Menser v. State ( 2008 )

DA 07-0390
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 176NMARCUS MENSER,
Plaintiff and Appellant,
v.
STATE OF MONTANA,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 07-511
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Martin W. Judnich; Stevenson, Judnich & Assoc., Missoula,
Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Suzy Boylan,
Deputy County Attorney; Missoula, Montana
Submitted on Briefs: April 24, 2008
Decided: May 20, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and West Group in the quarterly table of noncitable
cases issued by this Court.
¶2 Marcus Menser (Menser) appeals two orders of the Fourth Judicial District Court,
Missoula County, denying his Motion to Withdraw Answer to the State’s Petition to
Revoke and denying his Petition for Postconviction Relief. We affirm.
¶3 On November 14, 2005, Menser was charged by Information with Identity Theft, a
felony, in violation of § 45-6-332, MCA. Menser pled guilty to the charge, which carries
a maximum sentence of imprisonment for ten years. Section 45-6-332(2)(b), MCA. A
sentencing hearing was held on June 26, 2006, after which the District Court imposed a
three-year deferred sentence, adopting all of the conditions recommended in the
presentence investigation report (PSI) except for those restricting Menser from
possessing or consuming alcohol and from entering bars. The District Court apparently
struck these conditions based upon the objection of Menser’s defense counsel.
¶4 On August 10, 2006, the State filed a Petition to Revoke Menser’s deferred
sentence due to numerous probation violations. Menser admitted several of those
violations, including twice changing his residence without approval, twice failing to call
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his probation officer despite being directed to do so, failing to appear in district court,
obstructing a peace officer by giving a false name, and associating (specifically,
consuming alcohol) with another probationer without permission. As a result of those
violations, the District Court continued Menser’s deferred sentence but imposed “the
additional conditions that he not use drugs, consume any alcohol or enter bars.” Menser
did not object to the added conditions.
¶5 Soon after Menser’s deferred sentence was reimposed, a second Petition to
Revoke was filed alleging Menser had been drinking alcohol in a bar. Menser admitted
the violation, and the District Court revoked Menser’s deferred sentence and imposed a
five year sentence to the Department of Corrections. Menser thereafter filed a Motion to
Withdraw Admission of his probation violation, followed by a Petition for Postconviction
Relief, both of which alleged the previously imposed alcohol restriction was illegal. The
District Court denied the motion and petition. Menser appeals.
¶6 We apply a two-prong standard of review to challenges of probationary
conditions. We first review sentencing conditions for legality. State v. Ashby, 2008 MT
83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9. We then review the “reasonableness” of
those conditions for an abuse of discretion. Ashby, ¶ 9.
¶7 Menser argues the District Court erred by revoking his deferred sentence because
the alcohol restriction imposed after his first revocation was an illegal condition.
According to Menser, because alcohol played no role in his commission of identity theft,
our holdings in State v. Armstrong, 2006 MT 334, 335 Mont. 131, 151 P.3d 46, and State
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v. Greeson, 2007 MT 23, 336 Mont. 1, 152 P.3d 695, dictate that the alcohol restriction
added to his deferred sentence was invalid. Therefore, Menser maintains that his
admission to violating that condition should be stricken and/or his Petition for
Postconviction relief granted.
¶8 We assume, arguendo, that Menser’s motion and petition challenging the
imposition of a sentencing condition within a previous revocation proceeding were timely
filed and are properly before the Court. We recently clarified the rule set forth in State v.
Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, upon which we relied in
Greeson and Armstrong, in State v. Ashby. We expanded the rule from Ommundson as
follows: “In imposing conditions of sentence, a sentencing judge may impose a
particular condition of probation so long as the condition has a nexus to either the offense
for which the offender is being sentenced, or to the offender himself or herself.” Ashby,
¶ 15 (emphasis added). We further explained that a sentencing court may impose an
alcohol-related probation condition, even if alcohol was unrelated to the offense for
which the defendant is being sentenced, if the sentencing court “in its discretion
determines [the condition] will assist in this particular defendant’s alcohol or drug
rehabilitation.” Ashby, ¶ 15.
¶9 In the present case, the PSI report clearly indicated that Menser would have been
eligible for an alcohol restriction from the outset, given his history of alcohol-related
problems, including a recent DUI conviction. Likewise, in support of the State’s first
Petition to Revoke, Menser’s probation officer observed that “[t]he only thing the
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Defendant has done consistently while on probation is drink and frequent bars. . . .
[E]ach time Mr. Menser has been arrested, he has either been drinking or in one of the
local bars. . . . Mr. Menser’s drinking habits are one of the sources of his problems.”
Thus, under Ashby, the alcohol restriction imposed by the District Court was legal and
reasonable.
¶10 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section I.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶11 We affirm the judgment of the District Court.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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