State v. Lamere ( 1995 )

NO. 95-077
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
THE STATE OF MONTANA,
Plaintiffs and Respondents,
-v-
JERRY ROBERT LaMERE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerry Robert LaMere, pro se
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Patrick L. Paul, Cascade County Attorney, Shawn M.
Glen, Deputy Cascade County Attorney, Great Falls,
Montana
Submitted on Briefs: May 19, 1995
Decided: August 21, I995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a sentence imposed by the Eighth
Judicial District Court, Cascade County. We reverse and remand for
resentencing.
We consider the following issues on appeal:
I. Did the District Court err when it failed to consider
alternatives to incarceration for a nonviolent felony offense
pursuant to §§ 46-18-225, and 46-18-201(10), MCA?
II. Did the County Attorney adequately support the plea
agreement?
On April 9, 1994, Officer Sowell (Sowell) of the Great Falls
Police Department was dispatched to Howard's Pizza in response to
a report that one of the establishment's vehicles had been stolen.
The owner of Howard's Pizza informed police that an employee had
left a delivery truck belonging to Howard's parked and running
outside the business. When the employee went back to the vehicle
with the pizzas, the truck was missing.
Shortly thereafter, Sowell learned that the delivery truck had
been involved in a single-car rollover accident and the driver of
the vehicle was in custody. Sowell went to the accident scene
where he learned that two individuals had witnessed the accident.
These persons saw appellant leave the scene of the crime and
contacted police. Appellant was apprehended several blocks from
the scene. He was wearing a black Howard's Pizza jacket and
appeared to be intoxicated; the jacket pocket contained the keys of
the vehicle's legitimate driver.
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On May 5, 1994, appellant, Jerry LaMere (LaMere), was charged
by information with one count of felony theft and one count of
misdemeanor theft. On September 16, 1994, LaMere signed an
Acknowledgement of Waiver of Rights By Plea of Guilty. LaMere then
entered into a plea bargain agreement whereby the Cascade County
Attorney's office agreed to recommend a deferred imposition of
sentence on the felony theft charge on the condition that LaMere
make full restitution to the owner of Howard's Pizza for $9,817,
the total damage to the truck. The county attorney further agreed
to recommend a six-month suspended sentence on the misdemeanor
theft charge. The agreement also allowed the county attorney the
option of recommending reasonable fines or any reasonable
conditions upon review of the presentence investigation.
The court requested a presentence investigation (PSI) which
showed that LaMere was an admitted alcoholic and had been since the
age of nine, that LaMere had been hospitalized previously for "some
kind of disorder" which LaMere alleges is attention deficit
disorder, that he had no prior record of felony offenses but had
several DUI's. The report also stated that LaMere had little or no
work experience.
The report recommended that LaMere be required to submit to
testing of his blood, breath, and bodily fluids upon request, and
require him to attend AA meetings and to pay restitution in an
amount to be determined at sentencing.
The court held a sentencing hearing on December 8, 1994. The
County Attorney emphasized that LaMere was an individual who spent
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most of his time drinking and bragging that he was going to go out
and get drunk. He emphasized that the PSI demonstrated that LaMere
didn't complete anything he started--he never completed school, has
an education in carpentry but doesn't want to be a carpenter, has
an alcohol problem or chemical dependency problem but admits he
doesn't want to go to treatment for that. The County Attorney
suggested the deferred imposition of sentence with various
conditions of supervision.
After the presentation of testimony by LaMere and the
statements of counsel, the court stated at the hearing: I) that
LaMere has been addicted to alcohol and drugs since the age of
twelve, 2) that LaMere has used the entire system of government and
is a con artist, 3) that LaMere will not address his drug and
alcohol problems, 4) that LaMere has never maintained any kind of
employment, and 5) that LaMere needs discipline. Because of these
facts, the District Court rejected the plea agreement and ordered
LaMere to serve ten years in the Montana State Prison, plus six
months in the Cascade County jail on the misdemeanor charge, to run
concurrently with his prison sentence. LaMere appeals his
sentence.
I
Did the District court err when it failed to consider
alternatives to incarceration for a nonviolent felony offense
pursuant to §§ 46-18-225 and 46-18-201(10), MCA?
LaMere argues that Montana law requires the sentencing court
to consider alternatives to incarceration when sentencing
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nonviolent offenders. LaMere contends that since the court did not
consider these alternatives, this case should be remanded for
resentencing.
The State argues that LaMere did not object to these errors at
sentencing and cannot now object. The transcript of the sentencing
hearing shows that LaMere's attorney did object to the sentence
imposed by the court and did request reconsideration. While the
objection and request for reconsideration was somewhat limited, we
conclude that it was sufficient to require consideration of this
issue on appeal.
We have stated that "[cl riminal sentencing alternatives are
strictly matters of statute in Montana." State v. Stevens (1993),
259 Mont. 114, 115, 854 P.2d 336, 337. Therefore, we will review
the District Court's interpretation of the applicable statutes as
to whether the court correctly interpreted them. Steer Inc. v.
Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
Section 46-18-201(10), MCA states that:
In sentencing a nonviolent felony offender, the court
shall first consider alternatives to imprisonment of the
offender in the state prison, including placement of the
offender in a community corrections facility or program.
1n considering alternatives to imprisonment, the court
shall examine the sentencing criteria contained in 46-18-
225. If the offender is subsequently sentenced to the
state prison or the women's correctional center, the
court shall state its reasons why alternatives to
imprisonment were not selected, based on the criteria in
46-18-225, MCA. (Emphasis added.)
Section 46-18-225, MCA, sets out a list of ten specific criteria
that, like the directive in § 4618-201(10), MCA, requires the
trial court consider when sentencing nonviolent offenders. Section
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225 requires consideration of such things as where the needs of the
offender would be best served. These statutes do not provide the
court with any discretion. The legislature has directed trial
courts to make these considerations before any nonviolent offender
is incarcerated.
The transcript reveals that the court considered pertinent
facts concerning LaMere's background but did not specifically
consider any alternatives to incarceration. In a similar case, we
stated that 5 46-18-201, 'MCA, "imposes certain obligations on a
court sentencing [a nonviolent] offender." Stevens, 854 P.2d at
337. Those obligations include the court's specific consideration
of "alternatives to imprisonment" according to § 46-18-201, MCA.
We conclude that the District Court did not properly consider
alternatives to incarceration for this nonviolent offender,
pursuant to 55 46-18-201 or 46-18-225, MCA.
We remand for resentencing.
Did the County Attorney adequately support the plea agreement?
The transcript of the hearing shows that counsel for LaMere
anticipated that the Deputy County Attorney who entered into the
plea agreement would be present to present the viewpoints of the
prosecution. That deputy was not present and the County Attorney
who had not participated in the agreement handled the matter. In
addition, counsel for LaMere pointed out that he understood that
the person who prepared the PSI would be present at the hearing,
and he also was not present.
As previously summarized, the presentation made by the County
Attorney's office was quite abbreviated, and emphasized the alcohol
problems of the defendant and his failure to complete anything he
started and then recommended without explanation the deferred
imposition of sentence. We conclude this does not meet the
requirements on the part of the prosecutor in connection with plea
agreements as set forth in State v. Allen (1981), 197 Mont. 64, 69,
645 P.2d 380, 382, as follows:
Prosecutors who engage in plea bargaining must meet
strict and meticulous standards of both promise and
performance as a plea of guilty resting in any
significant degree on an unfulfilled plea bargain is
involuntary and subject to vacation. . Prosecutorial
violations, even if made inadvertently or in good faith
to obtain a just and mutually desired end, are
unacceptable. [Citations omitted.]
The transcript includes reference by LaMere's counsel to LaMere's
mental difficulties. He pointed out that the probation officer who
was doing the PSI had indicated LaMere was having significant
problems answering the questions. LaMere's counsel emphasized that
the reason they entered into the plea bargain agreement was in
order that LaMere who had serious problems could have such problems
addressed. He then discussed the nature of the problems at some
length.
As previously mentioned, the Deputy County Attorney who had
agreed to the theory of the deferred imposition of sentence was not
there to present the benefits to deferred imposition so far as the
State was concerned and the very abbreviated statement by the
County Attorney did not meet the above standard of Allen. While
not required by statute, the failure of the prosecution to present
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the testimony of the person who prepared the PSI for the State
again weakened the presentation to the District Court.
In his motion for reconsideration, defense counsel requested
that the sentencing be postponed in order that he could bring in a
psychologist or other expert to more fully acquaint the District
Court with the extent and nature of LaMere's problems. The
District Court refused this request.
We conclude that the County Attorney here failed to meet the
strict and meticulous standards of performance of the plea bargain.
We hold that the failure of the prosecutor to adequately
support the plea bargain requires resentencing.
We reverse and remand for resentencing.