State v. Troy Butler ( 2012 )

December 4 2012
DA 12-0220
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 278N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TROY BUTLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC 11-3410
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jason Armstrong; Law Office of Jason Armstrong, P.C,
Bozeman, Montana
For Appellee:
Steve Bullock, Montana Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Jed C. Fitch, Beaverhead County Attorney; Evan O. Moppert,
Dillon, Montana
Submitted on Briefs: November 8, 2012
Decided: December 4, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 Troy Butler appeals from the District Court’s order filed March 13, 2012 revoking
his probation and imposing sentence. We affirm.
¶3 In February 2010, Butler was charged in Justice Court in Beaverhead County with
two counts of hunting without landowner permission. He pled guilty to those offenses in
March 2010. The Justice Court sentenced Butler to six months in jail on each count, with
the sentences suspended upon Butler’s compliance with a number of conditions. One of
those conditions was that Butler could not hunt or accompany any other person “while
hunting, fishing and/or trapping.” Butler did not appeal.
¶4 In December 2010, Warden Murphy of the Montana Department of Fish, Wildlife
and Parks discovered that Butler had participated in a coyote calling and shooting event
held in New Mexico. The information included a photograph of Butler and his team mate
for the event, posing with rifles and dead coyotes. In January 2011, the State filed a
motion to revoke the suspended sentence in Justice Court based upon the information
from New Mexico. The Justice Court revoked the suspended sentences and Butler
appealed to District Court.
2
¶5 In the proceedings in District Court Butler admitted that he hunted in New Mexico
and that he did so with another individual. He admitted that this constituted a violation of
the conditions of his prior suspended sentences. The District Court revoked the prior
suspended sentences, imposing some jail time and some fines, and re-suspending the
remainder of the jail time and the fines. In addition, the District Court continued the prior
condition that Butler not accompany any other person while hunting, fishing or trapping.
¶6 On appeal Butler contends that the State lacks jurisdiction to control his hunting
activities outside the State of Montana; that the condition that he not accompany any
other person while hunting was an abuse of discretion; and that the District Court lacked
the power to preclude him from hunting in “compact” states.
¶7 The conditions that Butler complains of were imposed first by the Justice Court
and then by the District Court upon Butler’s appeal, as conditions of suspended sentences
imposed after Butler pled guilty to the two offenses in 2010. Upon a guilty plea to an
offense, a court may suspend execution of the sentence. Section 46-18-201(2), MCA.
The court may impose any reasonable restrictions or conditions that the defendant must
follow during the period of a suspended sentence, including any “reasonable restrictions
or conditions considered necessary for rehabilitation or for the protection of the victim or
society.” Section 46-18-201(4), MCA. Conditions may include restriction on freedom of
association and freedom of movement, State v. Muhammad, 2002 MT 47, ¶ 24, 309
Mont. 1, 43 P.3d 318, and “any other limitation reasonably related to the objectives of
rehabilitation and the protection of the victim and society.” Section 46-18-202(1), MCA.
Conditions of a suspended sentence must have a “nexus” to the offense or to the offender.
3
State v. Zimmerman, 2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109. These same
principles apply to offenses involving hunting violations. State v. Ruiz, 2005 MT 117, ¶
17, 327 Mont. 109, 112 P.3d 1001.
¶8 As in Ruiz, the conditions imposed upon Butler were occasioned by his long
history of repeated criminal offenses relating to hunting and property access for hunting,
both in Montana and in other states. At the time of his 2010 offenses in Montana, for
example, Butler had lost his hunting privileges in Utah for hunting violations in that state.
That resulted in a hunting license suspension until 2019. Warden Murphy testified in
District Court that restrictions on accompanying others who are hunting serve to prevent
offenders from being in hunting situations where they could re-offend. Butler’s record of
prior offenses shows that he cannot be trusted to be in hunting situations without re-
offending. Therefore, the conditions imposed by the District Court were reasonable and
not an abuse of discretion. Ruiz, ¶ 22.
¶9 Butler argues that State v. Gatts, 279 Mont. 42, 928 P.2d 114 (1996), controls his
case and that under § 87-1-102, MCA (2009), the District Court was precluded from
imposing the disputed conditions on his suspended sentence. Whatever the ongoing
merits of Gatts after the repeal of § 87-1-102, MCA, it does not apply here. Gatts
addressed the specific charges that could be brought against a defendant charged with
violations of hunting regulations and was based upon a statute that has since been
repealed. Gatts did not address the conditions of a suspended sentence imposed under §§
46-18-201 and -202, MCA. Ruiz, ¶ 17.
4
¶10 Butler contends that the State of Montana lacks the power to control his conduct
outside of this State, and that his coyote hunt was not only in New Mexico but on the
Navajo Reservation. It is well established that a defendant’s probation can be revoked
for acts outside the jurisdiction, even if those acts are legal in the other jurisdiction.
United States v. Dane, 570 F.2d 840, 845 (9th Cir. 1977).
¶11 Last, Butler contends that the District Court lacked the power to enforce the
Interstate Wildlife Violator Compact, § 87-1-801, MCA, and that only the Department of
Fish, Wildlife and Parks could do so. The Compact allows member states, including
Montana, to recognize hunting license suspensions imposed by other Compact states. As
noted above, Butler’s hunting privileges were revoked in Utah prior to the time the
District Court acted in this case, and the Montana DFWP had recognized that revocation.
Butler’s argument is not supported by the facts or by the provisions of the Compact.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The issues in
this case are ones of judicial discretion and there clearly was not an abuse of discretion.
¶13 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS
5