State v. Whalen

• Decision Date: 05 February 2013
• Docket Number: No. DA 11–0134.,DA 11–0134.
• Citation: 368 Mont. 354,295 P.3d 1055
• Parties: STATE of Montana, Plaintiff and Appellee, v. Timothy Joseph WHALEN, Defendant and Appellant.
• Court: Montana Supreme Court

368 Mont. 354

295 P.3d 1055

STATE of Montana, Plaintiff and Appellee,

v.Timothy Joseph WHALEN, Defendant and Appellant.

No. DA 11–0134.

Supreme Court of Montana.

Submitted on Briefs Nov. 7, 2012.

Decided Feb. 5, 2013.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 09–0571, Honorable Ingrid G. Gustafson, Presiding Judge.

For Appellant: Timothy Joseph Whalen (self-represented), Laurel, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan Mark Krauss, Assistant Attorney General, Helena, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[368 Mont. 355]¶ 1 Timothy Joseph Whalen (Whalen) appeals from the judgment of the Thirteenth Judicial District Court, Yellowstone County, upon his plea of guilty to one count of felony negligent vehicular assault and one count of felony criminal endangerment. We affirm.

¶ 2 Whalen raises the following issues for review, which we restate as follows:

¶ 3 Issue One: Did the District Court impose an illegal sentence on Whalen?

¶ 4 Issue Two: Did the District Court impose unreasonable and unconstitutional probation conditions on Whalen?

¶ 5 Issue Three: Did the District Court illegally obtain Whalen's guilty pleas?

¶ 6 Issue Four: Is the Sentence Review Division process unconstitutional?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On August 13, 2010, Whalen pled guilty to one count of felony negligent vehicular assault and one count of felony criminal endangerment. The charges against Whalen stemmed from an incident that occurred in Billings, Montana, on the morning of September 25, 2009. Whalen, who was a licensed commercial driver employed as a bus driver at the time, was driving a school bus full of students when he struck a 15–year–old girl, E.D., who was crossing the street in a designated crosswalk. Whalen stopped the bus, got off, and ran to E.D. He did not identify himself or report the accident to authorities or his employer. After checking on E.D., Whalen got back on the bus with students still on board and drove off.

¶ 8 Whalen transported the students on his bus to West High School and returned to the scene of the accident. Officer Peter Lehman conducted a field sobriety investigation; Whalen was arrested and transported to the Yellowstone County Detention Facility. At the jail, Whalen provided a breath test, which revealed an alcohol concentration of .118. E.D. suffered serious bodily injury as a result of the incident.

¶ 9 After accepting Whalen's guilty pleas, the District Court held a sentencing hearing on December 8, 2010. Whalen argued for a three-year deferred sentence for both counts, with community service requirements. The State recommended a ten-year commitment to the DOC for each count, with the last five years suspended, to run concurrently. It also requested the court impose a fine.

¶ 10 Whalen made only two objections at the sentencing hearing, both pertaining to proposed conditions of probation. First, Whalen objected to the condition that he obtain a chemical dependency evaluation and undergo all treatment recommendations. Whalen asserted he had already fulfilled such requirements and therefore requested the court to give him credit for doing so. Second, Whalen objected to the proposed condition that his driver's license be suspended.

¶ 11 After listening to witness testimony and sentencing recommendations from counsel, the District Court sentenced Whalen to the DOC for six years with 18 months suspended on each count, to run concurrently. The court recommended Whalen be considered for a community program through the DOC. Further, the court ordered Whalen complete 100 hours of community service, and imposed 29 enumerated conditions of probation. District Court Judge Ingrid Gustafson provided detailed reasoning for Whalen's sentence at the hearing, explaining Montana's sentencing policies and applying them to Whalen's case. The court considered Whalen's presentence investigation report, discussed several aggravating and mitigating circumstances, and looked at other sentences for similar offenses throughout the state. With respect to Whalen's two objections, the District Court gave Whalen credit for the chemical dependency evaluation and treatment he already completed, but maintained the suspension of his driver's license was required pursuant to § 61–5–205(1)(b), MCA.

¶ 12 Whalen appealed on March 14, 2011. During the following months, Whalen filed a series of motions requesting extensions of time for various reasons. Then, on January 25, 2012, Whalen moved this Court for appointment of counsel. Although noting that such a request “this late in the day is inexcusable,” we granted Whalen's motion and appointed the Office of Appellate Defender (OAD) to represent him. Based upon Whalen's failure to complete the application for appellate representation, and Whalen's affidavit filed with this Court requesting removal of OAD from his case, OAD ultimately moved to rescind the appointment of counsel. On March 21, 2012, we granted the motion and ordered OAD removed as counsel for Whalen.

¶ 13 The following month, Whalen filed a motion with this Court to stay his appeal for the purpose of filing a motion to withdraw his guilty plea in the District Court. We reasoned that “[t]his late in the day, after a multitude of extensions and delay tactics, we decline to stay this proceeding.” We further stated that Whalen “has flouted this Court's authority and exhausted our patience, notwithstanding our considerable efforts to afford him access to justice.” The Court denied any further extensions, and ordered Whalen to file his opening brief.

STANDARD OF REVIEW

¶ 14 This Court reviews a criminal sentence for legality only. State v. Strong, 2009 MT 65, ¶ 7, 349 Mont. 417, 203 P.3d 848 (citing Adams v. State, 2007 MT 35, ¶ 21, 336 Mont. 63, 153 P.3d 601). We review the reasonableness of conditions of probation imposed in a sentence for abuse of discretion, if the conditions were objected to at sentencing. State v. Leyva, 2012 MT 124, ¶ 15, 365 Mont. 204, 280 P.3d 252. Furthermore, issues of justiciability—such as standing, mootness, ripeness, and political question—are questions of law, which this Court reviews de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455.

¶ 15 Additional standards of review will be discussed herein.

DISCUSSION

¶ 16 Issue One: Did the District Court impose an illegal sentence on Whalen?

¶ 17 Whalen argues his sentence is illegal on three grounds. Whalen argues first that the District Court ignored alternatives to imprisonment required by Montana law for a first-time non-violent offender. Second, he argues the court considered “improper matter” in finding aggravating circumstances. Finally, Whalen contends his sentence constitutes cruel and unusual punishment prohibited under the Montana and United States Constitutions.

¶ 18 The State points out first that Whalen failed to raise these objections before the District Court and, accordingly, did not properly preserve them for appeal. Although the State believes the Lenihan exception would allow the Court to review Whalen's sentence in regard to his claim of cruel and unusual punishment, it maintains the Lenihan exception is inapplicable to Whalen's other two claims because such arguments would result in an objectionable, but not an illegal, sentence.

¶ 19 Generally, we will not review an issue to which a party has failed to object and preserve for appeal. State v. Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638. In State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979), we recognized a narrow exception to this rule to allow an appellate court “to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” A sentence is not illegal if it falls within statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892 (citing State v. Garrymore, 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946). Further, “ ‘a sentencing court's failure to abide by a statutory requirement rises to an objectionable sentence, not necessarily an illegal one that would invoke the Lenihan exception.’ ” Johnson, ¶ 14 (quoting Kotwicki, ¶ 13).

¶ 20 The Lenihan rule may apply to constitutional challenges of criminal sentences as well, but not in every case. Strong, ¶¶ 7, 12 (citing Garrymore, ¶ 15, 145 P.3d 946). In Strong, we reviewed our caselaw to determine when a constitutional challenge to a sentence raised for the first time on appeal is appropriate for judicial determination. When a defendant alleged a facial challenge to the constitutionality of a statute in State v. Ellis, 2007 MT 210, ¶ 7, 339 Mont. 14, 167 P.3d 896, we reviewed the argument even though it was not raised to the district court. There, Ellis asserted § 46–8–113, MCA (2005)—a statute authorizing imposition of a condition requiring a defendant to repay the costs of his court-appointed counsel—violated the Equal Protection Clause of the Montana and U.S. Constitutions. Ellis, ¶ 2. Because he made a facial challenge that alleged, “in other words, that an illegal statute supported his illegal sentence,” we reviewed Ellis's argument. Strong, ¶ 12.

¶ 21 By contrast, in State v. Mainwaring, 2007 MT 14, 335 Mont. 322, 151 P.3d 53, we declined to address a constitutional challenge raised for the first time on appeal. Unlike Ellis, the defendant in Mainwaring did not contend a statute was facially unconstitutional; rather, he made an as-applied constitutional argument. Specifically, he argued the court's application of the Persistent Felony Offender statute and the Youth Court Act violated his rights under the Equal Protection Clause. Mainwaring, ¶ 20. In Strong we noted that “our refusal to review [Mainwaring's] as-applied challenge for the first time on appeal stemmed from the...