September 23 2014
DA 12-0743
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 258N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DONALD PAUL ROGERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 12-260 Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 3, 2014 Decided: September 23, 2014
Filed:
__________________________________ Clerk Justice Laurie McKinnon 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 Donald Rogers was charged with sexual intercourse without consent, partner or
family member assault, unlawful restraint, violations of a no-contact order, burglary, and
theft. The charges initially were filed in the Fourth Judicial District Court, Missoula
County, under Cause Number DC 11-180. The theft charge, however, was subsequently
severed and filed under Cause Number DC 12-260. Rogers was tried and convicted of
the remaining offenses in DC 11-180. He appealed, and this Court reversed and
remanded for a new trial. State v. Rogers, 2013 MT 221, 371 Mont. 239, 306 P.3d 348.
¶3 While Rogers’s appeal in DC 11-180 was pending, he was tried and convicted in
DC 12-260 of the severed theft charge. The District Court sentenced him to 10 years, all
suspended, to run consecutively to the sentences imposed in DC 11-180. At the oral
pronouncement of sentence, the court also ordered Rogers to pay $5,000 in restitution
and granted Rogers’s request to stay restitution payments until he has exhausted (as
Rogers put it) all of his “state remedies”—apparently a reference to his right to pursue a
direct appeal, and possibly also his right to file a petition for postconviction relief. The
court’s written judgment, however, does not provide for the stay. It instead states that
“[r]estitution is due in the amount of $5000.00 to the victim.”
2 ¶4 Relying on the presentence investigation report that had been filed in DC 11-180,
the District Court imposed terms and conditions on the 10-year suspended sentence for
the theft conviction. In so doing, the court explained that “a lot of those conditions have
to do with the sex offense of the underlying charges, and the case that was, previously,
disposed of.” One of the terms and conditions stated that Rogers “shall be designated a
Level 3 sexual offender . . . .” Other terms and conditions required Rogers, among other
things, to enter and complete an anger management class, enter and complete sexual
offender treatment, undergo annual HIV testing for the next five years, not have contact
with any individual under the age of 18, not frequent places where children congregate,
not access sexually oriented materials or media, and not have a mobile phone or
technology device with Internet capabilities.
¶5 The present appeal is from Rogers’s sentence in the theft case (DC 12-260). First,
he argues—and the State concedes—that the District Court’s written judgment conflicts
with the court’s oral pronouncement of sentence because the written judgment does not
stay the order of $5,000 in restitution pending Rogers’s exhaustion of his “state
remedies.” We have held that “the sentence orally pronounced from the bench in the
presence of the defendant is the legally effective sentence and valid, final judgment.”
State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. In the event of a conflict
between the oral pronouncement of sentence and the written judgment, the oral
pronouncement controls. Lane, ¶ 48. Furthermore, in the event of such a conflict, the
district court may correct an error in the written judgment by a nunc pro tunc order to
accurately reflect what was orally pronounced at the sentencing hearing. Lane, ¶ 48;
3 § 46-18-116(3), MCA. Accordingly, we remand with instructions to correct the written
judgment to reflect the stay of restitution that was granted during the oral pronouncement
of sentence. The District Court should clearly indicate the duration of the stay by
clarifying the “state remedies” that Rogers is being given the time to exhaust. Fletcher v.
State, 2013 MT 266, ¶ 16, 372 Mont. 22, 309 P.3d 998 (“Although the oral version of a
sentence is controlling, written judgments may help clarify an ambiguous oral
sentence.”).
¶6 Second, Rogers argues—and the State concedes—that the District Court lacked
authority to designate Rogers a Level 3 sexual offender, given that theft is not a sexual
offense under §§ 46-23-502(9) and -509, MCA. State v. Holt, 2011 MT 42, ¶¶ 21-22,
359 Mont. 308, 249 P.3d 470. Accordingly, we remand with instructions to strike the
Level 3 sexual offender designation in Rogers’s theft sentence.
¶7 Finally, Rogers observes that the District Court imposed the terms and conditions
numbered 31-34, 36-40, 42-44, and 46-52 based on the rationale that these terms and
conditions “have to do with the sex offense of the underlying charges, and the case that
was, previously, disposed of”—a reference to DC 11-180. This Court reversed Rogers’s
convictions in DC 11-180, however, and remanded for a new trial. Hence, Rogers argues
that the District Court’s rationale is no longer valid. We have held that restrictions and
conditions on a sentence must have a nexus to the underlying offense or to the offender.
State v. Bullplume, 2013 MT 169, ¶ 18, 370 Mont. 453, 305 P.3d 753. Rogers argues,
therefore, that the sexual offender conditions identified above should be struck from his
theft sentence, as any nexus which might have existed at the time of his sentencing on
4 that offense has since ceased to exist. Rogers also notes that on remand from our reversal
in Rogers, the parties entered a plea agreement in DC 11-180 which resulted in dismissal
of all the charges (including the sexual offense) except partner or family member assault
(PFMA) and burglary, to which Rogers pleaded guilty. He also notes that the prosecutor
did not recommend, and the District Court did not impose, any sexual offender conditions
on the suspended sentences he received for the PFMA and burglary convictions.
¶8 In response, the State contends that Rogers forfeited his objections to the
aforementioned conditions on his theft sentence because he did not object at the time of
sentencing. We agree with Rogers, however, that in light of the unique circumstances of
this case, it is necessary to remand with instructions that the District Court reconsider
whether the imposition of Conditions 31-34, 36-40, 42-44, and 46-52 is appropriate in the
theft case, given the ultimate disposition of DC 11-180. The District Court has discretion
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September 23 2014
DA 12-0743
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 258N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DONALD PAUL ROGERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 12-260 Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 3, 2014 Decided: September 23, 2014
Filed:
__________________________________ Clerk Justice Laurie McKinnon 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 Donald Rogers was charged with sexual intercourse without consent, partner or
family member assault, unlawful restraint, violations of a no-contact order, burglary, and
theft. The charges initially were filed in the Fourth Judicial District Court, Missoula
County, under Cause Number DC 11-180. The theft charge, however, was subsequently
severed and filed under Cause Number DC 12-260. Rogers was tried and convicted of
the remaining offenses in DC 11-180. He appealed, and this Court reversed and
remanded for a new trial. State v. Rogers, 2013 MT 221, 371 Mont. 239, 306 P.3d 348.
¶3 While Rogers’s appeal in DC 11-180 was pending, he was tried and convicted in
DC 12-260 of the severed theft charge. The District Court sentenced him to 10 years, all
suspended, to run consecutively to the sentences imposed in DC 11-180. At the oral
pronouncement of sentence, the court also ordered Rogers to pay $5,000 in restitution
and granted Rogers’s request to stay restitution payments until he has exhausted (as
Rogers put it) all of his “state remedies”—apparently a reference to his right to pursue a
direct appeal, and possibly also his right to file a petition for postconviction relief. The
court’s written judgment, however, does not provide for the stay. It instead states that
“[r]estitution is due in the amount of $5000.00 to the victim.”
2 ¶4 Relying on the presentence investigation report that had been filed in DC 11-180,
the District Court imposed terms and conditions on the 10-year suspended sentence for
the theft conviction. In so doing, the court explained that “a lot of those conditions have
to do with the sex offense of the underlying charges, and the case that was, previously,
disposed of.” One of the terms and conditions stated that Rogers “shall be designated a
Level 3 sexual offender . . . .” Other terms and conditions required Rogers, among other
things, to enter and complete an anger management class, enter and complete sexual
offender treatment, undergo annual HIV testing for the next five years, not have contact
with any individual under the age of 18, not frequent places where children congregate,
not access sexually oriented materials or media, and not have a mobile phone or
technology device with Internet capabilities.
¶5 The present appeal is from Rogers’s sentence in the theft case (DC 12-260). First,
he argues—and the State concedes—that the District Court’s written judgment conflicts
with the court’s oral pronouncement of sentence because the written judgment does not
stay the order of $5,000 in restitution pending Rogers’s exhaustion of his “state
remedies.” We have held that “the sentence orally pronounced from the bench in the
presence of the defendant is the legally effective sentence and valid, final judgment.”
State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. In the event of a conflict
between the oral pronouncement of sentence and the written judgment, the oral
pronouncement controls. Lane, ¶ 48. Furthermore, in the event of such a conflict, the
district court may correct an error in the written judgment by a nunc pro tunc order to
accurately reflect what was orally pronounced at the sentencing hearing. Lane, ¶ 48;
3 § 46-18-116(3), MCA. Accordingly, we remand with instructions to correct the written
judgment to reflect the stay of restitution that was granted during the oral pronouncement
of sentence. The District Court should clearly indicate the duration of the stay by
clarifying the “state remedies” that Rogers is being given the time to exhaust. Fletcher v.
State, 2013 MT 266, ¶ 16, 372 Mont. 22, 309 P.3d 998 (“Although the oral version of a
sentence is controlling, written judgments may help clarify an ambiguous oral
sentence.”).
¶6 Second, Rogers argues—and the State concedes—that the District Court lacked
authority to designate Rogers a Level 3 sexual offender, given that theft is not a sexual
offense under §§ 46-23-502(9) and -509, MCA. State v. Holt, 2011 MT 42, ¶¶ 21-22,
359 Mont. 308, 249 P.3d 470. Accordingly, we remand with instructions to strike the
Level 3 sexual offender designation in Rogers’s theft sentence.
¶7 Finally, Rogers observes that the District Court imposed the terms and conditions
numbered 31-34, 36-40, 42-44, and 46-52 based on the rationale that these terms and
conditions “have to do with the sex offense of the underlying charges, and the case that
was, previously, disposed of”—a reference to DC 11-180. This Court reversed Rogers’s
convictions in DC 11-180, however, and remanded for a new trial. Hence, Rogers argues
that the District Court’s rationale is no longer valid. We have held that restrictions and
conditions on a sentence must have a nexus to the underlying offense or to the offender.
State v. Bullplume, 2013 MT 169, ¶ 18, 370 Mont. 453, 305 P.3d 753. Rogers argues,
therefore, that the sexual offender conditions identified above should be struck from his
theft sentence, as any nexus which might have existed at the time of his sentencing on
4 that offense has since ceased to exist. Rogers also notes that on remand from our reversal
in Rogers, the parties entered a plea agreement in DC 11-180 which resulted in dismissal
of all the charges (including the sexual offense) except partner or family member assault
(PFMA) and burglary, to which Rogers pleaded guilty. He also notes that the prosecutor
did not recommend, and the District Court did not impose, any sexual offender conditions
on the suspended sentences he received for the PFMA and burglary convictions.
¶8 In response, the State contends that Rogers forfeited his objections to the
aforementioned conditions on his theft sentence because he did not object at the time of
sentencing. We agree with Rogers, however, that in light of the unique circumstances of
this case, it is necessary to remand with instructions that the District Court reconsider
whether the imposition of Conditions 31-34, 36-40, 42-44, and 46-52 is appropriate in the
theft case, given the ultimate disposition of DC 11-180. The District Court has discretion
to reimpose the conditions if it determines that they bear the requisite nexus to Rogers or
to his theft offense, despite the resolution in DC 11-180. See State v. Ashby, 2008 MT
83, ¶ 15, 342 Mont. 187, 179 P.3d 1164 (a sentencing judge may impose a condition of
probation so long as it has a nexus either to the offense or to the offender himself); State
v. Mason, 2003 MT 371, ¶ 23, 319 Mont. 117, 82 P.3d 903 (in imposing a sentence, the
court may consider any relevant evidence relating to the nature and circumstances of the
crime, the character of the defendant, the defendant’s background and history, mental and
physical condition, and any evidence the court considers to have probative force,
including evidence of other acts, even those resulting in acquittal or which are dismissed
5 pursuant to a plea bargain agreement), overruled on other grounds by State v. Herman,
2008 MT 187, ¶ 12 n.1, 343 Mont. 494, 188 P.3d 978.
¶9 We have determined to decide this case under Section I, Paragraph 3(d)(iii) of our
Internal Operating Rules, pursuant to which this Court may enter a noncitable
memorandum opinion reversing the judgment of the trial court where it is manifest on the
face of the briefs and the record that the judgment is contrary to settled Montana law. We
reverse the District Court’s DC 12-260 judgment, in part, and remand for the following
purposes: to correct the written judgment so that it includes and clarifies the stay on
Rogers’s restitution payments; to strike the Level 3 sexual offender designation; and to
reconsider whether the imposition of Conditions 31-34, 36-40, 42-44, and 46-52 is
appropriate.
¶10 Reversed and remanded for further proceedings.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE