State v. Boucher

2005 MT 227N

• Court: Montana Supreme Court
• Decided: September 13, 2005
• Docket: 04-766
• Status: Published

Opinion

No. 04-766

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 227N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ERIC BOUCHER,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. DDC 03-550 The Honorable Dirk Sandefur, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Matthew McKittrick, Cascade County Public Defender’s Office, Great Falls, Montana

For Respondent:

Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Joel Thompson, Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: July 26, 2005

Decided: September 13, 2005

Filed:

__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but 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 to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Eric Boucher appeals the condition of his sentence imposed by the District Court for

the Eighth Judicial District, Cascade County, ordering him to contribute a DNA sample

following his felony conviction of operating a clandestine laboratory. We affirm.

BACKGROUND

¶3 On July 22, 2004, Boucher pled guilty to Operation of an Unlawful Clandestine

Laboratory, a felony, in violation of § 45-9-132, MCA. Boucher appeared for sentencing

with his attorney on September 9, 2004. During the sentencing hearing, Boucher’s attorney

objected to the sentencing requirement that Boucher submit to DNA testing on the grounds

that it is an unreasonable search and seizure, that it invades Boucher’s privacy, and that it

is not reasonably and rationally related to the offense to which Boucher pled guilty.

¶4 The District Court noted counsel’s objection for the record and sentenced Boucher

to fifteen years at the Montana State Prison to run concurrent to the remaining portion of the

sentence Boucher is currently serving in another case. The court’s September 14, 2004

Judgment of Conviction and Sentencing Order includes as one of the terms and conditions

2 of Boucher’s sentence that “[d]efendant will submit to DNA testing.” Boucher appeals this

portion of his sentence.

DISCUSSION

¶5 We review a District Court’s sentence for legality only. State v. Johnson, 2005 MT

48, ¶ 5, 326 Mont. 161, ¶ 5, 108 P.3d 485, ¶ 5 (citing State v. Eaton, 2004 MT 283, ¶ 11, 323

Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11). In Johnson, we noted that a person convicted of a

felony shall submit to DNA testing pursuant to § 44-6-103, MCA. As in Johnson, Boucher

was convicted of a crime which meets the definition of a “felony offense” pursuant to § 44-6-

101(7), MCA. We do not reach the constitutional issues purportedly raised by Boucher for

the same reason we declined to reach those in Johnson--i.e., the lack of adequate briefing.

Johnson, ¶ 11.

¶6 Accordingly, we hold that Boucher’s sentence is not illegal and we decline to disturb

it.

¶7 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ BRIAN MORRIS /S/ PATRICIA O. COTTER