State v. R. Collins

2023 MT 78, 528 P.3d 1106, 412 Mont. 77

• Court: Montana Supreme Court
• Decided: May 9, 2023
• Docket: DA 21-0527
• Status: Published

Opinion

05/09/2023

DA 21-0527 Case Number: DA 21-0527

IN THE SUPREME COURT OF THE STATE OF MONTANA 2023 MT 78

STATE OF MONTANA, Plaintiff and Appellee,

v.

ROBIN R. COLLINS, Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC-2020-59 Honorable Brenda Gilbert, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nicholas Miller, Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana

Kendra K. Lassiter, Park County Attorney, Livingston, Montana

Submitted on Briefs: August 17, 2022

Decided: May 9, 2023

Filed: V,„ 6A--if __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Robin R. Collins appeals the August 2021 and January 2022 judgments of the

Montana Sixth Judicial District Court, Park County, and his post-judgment motion for

“Resentencing or Rescission.” Collins entered a guilty plea and a “no contest” plea on two

counts of felony Criminal Endangerment. We address the following restated issues:

1. Whether the District Court erroneously concluded that the State did not breach the parties’ plea agreement at sentencing?

2. Whether the District Court illegally imposed sex offender registration on non-sexual offenses without Collins’s consent in violation of § 46-23-512, MCA?

We affirm in part, reverse in part, and remand to the District Court.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 On June 16, 2020, the State charged Collins with one count of Sexual Intercourse

Without Consent (SIWC), a felony in violation of § 45-5-503(3)(a), MCA, and two counts

of felony Sexual Assault of a minor in violation of § 45-5-502(3), MCA. The charges were

based on factual allegations that Collins: (1) repeatedly subjected his 7-year-old foster

daughter (A.H.) to sexual intercourse from 2016-2019 (Count 1); (2) repeatedly sexually

assaulted his 13 year-old stepdaughter (A.K.) from 2003-2007 (Count 2); and (3) sexually

assaulted his 2 year-old step-grandson (C.N.) in 2019 (Count 3). On Collins’s motion, the

District Court dismissed Count 2 as time-barred by the applicable 10-year statute of

limitations.1 Collins signed a plea agreement on June 7, 2021.

1 See § 45-1-205(1)(b), MCA (2015) (“a prosecution for a felony offense under 45-5-502 . . . may be commenced within 10 years after the victim reaches 18 years of age if the victim was less than 18 years of age at the time that the offense occurred.”). 2 ¶3 In pertinent part, the plea agreement provided that: (1) the State would amend

Counts 1 and 3 (SIWC and felony Sexual Assault) to two counts of felony Criminal

Endangerment; (2) Collins would plead “no contest” to Amended Count 1 and guilty to

Amended Count 3; and (3) “the parties agree[d]” that Collins should “be sentenced to a

six-year suspended sentence with registration as a [s]exual [o]ffender during the pendency

of his sentence.” Collins acknowledged the plea agreement was non-binding pursuant to

§ 46-12-211(1)(c), MCA, and that he therefore could not withdraw his plea if the court

chose not to accept the agreement.

¶4 In the acknowledgment and waiver of rights section of the agreement, Collins stated

that he entered into the agreement freely and voluntarily and with full knowledge of its

terms, conditions, and consequences. Collins further expressly stated he understood and

acknowledged that:

(1) pursuant to § 46-12-211(1)(c), MCA, the court was not bound by the agreement and, in its “sole discretion,” could lawfully sentence him to “the maximum punishment authorized for [each] offense” to which he may plead guilty;

(2) if the court “opts not to impose the sentence recommended” under the agreement, he had no right to withdraw his plea;

(3) regardless of the terms of the plea agreement, the victims of the offenses have “a statutory right to make a statement to the [c]ourt” which “the State must honor,” and that doing so “is not an attempt by the State to . . . undercut” the plea agreement; and

(4) “any such testimony” by the victims “will not be a basis to withdraw [his] plea.”

¶5 At the change of plea hearing on June 7, 2021, Collins acknowledged: (1) the

maximum penalties for the offenses; (2) his understanding of the terms and consequences 3 of the plea agreement and the waiver of rights; and (3) his unqualified assent to the terms

and consequences of the agreement and resulting changes of plea. The colloquy included

the following exchange:

[Court]: We’re going to go through the plea agreement and just make sure that we’re all on the same terms with it. . . . [M]y quick reading . . . leaves the Court to conclude that this is not a binding plea agreement. Is that right?

[Counsel]: It’s not, your Honor.

[Court]: Okay. So, what I’m getting at there, Mr. Collins, is that essentially what you’ve done by signing your plea agreement is you’ve made an agreement with the [S]tate of Montana.

[Collins]: Yes.

[Court]: I’m not a party to the plea agreement, nor am I bound by law to follow the sentence recommended in the plea agreement. Do you understand that concept?

[Collins]: Yes. . . . [my counsel] explained that to me.

[Court]: So, if you go ahead and change your plea, today, and I sentence you to something that’s harsher than what’s recommended in the plea agreement, you would be stuck with that as your sentence and you wouldn’t be able to withdraw your guilty plea. Do you understand that?

[Collins]: Yes, I do. . . .

[Court]: The parties are agreeing that the sentence should be a six year suspended sentence, with registration as a sex offender during the pendency of the sentence. . . . Is that the agreement that you understood that you made with the [S]tate?

[Collins]: Yes, that’s my understanding.

¶6 At the August 2021 sentencing hearing, the District Court noted various matters

referenced in the Department of Corrections presentence investigation report (PSI).

4 Neither party presented any witness testimony or other evidence supporting the plea

agreement, and Collins declined to personally address the court. However, the State

advised that “the victims in this case, and people who’ve been impacted by this within the

family, would like to make a statement to the [c]ourt.” The State identified two individuals

who had submitted written victim impact statements already included in the PSI. The first

was B.N., who was Collins’s stepdaughter, and the second was A.K., the victim in Count

2, which was dismissed because it was time-barred. In turn, B.N. and A.K. came forward

and read their victim impact statements to the court.

¶7 Both victim impact statements described the irreparable traumatic and life-altering

effect of Collins’s criminal conduct on the victims and their families. B.N.’s letter further

stated that she disagreed with the plea agreement sentencing recommendation based on her

belief that Collins was not a low risk to reoffend as found in his psychosexual evaluation.

She did not think the agreed sentencing recommendation was sufficient to hold him

accountable and protect his victims and other children in the community. A.K.’s letter did

not expressly or implicitly comment on the plea agreement but did state A.K.’s belief that

Collins had no “remorse or sense of accountability for what he’s done to me and, at least,

two others.”

¶8 Next, the following exchange occurred:

[Court]: [A]t this time, would the State wish to make any argument to the Court, recognizing [that] we’re here pursuant to the plea agreement?

[State]: Well, not necessarily an argument, your Honor, we did reach the plea agreement in good faith, so we will abide by our commitment to ask the Court to follow the terms of the plea agreement. Of course, we understand that the Court will take into account the victim impact statements, as well. 5 Defense counsel then argued in support of the plea agreement, responding in particular to

the concerns raised in the victim impact statements. After briefly addressing with counsel

the amount of any fine to be included in the sentence, the District Court asked if there was

“anything else that the [c]ourt should consider before sentence is pronounced.” In response

to defense counsel’s comments regarding the stated victim concerns, the State made the

following comments regarding the plea agreement, victim concerns, and the amount of any

accompanying fine that the court might impose:

I would just like to say, while it’s completely understandable . . . why the victims in this case have expressed some dissatisfaction with how the matter was resolved, . . . [w]e . . . who are all in the judicial system loathe to put small children on the stand and put them through having to testify, particularly regarding emotionally traumatic events.

Nonetheless, the only thing that I would say in response to [defense counsel’s] comments is that . . . obviously, we appreciate that [Collins has] undertaken the obligation to undergo counseling, that he’s agreed to register as a sexual offender when the statutory charges to which he’s pleading, or which he’s agreed to plead in the plea agreement, don’t mandate that, but in the end, . . . he is trying to remediate himself within the community, I get that, but as we’ve heard, today, from the victims, . . . these are traumas that they[] [will] have to deal with for the remainder of their lives, . . . particularly for Count [2], which was dismissed because of the statute of limitations. . . . [A]s [defense counsel] pointed out, . . . we all get why there is a delay or failure to report sexual crimes on a minor, it is dissatisfying, deeply dissatisfying in terms of perceiving that justice has been had.

So, like I said, we entered into the plea agreement in good faith, we would ask you to follow it, taking into consideration the victims’ impact statements that have been filed with the Court and read, here, today, into the record, and . . . in terms of capping the amount of the fine,[2] . . . the Court should assess what the Court deems would be an appropriate amount, given the offenses that are at issue in this case. Thank you.

2 The plea agreement left the amount of any fine to the discretion of the court. 6 (Emphasis added.) The State’s comments then triggered the following clarification

between defense counsel and the court:

[Counsel]: I just want to be clear for the record that . . . [by] inviting the Court to consider the victim impact statements . . . and to consider a fine . . . that [the State] is not suggesting to the Court that the plea agreement is invalid or should not be followed, because . . . the State is required to give more than lip service to that agreement. . . . [I]n case there’s any further discussion of this, I just wanted to affirm that that is not the case here, that this is not just lip service, and that the State stands by the plea agreement as negotiated.

[Court]: I did not take [the State’s] remarks as inviting me to not support the plea agreement.

[Counsel]: Excellent, your Honor, thank you.

¶9 After discussing various sentencing considerations, the District Court concluded

that, “having considered everything presented here, . . . the sentence recommended in the

plea agreement is wholly inadequate in terms of accountability and punishment.” Thus,

rather than the relatively short concurrent probationary sentences recommended in the plea

agreement, the court sentenced Collins to serve two concurrent 10-year prison terms, with

no time suspended, the maximum punishment authorized by law for each offense. The

court further stated that, “[b]ecause [he] volunteered to do so” and because it is

“certainly . . . necessary to protect the community,” the sentencing judgment will “require

[Collins] register as a Tier I Sex Offender.” The court also imposed a $2,000 fine on each

offense and required completion of Phases I and II sex offender treatment before release

from prison. On August 24, 2021, the court issued a written judgment which included a

notation that, despite the deviation from the plea agreement sentencing recommendation,

7 Collins had nonetheless received the “substantial benefit” of the plea agreement by

avoiding the significantly harsher range of punishment associated with the original sex

offenses against minors charges.

¶10 In October 2021, Collins filed a post-judgment motion alleging that the State

breached the plea agreement by: (1) failing to “fairly or strongly argue for” the plea

agreement recommendation at sentencing; (2) emphasizing the traumatic impacts on the

victims and their “deep dissatisfaction” with the plea agreement; (3) suggesting that the

reasons for the plea agreement “were unjustified” and that the agreement “was unjust”; and

(4) “ask[ing] the court to consider the victim[] impact statement[s] when sentencing”

Collins. The motion asserted that Collins was entitled, at his election, either to resentencing

with specific performance of the agreement from the State or rescission of the plea

agreement.3 After resolution of the jurisdictional problem caused by Collins’s immediate

filing of a notice of appeal the next day,4 the District Court denied Collins’s motion in

January 2022. The court concluded that the State’s conduct at sentencing did not

undermine and breach the plea agreement. To the contrary, the court found that “the State

repeatedly represented that” it entered into the plea agreement “in good faith and

encouraged the [c]ourt to abide by [its] terms.” The court further noted that it deviated

3 Collins characterized his post-judgment motion for resentencing or rescission of the plea agreement as a timely-raised district court motion for leave to withdraw his no contest and guilty pleas pursuant to § 46-16-105(2), MCA (authorizing motion for withdrawal of guilty or no contest plea “within 1 year after judgment becomes final”). 4 See the January 4, 2022, Order of this Court granting Collins’s unopposed motion pursuant to M. R. App. P. 4 for a temporary stay of his appeal and thus remanding for district court disposition of his post-judgment motion. 8 from the plea agreement sentencing recommendation based on its own independent

conclusions regarding the adequacy of the proposed probationary sentence(s) in light of

governing statutory sentencing policies, the underlying circumstances of the offenses as

described by Collins in the PSI and accompanying psychosexual evaluation, and the victim

impact statements. Collins did not object to the imposition of sex offender registration at

sentencing or in support of his post-judgment motion for resentencing or rescission of the

plea agreement. Collins timely appeals.

STANDARD OF REVIEW

¶11 Whether a party breached a plea agreement under § 46-12-211, MCA, is a question

of law subject to de novo review. State v. Shepard, 2010 MT 20, ¶¶ 7-8, 355 Mont. 114,

225 P.3d 1217. District court findings of fact are reviewed for clear error. State v. Warclub,

2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254. Whether a criminal sentence or

condition is illegal or exceeds statutory authorization is a question of law subject to de novo

review. State v. McGhee, 2021 MT 193, ¶ 11, 405 Mont. 121, 492 P.3d 518; State v. Grana,

2009 MT 250, ¶ 11, 351 Mont. 499, 213 P.3d 783.

DISCUSSION

¶12 1. Whether the District Court erroneously concluded that the State did not breach the parties’ plea agreement at sentencing?

¶13 In both the written plea agreement and at the change of plea hearing, Collins’s

counsel acknowledged that the proffered plea agreement was not binding. Collins then

acknowledged his understanding that the District Court was neither a party to the

agreement, “nor . . . bound by law to follow the sentence recommended in the plea

9 agreement.” He further acknowledged his understanding that if the court sentenced him to

“something that’s harsher than what’s recommended in the plea agreement, [he] would be

stuck with that” and “wouldn’t be able to withdraw [his] guilty plea.” Thus, as

acknowledged by the parties throughout the proceedings, the non-binding plea agreement

included an agreed “recommendation . . . for a particular sentence” as authorized by

§ 46-12-211(1)(c) and (2), MCA.

¶14 Plea agreements are contracts generally subject to applicable contract law standards.

State v. Newbary, 2020 MT 148, ¶ 18, 400 Mont. 210, 464 P.3d 999. However, defendants

waive fundamental state and federal constitutional rights when they are induced to plead

guilty by reason of a plea agreement. See Santobello v. New York, 404 U.S. 257, 264, 92

S. Ct. 495, 500 (1971) (Douglas, J., concurring); State v. Rardon, 2002 MT 345, ¶ 16, 313

Mont. 321, 61 P.3d 132 (Rardon II). Consequently, defendants have a substantive right to

be treated fairly throughout the plea-bargaining process. State v. Allen, 199 Mont. 204,

208, 645 P.2d 380, 382 (1981) (citing Santobello, 404 U.S. at 261, 92 S. Ct. at 498). A

prosecutor “must meet strict and meticulous standards of both promise and performance

relating to plea agreements, because a guilty plea resting on an unfulfilled promise in a plea

bargain is involuntary.” Rardon II, ¶ 18 (internal quotation marks omitted; citation

omitted). “Prosecutorial violations, even if made inadvertently or in good faith to obtain a

just and mutually desired end, are unacceptable.” Allen, 199 Mont. at 209, 645 P.2d at 382.

¶15 The prosecutor must present the case in a “good faith and fair” manner that is not

clearly intended or likely to undermine the plea agreement, including the sentencing

recommendation made to the court. Rardon II, ¶¶ 22-25. A prosecutor cannot pay mere 10 “lip service”5 to the agreement by making the agreed sentencing recommendation while

presenting the case in a manner intended to persuade the court that the “sentence

recommendation should not be accepted.” Rardon II, ¶¶ 19-22. We have recognized “there

are no hard and fast criteria that define when a prosecutor has merely paid lip service to a

plea agreement as opposed to when a prosecutor has fairly presented the State’s case.”

State v. Bartosh, 2007 MT 59, ¶ 19, 336 Mont. 212, 154 P.3d 58 (citing Rardon II, ¶ 21).

Each case must be determined individually based on its unique circumstances. State v.

Hill, 2009 MT 134, ¶ 29, 350 Mont. 296, 207 P.3d 307.

¶16 For example, a prosecutor may not solicit inflammatory statements from victims or

witnesses with the intent of influencing the judge to deviate from the plea agreement

recommendation. Rardon II, ¶¶ 19-22 (prosecutor paid mere “lip service” to agreed

sentencing recommendation by fervently eliciting “inflammatory” opinion testimony from

victim/witness regarding the recommended sentence length, “reiterating and emphasizing

the negative aspects” of defendant’s required psychosexual evaluation, and repeating to the

court a portion of the PSI stating that a long prison sentence would “motivat[e]”

defendant’s rehabilitation). Similarly, a prosecutor may not undermine and breach a plea

agreement by unnecessarily presenting evidence that contradicts the agreed sentence

recommendation or by emphasizing negative information about the defendant without fully

explaining the justification for the agreed sentencing recommendation. See State v.

5 “Lip service” is an idiom referring to “service consisting of only avowed [verbal] expressions of adherence, devotion or allegiance; service by words but not by deeds.” State v. Hill, 2009 MT 134, ¶ 29 n.3, 350 Mont. 296, 207 P.3d 307 (citation omitted). 11 LaMere, 272 Mont. 355, 357-60, 900 P.2d 926, 927-29 (1995) (prosecutor did not

adequately support the plea agreement when they gave no explanation for the

recommended deferred sentence and then emphasized defendant’s negative characteristics

such as his alcohol abuse, repeated failure to complete anything he starts, and lack of desire

to seek alcohol treatment); State v. Bowley, 282 Mont. 298, 311-12, 938 P.2d 592, 599-600

(1997) (prosecutor breached plea agreement by initially making agreed sentencing

recommendation before “effectively endors[ing]” a different sentence recommendation

made by the probation officer).

¶17 In contrast, within the scope of information required or authorized by statute for the

court to consider at sentencing,6 the prosecutor may properly: (1) note independent victim

statements, concerns, and opinions regarding the circumstances of the crime, its impact,

and the appropriate sentence; (2) acknowledge or note the defendant’s criminal and

relevant personal history, the circumstances of the offense, charges previously dismissed

or amended as part of the plea agreement, and different sentencing recommendations and

considerations independently made by the probation officer in the PSI report; and (3)

acknowledge any similar information, opinions, or recommendations made by third-party

evaluators regarding any psychosexual or mental health evaluations and reports. See State

v. Ellison, 2017 MT 88, ¶¶ 18, 22, 387 Mont. 243, 393 P.3d 192; State v. McDowell, 2011

MT 75, ¶¶ 16-21, 360 Mont. 83, 253 P.3d 812; State v. Manywhitehorses, 2010 MT 225,

6 See § 46-18-111(1)(a), MCA (when court may or must order PSI, and requiring court to consider PSI when ordered); § 46-18-112, MCA (“Content of presentence investigation report”); § 46-18-115(4), MCA (right of “victim to present a statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion regarding appropriate sentence”). 12 ¶¶ 14-16, 358 Mont. 46, 243 P.3d 412; Hill, ¶¶ 27-33; State v. Rardon, 2005 MT 129,

¶¶ 17-20, 327 Mont. 228, 115 P.3d 182 (Rardon III). However, the prosecutor may do so

only if not expressly prohibited by the terms of the plea agreement, the information is

relevant to the sentencing, and the case is presented in a fair manner not likely to undermine

the plea agreement by influencing the court to deviate from the sentence recommendation.

See, e.g., McDowell, ¶¶ 20-21, 24 (no breach where prosecutor neutrally presented victim’s

testimony, appropriately pointed out facts in the PSI report supporting the recommended

sentence despite the report recommending a different sentence, and recommended

probation conditions that were not prohibited by the agreement); Manywhitehorses, ¶ 16

(no breach where prosecutor made agreed sentencing recommendation and presented

evidence of the crime which indicated defendant was originally charged with deliberate

homicide when that evidence was not expressly precluded by the plea agreement and was

relevant to the circumstances of the victim’s death and the defendant’s history); Hill,

¶¶ 29-30 (no breach where prosecutor pointed out a victim impact statement included in

PSI report regarding a dismissed sexual abuse charge because court was already aware of

the circumstances underlying that charge and may properly consider such evidence when

relevant); Bowley, 282 Mont. at 311-12, 938 P.2d at 600 (prosecutor may neutrally

reference a different sentencing recommendation made by probation officer in PSI;

however, effectively endorsing that different recommendation constitutes a breach).

¶18 Here, Collins asserts that the State merely paid “lip service” to the agreed sentencing

recommendation by noting in “a single sentence” of its initial sentencing presentation that

it was required to follow the plea agreement and did not provide any further explanation. 13 He asserts the State thus breached the agreement by failing to “fairly or strongly argue for”

it and then affirmatively undermining it by repeatedly emphasizing to the court the

traumatic impact of the crimes on the victims and the victims’ disagreement with the agreed

recommendation. As a threshold matter, Collins correctly points out that the prosecutor

neither verbally articulated the agreed sentencing recommendation nor provided any

explanation for it during the State’s initial recommendation at sentencing.

¶19 We have previously addressed a similar situation where the prosecutor did not

“specifically voice” or explain the agreed sentencing recommendation at the sentencing

hearing. State v. Brown, 193 Mont. 15, 17-18, 629 P.2d 777, 778 (1981). We noted that

the plea agreement was filed with the district court a month before the hearing and that the

court “acknowledged the existence of [the] agreement” throughout the sentencing hearing

with “particular mention of the State’s recommendation” when the court imposed the

defendant’s sentence. Brown, 193 Mont. at 17, 629 P.2d at 778. As a result, we held the

State satisfied its “obligation under the agreement” because it was “evident” that the court

was already “fully apprised” of the plea agreement and “was aware of” it during sentencing.

Brown, 193 Mont. at 17-18, 629 P.2d at 778.

¶20 Likewise, here the plea agreement was filed long before the sentencing hearing, and

the records of both the change of plea hearing and the sentencing hearing demonstrate that

the District Court was aware of the plea agreement terms, including the agreed sentencing

recommendation. During the sentencing hearing, including when imposing the sentence,

the court questioned whether any further explanation or argument was necessary, asking:

14 [A]t this time, would the State wish to make any argument to the Court, recognizing [that] we’re here pursuant to the plea agreement?

Evidently aware of the court’s familiarity with the plea agreement, the prosecutor

responded:

Well, not necessarily an argument, your Honor. We did reach the plea agreement in good faith, so we will abide by our commitment to ask the Court to follow the terms of the plea agreement.

¶21 As implicitly recognized in Brown, a prosecutor is not necessarily required to

enthusiastically recommend or explain the sentence provided they “act[] in good faith and

[do] not undermine the agreement.” State v. Bullplume, 2011 MT 40, ¶ 16, 359 Mont. 289,

251 P.3d 114. Here the State attested that it entered into the plea agreement in “good faith,”

unequivocally stood by its “commitment,” and thus “ask[ed] the Court to follow the terms

of the plea agreement.” Further, the State did not recommend or otherwise support a

different sentence during the hearing. Under these circumstances, we hold that the State

sincerely and in good faith satisfied the express terms of the plea agreement.

¶22 However, the prosecutor must also present the State’s case in a manner that does

not undermine the agreed recommendation through unnecessary comment or conduct

having no legitimate purpose other than to influence the court to deviate from the

non-binding recommendation. Collins asserts that the prosecutor breached the plea

agreement by “repeatedly directing the court” to the victims’ dissatisfaction with the plea

agreement, emphasizing that the agreed resolution “was unjust,” “interject[ing] a lengthy

statement highlighting the inadequacy of the plea agreement,” repeatedly referencing the

emotional trauma suffered by the victims, asking the court to consider the victim impact

15 statements, and by characterizing A.K. as a victim of a crime when the State dismissed that

count pursuant to the applicable statute of limitations. Collins argues this conduct is

analogous to the prosecutorial conduct we held breached a plea agreement in Rardon II.

However, Collins’s assertions are wholly unsupported by the sentencing hearing record.

¶23 The record shows that the prosecutor did not ask the court to consider the victim

impact statements, repeatedly direct the court to the victims’ dissatisfaction with the plea

agreement, or otherwise unnecessarily refer to either of those matters. As in McDowell,

Hill, and Rardon III, the prosecutor’s acknowledgment of the District Court’s duty to

consider the victim impact statements previously submitted and included in the PSI,

notification to the court that two individuals desired to read their respective victim impact

statements at sentencing, and acknowledgment of those individuals’ adverse opinions and

concerns regarding the plea agreement recommendation were all within the authorized

scope of information specified by statute for court consideration.

¶24 As to the prosecutor’s statement that the originally charged Count 2 was dismissed

through no fault of the alleged victim, Collins neither objected below, nor asserts on appeal

here, that the victim impact statement submitted and read by the alleged victim was either

improperly included in the PSI or improperly read by her at sentencing. As a matter of

record, the District Court was already aware that the State dismissed that count based on

the statute of limitations.

¶25 Perhaps most significantly, the record clearly reflects that the prosecutor’s

supplemental comments regarding the victim impact statements, as asserted by defense

counsel and acknowledged by the court, were manifestly intended to support the plea 16 agreement in a manner respectful to the stated victim concerns and responsive to defense

counsel’s sentencing argument. Further, we disagree with Collins that the prosecutor’s

supplemental comments suggested to the court that the agreement was unjustifiable. Fairly

read in context, the prosecutor here made no statement asserting, much less emphasizing,

that the agreed sentencing recommendation was “unjust.” Collins specifically takes issue

with the prosecutor’s reference to the dismissed count where she noted that “as [defense

counsel] pointed out, . . . we all get why there is a delay or failure to report sexual crimes

on a minor, it is dissatisfying, deeply dissatisfying in terms of perceiving that justice has

been had.” However, as the prosecutor made clear, she was merely responding to a

statement made by defense counsel. While arguing for the plea agreement, defense counsel

brought up the impact statement of A.K.—the alleged victim of the dismissed count—and

stated “nothing that I say, here, could possibly erase those experiences from [A.K.’s] life

or the memories . . . no one in this courtroom, or . . . who [has] dealt with sexual offending,

has any question about why [A.K.] didn’t come forth as a child.” Defense counsel then

acknowledged that “the fact that [A.K.’s] charge was dismissed, due to statutory limitation

considerations, means that [Collins] can’t be sentenced for those actions, but the Court can

obviously consider them.” Read in context, the prosecutor’s comments were not asserting

the resolution of the dismissed charge was “unjust.” Instead, she merely agreed with

defense counsel’s discussion of that charge and echoed defense counsel’s statement

affirming the court’s ability to consider the conduct underlying that charge.

¶26 Under these circumstances, the prosecutor neither implicitly nor effectively

endorsed the stated victim concerns regarding the plea agreement recommendation, nor 17 acknowledged the statements of other victims in an unnecessary, irrelevant, repetitive, or

inflammatory manner with no legitimate purpose other than to undermine the plea

agreement. After careful review of the record, we conclude that the State adequately

supported the agreed sentencing recommendation and therefore did not undermine and

breach the plea agreement as alleged by Collins.

¶27 2. Whether the District Court illegally imposed sex offender registration on non-sexual offenses without Collins’s consent in violation of § 46-23-512, MCA?

¶28 Collins asserts that the District Court illegally imposed sex offender registration as

a condition of his sentence. The Sexual or Violent Offender Registration Act (SVORA)

imposes a registration requirement on defendants convicted of a “sexual offense” as

defined by § 46-23-502(9), MCA. Sections 46-23-504, 46-23-506, MCA. A sentencing

court may only impose the SVORA registration requirement when specifically authorized

by statute. State v. Hastings, 2007 MT 294, ¶ 19, 340 Mont. 1, 171 P.3d 726. When a

defendant is convicted of an offense that does not require SVORA registration,

§ 46-23-512, MCA, provides the only statutory authority by which a sentencing court can

legally impose that requirement. Section 46-23-512, MCA expressly provides that:

A defendant convicted of an offense that would otherwise not be subject to [SVORA] registration under this part may agree to comply with the registration requirements of this part as part of a plea agreement, and a court accepting the plea agreement may order the defendant to comply with this part.

¶29 Collins asserts that under the express language of § 46-23-512, MCA, the District

Court could only legally require SVORA registration if he agreed to register as part of his

plea agreement and the District Court accepted that plea agreement. In Collins’s plea

18 agreement with the State, he agreed to enter pleas of guilty and no contest to the two

amended counts of Criminal Endangerment and the State agreed to recommend concurrent

six-year probationary sentences on the amended charges. While Criminal Endangerment

is not defined as a “sexual offense” triggering mandatory SVORA registration under

§ 46-23-502(9), MCA, Collins nevertheless agreed to be subject to SVORA registration as

part of his plea agreement with the State. However, Collins argues that the District Court

“unequivocally rejected” the plea agreement by imposing two consecutive ten-year prison

terms on the amended offenses instead of the recommended six-year suspended sentence.

According to Collins, the agreed “sentencing recommendation was the only meaningful

aspect of the plea agreement that called for any acceptance or rejection by the court,” as

the State had discretion over amending the charges. Collins notes that in rejecting the

recommended sentence, the District Court stated the recommendation was “wholly

inadequate in terms of accountability and punishment,” and that it “failed to meet the

sentencing policies set by the legislature.” Accordingly, Collins asserts the District Court

did not accept the plea agreement as expressly required by § 46-23-512, MCA, and was

therefore unauthorized to impose the SVORA registration requirement.

¶30 The State argues that § 46-23-512, MCA, authorized the District Court to impose

SVORA registration because Collins agreed to that condition in the plea agreement and the

District Court accepted that plea agreement. The State asserts that the non-binding plea

bargain was an agreement between Collins and the State to which the District Court was

not a party. Collins understood that the District Court was not bound by the sentencing

recommendation and could impose any legal sentence. As such, the State maintains the 19 District Court’s deviation from the recommended sentence did not constitute a rejection of

the plea agreement.

¶31 The narrow purpose of statutory construction is to “ascertain and declare what is in

terms or in substance contained therein, not to insert what has been omitted or to omit what

has been inserted.” Section 1-2-101, MCA. Courts first attempt to construe a statute “in

accordance with the plain meaning of its express language in context of the larger statutory

scheme in which the Legislature inserted it.” Mt. Water Co. v. Mont. Dep’t of Revenue,

2020 MT 194, ¶ 27, 400 Mont. 484, 469 P.3d 136. If the language of a statute is clear and

unambiguous, no further interpretation is required. State v. Goebel, 2001 MT 73, ¶ 16, 305

Mont. 53, 31 P.3d 335 (citation omitted). In that circumstance, “the statute speaks for itself

and there is nothing left for the court to construe.” State v. Hubbard, 200 Mont. 106, 111,

649 P.2d 1331, 1333 (1982).

¶32 We agree with Collins that the District Court did not have the authority to impose

SVORA registration as a condition of his sentence. We have repeatedly held that “courts

do not have the power to impose a criminal sentence unless authorized by a specific grant

of statutory authority.” State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66.

Here, § 46-23-512, MCA, supplies the only statutory authority permitting a court to impose

SVORA registration on a defendant not otherwise subject to that requirement. Section

46-23-512, MCA, plainly and unambiguously provides that “a court accepting the plea

agreement may order the defendant to comply” with SVORA registration. This express

language does not qualify, modify, distinguish, or in any way limit the plea agreements to

which it applies. Yet under the State’s interpretation of § 46-23-512, MCA, if a defendant 20 agrees to SVORA registration in a plea agreement, the sentencing court may impose that

requirement regardless of whether it deviates from the plea agreement in any respect. This

interpretation renders superfluous the provision of § 46-23-512, MCA, requiring the court

to “accept[] the plea agreement” before requiring SVORA registration. To give full effect

to every word in § 46-23-512, MCA, a sentencing court’s deviation from a plea agreement

recommendation must constitute a rejection of the plea agreement. See State v. Ohl, 2022

MT 241, ¶ 11, 411 Mont. 52, 521 P.3d 759 (citation omitted) (courts avoid interpreting

statutes in a manner “that renders any sections of the statute superfluous and does not give

effect to all of the words used”).

¶33 The State briefly cites to Grana to support its contention that a court can impose

SVORA registration on a defendant if the defendant agreed to that requirement in a plea

bargain. In Grana, a defendant was charged with seven counts of burglary but agreed to

plead guilty to three counts of burglary in return for dismissal of the other four counts and

a specific non-binding sentencing recommendation by the State. Grana, ¶¶ 5-7. The plea

agreement included an express provision that the defendant “would register as a Level II

sexual offender,” subject to his retained right to “oppose the registration requirement and/or

the Level II designation.” Grana, ¶ 6. The court sentenced the defendant per the plea

agreement recommendation and, over his objection, ordered him to register as a Level II

sex offender. Grana, ¶¶ 6-8. The court subsequently revoked the original sentence, but

the resentencing judgment was silent as to SVORA registration. When the defendant later

sought a declaratory ruling on the registration requirement, the court ruled that the new

sentence did not require SVORA registration. The court later revoked this sentence 21 following new probation violations and resentenced the defendant, but unlike before,

required him to register as a sex offender. Grana, ¶¶ 8-10.

¶34 We concluded the court properly imposed SVORA registration on the defendant

based on his express consent to that requirement and because he obtained the full benefit

of the plea bargain. First, the defendant’s plea agreement expressly permitted the court to

require SVORA registration; it also allowed him to argue against that requirement. As a

result of this plea agreement term, we concluded the defendant effectively “conceded that

the District Court could require him to register as a sexual offender if his objection to

registration did not prevail.” Grana, ¶ 13. Second, we held that the defendant “obtained

the full benefit of the plea bargain” because “four of the original seven burglary charges”

were dismissed. Grana, ¶ 13. We thus held that § 46-23-512, MCA, authorized the court

to impose SVORA registration on the defendant. Grana, ¶ 14.

¶35 The circumstances here are distinguishable from those in Grana. Critically, the plea

agreement in Grana explicitly contemplated the defendant’s ultimate sentence. The

defendant agreed that if he unsuccessfully argued against SVORA registration, the court

could still require his registration. Grana, ¶ 13. Therefore, in imposing SVORA

registration over the defendant’s objection, the court still accepted the full plea agreement

and retained authority to lawfully impose that condition pursuant to the express language

of § 46-23-512, MCA. Conversely, the plea agreement between Collins and the State has

no similar provision; Collins consented to SVORA registration as a term of the plea

agreement but nothing further. While he acknowledged the agreement could be rejected

by the court pursuant to § 46-12-211(1)(c), MCA, Collins did not agree to SVORA 22 registration if the agreement was rejected. Here, Collins’s consent to SVORA registration

was a term in an agreement that the court did not accept.

¶36 Under the express language of § 46-23-512, MCA, the District Court was only

authorized to impose SVORA registration if two conditions were met: (1) Collins “agree[d]

to comply with the registration requirements . . . as part of a plea agreement,” and (2) the

“court accept[ed] the plea agreement.” By deviating from the plea agreement’s sentencing

recommendation, the District Court rejected the plea agreement. Because the second

condition requiring the court to accept the plea agreement was not met, § 46-23-512, MCA,

did not supply the court with the authority to impose SVORA registration on Collins. We

conclude that under § 46-23-512, MCA, the District Court unlawfully imposed sex

offender registration on Collins.

CONCLUSION

¶37 The District Court correctly concluded that the State did not breach the plea

agreement. However, the District Court unlawfully imposed sex offender registration on

Collins under § 46-23-512, MCA; therefore, we remand for the limited purpose of striking

the requirement that Collins register as a sex offender.

¶38 Affirmed in part and reversed in part.

/S/ LAURIE McKINNON

We Concur:

/S/ INGRID GUSTAFSON /S/ JIM RICE /S/ JAMES JEREMIAH SHEA

23 Justice Dirk Sandefur specially concurring in part and dissenting in part.

¶39 As to Issue 1 (i.e., whether the District Court erroneously concluded that the State

did not breach the parties’ plea agreement at sentencing), I concur with the Court’s ultimate

holding, and much of its underlying legal analysis supporting that holding. However, I am

disappointed, and frankly astonished, by the Majority’s unwillingness, consistent with the

precedent cited here and in the Court’s Opinion, to finally reconcile and synthesize for

clarity the longstanding and well-settled recognition by this Court, and the Supreme Court,

that criminal plea agreements are fundamentally contracts generally governed by

applicable contract law principles, except to the extent that they involve waivers of

fundamental federal and state constitutional rights which, as a matter of federal and state

constitutional due process uniquely applicable in the criminal law context, require a stricter

and more stringent standard of State performance of express contract terms and adherence

to the implied covenant of good faith and fair dealing implied as a matter of law in all

contracts. Instead, the Majority essentially puts forth what can only be characterized as an

ad hoc due process analysis which only preliminarily pays lip service to guiding contract

law that is entirely consistent with the pertinent constitutional due process principles. The

Court’s reasoning is thus manifestly lacking in the analytical consistency and clarity

required for consistent and predicable application to the varying fact patterns that will

continue to arise in individual cases going forward.

¶40 As to Issue 2, I dissent from the Majority holding that the District Court illegally

imposed sex offender registration on non-sexual offenses without Collins’ consent in

violation of § 46-23-512, MCA. The Court’s holding is patently erroneous insofar that it 24 conveniently fails to recognize and preserve the fundamental distinction between the nature

and effect of binding and non-binding plea agreements under § 46-12-211, MCA, and

thereby avoids having to address the obvious current state of the applicable Montana

statutory law—when it enacted the pertinent provision of the Montana Sexual and Violent

Offender Registration Act, § 46-23-512, MCA (1999) (authorizing imposition of sexual or

violent offender registration on conviction on a non-sexual or -violent offense upon

offender plea agreement consent), the Legislature in its narrow focus failed to recognize

the pre-existing statutory distinction between binding and non-binding plea agreements

under § 46-12-211, MCA (1991). As a result, the Majority fails to recognize that the

District Court’s deviation from the non-binding sentencing recommendation in the

non-binding plea agreement neither constituted a rejection, nor invalidation, of the other

negotiated and still valid and enforceable terms of the agreement such as, at issue here,

Collins’ consent to be subject to sex offender registration.

¶41 1. Whether the District Court erroneously concluded that the State did not breach the parties’ plea agreement at sentencing?

¶42 Despite seemingly ambiguous references to § 46-12-211(1)(b) and (c), MCA, in the

plea agreement and acknowledgment and waiver of rights sections of the combined written

agreement, Collins’ counsel acknowledged to the District Court at the change of plea

hearing that the proffered plea agreement was “not a binding plea agreement.” Collins then

acknowledged his understanding that the court was neither a party to the agreement,

“nor . . . bound by law to follow the sentence recommended in the plea agreement.”

25 (Emphasis added.) He further acknowledged his understanding that if the court sentenced

him to “something that’s harsher than what’s recommended in the plea agreement, [he]

would be stuck with that” and “wouldn’t be able to withdraw [his] guilty plea.” (Emphasis

added.) Thus, as acknowledged by Collins, his counsel, and the District Court at the change

of plea hearing, again by the court and counsel for the parties at the ensuing sentencing

hearing, and yet again by Collins on appeal, the combined written agreement at issue was

a non-binding plea agreement including, inter alia, an agreed “recommendation . . . for a

particular sentence” as authorized and in accordance with § 46-12-211(1)(c) and (2), MCA.

¶43 Within the framework of § 46-12-211, MCA (authorizing plea agreements), plea

agreements are contracts generally subject to applicable contract law standards. State v.

Newbary, 2020 MT 148, ¶ 18, 400 Mont. 210, 464 P.3d 999; State v. Hill, 2009 MT 134,

¶ 49, 350 Mont. 296, 207 P.3d 307; State v. Rardon (Rardon II), 2002 MT 345, ¶ 18, 313

Mont. 321, 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14, 305 Mont. 139, 23 P.3d

922); State v. Keys, 1999 MT 10, ¶ 18, 293 Mont. 81, 973 P.2d 812; State v. Dinndorf, 202

Mont. 308, 311, 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162,

1164 (9th Cir. 1979)). In this case, there is no assertion, or record basis upon which to

conclude, that the subject plea agreement was void or voidable due to lack of mutual

consideration, lack of mutual and voluntary assent, unlawful object or provision, or fraud,

mutual mistake of fact, or mistake of law. See §§ 28-2-101, -102, -301, -303, -401, -409,

and -410, MCA (in re contract formation requirements and defects).1 The narrow issue

1 See similarly § 46-12-204(2), MCA (court may not accept a guilty or nolo plea “without first determining that the plea is voluntary and not the result of force or threats or . . . promises apart 26 presented here is whether, post-formation, the State breached an express or implied

contract term or duty as alleged.

¶44 A plea agreement is a special type of contract involving, inter alia, a defendant’s

waiver of fundamental state and federal constitutional trial rights induced by prosecutor

promises regarding sentencing and related matters. See §§ 46-12-210(1)(c), (e),

and -211(1), MCA (plea acceptance requirements and plea agreement authorization);

Santobello v. New York, 404 U.S. 257, 264, 92 S. Ct. 495, 500 (1971) (Douglas, J.,

concurring—internal citations omitted). Consequently, unlike other types of contracts

where only a material breach relieves the non-breaching party of the reciprocal contract

duty to perform as reciprocally promised, see Davidson v. Barstad, 2019 MT 48, ¶ 22, 395

Mont. 1, 435 P.3d 640 (material breach of contract affords non-breaching party the option

of either rescinding the contract without requirement for reciprocal performance or

enforcing the contract by its terms at law or in equity), prosecutors must, regardless of any

inadvertent or good faith error or oversight, strictly and meticulously perform and fulfill

all express and implied plea agreement promises and obligations which were “in any

significant degree . . . part of the inducement or consideration” for the defendant’s change

of plea. Santobello, 404 U.S. at 262, 92 S. Ct. at 499. Accord State v. Allen (Allen I), 197

from [a] plea agreement”); State v. Radi, 250 Mont. 155, 159, 818 P.2d 1203, 1206 (1991) (guilty pleas are constitutionally valid only if knowing, voluntary, and intelligent with sufficient awareness of all relevant circumstances, any available alternative courses of action, and the likely consequences of the change of plea—citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970)); Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970).

27 Mont. 64, 68-69, 645 P.2d 380, 382 (1981) (quoting Santobello).2 Accordingly, for

purposes of the contract law analysis, a prosecutor breach of a plea agreement generally

constitutes a material breach of the agreement which, absent an affirmative prosecutor

showing by clear and convincing evidence that the elected remedy would result in a

fundamental miscarriage of justice, entitles a non-breaching defendant the option of

choosing one of two different remedies for the breach—specific performance of the

agreement or rescission and withdrawal of his or her adverse plea.3 Munoz, ¶¶ 13-16

and 38 (choice of remedies is a “safeguard” of “defendant’s due process rights”—internal

citations omitted); Santobello, 404 U.S. at 262, 92 S. Ct. at 499 (prosecutor breach of any

promise or obligation that was in any significant degree part of the inducement or

consideration for the defendant’s change of plea generally precludes prosecutor argument

that the breach was “immaterial”). Accord State v. Schoonover, 1999 MT 7, ¶ 16, 293

2 We have long recognized and applied the Santobello requirement for strict prosecutor performance and fulfillment of plea agreement promises and obligations. See, e.g., State v. Smietanka, 2008 MT 357, ¶ 13, 346 Mont. 353, 195 P.3d 797 (citing State v. Bartosh, 2007 MT 59, ¶ 19, 336 Mont. 212, 154 P.3d 58); Bartosh, ¶ 19 (citing State v. Rardon (Rardon III), 2005 MT 129, ¶ 18, 327 Mont. 228, 115 P.3d 182 (citing Rardon II)); Rardon II, ¶ 18 (citing State v. LaMere, 272 Mont. 355, 359-60, 900 P.2d 926, 929 (1995) (quoting Allen I)); State v. Rardon (Rardon I), 1999 MT 220, ¶ 14, 296 Mont. 19, 986 P.2d 424 (quoting State v. Bowley, 282 Mont. 298, 310-11, 938 P.2d 592, 599 (1997) (quoting Allen I)), overruled on other grounds by Munoz, ¶ 28; State v. Sanders, 1999 MT 136, ¶ 27, 294 Mont. 539, 982 P.2d 1015 (quoting Allen I), overruled on other grounds by State v. Deserly, 2008 MT 242, ¶ 12 n.1, 344 Mont. 468, 188 P.3d 1057. 3 See also Rardon I, ¶ 13 (specific performance entitles defendant to resentencing by different judge at which time prosecutor must fully perform as promised/agreed in the plea agreement). Compare Munoz, ¶ 18 (rescission of the plea agreement reinstates defendant to pre-change of plea/rights-waiver status quo); Cady v. Burton, 257 Mont. 529, 538, 851 P.2d 1047, 1053 (1993) (rescission returns parties “to the same position they would have occupied had they not entered into the contract”). See also § 28-2-1701(2), MCA (contract extinguishment by rescission).

28 Mont. 54, 973 P.2d 230 (“[w]e decline the State’s implicit invitation to begin parsing the

promises made by a prosecutor in a plea agreement to determine how ‘big’ a breach of

contract the prosecutor will be permitted before the breach” subjects the agreement to

“vacation”/rescission); State v. Warner, 2015 MT 230, ¶ 14, 380 Mont. 273, 354 P.3d 620

(“choice of remedy is in the hands of the [non-breaching] defendant” because strict

application of contract law to plea agreements “must give way to concerns about a

defendant’s due process rights” where necessary—citing Munoz, ¶¶ 14-15).

¶45 Building on the Santobello requirement for strict prosecutor performance of plea

agreement promises, courts, including this Court, have further extrapolated that a

prosecutor breach of a plea agreement in turn retroactively renders the defendant’s related

change of plea “involuntary.” See, e.g., Allen I, 197 Mont. at 69, 645 P.2d at 382 (citing

Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973)); San Pedro v. United States,

79 F.3d 1065, 1077 (11th Cir. 1996) (Goettel, J., dissenting); United States v.

Salcido-Contreras, 990 F.2d 51, 52 (2d Cir. 1993); United States v. Read, 778 F.2d 1437,

1440-41 (9th Cir. 1985). Accord Warner, ¶ 13 (quoting State v. Bowley, 282 Mont. 298,

938 P.2d 592 (1997)); Rardon II, ¶ 18 (quoting State v. LaMere, 272 Mont. 355, 357-60,

900 P.2d 926, 927-29 (1995) (quoting Allen I)); State v. Rardon (Rardon I), 1999 MT 220,

¶ 14, 296 Mont. 19, 986 P.2d 424 (quoting Bowley); State v. Sanders, 1999 MT 136, ¶ 27,

294 Mont. 539, 982 P.2d 1015 (quoting Allen I); Schoonover, ¶¶ 13-16 (citing Bowley);

Bowley, 282 Mont. at 310-12, 938 P.2d at 599-600 (quoting Allen I). However, Santobello

said no such thing. It held only that the constitutional waiver and adjudicative effect of

plea agreements in turn requires strict government performance and an appropriate 29 corrective remedy in the event of a breach. See Santobello, 404 U.S. at 262, 92 S. Ct. at

499. As since similarly recognized by the Supreme Court:

[T]here is nothing to support the proposition that the Government’s breach of a plea agreement retroactively causes the defendant’s agreement to have been unknowing or involuntary. . . . [P]lea bargains are essentially contracts. When the consideration for a contract fails—that is, when one of the exchanged promises is not kept—we do not say that the voluntary bilateral consent to the contract never existed, so that it is automatically and utterly void; we say that the contract was broken. See 23 R. Lord, Williston on Contracts § 63.1 (4th ed. 2002). . . . The party injured by the breach will generally be entitled to some remedy, . . . but that is not the same thing as saying the contract was never validly concluded. . . . When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission . . . [or] specific performance of the contract. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.

Puckett v. United States, 556 U.S. 129, 136-38, 129 S. Ct. 1423, 1429-30 (2009) (various

internal citations omitted—emphasis original). Accord Newbary, ¶¶ 17-21 (later repeal of

statutory authorization of correctional boot camp program neither effected retroactive

breach of a prior plea agreement sentencing recommendation for such placement, nor

retroactively rendered the defendant’s prior plea-agreement-based guilty plea involuntary).

See similarly Puckett, 556 U.S. at 138 n.1, 129 S. Ct. at 1430 (“disavow[ing]” quoted

language in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)

(endorsing overbroad statement that all guilty pleas “induced by” prosecutor

“misrepresentation (including unfulfilled or unfulfillable promises)” are necessarily

invalidated even if the misrepresentation did not occur at the time of contract formation),

and Mabry v. Johnson, 467 U.S. 504, 509, 104 S. Ct. 2543, 2547 (1984) (stating that a 30 post-formation prosecutor breach of an executed plea agreement retroactively invalidates

the defendant’s assent and consideration to plead guilty because the plea was made “on a

false premise”)). Accordingly, I would partially overrule Allen I and progeny to the extent

that they assert or stand for the proposition that a post-formation prosecutor breach of a

plea agreement retroactively renders the related change of plea unknowing or involuntary.

¶46 As with other contracts, a breach of a plea agreement may result either from a breach

of an express term of the agreement or a breach of a term or duty implied in the contract as

a matter of law. See, e.g., Rardon II, ¶ 22 (breach of plea agreement based on prosecutorial

conduct undercutting or undermining the agreement despite technical compliance with

express terms of agreement); Story v. City of Bozeman, 242 Mont. 436, 448-50, 791 P.2d

767, 774-75 (1990) (contract breach may result either from breach of an express contract

term or breach of the covenant of good faith and fair dealing implied by law in every

contract). In addition to the contract duty to fully perform or satisfy all promises and

obligations expressly provided in a plea agreement, a criminal prosecutor thus also has an

implied duty to perform as promised in a “good faith and fair” manner not manifestly

intended or likely to undermine the express terms of the agreement including, inter alia,

the agreed sentencing recommendation to the court. See Rardon II, ¶¶ 22-25. Accord, e.g.,

State v. Ellison, 2017 MT 88, ¶ 15, 387 Mont. 243, 393 P.3d 192 (citing State v. Bartosh,

2007 MT 59, ¶ 19, 336 Mont. 212, 154 P.3d 58); State v. Rardon (Rardon III), 2005 MT

129, ¶¶ 18-19, 327 Mont. 228, 115 P.3d 182 (citing Rardon II, ¶ 22); Allen I, 197 Mont. at

68, 645 P.2d at 382. In the unique and special context of criminal plea agreements which

are subject to both contract law and constitutional due process standards and limitations, 31 the prosecutor’s implied covenant of good faith and fundamental fairness derives both from

the covenant of good faith and fair dealing implied in all contracts as a matter of law, as

well as the defendant’s fundamental state and federal constitutional due process right to

fundamental fairness in the proceedings. See § 28-1-211, MCA (implied contract covenant

of good faith and fair dealing4); Warner, ¶ 14 (strict application of contract law to plea

agreements “must give way” where necessary to protect the “defendant’s due process

rights”); State v. McDowell, 2011 MT 75, ¶ 23, 360 Mont. 83, 253 P.3d 812 (“[i]n order to

ensure that the plea bargain process is fair to the defendant, there must be safeguards to

insure the defendant what is reasonably due in the circumstances”—quoting Rardon I,

¶ 14, internal punctuation omitted); Sanders, ¶ 27 (“fundamental fairness dictates that the

prosecutors meticulously abide by the terms of a plea agreement”—citing Allen I),

overruled on other grounds by State v. Deserly, 2008 MT 242, ¶ 12 n.1, 344 Mont. 468,

188 P.3d 1057; State v. Allen (Allen II), __ Mont __, __, 685 P.2d 333, 335 (1982) (plea

agreements implicate constitutional rights including “right to fundamental fairness

embraced within substantive due process guarantees”—citation omitted); Santobello, 404

U.S. at 262, 92 S. Ct. at 499 (noting that the requirement for strict prosecutor performance

and fulfillment of plea agreement promises is a “safeguard” necessitated by the waiver and

4 See also Story, 242 Mont. at 448-50, 791 P.2d at 774-75 (implied contract covenant of good faith and fair dealing derives from the “justified expectation” of each party “that the other will act in a reasonable manner in [the] performance” of express contract promises or duties—breach does not necessarily require breach of an express contract term—only proof that offending party acted in a dishonest, unfair, or unreasonable manner that undermined the express terms thereby denying non-breaching party the full benefit of the bargain). See also Farris v. Hutchinson, 254 Mont. 334, 338-39, 838 P.2d 374, 376-77 (1992) (justified expectations of a party may not, however, contradict or exceed the express terms of the contract). 32 “adjudicative” effect of a guilty plea in re a defendant’s fundamental constitutional rights

and liberty interest).5

¶47 A breach of the prosecutor’s implied duty of good faith and fundamental fairness

thus occurs if he or she merely gives “lip service” to the agreement by making the agreed

sentencing recommendation6 but then otherwise undermines it in an unnecessary or

irrelevant manner manifestly intended or likely to encourage or influence the court to reject

or deviate from the plea agreement. See McDowell, ¶ 14 (citing State v. Bullplume, 2011

MT 40, ¶ 13, 359 Mont. 289, 251 P.3d 114); Ellison, ¶ 15; Hill, ¶¶ 29-31; State v. Rahn,

2008 MT 201, ¶¶ 6 and 19-23, 344 Mont. 110, 187 P.3d 622, overruled on other grounds

by Newbary, ¶ 5 n.1; Bartosh, ¶ 19; Rardon III, ¶¶ 18-19; Rardon II, ¶¶ 19-22; LaMere,

272 Mont. at 357-60, 900 P.2d at 927-29. In contrast to a breach of an express plea

agreement term, however, “no hard and fast criteria” determine whether a prosecutor has

not performed as promised in a “good faith and fair” manner that will “not undermine” the

5 The right to due process of law guaranteed by Article II, Section 17, of the Montana Constitution, and the Fourteenth Amendment to the United States Constitution includes, inter alia, the right to fundamental fairness at all stages of government proceedings involving deprivations of individual liberty interests. See In re B.N.Y., 2003 MT 241, ¶ 21, 317 Mont. 291, 77 P.3d 189; Lassiter v. Durham Cty. Dep’t of Soc. Servs., 452 U.S. 18, 24-25, 101 S. Ct. 2153, 2158 (1981); Application of Gault, 387 U.S. 1, 19-31, 87 S. Ct. 1428, 1439-45 (1967); United States v. LaPage, 231 F.3d 488, 491 (9th Cir. 2000) (“due process clause entitles defendants in criminal cases to fundamentally fair procedures”). See similarly Mackey v. United States, 401 U.S. 667, 689, 91 S. Ct. 1160, 1165 (1971) (Harlan, J., concurring and dissenting) (procedures used to criminally convict individuals “must [be] fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that ‘no State shall . . . deprive any person of life, liberty, or property, without due process of law’”—quoting Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14 (1908)). 6 “Lip service” is a colloquialism referring to “avowed [verbal] expressions of adherence, devotion or allegiance” to something but which the declarant undermines or countermands through contemporaneous or subsequent “deeds” or conduct. Hill, ¶ 29 n.3 (dictionary citation omitted). 33 agreed sentencing recommendation or related sentencing consideration. Rardon III, ¶ 20;

Hill, ¶ 29 (citing Rardon II, ¶ 21). Whether prosecutorial conduct at sentencing undermines

and breaches the implied covenant of good faith and fundamental fairness regarding a plea

agreement depends on the totality of the unique circumstances in each case. Rardon III, ¶

20; Hill, ¶ 29 (quoting Rardon II, ¶ 21).

¶48 For example, a prosecutor may not repeatedly or unnecessarily make or elicit

inflammatory statements from victims or witnesses with the manifest intent or likely effect

to influence the judge to deviate from the plea agreement recommendation. Rardon II,

¶¶ 19-22 (prosecutor’s agreed sentencing recommendation was mere “lip service” resulting

in breach of the plea agreement where juxtaposed against his fervent elicitation of

“inflammatory” opinion testimony from victim/witness regarding length of the

recommended sentence, aggressively “reiterating and emphasizing the negative aspects”

of defendant’s required psychosexual evaluation, and pointing out a PSI assertion that a

long prison sentence would “motivat[e]” defendant’s rehabilitation). A prosecutor may

similarly breach a plea agreement if he or she makes an agreed sentencing recommendation

but then undermines it by unnecessarily presenting evidence that contradicts the agreed

recommendation or by emphasizing countervailing negative information about the

defendant without counterbalanced explanation of the justification for the agreed

sentencing recommendation. See, e.g., Rahn, ¶¶ 6 and 19 (prosecutor undermined and

breached an agreed recommendation for specific sentence based on a sex offender risk/tier

designation recommendation in a psychosexual evaluation provided by a qualified

evaluator by later presenting adverse testimony from another evaluator attacking the 34 validity of initial evaluation and recommending a higher risk/tier designation and longer

sentence); LaMere, 272 Mont. at 357-60, 900 P.2d at 927-29 (agreed sentencing

recommendation was mere lip service resulting in breach of the plea agreement where the

prosecutor gave no explanation for the recommended deferred sentence and then

undermined it by emphasizing defendant’s undesirable characteristics, i.e., constant

alcohol use and bragging, repeated failure to complete school and jobs, and lack of desire

or motivation to seek alcohol treatment). See similarly Bowley, 282 Mont. at 310-12, 938

P.2d at 599-600 (despite initially making agreed sentencing recommendation, prosecutor

breached plea agreement by then “effectively endors[ing]” a different recommendation

made by the probation/PSI officer); United States v. Mondragon, 228 F.3d 978, 979-81

(9th Cir. 2000) (prosecutor breached plea agreement by unnecessarily restating/elaborating

on adverse information already set forth in the sentencing hearing record where comments

not made to provide court with any pertinent new information or to correct any pertinent

factual inaccuracies).

¶49 In contrast, within the scope of the information or evidence required or authorized

by statute for court consideration at sentencing,7 the prosecutor may properly: (1) note

independent victim statements, concerns, and opinions regarding the circumstances,

impact, and appropriate sentence of and for the subject crime(s); (2) acknowledge or note

7 See §§ 46-18-111(1)(a) and -112(1)-(2), MCA (probation officer PSI, report contents, and required court consideration thereof); § 46-18-111(1)(b)-(e), MCA (required psychosexual evaluation report and recommendations in re sex offenders and required mental health evaluation report and recommendations to court in re violent offenders); § 46-18-115(4), MCA (victim right to make statement by writing, reading, or sentencing hearing testimony in re victim impact, circumstances and manner of commission of the crime, and “victim’s opinion regarding appropriate sentence,” and required court consideration thereof). 35 the defendant’s criminal and relevant personal history, the circumstances of the offense(s),

charges previously dismissed or amended as part of the plea agreement, and different

sentencing, placement, and other pertinent sentencing considerations and

recommendations independently made by the probation officer regarding his or her PSI

report; and (3) acknowledge or note any similar information, conclusions, opinions, or

recommendations made by third-party evaluators regarding any required or authorized

psychosexual or mental health evaluation and report. See Ellison, ¶¶ 16 and 22; McDowell,

¶¶ 19 and 22-25; State v. Manywhitehorses, 2010 MT 225, ¶¶ 11-16, 358 Mont. 46, 243

P.3d 412; Hill, ¶¶ 11, 14-16, and 27-31; Rardon III, ¶¶ 16-22; Rardon II, ¶ 22. However,

the prosecutor may do so only to the extent: (1) not expressly prohibited by the terms of

the plea agreement; (2) relevant, i.e., necessary, to the particular sentencing at issue; and

(3) done in a tempered or neutral manner not manifestly intended or likely to undermine

the plea agreement and thus encourage or influence the court to reject or deviate from the

agreement. See, e.g., Ellison, ¶¶ 16 and 22 (plea agreement not breached by prosecutor

reference to defendant’s prior non-compliance with bail conditions earlier in the case where

prosecutor made recommendation for deferred sentence as agreed, as distinguished from

mere lip service and undermining prosecutorial conduct at issue in Rardon II and LaMere);

McDowell, ¶¶ 6, 19, and 22-25 (no breach where prosecutor offered victim “the opportunity

to state her opinion” that defendant “should be punished” and “should [not] get off on a

minimal sentence” and recommended probation conditions where neither was prohibited

by the agreement, defendant’s expectation of unconditional probation was unreasonable

under the circumstances, and prosecutor fully performed as expressly promised in the plea 36 agreement); Manywhitehorses, ¶¶ 11-16 (prosecutor presentation at negligent homicide

sentencing of photos of victim’s dead body and testimony of investigating detective and

State’s forensic child abuse expert regarding circumstances of the subject offense did not

undermine/breach the plea agreement where prosecutor made agreed sentencing

recommendation and such evidence was not expressly precluded by the plea agreement and

was relevant to defendant’s history and “the incidents leading up to [victim’s] death,”

regardless of similar relevance to deliberate homicide as originally charged); Hill, ¶¶ 11,

14-16, and 27-31 (prosecutor did not undermine the plea agreement recommendation by

pointing out a PSI-included impact statement from alleged victim at issue in sexual abuse

charge previously dismissed pursuant to the plea agreement where court was already aware

of the alleged circumstances underlying the previously dismissed charge, the

PSI/psychosexual evaluation independently referenced defendant’s “long, substantial, and

documented history of sexual contacts with children resulting in opinions of treatment

providers, professional evaluators, and probation officers that he is a danger to the

community,” and defense counsel acknowledged that he “should be supervised for the

remainder of his life”); Rardon III, ¶¶ 16-22 (no prosecutor breach of plea agreement by

presentation/elicitation of victim and family member testimony in re circumstances/impact

of the crime, defendant’s related historical abuse of family members and violent nature,

and a victim opinion that he should be “put away for a very, very long time” where plea

agreement did not expressly preclude such testimony and prosecutor fully performed as

expressly agreed in the plea agreement—distinguishing inflammatory prosecutor conduct

and breach at issue in Rardon II); Rardon II, ¶ 22 (prosecutor may properly note or elicit 37 at sentencing any independent victim impact statements and related victim “fears and

feelings” but may not “aggressively solicit testimony . . . clearly intended to undermine the

plea agreement” and thereby influence the court to reject or deviate from the plea

agreement recommendation). See similarly Bowley, 282 Mont. at 311-12, 938 P.2d at 600

(prosecutor’s neutral reference to different sentencing recommendation independently

made by probation/PSI officer does not undermine/breach the plea agreement

recommendation where not effectively/implicitly endorsed by the prosecutor—citing State

v. Yother, 253 Mont. 128, 137, 831 P.2d 1347, 1352 (1992)).

¶50 Here, Collins asserts that the State merely paid “lip service” to the agreed sentencing

recommendation by simply stating “in a single sentence” in its initial sentencing

recommendation that the State was required to follow the plea agreement without further

explanation. He asserts that the State thus breached the agreement by failing to “fairly or

strongly argue for” it and then affirmatively undermining it by repeated reference and

emphasis to the court of the traumatic impact of the subject crimes on the victims and their

stated displeasure with the agreed recommendation in the victim impact statements.8 As a

8 Assertions of prosecutor breach of a plea agreement unpreserved by contemporaneous objection at the time of sentencing are generally waived subject only to limited plain error review for “those breaches that are so obvious and substantial that a failure to address the breach would affect the fairness of the proceedings.” State v. Stratton, 2017 MT 112, ¶ 14, 387 Mont. 384, 394 P.3d 192 (such obvious and substantial breaches are those that “would almost undoubtedly cause the court to question the appropriateness of the recommended sentence and effectively taint the sentencing procedure”—citation omitted). See similarly Puckett, 556 U.S. at 135-43, 129 S. Ct. at 1428-33 (a prosecutor breach of a plea agreement neither “necessarily render[s] a criminal [proceeding] fundamentally unfair” for purposes of plain error review, nor constitutes structural error precluding prejudice-focused harmless error review). Apparently based on its characterization of Collins’ plea agreement breach claim as the predicate for a timely post-judgment motion under § 46-16- 105(2), MCA, for withdrawal of his adverse pleas (a characterization at the same time mirrored in Collins’ Reply Brief but otherwise disputed on appeal), the State does not assert that his breach 38 threshold matter, Collins correctly points out that, in the State’s initial recommendation at

sentencing, the prosecutor neither verbally articulated the agreed sentencing

recommendation, nor provided any explanatory justification for it.

¶51 We have previously addressed a similar situation where the prosecutor neither

“specifically voice[d]” the agreed sentencing recommendation at the sentencing hearing,

nor provided any explanatory justification for it. State v. Brown, 193 Mont. 15, 17-18, 629

P.2d 777, 778 (1981) (punctuation omitted). In response to the defense assertion that the

State thus breached the plea agreement, we noted, however, that the subject plea agreement

was filed with the district court “nearly a month before the sentencing hearing” and that

the court “acknowledged the existence of [the] agreement” throughout the sentencing

hearing with “particular mention” of the agreed recommendation at the time of imposition

of sentence. Brown, 193 Mont. at 17, 629 P.2d at 778. We held that the State satisfied its

“obligation under the agreement” under the circumstances because it was “evident” that

the court was already “fully apprised” of the plea agreement and “was aware of the [agreed]

recommend[ation] . . . throughout the sentencing process.” Brown, 193 Mont. at 17-18,

629 P.2d at 778.

¶52 Likewise, here the subject plea agreement was filed long before the sentencing

hearing, and both the change of plea hearing and sentencing hearing records manifest that

the District Court was acutely aware of the terms of the plea agreement, including the

assertion of error is subject only to limited plain error review. Without express or implicit holding or comment on this unbriefed issue, I would thus review Collins’ assertion of error on the merits without plain error limitation under the unique circumstances presented. 39 agreed sentencing recommendation. Accordingly, during the sentencing hearing, the court

twice questioned whether any further explanation or argument was necessary, including at

the time of imposition of sentence, to wit, e.g.:

[A]t this time, would the State wish to make any argument to the Court, recognizing [that] we’re here pursuant to the plea agreement?

(Emphasis added.) Manifestly cognizant of the court’s familiarity with the plea agreement,

the prosecutor affirmatively responded:

Well, not necessarily an argument, your Honor. We did reach the plea agreement in good faith, so we will abide by our commitment to ask the Court to follow the terms of the plea agreement.

As implicitly recognized in Brown, the prosecutor’s duty of good faith and fundamental

fairness implied by law in plea agreements does not necessarily require an enthusiastic

recommendation or explanation at the sentencing hearing “so long as he or she acts in good

faith and does not [otherwise] undermine the agreement.” Bullplume, ¶ 16. See similarly

United States v. Benchimol, 471 U.S. 453, 455-56, 105 S. Ct. 2103, 2105 (1985) (per

curium) (prosecutor must only satisfy the express terms of a plea agreement and then not

otherwise undermine them).

¶53 Here, as in Brown, the record manifests that the District Court was already well

aware of the terms of the plea agreement, and the circumstances of record from which it

arose and under which Collins changed his pleas to the two non-sex offenses, as amended

from the far more serious child sex offenses originally charged. The State further attested

that it entered into the plea agreement in “good faith,” unequivocally stood by its

“commitment,” and thus “ask[ed] the Court to follow the terms of the plea agreement.”

40 Under these circumstances, I agree that the State sincerely and in good faith satisfied the

express terms of the plea agreement, with the only remaining requirement that the

prosecutor not subsequently undermine the agreed recommendation through unnecessary

comment or conduct having no legitimate purpose other than to influence the court to

deviate from the non-binding recommendation.

¶54 Collins accordingly asserts that the prosecutor breached her implied duty of good

faith and fundamental fairness by “repeatedly directing the court” to the victims’

disagreement and displeasure with the plea agreement and “emphasiz[ing]” that the agreed

resolution “was unjust,” and by “later interject[ing] a lengthy statement highlighting the

inadequacy of the plea agreement,” referencing and “reiterating” the particular emotional

trauma suffered by the victims, “ask[ing] the court to consider the victim[] impact

statements,” and specifically referring to the alleged victim in the originally-charged

Count 2 that was subsequently dismissed pursuant to the applicable statute of limitations.

Collins thus attempts to analogize the circumstances of this case to the breaching

prosecutorial conduct at issue in Rardon II, supra, and that found problematic by three

concurring justices in Hill, ¶¶ 48-50 (Cotter, J., concurring) (i.e., reminding the court about

the impact suffered by the alleged victim in a previously dismissed charge and noting the

asserted strength of the State’s evidence regarding the dismissed charge). However,

Collins’ assertions are either wholly unsupported by the sentencing hearing record or not

circumstantially analogous to those found problematic in Rardon II and the Hill

concurrence. Fairly read in context, the prosecutor here made no statement asserting or

implying, much less emphasizing, that the agreed sentencing recommendation was 41 “unjust” or inadequate in the interests of justice. Nor did she ask the court to consider the

victim impact statements, repeatedly direct the court to the victims’ disagreement and

displeasure with the plea agreement, or otherwise unnecessarily refer to either of those

matters.

¶55 Moreover, as in McDowell, Hill, and Rardon III, supra, the prosecutor’s

acknowledgment of the District Court’s duty to consider the victim impact statements

previously submitted and included in the PSI, notification of the desire of the two authors

to read their respective victim impact statements at sentencing, and acknowledgment of

their included adverse opinions and concerns regarding the plea agreement

recommendation were all within the authorized scope of information specified for court

consideration in §§ 46-18-111(1)(a), -112(1)-(2), and -115(4), MCA (victim impact

statements and PSI information). As to the prosecutor’s reference to the fact that the

originally-charged Count 2 was dismissed through no fault of the alleged victim, Collins

neither objected below, nor asserts on appeal here, that the victim impact statement

submitted and read by the alleged Count 2 victim was either improperly included in the

PSI, or improperly read by her at sentencing. As a matter of record, the District Court was

already well aware of the reason for the prior dismissal of the originally-charged Count 2

based on the statute of limitations. Perhaps most significantly, the record clearly reflects

that the prosecutor’s supplemental, post-defense recommendation/comments to the court

regarding the victims and victim impact statements were, as asserted by defense counsel

and acknowledged by the court, manifestly intended to support the plea agreement in a

manner respectful to the stated victim concerns. Under these circumstances, the prosecutor 42 neither implicitly or effectively endorsed the stated victim concerns regarding the plea

agreement recommendation, nor acknowledged the independently-stated victim statements

and concerns in an unnecessary, irrelevant, repetitive, or inflammatory manner with no

legitimate purpose other than to undermine the plea agreement. The facts, circumstances,

and prosecutorial conduct at issue here were not at all analogous to the objectionable and

breaching prosecutorial conduct at issue in Rardon II or as noted by the concurring justices

in Hill. Under the particular record circumstances of this case, I concur with the ultimate

Majority holding that the State neither paid mere lip service to the agreed sentencing

recommendation, nor subsequently undermined it, and therefore did not breach the plea

agreement as alleged by Collins.

¶56 2. Whether the District Court illegally imposed sex offender registration on non-sexual offenses without Collins’ consent in violation of § 46-23-512, MCA?

¶57 A person convicted of a “sexual offense,” as defined by § 46-23-502(9), MCA, must

publicly register as a “sex offender” for a duration dependent on his or her sex offender

risk/tier threat level designation, as assigned at sentencing upon consideration of a

mandatory psychosexual evaluation. Sections 46-23-506(1), (3), -509(1)-(2), -502(10),

and 46-18-111(1)(b), MCA (Montana Sexual or Violent Offender Registration Act

(SVORA)). A sentencing court may order a person to submit or comply with mandatory

sex offender registration only as specifically authorized by statute. State v. Hastings, 2007

MT 294, ¶ 19, 340 Mont. 1, 171 P.3d 726. However, as a limited exception to the generally

narrow application of sex offender registration to persons convicted of a “sexual offense,”

a sentencing court may order a person convicted of an offense that is not a “sexual offense”

43 to nonetheless register as sex offender if the court “accept[s]” a plea agreement in which

the defendant “agree[s],” inter alia, to “comply with [SVORA] registration requirements.”

Section 46-23-512, MCA.

¶58 For example, in State v. Grana, 2009 MT 250, 351 Mont. 499, 213 P.3d 783, a

defendant charged with seven counts of the non-sexual offense of burglary, based on his

unauthorized entry into the homes of women to commit “sexually offensive acts” (i.e.,

masturbating and leaving his ejaculate in conspicuous places with offensive sexually

explicit notes), entered into a written plea agreement with the State under which he would

plead guilty to three counts of burglary in return for dismissal of the other four counts and

a non-binding State recommendation for concurrent six-year deferred impositions of

sentence on each of the three counts. Grana, ¶¶ 5-7.9 Inter alia, the plea agreement

included an express provision that the defendant “would register as a Level II sexual

offender,” subject to the defendant’s retained right to “oppose the registration requirement

and/or” Level II SVORA sex offender risk/tier “designation” at sentencing. Grana, ¶ 6.

At sentencing, the court sentenced the defendant in accordance with the non-binding plea

agreement recommendation for deferred impositions of sentence and, over his objection,

ordered him to register as a Level II sex offender. Grana, ¶¶ 7-8. However, upon

subsequently revoking the original deferred impositions of sentence and resentencing the

defendant to partially-suspended prison terms, the court did not reimpose sex offender

9 Compare § 46-12-211, MCA (distinguishing between court acceptance or rejection of a binding “plea agreement” “that a specific sentence is the appropriate disposition of the case” and court acceptance or rejection of the agreed sentencing “recommendation” in a non-binding plea agreement—emphasis added). 44 registration as agreed in the original plea agreement. Grana, ¶ 8. Five years later, in

resolution of a dispute between the defendant and the State, the court ruled that the new

sentence on revocation of the original sentence by omission did not require the defendant

to register as a sex offender. Grana, ¶ 9. A year later, upon new probation violations, the

court revoked the defendant’s second sentence and again resentenced him anew but, unlike

before, required him to register as a sex offender as agreed in the original plea agreement.

Grana, ¶¶ 10 and 13.

¶59 On appeal, the defendant asserted that the court illegally imposed sex offender

registration on his second resentencing without his consent in an accepted plea agreement

in violation of § 46-23-512, MCA. Grana, ¶¶ 12-14. We disagreed based on his prior

agreement in the original plea agreement, and because, despite his subsequent resentencing

to prison on revocation of his original deferred impositions of sentence, the defendant

“obtained the full benefit of the plea bargain” in the form of the State’s original non-binding

sentencing recommendation and accompanying “dismissal of four of the original seven

burglary charges.” Grana, ¶ 13. We thus held that § 46-23-512, MCA, authorized the

court to impose sex offender registration on his second resentencing on revocation. Grana,

¶ 14.

¶60 Here, without further analysis, Collins asserts that the District Court illegally

imposed sex offender registration because it did not accept the plea agreement as expressly

required by § 46-23-512, MCA, as a condition precedent to imposing sex offender

registration on the non-sexual offenses at issue. Collins further asserts in his Reply Brief

that the agreed “sentencing recommendation was the only meaningful aspect of the plea 45 agreement that called for any acceptance or rejection by the court.” However, Collins’

cursory analysis disregards the critical distinction between a court’s acceptance or

rejection of the entirety of a binding “plea agreement” as required by § 46-12-211(1)(b)

and (2)-(4), MCA, and the acceptance or rejection of an agreed “recommendation . . . for

a particular sentence” in a non-binding plea agreement for which § 46-12-211, MCA,

neither requires nor involves similar court acceptance or rejection of the other terms of the

larger plea agreement in which the non-binding recommendation is included. See

§ 46-12-211(1)(c) and (2), MCA (emphasis added). He thus conflates the critical statutory

distinction between the nature and effect of binding and non-binding plea agreements and

then asks us to accordingly apply that conflation to the language of § 46-23-512, MCA, in

isolation. The Majority abides. The Court’s conclusion that, “[b]y deviating from the plea

agreement’s sentencing recommendation, the District Court rejected the plea agreement,”

conspicuously renders § 46-12-211(1)(b), (c), and (2)-(4), MCA, and the distinction

between binding and non-binding plea agreements expressly provided therein, essentially

meaningless. Opinion, ¶ 36.

¶61 The narrow purpose and reach of statutory construction is to “ascertain and declare

what is in terms or in substance contained therein,” not “insert what has been omitted” or

“omit what has been inserted.” Section 1-2-101, MCA. To the extent possible, statutes

must be construed to effect the manifest intent of the Legislature in accordance with the

clear and unambiguous language of its enactments, without resort to other means of

construction. Larson v. State, 2019 MT 28, ¶ 28, 394 Mont. 167, 434 P.3d 241 (citing

Mont. Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 46 499). Courts must first attempt to construe the subject statutory term or language in

accordance with the plain or technical meaning of its express language, in context of the

pertinent statutes as a whole, and in furtherance of the manifest purpose of the statutory

provision and the larger statutory scheme in which the subject term or language is included.

Section 1-2-106, MCA; Mt. Water Co. v. Mont. Dep’t of Revenue, 2020 MT 194, ¶ 27, 400

Mont. 484, 469 P.3d 136 (citing § 1-2-106, MCA, and Giacomelli v. Scottsdale Ins. Co.,

2009 MT 418, ¶ 18, 354 Mont. 15, 221 P.3d 666); City of Bozeman v. Lehrer, 2020 MT

55, ¶ 11, 399 Mont. 166, 459 P.3d 850 (citing State v. Heath, 2004 MT 126, ¶ 24, 321

Mont. 280, 90 P.3d 426, and S.L.H. v. State Comp. Mut. Ins. Fund, 2000 MT 362, ¶ 16,

303 Mont. 364, 15 P.3d 948); In re Marriage of McMichael, 2006 MT 237, ¶ 14, 333 Mont.

517, 143 P.3d 439. In construing several statutory “provisions or particulars,” courts must,

to the extent possible, construe them in harmony, with effect to all. Section 1-2-101, MCA.

¶62 Under § 46-12-211, MCA, a so-called binding plea agreement is an agreement under

which the defendant agrees to plead guilty or “nolo contendere” to a charged offense in

return for the prosecutor’s “agree[ment] that a specific sentence is the appropriate

disposition of the case.” Section 46-12-211(1)(b), MCA. The court must then specifically

“accept or reject the agreement.” Section 46-12-211(2), MCA (emphasis added). “If the

court accepts a [binding] plea agreement,” it must then so “inform the defendant” and

embody in its sentencing of the defendant the agreed “disposition provided for in the plea

agreement.” Section 46-12-211(1)(b) and (3), MCA. But, “[i]f the court rejects a [binding]

plea agreement of the type specified in” § 46-12-211(1)(b), it must then: (1) so “inform

the parties” of the rejection; (2) “afford the defendant an opportunity to withdraw the 47 [related change of] plea”; and (3) inform the defendant “that the court is not bound by the

plea agreement” and “advise . . . that if the defendant [nonetheless] persists in the guilty or

nolo contendere plea, the disposition of the case may be less favorable . . . than that

contemplated by the plea agreement.” Section 46-12-211(4), MCA.

¶63 In contrast, as pertinent, a so-called non-binding plea agreement is an agreement in

which the prosecutor agrees to “make a recommendation” to the court “for a particular

sentence,” and which “recommendation” is “not . . . binding upon the court.” Section

46-12-211(1)(c), MCA (emphasis added).10 “[I]f the court does not accept the

[non-binding] recommendation . . . , the defendant nevertheless has no right to withdraw

the plea.” Section 46-12-211(2), MCA (emphasis added).11 Accordingly, as a matter of

law pursuant to the express language of § 46-12-211, MCA, binding plea agreements

necessarily require specific court acceptance or rejection of the entire “plea agreement” as

a whole. See § 46-12-211(1)(b) and (2)-(4), MCA (binding plea agreements—emphasis

added). In contrast, non-binding plea agreements merely involve court acceptance or

10 Under a non-binding plea agreement, the prosecutor may alternatively “agree not to oppose the defendant’s request[] for a particular sentence,” and which “request may not be binding upon the court.” Section 46-12-211(1)(c), MCA.

11 Section 46-12-211, MCA, also authorizes a third type of plea agreement under which the defendant may agree to plead guilty or “nolo contendere” to a particular charged offense in return for the prosecutor’s agreement to “move for dismissal of other charges.” Section 46-12-211(1)(a), MCA. However, this third type of agreement is merely another type of binding plea agreement. See § 46-12-211(2) and (4), MCA (“court may accept or reject” a plea agreement “of the type specified in subsection (1)(a)” and, if it “rejects [such] plea agreement,” shall so inform the defendant, advise “that the court is not bound by the plea agreement,” and “afford the defendant an opportunity to withdraw the plea,” inter alia). See similarly § 46-12-211(1)(b), (2), and (4), MCA, supra. Compare § 46-12-211(1)(c) and (2), MCA (non-binding plea agreements under which defendant “has no right to withdraw the plea” if court does not accept the non-binding “recommendation . . . for a particular sentence”), supra. 48 rejection/deviation of/from the agreed “recommendation . . . for a particular sentence” as

contemplated contingencies, inter alia, under the express terms of the larger plea

agreement, without requirement, need, or effect of specific court rejection or acceptance

of the balance of the larger plea agreement as a whole. See § 46-12-211(1)(c) and (2),

MCA (non-binding plea agreements—emphasis added).12 If valid, Collins’ isolated

construction of § 46-23-512, MCA (inter alia, requiring defendant agreement to sex

offender registration “as part of a plea agreement” and court acceptance of the “plea

agreement”), would thus not allow defendants to agree to, and courts to thus impose, sex

offender registration regarding non-sexual offenses in and pursuant to non-binding plea

agreements, but rather, only in and pursuant to binding agreements.

¶64 The Majority correctly notes that Collins’ plea agreement was a non-binding

agreement, Opinion, ¶ 13, but then goes on to erroneously state that “the agreement could

be rejected by the court pursuant to § 46-12-211(1)(c), MCA.” Opinion ¶ 35 (emphasis

added). However, § 46-12-211(1)(c), MCA, does not provide for court rejection of an

otherwise valid plea agreement—it provides for court rejection of the particular non-

12 See also § 46-12-211, MCA, Commission Comments (1991) (Section 46-12-211 was “based on” Fed. R. Crim. P. “11(e)” with subsections (3) and (4) “simply restatements of Rules 11(e)(3) and 11(e)(4)”); Fed. R. Crim. P. 11(c)(1) and (3)-(5) (as amended after 1991); United States v. Babineau, 795 F.2d 518, 519-20 (5th Cir. 1986) (statutory requirements for formal/express acceptance or rejection of a binding plea agreement do not apply to non-binding agreements); United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977) (recognizing that “[n]on-acceptance” of the agreed sentencing recommendation is merely a contemplated part or contingency that does not affect the enforceability of the other terms of a non-binding plea agreement rather than a rejection of the entire agreement as in the case of a binding plea agreement—internal citation omitted). Accord United States v. Bachynsky, 949 F.2d 722, 728 n.5 (5th Cir. 1991); United States v. Missouri Valley Const. Co., 704 F.2d 1026, 1028-29 (8th Cir. 1983); United States v. Henderson, 565 F.2d 1119, 1122-23 (9th Cir. 1977). 49 binding sentencing recommendation in a non-binding plea agreement without regard to the

other enforceable terms of the agreement. As a matter of law, the authorizing statutory

requirement for specific acceptance or rejection of a binding “plea agreement” as a whole

does not apply to the non-binding sentencing “recommendation” included in a non-binding

plea agreement. See § 46-12-211(1)(b) and (2)-(4), MCA; compare § 46-12-211(1)(c) and

(2), MCA. By statutory definition, non-binding plea agreements, unlike binding

agreements, contemplate court rejection of the included non-binding recommendation for

a particular sentence as a contemplated contract contingency which does not affect the

validity or enforceability of the other lawful terms included in the larger agreement. See

§ 46-12-211(1)(c) and (2), MCA (no right to withdraw plea on court rejection of

non-binding sentence recommendation). Thus, if a non-binding plea agreement includes,

inter alia, a defendant’s separate agreement to be subject to sex offender registration, the

court’s contemplated rejection of the non-binding sentencing recommendation does not

invalidate or affect the enforceability of the separate sex offender registration term of the

agreement except and unless as another applicable statute may provide or as otherwise

provided by another express term of the agreement. Section § 46-23-512, MCA (defendant

consent to non-mandatory sex offender registration) is the only other applicable statute

here. However, the required acceptance of the entirety of a binding “plea agreement,” as

similarly referenced and required in §§ 46-12-211(1)(b), (2)-(4), and 46-23-512, MCA,

supra, is as a matter of law simply not the same as the contemplated court rejection or

acceptance of an agreed “recommendation . . . for a particular sentence” which is merely

an included term in a non-binding plea agreement, as distinctly referenced and provided 50 for in § 46-12-211(1)(c) and (2), MCA. Consequently, in the case of a non-binding plea

agreement which, inter alia, already includes both a non-binding recommendation for a

particular sentence and a separate defendant agreement to be subject to sex offender

registration, nothing in the express language of § 46-23-512, MCA, provides or evinces

any legislative intent to then incongruously require the court to further specifically accept

the entirety of an agreement to which the specific acceptance or rejection requirements of

the authorizing statute (§ 46-12-211, MCA) do not apply. The Majority thus fails to

acknowledge, much less reconcile, the necessary consequence of a court “reject[ing] a plea

agreement” contemplated by § 46-12-211(4), MCA (in re binding plea agreements), i.e.,

“afford[ing] the defendant an opportunity to withdraw [his] plea” upon rejection in toto of

a binding plea agreement, with the District Court’s more limited rejection in this case of

the agreed but non-binding recommendation for a particular sentence in Collins’ larger

non-binding plea agreement.

¶65 In that same vein, whether mandatory for sexual offenses under § 46-23-504(1)-(2),

MCA, or merely permissive regarding non-sexual offenses pursuant to a plea agreement

under § 46-23-512, MCA, the requirement for SVORA sex offender registration is neither

part of a particular recommended “sentence” as referenced in § 46-12-211(1)(c), MCA

(non-binding plea agreements), nor an agreed “disposition of the case,” as referenced in

§ 46-12-211(1)(b), MCA (binding plea agreements). See § 46-1-202(25), MCA (defining

“sentence” as the “judicial disposition of a criminal proceeding upon” a guilty or nolo plea

51 or “a verdict or finding of guilty”—emphasis added).13 In contrast to a particular sentence

or sentencing disposition, sex offender registration is a “stand-alone requirement dictated

by statute” and thus “an independent statutory duty with a remedial purpose.” In re M.W.,

2012 MT 44, ¶ 16, 364 Mont. 211, 272 P.3d 112 (citing, inter alia, State v. Munds, 922

P.2d 215, 217-18 (Wash. Ct. App. 1996) (noting sex offender registration as a “duty . . .

[that] arises pursuant to legislative mandate,” rather than discretionary “order of the

sentencing court”), and State v. Robinson, 142 P.3d 729, 732-34 (Idaho 2006) (affirming

denial of petition for relief from statutory sex offender registration upon completion of

probationary sentence and resulting setting aside of underlying sex offense guilty plea

because defendant had not yet satisfied the independent statutory requirements for such

relief)).

¶66 Upon valid contract formation of a non-binding plea agreement authorized by

§ 46-12-211, MCA, defendants, like the State, are bound to all lawful contract provisions

and obligations included in the agreement. Schoonover, ¶ 12 (prosecutor and defendants

“are bound by the plea agreements they make”). See also § 46-12-211(2), MCA (no right

to withdraw adverse plea upon court rejection or deviation from agreed sentencing

recommendation in a non-binding plea agreement). A criminal defendant therefore may

not escape the enforceable obligations of a validly-formed and lawful plea agreement after

receiving the benefits of the agreement. State v. Johnson, 274 Mont. 124, 129, 907 P.2d

150, 153 (1995) (quoting State v. Milinovich, 269 Mont. 68, 74, 887 P.2d 214, 218 (1994));

13 See also § 46-1-202(11), MCA (defining “judgment” as an “adjudication . . . [of] guilty or not guilty,” and if guilty, further “includes the sentence pronounced by the court”). 52 State v. Reynolds, 253 Mont. 386, 392-93, 833 P.2d 153, 157 (1992) (citing State v. Radi,

250 Mont. 155, 162, 818 P.2d 1203, 1208 (1991), and State v. Koepplin, 213 Mont. 55, 64,

689 P.2d 921, 926 (1984)); State v. Nance, 120 Mont. 152, 166, 184 P.2d 554, 561 (1947).

Accordingly, construing the express language of § 46-23-512, MCA, together with and in

the context of § 46-12-211(1)(b), (c), and (2)-(4), MCA, to give effect to all, I would hold

that the express language of § 46-23-512, MCA, requiring “court accept[ance] [of] the plea

agreement” as a condition precedent to imposition of SVORA sex offender registration

regarding non-sexual offenses applies to binding plea agreements under § 46-12-211(1)(b)

and (2)-(4), MCA, but not to a court’s rejection of or refusal to follow a non-binding

recommendation for a particular sentence in a non-binding plea agreement under § 46-12-

211(1)(c) and (2), MCA, in which the defendant agrees, inter alia, to be subject to SVORA

sex offender registration, and the terms of the agreement do not otherwise provide for

conditional withdrawal of the defendant’s consent to register in the event that the

sentencing court may reject or deviate from the non-binding sentencing recommendation.

¶67 Here, the offenses of Criminal Endangerment to which Collins agreed to plead

guilty and nolo contendere are neither “sexual offenses” nor “violent offenses” triggering

mandatory SVORA sex offender registration. See §§ 46-23-502(9), (10), (13), and

-504(1)-(2), MCA; compare § 45-5-207, MCA. He nonetheless expressly agreed

unconditionally, however, to be subject to SVORA sex offender registration “as part of a

plea agreement,” as referenced in § 46-23-512, MCA. As a matter of law, the subject plea

agreement was a non-binding plea agreement as authorized and defined by § 46-12-

211(1)(c) and (2), MCA. Collins entered into the agreement, and accordingly pled guilty 53 and nolo contendere to two amended counts of Criminal Endangerment, with full

knowledge and understanding that the District Court was not a party to the agreement,

would not be bound by the agreed sentencing recommendation for six-year probationary

sentences on the subject offenses, and could thus impose the maximum punishments

authorized by law on those offenses, and that he would have no right to withdraw his pleas

if the court rejected and deviated from the agreed sentencing recommendation. As a matter

of law upon construing § 46-23-512, MCA, in context with § 46-12-211, MCA, and giving

full effect to both in accordance with the express language of each, the language of SVORA

§ 46-23-512, MCA, requiring “court accept[ance] [of] the plea agreement” as a condition

precedent to imposition of sex offender registration regarding non-sexual offenses does not

apply to a court’s rejection of or refusal to follow a non-binding recommendation for a

particular sentence in a non-binding plea agreement of the type specified by § 46-12-

211(1)(c), MCA.

¶68 Nor did the subject plea agreement include any term or condition reserving to

Collins the right to withdraw his consent to be subject to sex offender registration if the

court rejected or deviated from the agreed non-binding sentencing recommendation.

Moreover, despite the District Court’s rejection of and deviation from the agreed

non-binding recommendation for a particular sentence, as defined by § 46-1-202(25),

MCA, Collins received the full benefit of the plea bargain he made with the State, including

the State’s amendment of the original SIWC and felony Sexual Assault charges involving

child victims (Counts 1 and 3) down to two counts of felony Criminal Endangerment

(Amended Counts 1 and 3), and the State’s good faith recommendation for concurrent 54 six-year probationary sentences on those amended charges. Contrary to Collins’ assertion

that the agreed “sentencing recommendation was the only meaningful aspect of the of plea

agreement,” the State’s amendment of the two originally-charged counts of SIWC and

felony Sexual Assault involving child victims down to two counts of Criminal

Endangerment was an unquestionably significant and meaningful inducement to enter into

the non-binding plea agreement because, even if the court ultimately rejected the agreed

sentencing recommendation, the agreement reduced the potential maximum penalties to

which Collins would otherwise have been subject under the originally-charged child sex

offenses from two consecutive terms of life imprisonment or 100 years in prison down to

two consecutive 10-year prison terms on the amended non-sex offenses. See

§§ 45-5-502(3), -503(2), (3)(a), and (4)(a), MCA (2019) (maximum penalties for SIWC

and felony Sexual Assault involving children); compare § 45-5-207, MCA (2019)

(maximum penalty for Criminal Endangerment). I would thus hold that the District Court

lawfully imposed sex offender registration on Collins upon his conviction on the subject

non-sexual offenses as agreed as part of his plea agreement with State and in accordance

with § 46-23-512, MCA.

¶69 Based on the foregoing Issue 1 analysis, I would hold that the District Court

correctly concluded that the State did not undermine and breach the parties’ June 2021 plea

agreement as alleged by Collins. Based on the foregoing Issue 2 analysis, I would hold

further that the District Court also lawfully imposed sex offender registration on Collins as

agreed as part of his plea agreement with the State and in accordance with § 46-23-512, 55 MCA. I accordingly specially concur with the Majority’s ultimate Issue 1 holding, but

dissent from its Issue 2 holding.

/S/ DIRK M. SANDEFUR

Chief Justice Mike McGrath and Justice Beth Baker join in the special concurrence and dissent of Justice Sandefur.

/S/ MIKE McGRATH /S/ BETH BAKER