State v. West

• Decision Date: 09 October 2008
• Docket Number: No. 05-496.,05-496.
• Citation: 194 P.3d 683,2008 MT 338,346 Mont. 244
• Parties: STATE of Montana, Plaintiff and Appellee, v. Dennis Eugene WEST, Defendant and Appellant.
• Court: Montana Supreme Court

194 P.3d 683

2008 MT 338

346 Mont. 244

STATE of Montana, Plaintiff and Appellee, v. Dennis Eugene WEST, Defendant and Appellant.

No. 05-496.

Supreme Court of Montana.

Submitted on Briefs August 9, 2007.

Decided October 9, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Susan Weber, Chief Deputy Cascade County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The District Court for the Eighth Judicial District, Cascade County, found that Dennis West had violated a condition of his suspended sentence. The court accordingly revoked the sentence and resentenced West to the Department of Corrections. West now appeals, contending that the nearly 26-month delay in bringing him before the District Court on the alleged violation constituted "unnecessary delay" under § 46-18-203(4), MCA, and infringed his rights to due process under the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution.

¶ 2 We conclude that revoking West's suspended sentence notwithstanding the 26-month delay in bringing him before the District Court implicates his due process rights. However, we have determined that the factual record presently before this Court is not adequate for deciding this claim on the merits. Accordingly, we set out the relevant legal principles in this Opinion and then remand the case to the District Court for further proceedings consistent with this Opinion.

BACKGROUND

¶ 3 The State charged West in Cause No. BDC-01-032(c) with burglary (a felony) and criminal mischief, possession of burglary tools, and unlawful use of a computer (all misdemeanors). These offenses were committed on or about January 14, 2001. West and the State ultimately entered into a plea agreement under § 46-12-211(1)(b), MCA (1999). West pleaded guilty to burglary and criminal mischief, the State dismissed the other two charges, and the District Court accepted the plea agreement. The court then sentenced West on April 16, 2002, to the Department of Corrections ("DOC") for 20 years with 15 years suspended on the burglary charge and to the Cascade County Detention Center for 6 months on the criminal-mischief charge. These sentences were to run concurrently. The court also included the proviso that "[p]rior to the Defendant's release into the community, he is required to enter and successfully complete a pre-release program." Defense counsel thereafter filed a motion to withdraw as counsel, which the court granted on July 1, 2002.

¶ 4 West was placed at the Montana State Prison ("MSP") on April 24, 2002. According to his probation officer, West had a "good adjustment" at MSP, progressed to lower custody levels, received satisfactory housing and work reports, had clear conduct, and completed treatment mandates. On November 5, 2002, he was placed in the Treasure State Correctional Training Center (colloquially referred to as "Boot Camp"), but three weeks later, he escaped from Boot Camp on horseback. West was apprehended and returned to MSP.

¶ 5 The State then charged West in the District Court for the Third Judicial District, Powell County, with felony escape (Cause No. DC-02-69). West pleaded guilty, and the court sentenced him on December 19, 2002, to two years at MSP, to run consecutively to the term of imprisonment already being served.

¶ 6 The State next filed a petition in the Eighth Judicial District Court on April 2, 2003, seeking revocation of West's suspended sentence in Cause No. BDC-01-032(c) based on his escape from Boot Camp. The State requested that "a copy of this petition be served upon the defendant" and that "a Warrant of Arrest be issued for the apprehension of defendant." The District Court issued a bench warrant the following day (April 3), commanding that West be arrested and brought before the court to answer the State's petition. The court also issued a separate Order for Revocation of Suspended Sentence (also dated April 3), ordering that "a copy of the Petition be served upon the defendant as well as a copy of this Order."

¶ 7 The record reflects that the Warrant Department of the Cascade County Sheriff's Office received the arrest warrant on April 4, 2003, but that the warrant was not executed until May 25, 2005—over two years later. The record also reflects that West was in the State's custody or under the State's supervision during this entire period.

¶ 8 West was brought before the District Court on May 31, 2005, at which time he answered "not true" to the alleged violation of his suspended sentence. The court held an evidentiary hearing on June 14, 2005, at which time the court took judicial notice of the Powell County judgment in Cause No. DC-02-69 and found that West had committed the alleged violation.

¶ 9 The court and the parties then proceeded with disposition. The prosecutor recommended that the court revoke the 15-year suspended portion of West's original 20-year sentence and impose in its place a sentence of 15 years with 10 suspended. (Under this recommendation, West's original sentence of 20 years with 15 suspended would effectively be converted into a sentence of 20 years with 10 suspended.) In response, defense counsel argued that the court should reimpose the original sentence, since West had already been penalized for the escape by virtue of the 2-year consecutive sentence imposed by the Third Judicial District Court. In addition, counsel observed:

Your Honor, I would also like the Court to take into consideration this case, for reasons unbeknownst to myself or [the prosecutor], I don't know why this case is languished, but the Court noticed earlier his report of violation is March 21st 2003, over two years ago, Your Honor. I don't know why this could not have been taken care of two years ago. Mr. West has been incarcerated or under the State's umbrella all that time. This could have been handled a couple years ago but I don't have any explanation to offer to the Court why it has not been—why that has not happened, Your Honor.

It seems like this case is languished and now, even though he's already been given a consecutive term for his escape, I think that is a sufficient reason for the Court to, in effect, reinstate the same sentence that Mr. West had before for the underlying charge, Your Honor, and I ask the Court to take those factors into consideration.

¶ 10 Notwithstanding, the District Court adopted the State's recommendation. The court revoked the 15-year suspended portion of West's original sentence and resentenced him to DOC for 15 years with 10 years suspended. West now appeals.

ISSUES

¶ 11 West articulates four issues in his opening brief, which boil down to two basic questions: first, did the delay in executing the arrest warrant and bringing him before the District Court to answer the State's petition for revocation constitute "unnecessary delay" under § 46-18-203(4), MCA, or infringe his constitutional rights to due process under the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution (West's "delay claim"); and second, is the new sentence imposed by the District Court following the revocation of his 15-year suspended sentence illegal (West's "sentencing claim")? We need not reach the second question until the first question has been resolved. Thus, because we are remanding this case for further proceedings on West's delay claim, we do not consider his sentencing claim (Issue IV in his opening brief) in this Opinion. We expect that this case will come back before this Court following the proceedings in the District Court, and we will address West's sentencing claim at that time, if it is necessary to do so.

¶ 12 The State contends that West's delay claim is procedurally barred because he did not properly preserve the issue in the District Court. West argues, however, that we should address this claim pursuant to our common-law doctrine of plain error review. Accordingly, we will address the following two questions in this Opinion:

1. Is West's delay claim procedurally barred?

2. Did the 26-month delay in executing the arrest warrant and bringing West before the District Court to answer the State's petition for revocation constitute "unnecessary delay" under § 46-18-203(4), MCA, or infringe his constitutional rights to due process?

STANDARDS OF REVIEW

¶ 13 This Court's review of questions regarding constitutional law is plenary. State v. LaFreniere, 2008 MT 99, ¶ 7, 342 Mont. 309, ¶ 7, 180 P.3d 1161, ¶ 7. Likewise, the interpretation and construction of a statute is a matter of law; thus, we review de novo whether the district court interpreted and applied the statute correctly. See State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, ¶ 10, 179 P.3d 534, ¶ 10; State v. Clark, 2006 MT 313, ¶ 7, 335 Mont. 39, ¶ 7, 149 P.3d 551, ¶ 7.

DISCUSSION

¶ 14 Issue 1. Is West's delay claim procedurally barred?

¶ 15 As a preliminary matter, we must consider the State's argument that West's claim concerning the delay in bringing him before the District Court is procedurally barred.

¶ 16 As a general rule, a party may raise on direct appeal only those issues and claims that were properly preserved. See State v. Rosling, 2008 MT 62, ¶ 76, 342 Mont. 1, ¶ 76, 180 P.3d 1102, ¶ 76; State v. Spotted Blanket, 1998 MT 59, ¶ 13, 288 Mont. 126, ¶ 13, 955 P.2d 1347, ¶ 13. To properly preserve an issue or claim for appeal, it is necessary that the issue or claim be timely raised in the first instance in the trial court. See § 46-20-104(2), MCA; State v. Buck, 2006 MT 81, ¶ 117, 331 Mont. 517, ¶ 117, 134 P.3d 53, ¶ 117; State v. Paoni, 2006 MT 26, ¶ 16, 331 Mont. 86, ¶ 16, 128 P.3d 1040, ¶ 16; In re T.E., ...