State v. McDonald ( 2011 )

October 18 2011
DA 11-0072
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 259N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RAMAH IRENE MCDONALD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-32-2007-0000304-IN
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender, Lisa S. Korchinski, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Shawn Thomas,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: October 5, 2011
Decided: October 18, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. 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 In August 2007, Ramah Irene McDonald was charged with two counts of felony
assault with a weapon and one count of misdemeanor obstructing a peace officer. In
early 2008, pursuant to a plea agreement, one felony assault count and the misdemeanor
charge were dismissed by the court and McDonald received a three-year deferred
sentence for the remaining felony assault charge. The deferred sentence included 30
probationary conditions.
¶3 In August 2010, the State filed a petition to revoke McDonald’s deferred sentence
after McDonald was arrested for alleged probation violations, including but not limited to
failing to report and drug and alcohol use. Additionally, a knife and a straight-edged
razor were found during an arrest-related search of McDonald’s residence and vehicle.
At her revocation hearing, McDonald admitted to some violations but denied others.
After finding numerous probation violations, the District Court indicated that it was
disinclined to accept McDonald’s probation officer’s recommendation of five years;
rather, it was considering imposing a sentence “more toward the maximum” sentence of
20 years based upon McDonald’s “propensity for violence under the influence of drugs.”
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The District Court, however, instructed McDonald to undergo comprehensive chemical
dependency and psychological evaluations before the court pronounced sentence.
¶4 While McDonald was in the Missoula County Detention Center awaiting the
court-ordered evaluations, McDonald was charged with felony assault on a peace officer.
As a result, McDonald’s probation parole officer changed her sentence recommendation
to 20 years at Montana Women’s Prison.
¶5 The evaluations were filed with the court on November 30, 2010. The reports
indicated McDonald had serious substance abuse problems in addition to several
psychological problems. The District Court sentenced McDonald to 20 years at Montana
Women’s Prison with ten suspended. The court also required McDonald to successfully
complete the program at Passages or Elkhorn and a prerelease program before being
eligible for parole. McDonald appeals, asserting the District Court violated her
constitutional right to due process when it based her sentence on a pending charge of
alleged assault.
¶6 We review a district court’s criminal sentence for legality. State v. Benoit, 2002
MT 166, ¶ 18, 310 Mont. 449, 51 P.3d 495. Section 45-5-213, MCA, allows a district
court to sentence McDonald for assault with a weapon for a term not to exceed 20 years.
The court sentenced McDonald to a legal sentence of 20 years with ten years suspended.
Also, as indicated above, the court announced that it was leaning toward imposing the
maximum sentence before McDonald was charged with felony assault.
¶7 McDonald argues that the District Court used her “pending charge” of assault “as
the basis for [her] sentence.” However, there is nothing in the record from which to
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conclude the District Court issued a harsher sentence based upon this alleged assault. At
the sentencing hearing, the court acknowledged receipt of the probation officer’s letter
pertaining to the alleged infraction and asked defense counsel to comment. The court
then asked the defendant and the prosecutor for their thoughts on sentencing. At the time
the court issued its sentence, it made no reference to the alleged assault, stating that the
court “ha[d] considered the matters contained in the file regarding the probation
violation.” The District Court’s sentence is within the statutory sentencing parameters
and is therefore not illegal.
¶8 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
issue in this case is legal and is controlled by settled Montana law, which the District
Court correctly interpreted.
¶9 For the foregoing reasons, we affirm the judgment of the District Court.
/S/ PATRICIA COTTER
We concur:
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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