State v. Bullplume , 2013 MT 169 ( 2013 )

June 25 2013
DA 12-0278
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 169
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHRISTOPHER NELS BULLPLUME,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC-11-305
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Sarah Chase Rosario, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Kory Larsen, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: April 24, 2013
Decided: June 25, 2013
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Christopher Nels Bullplume was convicted of failing to provide notice of his
change of residence when required to do so as a sexual offender. The Eighth Judicial
District Court, Cascade County, imposed a four-year suspended sentence. Bullplume
appeals several conditions of that sentence. We affirm.
¶2 We restate the issues on appeal as follows:
1. Whether Bullplume has waived appellate review of the District Court’s
requirement that he pay the costs of his court-ordered evaluations and
treatment.
2. Whether the District Court abused its discretion in imposing conditions 26
through 40, which relate specifically to sexual offenders.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 1993, Bullplume was convicted of first-degree rape in the State of Washington.
As a result of that conviction, he is required to register as a sexual offender. Bullplume
has discharged the Washington sentence that was imposed.
¶4 On August 1, 2011, Bullplume was arrested in Great Falls for misdemeanor
offenses of driving under the influence (DUI), disorderly conduct, driving without
insurance, and driving while license suspended. Law enforcement officers ascertained
that Bullplume was a registered sexual offender from Washington and that a warrant had
been issued for his arrest in Washington because he had absconded from his last known
address in June 2011. Officers further determined that Bullplume had not registered as a
sexual offender in Great Falls. A detective spoke with Bullplume, who admitted that he
2
had left Washington approximately two months earlier and that he had been living in
Great Falls for about two weeks.
¶5 On August 11, 2011, the State charged Bullplume with failing to register, a felony,
in violation of §§ 46-23-505 and -507, MCA (2009). The State and Bullplume ultimately
entered into a binding plea agreement under § 46-12-211(1)(b), MCA. In exchange for
Bullplume’s guilty plea, the State agreed to recommend a four-year commitment to the
Montana State Prison, with all time suspended. On November 1, 2011, Bullplume
appeared in court and changed his plea to guilty. A presentence investigation report
(PSI) was ordered. As required by § 46-18-111(1)(b), MCA, a psychosexual evaluation
was prepared in conjunction with the PSI.
¶6 The PSI was filed with the District Court on February 22, 2012. It reflected that
Bullplume, age 34 at the time, was unemployed and relied on family as a means of
support. In addition to his 1993 conviction for rape, Bullplume had convictions for
felony possession of heroin (1995) and felony unlawful possession of a firearm (2006).
He also had two convictions for DUI (2001 and 2003) and had been arrested for his third
DUI when the State charged him with failure to register. Additionally, Bullplume had a
conviction for felony attempt to elude (2001), as well as two prior convictions of felony
failing to register as a sexual offender in Washington (2001 and 2003). The PSI notes
that Bullplume’s charge of failing to register in the instant case occurred not long after
his release in 2010 from a four-year incarceration in Washington State Prison on a
firearm offense.
3
¶7 Dr. Donna M. Zook conducted the psychosexual evaluation and prepared a report
for the District Court. Dr. Zook determined that “[t]he veracity and trustworthiness of
Mr. Bullplume’s self-report is questionable” in that “[h]is account of events do not
coincide with records.” Dr. Zook found that “[t]he most salient factor regarding Mr.
Bullplume’s character is his lack of shame, guilt, or remorse regarding antisocial
behaviors that he committed and the effects on others.” Dr. Zook provided the following
summary of Bullplume:
In summary Mr. Bullplume is a moderate risk for repeated sexual offending
due to: (1) criminal history; (2) lack of honesty during the clinical
interview portion of the evaluation; (3) invalid MMPI-2; (4) denial of
sexual interests, fantasies, urges, or drive; (5) poor social adjustment and
inability to cope with daily demands; (6) low empathy and callous and
irresponsibility to family and others; (7) lacking insight and judgment due
in part to cognitive processing at the level of a child; (8) extensive alcohol
and drug history; (9) emotional detachment and lack of guilt, shame or
remorse for his previous criminal behavior; (10) poor or inadequate
pro-social support and influence; and (11) lacking distress and motivation
for change.
Dr. Zook concluded that Bullplume was a moderate risk to repeat a sexual offense and
designated him a Level 2 offender. See § 46-23-509(2), MCA.
¶8 The District Court conducted a sentencing hearing on February 28, 2012. The
State recommended that the court impose the four-year suspended sentence called for in
the plea agreement. In addition, the State requested that the court impose all 41 of the
probation conditions recommended in the PSI. Bullplume objected to conditions 26
through 40, which the PSI describes as “standard sexual offender conditions.” He argued
(1) that failure to register is not a sexual offense which would necessitate conditions
relating to sexual offenders and (2) that there was an insufficient nexus to impose the
4
conditions because the underlying rape conviction had occurred nearly 20 years earlier.
Bullplume did not object to any of the other recommended conditions.
¶9 The District Court orally imposed a four-year suspended sentence and allowed the
parties an opportunity to brief the applicability of conditions 26 through 40. In the
subsequent written Sentence, issued March 8, 2012, the District Court affirmed the
imposition of conditions 26 through 40 under the authority of State v. Malloy, 2004 MT
377, 325 Mont. 86, 103 P.3d 1064.
¶10 In his opening brief on appeal, Bullplume challenges the District Court’s
imposition of not only conditions 26 through 40, but also conditions 11, 21, and 22,
which prohibit him from gambling, entering bars, and entering casinos, respectively.
Additionally, Bullplume argues, for the first time on appeal, that the District Court lacked
authority to require him to pay the costs of his court-ordered evaluations and treatment.
In his reply brief, however, Bullplume concedes the validity of the State’s argument that
he may not obtain appellate review of conditions 11, 21, and 22 due to his failure to
object to these conditions in the District Court. Bullplume maintains only his challenge
to conditions 26 through 40, as well as his claim that the District Court lacked authority
to impose the costs of court-ordered evaluations and treatment. With respect to the latter,
the State notes that State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), provides a
basis for this Court to review whether the District Court had authority to require
Bullplume to pay for his evaluations and treatment.
¶11 Conditions 26 through 40 may be summarized as follows:
5
• Bullplume shall enter and successfully complete sexual offender treatment at
his own expense. He shall remain in Aftercare or Relapse Prevention Class for
the entirety of his supervision unless released at the discretion of the probation
and parole officer and the therapist. He shall reenter treatment at any time if
deemed appropriate by the probation and parole officer and the therapist.
(Conditions 26, 37, 38.)
• Bullplume may not have contact with any individual under the age of 18 unless
accompanied by an approved and appropriately trained, responsible adult. He
may not reside in a residence where there are any children under the age of 18
without the written approval of the therapist and the probation and parole
officer. He may not date, live with, or otherwise be aligned with any person
with children under the age of 18 without the express prior approval of the
therapist and the probation and parole officer. (Conditions 27, 34, 40.)
• Bullplume shall not frequent places where children are present or reasonably
expected to be present—including schools, parks, playgrounds, malls, movies,
fairs, parades, swimming pools, carnivals, arcades, parties, family functions,
and holiday festivities—unless accompanied by an approved and appropriately
trained, responsible adult. He shall obtain permission from the probation and
parole officer prior to going to any of these places. (Condition 28.)
• Bullplume may not access or have in his possession or under his control any
material that describes or depicts human nudity, the exploitation of children,
consensual sexual acts, nonconsensual sexual acts, or sexual acts involving
force or violence, without prior written approval of the probation and parole
officer and the therapist. He may not frequent adult book stores, topless bars,
or massage parlors, or use the services of prostitutes. He may not view
television shows or motion pictures that are sexually stimulating, or access
“900” telephone sex lines. (Conditions 29, 30, 35.)
• Bullplume shall not have access to the Internet without prior permission from
the probation and parole officer and the therapist. If Internet access is allowed,
Bullplume must allow rating control software to be installed and random
searches of the hard drive to be conducted for pornography or other
inappropriate material. He may not have a cell phone or other such device
with photo or Internet capabilities. (Conditions 31, 36.)
• Bullplume shall be designated a Level 2 sexual offender. (Condition 32.)
• Bullplume shall be subject to reasonable employment or occupational
prohibitions and restrictions under § 46-18-255(1), MCA. (Condition 33.)
6
• Bullplume shall submit to annual polygraph testing. (Condition 39.)
¶12 The requirements that Bullplume pay the costs of evaluations and treatment are
contained in conditions 17, 18, and 26, which provide as follows:
17. The Defendant shall obtain a chemical dependency evaluation by a
state approved evaluator. The Defendant must pay for the evaluation
and follow all of the evaluator’s treatment recommendations.
18. The Defendant shall obtain a mental health evaluation/assessment by
a state approved evaluator. The Defendant must pay for the
evaluation and follow all of the evaluator’s treatment
recommendations.
. . .
26. The Defendant will enter and successfully complete sexual offender
treatment with a MSOTA clinical member or associate member with
supervision, or equivalent, who is approved by the state and the
Probation & Parole Officer and at the Defendant’s expense. The
Defendant shall abide by all treatment rules and recommendations of
the treatment provider.
¶13 With regard to conditions 26 through 40, Bullplume argues that, given “more than
(19) nineteen years of living without committing a crime of violence or a sex crime, and a
lifetime of never committing a crime involving children,” there is an insufficient nexus
between the offense/offender and the conditions. With regard to conditions 17, 18, and
26, he asserts that the District Court was without statutory authority to require that he pay
the costs of his evaluations and treatment. The State argues that the District Court did not
abuse its discretion in imposing conditions 26 through 40 in light of Bullplume’s criminal
history, the PSI, and the psychosexual evaluation. The State further argues that it was
within the broad authority of the District Court to require Bullplume to pay the costs of
his evaluations and treatment.
7
STANDARD OF REVIEW
¶14 We review restrictions or conditions on a criminal sentence for both legality and
abuse of discretion. State v. Melton, 2012 MT 84, ¶ 16, 364 Mont. 482, 276 P.3d 900.
DISCUSSION
¶15 Issue One. Whether Bullplume has waived appellate review of the District
Court’s requirement that he pay the costs of his court-ordered evaluations and
treatment.
¶16 As noted, Bullplume did not object to the District Court’s requirement that he pay
the costs of his court-ordered evaluations and treatment as conditions of his probation.
Generally, this Court will not review a claim where the defendant failed to object to the
alleged error in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151
P.3d 892; State v. Micklon, 2003 MT 45, ¶ 8, 314 Mont. 291, 65 P.3d 559. As the parties
correctly point out, however, we have created an exception to this general rule where a
defendant alleges that a sentence exceeds statutory parameters and is, therefore, illegal.
Lenihan, 184 Mont. at 343, 602 P.2d at 1000; State v. Muhammad, 2002 MT 47, ¶ 23,
309 Mont. 1, 43 P.3d 318. Part of the rationale behind this exception “is that, as a
practical matter, ‘a defendant often times must remain silent even in the face of invalid
conditions’ to guard against the possibility that the sentencing court may forego a more
lenient sentence if the defendant objects to one of the conditions.” Micklon, ¶ 9 (quoting
Lenihan, 184 Mont. at 343, 602 P.2d at 1000). We have declined to apply the Lenihan
exception, therefore, in a situation where the defendant “affirmatively agreed” at
sentencing to the condition he now asserts as error on appeal. Micklon, ¶ 10.
8
¶17 For purposes of applying Lenihan, we have held that a sentence which may be
objectionable is, nevertheless, legal if it falls within statutory parameters. Kotwicki, ¶ 16.
We explained that “a sentencing court’s failure to abide by a statutory requirement [such
as consideration of the defendant’s ability to pay] rises to an objectionable sentence, not
necessarily an illegal one that would invoke the Lenihan exception.” Kotwicki, ¶ 13
(citing State v. Nelson, 274 Mont. 11, 906 P.2d 663 (1995), and State v. Swoboda, 276
Mont. 479, 918 P.2d 296 (1996)). In Nelson and Swoboda, we held the Lenihan
exception inapplicable despite allegations that the sentencing court had failed to abide by
statutory requirements. Both cases involved situations where the trial court had failed to
consider sentencing alternatives as required by § 46-18-225, MCA, before imposing a
prison sentence upon a nonviolent offender. The defendants in each case had failed to
object to the court’s error at the sentencing hearing and attempted to invoke the Lenihan
exception on appeal. We observed, however, that the trial court, after considering the
requirements of § 46-18-225, MCA, legally could have sentenced Nelson and Swoboda
to prison, and thus their sentences failed to meet the illegality requirement for applying
the Lenihan exception. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at
482, 918 P.2d at 298. Accordingly, where the sentencing court, if provided the
opportunity to consider the error now asserted on appeal, could nevertheless have
imposed the same sentence, the illegality requirement of the Lenihan exception has not
been met. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918
P.2d at 298; Kotwicki, ¶ 16.
9
¶18 In considering the District Court’s requirement that Bullplume pay the costs of his
evaluations and treatment as conditions of his probation, we note preliminarily that it is
well established a court does not have the power to impose a sentence unless authorized
by a specific grant of statutory authority. Melton, ¶ 17; State v. Burch, 2008 MT 118,
¶ 23, 342 Mont. 499, 182 P.3d 66. A sentencing judge is specifically authorized to
impose on a suspended sentence various restrictions or conditions that the judge
considers necessary to obtain the objectives of rehabilitation and the protection of the
victim and society. Section 46-18-202(1), MCA. These include restrictions on the
offender’s freedom of association and freedom of movement, plus “any other limitation
reasonably related to the objectives of rehabilitation and the protection of the victim and
society.” Section 46-18-202(1)(c), (d), (g), MCA (2011).1 Similar authority is provided
in § 46-18-201(4)(o), MCA (2009),2 which authorizes a sentencing judge to impose on a
suspended sentence any “reasonable restrictions or conditions considered necessary for
rehabilitation or for the protection of the victim or society.” We have emphasized that a
sentencing judge’s discretion under these statutes is broad and that our review is
correspondingly deferential. Melton, ¶ 18; State v. Zimmerman, 2010 MT 44, ¶¶ 16-17,
355 Mont. 286, 228 P.3d 1109. As a general rule, we will affirm a condition of probation
1
The law in effect at the time an offense is committed controls as to the possible
sentence. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297. In 2011, the
Legislature added a new subsection to § 46-18-202(1), MCA, and provided an effective
date of July 1, 2011. See Laws of Montana, 2011, ch. 419, §§ 29, 40. Since Bullplume’s
offense was committed between July 15 and August 1, 2011, we cite the 2011 version of
§ 46-18-202(1), MCA.
2
Although the 2011 Legislature also amended § 46-18-201(4), MCA, that
amendment was made effective on October 1, 2011. See Laws of Montana, 2011,
ch. 318, § 8; § 1-2-201(1), MCA. Thus, we cite the 2009 version of this statute.
10
imposed pursuant to this statutory authority so long as the restriction or condition has
some correlation or connection—i.e., nexus—to the underlying offense or to the offender.
Ashby, ¶¶ 13-15; Zimmerman, ¶ 17. But if the condition is “overly broad or unduly
punitive,” or if the required nexus is “absent or exceedingly tenuous,” we will reverse.
Melton, ¶ 18; Zimmerman, ¶ 17.
¶19 It is pursuant to the foregoing statutory authority that the State argues the District
Court could impose the requirement that Bullplume pay for his own evaluations and
treatment. Bullplume maintains that the court exceeded its statutory authority by
imposing such a requirement; however, because he did not object to this requirement, our
review is limited under Lenihan, as clarified in Kotwicki, Nelson, and Swoboda, to
determining whether, had the District Court been presented with the challenge Bullplume
now makes, the court still could have imposed the requirement. In so doing, we consider
whether a condition requiring Bullplume to pay for his evaluations and treatment might
be reasonably related to the objective of rehabilitation, thus providing the statutory
authority for imposing the condition and correspondingly requiring that any objections to
the condition be made at sentencing. This consideration is different from, for example,
the unauthorized imposition of a fine, which relates to the imposition of a penalty and is
thus punitive, rather than rehabilitative, in nature. If a condition of probation is
reasonably related to the objective of rehabilitation, and not prohibited by some other
provision of law, then the sentencing court has acted within statutory parameters and
there is no further review under Lenihan.
11
¶20 The District Court required Bullplume to obtain a chemical dependency
evaluation, a mental health evaluation, and sexual offender treatment with a MSOTA
qualified therapist. The court also required Bullplume to pay for these services. Had
Bullplume made an objection at the time of sentencing, testimony may have been
presented that, for example, payment for services by the offender has therapeutic value
and is related to the offender’s rehabilitation.3 Had an objection been made at sentencing,
the court may have considered whether Bullplume could have had services provided free
of cost or on a sliding fee scale, based on his indigency and the service providers in his
geographic area. Had an objection been made at sentencing, the court could have
inquired of Bullplume and his counsel of other available options to address concerns of
rehabilitation and public safety, such as treatment in an inpatient facility of the
Department of Corrections which would be at no cost to Bullplume. Had the matter been
properly raised and presented to the District Court, numerous areas could have been
explored by the District Court and the parties to fully develop treatment options for
Bullplume and how they were to be financed. A record would have been created and the
matter would have been preserved for appeal, thereby enabling this Court to consider
whether the condition was reasonably related to Bullplume’s rehabilitation.
¶21 In sum, the State has pointed to plausible authority for the imposition of a
condition requiring Bullplume to pay for the costs of his evaluations and treatment—
3
Many of Montana’s drug courts require payment for services based on the
principle that the participant must be accountable for his or her treatment. See e.g.
Shannon M. Carey, Juliette R. Mackin, & Michael W. Finigan, What Works? The Ten
Key Components of Drug Court: Research-Based Best Practices, 8 Drug Ct. Rev. 6
(Natl. Drug Ct. Inst. 2012).
12
namely, § 46-18-201(4)(o), MCA (2009), and § 46-18-202(1)(g), MCA (2011). Due to
Bullplume’s failure to raise the issue in the District Court, however, the record before us
contains no discussion, evidence, or consideration by the court regarding his paying for
these services. On the basis of this silent record, and given the broad discretionary
authority of the sentencing court to tailor sentences designed to rehabilitate the offender,
we decline to address this issue any further. We conclude Bullplume is precluded from
raising it based upon his failure to object to the condition at sentencing. Kotwicki, ¶ 21.
¶22 Issue Two. Whether the District Court abused its discretion in imposing
conditions 26 through 40, which relate specifically to sexual offenders.
¶23 Bullplume objected in the District Court to conditions 26 through 40, and his
challenge has, therefore, been properly raised on appeal. Bullplume argues that there is
an insufficient nexus between the sexual offender conditions and either himself or his
underlying offense. He argues that his rape conviction occurred when he was 15 years
old and involved a 25-year-old woman, that he has not committed a “crime of violence”
or a “sex crime” for nearly 20 years, and that he has not committed any crimes involving
children. Bullplume argues that, given the totality of these facts, any nexus to conditions
26 through 40 is too isolated or stale to serve as justification for their imposition.
¶24 We declined to adopt as a categorical rule the position that a sufficient nexus could
be established to the original sexual offense when imposing conditions of sentence for the
offense of failing to register. Melton, ¶ 20. We stated that “a passing, isolated, or stale
instance of behavior or conduct is insufficient to support a restrictive probation condition
imposed in the name of offender rehabilitation.” Melton, ¶ 20 (citing Ashby, ¶ 15, State
13
v. Stiles, 2008 MT 390, ¶ 16, 347 Mont. 95, 197 P.3d 966, and State v. Jones, 2008 MT
440, ¶¶ 22-23, 347 Mont. 512, 199 P.3d 216). Thus, in some instances, the original
offense underlying the registration requirement may have relevance, but in other cases,
the original offense may be too isolated or stale to serve as justification for imposing the
challenged condition. Melton, ¶ 20. We stated that “[e]ach case must turn on its specific
facts.” Melton, ¶ 20.
¶25 Upon review of Bullplume’s PSI and psychosexual evaluation, we conclude that
the District Court did not abuse its discretion in imposing the conditions related to sexual
offenders. In fact, Bullplume presents a compelling case for needing treatment. His
history demonstrates an inability to remain law abiding or to conform his conduct to the
demands of sexual offender laws. This, combined with Bullplume’s significant chemical
dependency concerns, leaves the public and society in danger should Bullplume not
reform his behavior through treatment. Referring to Dr. Zook’s observations that
Bullplume “tends to be non-conforming, resentful of authority[,] . . . erratic and
unpredictable,” the PSI author noted that “[s]uch an assessment raises questions on how
likely the Defendant will comply with any Court-ordered probation conditions.” Given
Bullplume’s criminal history, moderate risk of reoffending, and excessive use of
substances, Bullplume’s only chance of succeeding in the community is through his
participation in treatment services. Treatment similarly is the only hope of protecting the
public from Bullplume’s potential recidivism. Thus, imposition of conditions 26 through
40 has a sufficient nexus to Bullplume himself and establishes an offender nexus under
14
Ashby, ¶ 15. The District Court did not abuse its discretion in imposing these conditions
related to sexual offenders as part of Bullplume’s probation.
CONCLUSION
¶26 Based on the foregoing, we conclude that Bullplume has waived any objection to
the requirement that he pay for the costs of his evaluations and treatment. We further
conclude that imposition of the conditions relating to sexual offenders (conditions 26
through 40) was supported by a sufficient nexus to Bullplume himself. The District
Court’s sentencing order is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JIM RICE
15