheme, a felony, in violation of § 45-6-316, MCA. The Information alleged that, during July of 1997, Waters had knowingly written eight bad checks to various businesses in Rosebud County for a total of $1,848.02. The State similarly charged co-defendant, April King, with the felony offense of issuing bad checks as part of a common scheme.

¶ 6 Waters pleaded not guilty to the charge at his initial appearance and arraignment on August 18, 1997. Thereafter, on September 21, 1997, Waters and the State entered into a written Acknowledgment and Waiver of Rights and Plea Agreement (Plea Agreement). Pursuant to the Plea Agreement, Waters agreed to plead guilty in exchange for the State agreeing to recommend a five-year suspended sentence. Waters understood that the District Court was not bound by the terms of the agreement.

¶ 7 The District Court accepted Waters' change of plea at a hearing on September 22, 1997. After the District Court accepted Waters' guilty plea as voluntary, it ordered the preparation of a pre-sentence investigation (PSI). The PSI was completed and filed with the court on October 8, 1997. The PSI recommended that Waters be sentenced to the Montana Department of Corrections (DOC), but did not make a specific recommendation for any length of incarceration. On October 20, 1997, an Addendum to the PSI was filed.

¶ 8 On October 22, 1997, a sentencing hearing was held. The pre-sentence investigator testified that the Addendum to the PSI had been filed because he had subsequently learned that Waters had two outstanding misdemeanor warrants and one outstanding felony warrant for his arrest in Texas. Based on these outstanding warrants, which included similar charges to those at issue here, the investigator recommended that Waters be sentenced to the Montana State Prison for five years with two years suspended. At the close of the hearing, the District Court informed Waters that it was not going to follow the State's recommendation in the Plea Agreement, and asked Waters if he wished to withdraw his guilty plea or continue with sentencing. Waters agreed to continue with his plea of guilty and let the court sentence him.

¶ 9 Thus, the District Court orally sentenced Waters to the DOC for five years with two years suspended. The court orally imposed the following conditions on Waters' sentence:

Well, what the Court is going to do, I'm going to commit [Waters] to the [DOC] for a period of five years with two suspended under the conditions in the Plea Agreement and the [PSI], including the restitution, and including joint and several liability for the other checks that [April King] wrote.

Apparently, the District Court believed that a DOC commitment would possibly enable Waters to get transferred to Texas authorities and clear up his outstanding warrants. The court referred to "conditions" contained in the Plea Agreement and PSI, but did not elaborate on those conditions. The court did not orally impose any other conditions.

¶ 10 The District Court signed its written Sentencing Order on November 3, 1997, which accurately reflected the five-year commitment with two years suspended, as orally pronounced by the court. The Sentencing Order set forth ten conditions and eight sub-conditions applicable to Waters' sentence as follows:

1. The Defendant shall be placed under the supervision of the Montana Department of Corrections and Human Services, Adult Parole and Probation Division, and be subject to their standard rules and regulations as listed below.

a. Residence: The Defendant shall not change his place of residence without first obtaining permission from his Probation/Parole Officer;

b. Travel: The Defendant shall not leave his assigned district without first obtaining written permission from his Probation/Parole Officer;

c. Employment: The Defendant shall maintain employment or a program approved by his Probation/Parole Officer, and must obtain permission from his Probation/Parole Officer prior to any change of employment;

d. Reporting: The Defendant is required to personally report to his Probation/Parole Officer as directed, and to submit written monthly reports on forms provided;

e. Weapons: The Defendant shall not own, possess or be in control of any firearms or deadly weapons, including black powder, as defined by state or federal law;

f. Financial: The Defendant must obtain permission from his Probation/Parole officer before financing a vehicle, purchasing property, or engaging in business;

g. Search: Upon reasonable cause, the Defendant shall, while on parole or probation, submit to a search of his person, vehicle or residence by his Probation/Parole Officer, at any time, without a warrant;

h. Laws & Conduct: The Defendant shall comply with all city, county, state, and federal laws and ordinances and conduct himself as a good citizen. The Defendant shall report any arrests or contacts with law enforcement to his Probation/Parole Officer within 72 hours.

2. The Defendant shall not use or possess alcoholic beverages nor enter any establishment where alcohol is the chief item of sale;

3. The Defendant shall not use or possess illegal drugs;

4. The Defendant shall submit to testing of his blood, breath, and/or other bodily fluids to determine the presence of alcohol and/or illicit drugs upon the request of his supervising officer;

5. The Defendant shall not open or have in his control or possess a checking account and he shall not be a signatory on any other checking account;

6. The Defendant shall be subject to supervision fees in the amount of $10.00 per month, to be paid at the rate of $30.00 per quarter, or $120.00 per year, under the direction of his supervising officer;

7. The Defendant shall pay a surcharge in the amount of $20.00 to the Clerk of the District Court for the felony conviction, pursuant to Section 46-18-236 M.C.A.;

8. The Defendant shall reimburse Rosebud County for the costs of his Court-appointed counsel, in the amount of $250.00;

9. The Defendant shall reimburse the victims of his offense in the amount of $1,848.02, payable through the office of Adult Probation and Parole, and that said restitution be paid in full within six (6) months of the date of discharge of this sentence. Additionally, the Defendant will be jointly and severally responsible for the $4,645.05 in restitution established in Rosebud County Cause No. DC 97-39, with co-defendant, April Jean King, a/k/a/ April Jean Waters.

10. The Defendant shall present himself to the proper authorities in the State of Texas, to answer to the outstanding arrest warrants issued in that jurisdiction.

¶ 11 All of the foregoing conditions, with the exception of two, were contained in either the PSI, the Plea Agreement, or both documents. The two conditions in the written judgment that were not contained in either one or both of the incorporated documents were: (1) payment of supervision fees (condition 6); and (2) submission to Texas authorities (condition 10). Waters did not file a contemporaneous objection to the variations between the oral pronouncement of sentence and the written judgment.

¶ 12 On December 9, 1997, Waters filed a pro se notice of appeal. Subsequently, this Court appointed the Montana Appellate Defender Office to represent Waters on appeal. On May 1, 1998, Assistant Appellate Defender, Chad Wright, submitted a motion and brief to this Court requesting that he be allowed to withdraw from Waters' appeal because there were no meritorious issues to be raised. On August 13, 1998, this Court denied the motion to withdraw, and ordered appellate counsel to submit a brief on appeal addressing, at a minimum, the question of the validity of the District Court's written Sentencing Order in light of our recent decision in State v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9.

Discussion

¶ 13 In Lane, we sought to resolve a conflict between this Court's past approach to the finality of a sentence, which viewed the written judgment as the legally effective sentence, and contrary authority suggesting that the oral pronouncement of sentence controls for purposes of finality. After reviewing Montana statutes requiring the defendant's presence at the oral pronouncement of sentence, the constitutional protections affording a criminal defendant the right to be present and the opportunity to respond to a trial court sentence, and federal case law indicating that the oral pronouncement of sentence is the legal sentence, this Court announced the rule "that the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and valid, final judgment." Lane, ¶¶ 40-41, overruling State v. Graveley (1996), 275 Mont....