State v. Capes , 2014 MT 31N ( 2014 )

February 4 2014
DA 12-0709
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 31N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUSTIN PATRICK CAPES,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DC 11-033
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
David Ole Olson, Assistant Attorneys General; Helena, Montana
Olivia Norlin-Rieger, Dawson County Attorney; Helena, Montana
Submitted on Briefs: January 15, 2014
Decided: February 4, 2014
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Justin Patrick Capes appeals the order of the Montana Seventh Judicial District
Court designating him a Level III sexual offender, and also challenges certain conditions
of his written sentence. We affirm in part and remand in part.
¶3 In 2004, when Capes was 24 years old, he had sexual intercourse with a
14-year-old female. He was charged with felony sexual intercourse without consent and,
following a psychosexual evaluation performed by Michael D. Sullivan, was designated a
Level I sexual offender. In November 2005 Capes was sentenced to the Department of
Corrections for six years, with four years suspended. While incarcerated Capes
underwent sexual offender treatment. He completed his time in custody in February
2007.
¶4 In June 2011, the State charged Capes with two counts of sexual abuse of children
based upon Capes’ possession and distribution of images of children engaged in sexual
conduct. Subsequently, Capes entered into a plea agreement and the State amended its
Information, charging Capes with a single count of distributing child pornography, in
violation of § 45-5-625(1)(d), MCA (2009). Capes underwent a second psychosexual
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evaluation by Sullivan. Sullivan concluded that Capes was “most appropriately
conceptualized as a High Risk or Level III Sexual Offender.” Sullivan premised his
conclusion, in part, upon the fact that the instant offense occurred while Capes was
serving the remainder of his 2005 suspended sentence, was within five years of his
release from his previous sexual charge, and took place while Capes was participating in
out-patient sexual offender treatment.
¶5 The District Court conducted a sentencing hearing on September 10, 2012, at
which Sullivan testified as an expert regarding Capes’ evaluation results, including
emotional and psychological functioning, sexual history and interests, and various
personality deficits. Sullivan stated that he believed Capes satisfied the definition of a
“sexually violent predator” and that Capes was a pedophile. Additionally, Wally Peter,
the probation/parole officer who submitted the pre-sentencing investigation report on
Capes to the District Court, testified and concurred with Sullivan’s designation opinion.
At the conclusion of the sentencing hearing and in accordance with the plea agreement,
the District Court sentenced Capes to 100 years in Montana State Prison with 85 years
suspended, with a 15-year parole restriction, and imposed specific probation conditions.
The District Court also designated Capes a Level III sexual offender. Capes appeals this
designation and certain probation conditions contained in his written sentence but not in
the court’s oral pronouncement of sentence.
¶6 A district court exercises considerable discretion in designating a sex offender
level pursuant to § 46-23-509(3), MCA. We therefore review the court’s designation for
an abuse of discretion. State v. Hill, 2009 MT 134, ¶ 22, 350 Mont. 296, 207 P.3d 307.
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The test for an abuse of discretion is “whether the trial court acted arbitrarily, without
employment of conscientious judgment, or exceeded the bounds of reason resulting in
substantial injustice.” In re C.D.H. 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126.
¶7 The District Court had ample evidence from Sullivan and Peter to support
designating Capes a Level III offender, and Capes has failed to show that the court
abused its discretion. We therefore affirm the court’s tier designation.
¶8 Capes argues, and the State concurs, that the District Court erred in including
various costs and fees in Capes’ written sentence and judgment that were not included in
the oral pronouncement of Capes’ sentence. It is well-established that “the oral
pronouncement of a criminal sentence in the presence of the defendant is the ‘legally
effective sentence and valid, final judgment’ and that the written judgment is merely
evidence of the oral sentence.” State v. Johnson, 2000 MT 290, ¶ 15, 302 Mont. 265, 14
P.3d 480 (citations omitted). We therefore remand this matter to the District Court to
strike sentencing condition “m.7” from Capes’ written sentence and judgment.
Additionally, the District Court assured Capes he would receive credit for time served
while awaiting his sentencing hearing. Such credit was not reflected in Capes’ written
sentence and judgment. On remand, the court is also instructed to ensure that Capes’
sentence is credited for the four days he served prior to sentencing.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
sexual offender designation is a matter of judicial discretion and there clearly was not an
abuse of discretion.
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¶10 We affirm in part and remand in part.
/S/ PATRICIA COTTER
We concur:
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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