State v. Lee

September 1 2015
DA 14-0206
Case Number: DA 14-0206
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 259STATE OF MONTANA,
Plaintiff and Appellee,
v.
ALVIN CORNELL LEE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Garfield, Cause No. DC 17-2013-1
Honorable George Huss, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Chad R. Vanisko, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Gary Ryder, Garfield County Attorney, Jordan, Montana
Submitted on Briefs: July 29, 2015
Decided: September 1, 2015
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Alvin Cornell Lee pleaded nolo contendere to robbery, assault with a weapon, and
burglary. The Sixteenth Judicial District Court, Garfield County, sentenced him to prison
and imposed numerous conditions on his partially suspended term. On appeal, Lee raises
several sentencing issues, but we find one to be dispositive: whether the District Court
had authority to order the sale of Lee’s firearms and apply the proceeds to Lee’s
incarceration in a county detention center. We reverse and remand for entry of an
amended judgment.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The State charged Lee with robbery under § 45-5-401, MCA, assault with a
weapon under § 45-5-213, MCA, and burglary under § 45-6-204, MCA. The charges
stem from allegations that, in July 2013, Lee unlawfully entered a couple’s home, pointed
a gun, and demanded money. Officers arrested Lee shortly thereafter and confiscated
weapons in Lee’s home and vehicle. Garfield County—where the crime took place—
paid to incarcerate Lee in the Valley County Detention Center until Lee’s sentencing
hearing in May 2014.
¶3 Lee and the State reached a plea agreement in which Lee agreed to plead nolo
contendere to all charges in exchange for the State not pursuing sentencing enhancements
for the use of a dangerous weapon under § 46-18-221, MCA. At Lee’s sentencing
hearing, the State sought restitution on behalf of Garfield County for the costs of
incarcerating Lee for 216 days as well as the costs of medical treatment Lee required
while incarcerated.
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¶4 The District Court sentenced Lee for the robbery charge to Montana State Prison
for twenty years with the last ten years suspended, and sentenced Lee for the assault and
burglary charges each for ten years with those sentences running concurrently with the
robbery sentence. The court prohibited Lee from owning any firearms during the term of
his sentences.
¶5 At the oral pronouncement of the sentence, the District Court stated, “I’m going to
direct the Garfield County sheriff to sell your firearms that he has seized and apply those
toward the cost of your incarceration at the Valley County Facility.” Similarly, in the
written sentencing order, the District Court specified that Lee’s firearms “in the
possession of the Sheriff are to be sold by the Sheriff and applied to the cost of [Lee’s]
incarceration in the Valley County Detention [F]acility. The amount of his incarceration
costs is $12,630.27.” These statements in the written sentencing order and the oral
pronouncement of the sentence are the only statements by the District Court relating to
Lee’s incarceration costs. The District Court did not impose any restitution or fines, but
did impose numerous surcharges and fees, including felony surcharges, court information
technology surcharges, a presentence investigation report fee, and victim and witness
advocate program surcharges. The District Court declined to impose the costs of Lee’s
prosecution or defense.
STANDARD OF REVIEW
¶6 A district court’s authority to impose a sentence is confined to statute. State v.
Thorpe, 2015 MT 14, ¶ 7, 378 Mont. 62, 342 P.3d 5. We review challenges to the
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legality of criminal sentences de novo. State v. Mainwaring, 2007 MT 14, ¶ 7, 335 Mont.
322, 151 P.3d 53.
DISCUSSION
¶7 Lee raised numerous challenges to the District Court’s direction that Garfield
County sell his firearms and keep the proceeds. He argues (1) that § 7-32-2245(1), MCA,
does not provide a district court with the authority to retroactively impose the cost of
incarceration in a detention center; (2) that, under § 46-18-201(4)(d), MCA, a district
court does not have the authority to make costs of incarceration payable until a suspended
portion of a sentence takes effect; (3) that the District Court in this case did not make
findings necessary to impose costs of confinement (including medical costs during
confinement); and (4) that the District Court did not have the authority to order the sale of
Lee’s firearms without the State first filing either a petition for forfeiture or a petition for
disposition of property held in evidence. The State partially concedes the last argument,
which we address below.
¶8 “[T]he general rule is that seized property, other than contraband, should be
returned to its rightful owner once the criminal proceedings to which it relates have
terminated, unless it is then subject to forfeiture or other proceedings which are timely
brought.” State v. Fadness, 2012 MT 12, ¶ 20, 363 Mont. 322, 268 P.3d 17. In Fadness,
we upheld a district court’s order that a felon’s firearms be sold after the State filed a
petition for the disposition of evidence under §§ 46-5-306 through -309, MCA. Fadness,
¶ 46.
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¶9 The State concedes that the District Court lacked authority to order that the
proceeds of the sale of Lee’s firearms be kept by Garfield County. However, the State
suggests that this Court can remedy the conceded illegality by remanding for the District
Court to clarify that the proceeds of the sale should be returned to Lee. The State cites
Fadness as authority for its proposed arrangement. Fadness, however, is distinguishable.
Montana law provides three methods by which the State may gain control of a convicted
offender’s property: civil forfeiture proceedings under §§ 44-12-101 through -206, MCA;
criminal forfeiture proceedings under § 45-9-206, MCA; or a petition under § 46 5-307,
MCA, for the destruction, disposal, or use of physical evidence in the State’s possession.
Unlike in Fadness, the State in this case never filed a petition for the disposition of
evidence. Nor has the State argued that the firearms seized are subject to criminal or civil
forfeiture or commenced any proceedings for those purposes.1
¶10 A district court can only impose a sentence that the Legislature provides it the
authority to impose. Thorpe, ¶ 7. The District Court did not cite applicable statutory
authority when it ordered the sale of Lee’s firearms as part of his sentence, and neither
Lee nor the State has alerted us to any such authority on appeal. Without statutory
authority, the ordered sale of Lee’s firearms is illegal.
¶11 Although the parties present substantial argument about the District Court’s
authority to order Lee to pay for his pre-sentencing incarceration, the judgment reflects
no such order other than through the sale of Lee’s firearms. The District Court provided
1
Nor, for that matter, has Lee filed a petition under § 46-4-312, MCA, seeking the return of his
seized property.
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an itemized list of amounts that it ordered Lee to pay, and did not include an order for the
payment of incarceration costs. Because the court lacked authority to order the sale of
Lee’s firearms, the District Court must, on remand, strike that condition from the
judgment. Once that condition is removed, Lee no longer will be responsible for his
incarceration costs under any provision of the sentencing order. Accordingly, the
remaining arguments that Lee makes on appeal regarding whether the District Court
properly imposed the costs of his incarceration are moot.
CONCLUSION
¶12 We reverse and remand for entry of an amended judgment striking the condition
that Lee’s firearms be sold and the proceeds applied against Lee’s incarceration costs.
/S/ BETH BAKER
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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