State v. T.Thibeault

07/06/2021

DA 19-0411
Case Number: DA 19-0411

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 162

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TERENCE JAMES THIBEAULT,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 19-0297
Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Shannon Sweeney, Attorney at Law, Anaconda, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney
General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Ed Zink, Deputy Chief
County Attorney, Billings, Montana

Submitted on Briefs: March 17, 2021

Decided: July 6, 2021

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Terence J. Thibeault appeals the May 2019 judgment of the Thirteenth Judicial

District Court, Yellowstone County, affirming his January 2019 judgment of conviction in

Yellowstone County Justice Court on the offense of criminal possession of drug

paraphernalia, a misdemeanor in violation of § 45-10-103, MCA. We address the

following restated issue:

Whether the Justice Court illegally imposed a 10-day jail term as a condition of a
deferred imposition of sentence?

We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In the late evening of July 14, 2018, a Montana Highway Patrol Trooper responded

to a reckless driving report on Interstate-90 near the Interstate-94 interchange in the City

of Billings, Montana. The citizen report included a vehicle description, license plate

number, and reported that the driver was speeding, nearly lost control, and had used the

authorized-vehicles-only turnaround. The responding Trooper soon located a vehicle

matching the reported description and plate number traveling westbound on I-94. Upon

stopping the vehicle, the Trooper identified the driver as 19-year-old Thibeault, who stated

that he and his passenger, the registered owner of the vehicle, were returning from an

overnight trip to Denver, Colorado, where they had visited a friend. Based on

circumstantial suspicion of possible drug activity, the Trooper asked for and obtained

2
consent to search the vehicle.1 The subsequent search revealed a bag in the trunk

containing a pipe used for smoking marijuana concentrate (i.e., hash oil) and a small,

commercially-labelled medical marijuana receptacle containing an apparent marijuana

product. The Trooper issued Thibeault a traffic violation warning, but cited him into

Yellowstone County Justice Court for misdemeanor possession of drug paraphernalia. He

disregarded the citation, however, and failed to appear as directed.

¶3 When Thibeault later appeared on an unrelated criminal matter in August 2018, the

Justice Court took notice of the prior matter and conducted an initial appearance and

arraignment on the paraphernalia charge. Asked why he failed to comply with the earlier

notice to appear, Thibeault explained that he simply “forgot” about it. At the conclusion

of the arraignment, the Justice Court specifically warned Thibeault that he would be subject

to arrest and jail-time if he did not timely appear at his upcoming Omnibus Hearing.

Despite the warning, Thibeault failed to appear for the Omnibus Hearing and a bench

warrant issued for his arrest.

¶4 On January 29, 2019, however, Thibeault appeared with counsel for his previously

scheduled bench trial. After quashing the bench warrant and proceeding with trial, the

Justice Court found him guilty of criminal possession of drug paraphernalia, as charged.

At sentencing, the State acknowledged that it was Thibeault’s first paraphernalia

conviction and that, pursuant to § 45-10-103, MCA, a presumption of entitlement to a

1
The sufficiency of the Trooper’s suspicion as justification for changing the focus of the traffic
stop is not at issue on appeal.

3
deferred imposition of sentence applied. Concurring, the Justice Court deferred imposition

of sentence for a period of six months, but subject to the conditions that Thibeault pay a

$350 fine, pay various statutory surcharges, complete 20 hours of community service, and

serve 10 days in the county jail. The court further ordered, however, that he could avoid

the imposed fine and jail-time if he timely completed his community service obligation,

and worked for five days in the Yellowstone County Sheriff’s Labor Detail program, within

60 days of sentencing. Thibeault did not object to any aspect of the imposed sentence or

conditions of deferral.

¶5 On appeal to district court, however, he asserted that the jail-time condition was an

illegal condition of a deferred sentence in violation of § 45-10-103, MCA (presumption of

entitlement to deferred sentence). The District Court affirmed on the stated ground that the

jail-time condition was a facially legal probation condition, expressly authorized as a

condition of a deferred sentence by § 46-18-201(4)(b), MCA. Thibeault timely appeals.

STANDARD OF REVIEW

¶6 On appeal from a justice court of record, district courts function as intermediate

appellate courts with review confined to the record and questions of law. Sections 3-5-303

and 3-10-115(1), MCA; Stanley v. Lemire, 2006 MT 304, ¶¶ 24-25, 334 Mont. 489, 148

P.3d 643.2 District courts accordingly review justice court of record findings of fact only

for clear error, conclusions and applications of law de novo for correctness, and

discretionary rulings for an abuse of discretion. Stanley, ¶ 25. On subsequent appeal from

2
The Yellowstone County Justice Court is a court of record as defined by § 3-10-101(5), MCA.

4
district court to this Court, we independently review the justice court findings of fact,

conclusions and applications of law, and discretionary rulings under the same standards as

if directly appealed here. Stanley, ¶ 26.

¶7 Criminal sentences eligible for statutory sentence review are subject to review on

direct appeal only for legality, i.e., whether the court sentenced the defendant in accordance

with governing statutory and constitutional parameters and requirements. State v. Herman,

2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978; State v. Ariegwe, 2007 MT 204, ¶ 174,

338 Mont. 442, 167 P.3d 815; State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d

206; State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017; State v. Montoya,

1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937. See also State v. Greeson, 2007 MT

23, ¶¶ 6-10, 336 Mont. 1, 152 P.3d 695 (in re constitutionality of probationary search

condition—citing State v. Moody, 2006 MT 305, 334 Mont. 517, 148 P.3d 662).3 In

contrast, sentences not subject to sentence review are subject to review on direct appeal

both for threshold legality and, to the extent discretionary, an abuse of discretion. State v.

Ashby, 2008 MT 83, ¶ 8, 342 Mont. 187, 179 P.3d 1164; Herd, ¶¶ 22-23. Accord City of

Kalispell v. Salsgiver, 2019 MT 126, ¶ 12, 396 Mont. 57, 443 P.3d 504. As distinct from

the predicate sentence to which they pertain, discretionary conditions of deferred and

suspended sentences are subject to review both for threshold legality and an abuse of

3
Sentence review generally applies only to unsuspended terms of imprisonment in the state prison,
and unsuspended commitments to the Montana Department of Corrections (MDOC) for
appropriate correctional placement, for terms of “1 year or more.” See § 46-18-903(1), MCA;
Herd, ¶¶ 19-23.

5
discretion, regardless of eligibility for sentence review. State v. Robertson, 2015 MT 266,

¶ 7, 381 Mont. 75, 364 P.3d 580; Ashby, ¶ 9.

DISCUSSION

¶8 Whether the Justice Court illegally imposed a 10-day jail term as a condition of a
deferred imposition of sentence?

¶9 As a general rule, issues not preserved by contemporaneous objection are waived,

and therefore not subject to review on subsequent appeal. Section 46-20-104(2), MCA;

State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244; Ashby, ¶ 22; State v.

Kotwicki, 2007 MT 17, ¶¶ 8 and 22, 335 Mont. 344, 151 P.3d 892. However, under our

narrow sentence-specific exception to the contemporaneous objection/waiver rule first

recognized in State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 999-1000 (1979),

unpreserved assertions of error that a particular sentence or sentencing condition was either

facially illegal (i.e., of a type or character not authorized by statute or otherwise in excess

of the statutorily authorized range or limit for that type of sentence or condition), or facially

legal but authorized by a facially unconstitutional statute, are subject to review for the first

time on appeal. State v. Coleman, 2018 MT 290, ¶¶ 7-11, 393 Mont. 375, 431 P.3d 26

(analyzing general objection/waiver rule, Lenihan exception, and inapplicability of

Lenihan exception to unpreserved as-applied constitutional sentencing challenges);

Parkhill, ¶ 16 (Lenihan exception inapplicable to unpreserved as-applied constitutional

challenge to no-contact condition of probation on PFMA sentence); State v. Strong, 2009

MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848 (applying Lenihan exception to facial equal

protection challenge of sentencing statute but not as-applied challenge); Kotwicki, ¶¶ 6-22

6
(Lenihan exception not applicable to unpreserved statutory non-compliance and as-applied

due process challenge that court illegally imposed statutorily authorized fine without

complying with statutory requirement for consideration/determination in re ability to pay);

State v. Garrymore, 2006 MT 245, ¶¶ 9-15, 17, and 35, 334 Mont. 1, 145 P.3d 946

(applying Lenihan exception to unpreserved objection that statutorily authorized parole

restriction violated § 46-1-401, MCA, and related federal and state constitutional rights);

Lenihan, 184 Mont. at 343, 602 P.2d at 1000 (unpreserved objection to sentence reviewable

on appeal upon allegation that sentence “is illegal or exceeds statutory mandates”).

Thibeault asserts that the imposition of a 10-day jail term as a condition of his deferred

imposition of sentence is facially illegal in contravention of § 45-10-103, MCA. We thus

review his unpreserved assertion of error under the Lenihan exception.

¶10 The sentencing authority of a criminal court derives solely from and is constrained

by statutory law. State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. Courts

accordingly have no authority to impose a sentence or sentencing provision not authorized

by statute. Hicks, ¶ 41 (citing State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, 112 P.3d

1001); Nelson, ¶ 24; State v. Hatfield, 256 Mont. 340, 346, 846 P.2d 1025, 1029 (1993).

Moreover, courts may exercise granted sentencing authority only to the extent and in the

manner authorized by statute. Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (citation

omitted). A sentence or sentencing provision not authorized by statute, or that otherwise

exceeds the statutorily authorized range or limit for that type of sentence or condition, is a

facially illegal sentence or sentencing provision. State v. Zimmerman, 2010 MT 44, ¶ 13,

7
355 Mont. 286, 228 P.3d 1109; State v. Heddings, 2008 MT 402, ¶ 11, 347 Mont. 169, 198

P.3d 242; Ruiz, ¶ 12.4

¶11 Under the 1973 Montana Criminal Code, as amended, statutes defining particular

offenses generally specify the maximum penalty for each, any mandatory minimum, and

any other offense-specific penalty provisions or limitation. See, e.g., §§ 45-1-201(2),

45-2-101(23), and (42), MCA. Within that framework, the 1967 Montana Code of

Criminal Procedure, as amended, further specifies various permissible sentencing types,

variants, special provisions, requirements, and restrictions. See §§ 46-18-201, -202, -205,

and -211 through -219, MCA, inter alia.

4
An otherwise facially legal sentence or condition is nonetheless illegal if not imposed in
compliance with affirmative statutory prerequisites or mandates for that type of sentence or
condition. Zimmerman, ¶ 13; Heddings, ¶ 11; Ruiz, ¶ 12. However, unlike those that are facially
illegal or imposed pursuant to a facially unconstitutional statute, unpreserved challenges to
sentences or conditions on the basis of non-compliance with affirmative statutory prerequisites or
mandates for that type of sentence or condition are not reviewable under the Lenihan exception.
See, e.g., Coleman, ¶¶ 7-11 (Lenihan not applicable to as-applied constitutional challenge to
no-cell phone/internet access sex offense condition); Parkhill, ¶ 16; (Lenihan not applicable to
as-applied constitutional challenge to no-contact PFMA condition); State v. Johnson, 2011 MT
286, ¶ 14, 362 Mont. 473, 265 P.3d 638 (Lenihan not applicable to facially legal restitution
obligation challenged due to insufficient documentation); Strong, ¶¶ 7-16 (Lenihan not applicable
to as-applied constitutional challenge); Ashby, ¶ 22 (distinguishing between illegal sentences or
conditions from those merely “objectionable” for purposes of Lenihan exception); Kotwicki,
¶¶ 8-22 (Lenihan not applicable to unpreserved statutory non-compliance and as-applied due
process challenges to fine/fees based on failure to consider ability to pay); State v. Nelson, 274
Mont. 11, 17-20, 906 P.2d 663, 666-68 (1995) (Lenihan not applicable to facially legal sentence
challenged due to failure to properly consider non-violent offender status). In contrast to the
sentence-specific Lenihan exception, the common law plain error doctrine is a separate and
generally applicable exception to the contemporaneous objection/waiver rule. See State v.
Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612; State v. Lawrence, 2016 MT 346, ¶ 9,
386 Mont. 86, 385 P.3d 968. However, we generally decline to invoke plain error review of an
unpreserved challenge to a sentence or condition that is facially legal. See Coleman, ¶ 12;
Robertson, ¶¶ 12-13; State v. Mainwaring, 2007 MT 14, ¶ 20, 335 Mont. 322, 151 P.3d 53. See
also State v. Yang, 2019 MT 266, ¶ 34, 397 Mont. 486, 452 P.3d 897 (Baker, J., specially
concurring—collecting cases).

8
¶12 Generally, the maximum penalty for criminal possession of drug paraphernalia is a

term of “imprison[ment] in the county jail for not more than 6 months.” Section 45-10-

103, MCA. However, “except as otherwise specifically provided by statute,” the court

“may defer imposition of sentence” on a misdemeanor “for a period . . . not exceeding 1

year.” Section 46-18-201(1)(a)(i), MCA. “When deferring imposition of sentence,” the

court “may impose . . . any reasonable restrictions or conditions during the period of the

defer[al]” deemed “necessary for rehabilitation or . . . protection of . . . society.” (Emphasis

added.) See § 46-18-201(1)(a), (4)(b), and (p), MCA. See similarly § 46-18-202, MCA

(authorizing imposition of various other specific sentencing restrictions and conditions in

furtherance of “rehabilitation and the protection of . . . society”). “[E]xcept as otherwise

specifically provided by statute,” sentencing courts have broad discretion in determining

whether to defer imposition of sentence in lieu of other available statutory sentencing

alternatives and, within applicable constitutional and statutory parameters, to impose

related conditions or restrictions of deferral. See §§ 46-18-201(1)(a), (4), and -202, MCA;

State v. Nelson, 2019 MT 62, ¶ 4, 395 Mont. 134, 437 P.3d 127; State v. Weigle, 285 Mont.

341, 343, 947 P.2d 1053, 1055 (1997), overruled on other grounds by Herman, ¶ 12 n.1;

State v. Stumpf, 187 Mont. 225, 226, 609 P.2d 298, 298-99 (1980).

¶13 In common usage, a deferred imposition of sentence is seemingly not a sentence at

all, but rather a specified period of deferral preceding the actual imposition of sentence at

some later date. However, as a technical matter of law, a deferred imposition of sentence

is a final dispositive judgment of conviction and sentence, i.e., a type of probationary

sentence where the primary disposition is community release subject to conditions of the
9
deferral (i.e., conditions of probation). See §§ 46-1-202(7), (11), (21), (25), 46-18-

201(1)(a), (4), and -202, MCA; State v. Tomaskie, 2007 MT 103, ¶¶ 9-13, 337 Mont. 130,

157 P.3d 691. See also § 1-2-106, MCA (“technical words and phrases . . . as have acquired

a peculiar and appropriate meaning in law . . . are to be construed according to such peculiar

and appropriate meaning”). In contrast, a suspended sentence is a sentence of direct

imprisonment in the state prison or a county jail, or alternative MDOC commitment in

felony cases under certain circumstances, for a specified term, but suspended for

community release subject to conditions of suspension (i.e., conditions of probation). See

§§ 46-1-202(21), (25), 46-18-201(2)-(4), and -202, MCA. A deferred imposition of

sentence is similar to a suspended sentence of imprisonment or MDOC commitment

insofar that both are probationary sentences generally involving community release subject

to conditions of probation, the violation of which may result in revocation and

resentencing, inter alia. See §§ 46-1-202(21), (25), 46-18-201(1)(a), (2)-(4), -202, and

-203, MCA.

¶14 A deferred sentence differs from a suspended sentence, however, in two significant

regards. First, the options on revocation of a suspended sentence are limited to either

“requir[ing] the offender to serve . . . the sentence [originally] imposed” or resentencing to

“any sentence that could have been [originally] imposed that does not include a longer

[term of] imprisonment or commitment . . . than the original sentence.” Section 46-18-

203(7)(a)(iii), MCA. In contrast, on revocation of a deferred sentence, the court may,

without similar restriction, resentence the offender to “any sentence” it could “have

originally imposed.” Section 46-18-203(7)(a)(iv), MCA. Second, a deferred sentence
10
further differs from a suspended sentence insofar that, unlike the permanent record nature

of a suspended sentence, a deferred imposition of sentence provides the offender the

opportunity, upon successful completion of the period and conditions of the deferral, for

withdrawal/striking of the underlying plea, verdict, or finding of conviction and retroactive

dismissal of the charge, thereby clearing the conviction from the offender’s public criminal

history record and future consideration as a predicate prior conviction for purposes of

penalty enhancement upon a subsequent conviction. See § 46-18-204, MCA (providing

for retroactive dismissal and rendering “all records and data relat[ed] to the charge . . .

confidential criminal justice information, as defined in 44-5-103,” and barring “public

access” thereto except upon “district court order upon good cause shown”);5 Tomaskie,

¶¶ 13-15 (prior criminal possession of dangerous drugs conviction retroactively dismissed

under § 46-18-204, MCA, not countable as predicate prior offense for penalty enhancement

upon subsequent conviction on same offense); State v. Gladue, 209 Mont. 235, 239-41,

679 P.2d 1256, 1259 (1984) (prior felony retroactively dismissed after completion of

deferred sentence under § 46-18-204, MCA, not countable as a predicate prior conviction

for purposes of persistent felony offender penalty enhancement).6 Accord State ex rel.

5
The Montana Criminal Justice Information Act distinctly defines and distinguishes between
“confidential criminal justice information” and “public criminal justice information,” and then
strictly regulates the authorized use and dissemination of “confidential criminal justice
information.” Sections 44-5-101, -103, -301, -303, -305, and -311, MCA.
6
Compare Smith v. Missoula County, 1999 MT 330, ¶¶ 18-22, 297 Mont. 368, 992 P.2d 834 (prior
felony conviction dismissed upon completion of deferred sentence properly considered by sheriff
in assessment of subsequent application for concealed weapons permit—citing §§ 44-5-303(1) and
46-18-204, MCA (1995)); State v. Brander, 280 Mont. 148, 151-57, 930 P.2d 31, 33-37 (1996)
(“[u]nlike expunged records . . ., classification of records as confidential criminal justice
information does not prevent a court from reviewing those records, but merely restricts the
11
Woodbury v. Mont. Thirteenth Jud. Dist. Ct., 159 Mont. 128, 134, 495 P.2d 1119, 1122

(1972) (noting similar distinguishing aspect and effect under then-governing statute

providing for expungement of the defendant’s “record” on dismissal following successful

completion of the deferred sentence).7

¶15 Like persons convicted of first-offense criminal possession of dangerous drugs

(CPDD), those convicted of first-offense criminal possession of drug paraphernalia

(CPDP) are “presumed to be entitled to a deferred imposition of sentence of

imprisonment.” Sections 45-10-103 and 45-9-102(3), MCA. As we recently noted

regarding the identical CPDD presumption, the Legislature provided those presumptions:

to avoid the devastating consequences of a . . . conviction [on an illegal
drug-related possession charge] where a defendant is young or . . . has shown
[the prior] ability to maintain a law-abiding lifestyle. [They] provide[]
incentive for a defendant who has shown the ability to maintain a law-abiding
lifestyle to demonstrate . . . [the ability] to adjust his or her conduct
accordingly following an [apparently] aberra[nt] [incident] while still
permitting the court to impose a period of supervision and other conditions
during the deferral period.

dissemination . . . to criminal justice agencies and others authorized by law”—courts are not
“restricted from reviewing criminal records simply because those records are classified as
confidential”—citing §§ 44-5-103(3), (7), and -303, MCA). But see § 46-18-201(1)(b), MCA
(deferred imposition of sentence not available for an offender previously convicted of a felony
offense, regardless of “whether or not the [prior] sentence was imposed, . . . deferred, or . . .
suspended”).
7
Originally, the 1967 Criminal Code simply provided for dismissal of the charge on motion after
successful completion of the deferred sentence. Section § 95-2207, RCM (1947) (1967 Mont.
Laws ch. 196, § 1). The 1987 Legislature later provided for complete expungement of “the
defendant’s record” on the dismissal. Section 46-18-204, MCA (1987 Mont. Laws ch. 147, § 1).
The 1989 Legislature then eliminated complete expungement on dismissal and replaced it with
classification of all related records and information regarding the conviction as “confidential
criminal justice information,” restricted from “public access” except upon district court order on
“good cause shown.” Section 46-18-204, MCA (1989 Mont. Laws ch. 463, § 1).

12
State v. Doubek, 2021 MT 76, ¶ 14, 403 Mont. 514, 483 P.3d 1095. Accord § 46-18-201,

MCA, Annotations, Commission Comments (1969) (deferred sentence “principally

constructed for the benefit of a young offender who has no previous criminal record” so

that “one mistake will not [forever] plague [the person] for the rest of [the person’s] life”).8

However, as with the identical CPDD presumption, the CPDP presumption:

is not conclusive and may be overcome by evidence on the trial or sentencing
hearing record of some substantial aggravating circumstance such as . . .
evidence that either elevates the circumstances of the offense itself beyond a
typical prima facie case in nature, degree, or effect or involves subsequent
post-offense, presentence conduct indicating continued criminal
propensity. . . . The sentencing court has broad discretion to determine
whether an aggravating factor exists based on evidence on the trial or
sentencing hearing record and pertinent correctional and sentencing policies
defined by statute.

8
The drug offense deferred sentence presumption first appeared in Montana’s 1969 Dangerous
Drug Act and originally applied to both first-offense criminal possession of dangerous drugs, and
first-offense criminal sale of dangerous drugs, committed by offenders not older than 21 years of
age. See Sections 54-133(5) and -132(b), RCM (1947) (1969 Mont. Laws ch. 314, §§ 4, 5). The
1973 Legislature increased the maximum penalty for criminal sale of dangerous drugs and
accordingly eliminated the deferred sentence presumption for that offense. Section 54-132(b),
RCM (1947) (1973 Mont. Laws ch. 412, § 24 and ch. 55, § 1). The 1981 Model Drug Paraphernalia
Act for the first time criminalized the possession of drug paraphernalia, but did not include a
presumption of entitlement for youthful first-time offenders similar to that provided for first-time
CPDD offenders. Section 45-10-103, MCA (1981 Mont. Laws ch. 481, § 3). The 2001 Legislature
corrected that apparent oversight by providing similar presumptions of entitlement to a deferred
sentence to first-time CPDD and CPDP offenders, regardless of age. See §§ 45-9-102(6) and
45-10-103, MCA (2001 Mont. Laws ch. 100, §§ 1, 2); H.R. 174, 57th Leg., Reg. Sess. (2001);
House Judiciary Committee Hearing Minutes on HB 174 (Jan. 15, 2001); Senate Judiciary
Committee Hearing Minutes and Executive Action on HB 174 (Mar. 2, 2001). The current
reference in both statutes to “deferred imposition of sentence of imprisonment” (emphasis added)
first appeared in the 1983 amendment of the CPDD statute. See § 45-9-102(5), MCA (1983 Mont.
Laws ch. 612, § 2). While the legislative history does not indicate the rationale for this insertion,
it clearly refers to a deferred imposition of sentence as an alternative to a direct sentence of
“imprisonment in the county jail” or “imprison[ment] in the state prison” as referenced in § 45-9-
102(2) and (4), MCA (1983 Mont. Laws ch. 612, § 2), and since similarly carried forward without
distinction in the post-2001 conformed versions of §§ 45-9-102 and 45-10-103, MCA (CPDD and
CPDP).

13
See State v. Wilkes, 2021 MT 27, ¶ 18, 403 Mont. 180, 480 P.3d 823 (citing State v. Bolt,

204 Mont. 261, 264, 664 P.2d 322, 324-25 (1983)—internal punctuation and other internal

citations omitted). Accord Doubek, ¶¶ 15-20 (applying Wilkes but holding that the record

was insufficient upon which to find substantial aggravating circumstances overcoming the

presumption).9 In the absence of substantial aggravating circumstances overcoming the

presumption, the otherwise broad discretion of the court to determine whether a deferred

sentence is an appropriate sentence under the facts and circumstances of a particular case

is constrained by the identical presumptions of entitlement to a deferred sentence provided

in §§ 45-9-102(3) and 45-10-103, MCA. Bolt, 204 Mont. at 264-65, 664 P.2d at 324

(construing identical language of § 45-9-102(5), MCA (1981)).

¶16 In addition to generally authorizing sentencing courts to “impose . . . any reasonable

restrictions or conditions during the period of the defer[al]” deemed “necessary for

rehabilitation or . . . protection of . . . society,” the Legislature has specifically enumerated

a non-exhaustive list of “[r]easonable restrictions or conditions” that a court may impose

“[w]hen deferring imposition of sentence.” Section 46-18-201(4), MCA. Included in the

list of specifically authorized conditions, inter alia, is “incarceration in a detention center

not exceeding 180 days.” Section 46-18-201(4)(b), MCA.10 Thibeault asserts, however,

9
Compare Wilkes, ¶¶ 19-21 and 29 (holding that the district court did not abuse its discretion in
deviating from the presumption of entitlement to a deferred imposition of sentence on first-offense
CPDD).

10
The Code of Criminal Procedure first expressly authorized limited jail-time as a condition of a
deferred imposition of sentence in 1973. See § 95-2206(1)(b), RCM (1947) (1973 Mont. Laws ch.
513, § 31—amending § 95-2206 to include “jail time not to exceed ninety (90) days” as a
permissible “reasonable condition[] or restriction[]” of a deferred imposition of sentence). The
1983 Legislature expanded the permissible jail-time condition authorization from 90 to 180 days.
14
that § 46-18-201(4)(b), MCA, is irreconcilably inconsistent with the more particular

provision of § 45-10-103, MCA (CPDP presumption of entitlement to “deferred imposition

of sentence of imprisonment”), thus rendering his 10-day jail-time condition facially

illegal. The State contrarily asserts that §§ 45-10-103 and 46-18-201(4)(b), MCA, are

consistent, complementary statutory provisions.11 We agree with the State.

¶17 When “general and particular [statutory] provision[s] are inconsistent,” the

particular generally controls over the general. Section 1-2-102, MCA. However, by its

express terms, this general rule of statutory construction does not apply where the asserted

general and particular statutory provisions are consistent. Here, the plain and unambiguous

language of § 46-18-201(1)(a)(i) and (4)(b), MCA, specifically authorizes discretionary

imposition of “incarceration in a detention center not exceeding 180 days,” not as a

“sentence of imprisonment” as authorized by §§ 45-10-103 and 46-18-201(3)(a)(iii), MCA,

but as a “condition[]” of a “deferred imposition of sentence” as authorized by § 46-18-

201(1)(a)(i) and (4)(b), MCA, and referenced in § 45-10-103, MCA. Nothing in the

language of § 45-10-103, MCA, limits the express authorization provided by § 46-18-

201(4)(b), MCA, when the presumption of entitlement to a deferred imposition of sentence

Section 46-18-201(1)(a)(ii), MCA (1983 Mont. Laws ch. 581, § 9). In apparent conformance with
the subsequently enacted statutory definition of “detention center,” the 1999 Legislature replaced
the statutory reference to “jail time” with the current reference to “incarceration in a detention
center.” Compare § 46-18-201(4)(b), MCA (1999 Mont. Laws ch. 505, § 1), with § 7-32-2120(1),
MCA (1989 Mont. Laws ch. 461, § 1).
11
The State alternatively asserts that the record in this case in any event manifests a case-specific
evidentiary basis sufficient to overcome the presumption of entitlement to a deferred imposition
of sentence. Since we decide this case based on the primary assertions of the parties, we need not
address this alternative assertion.

15
applies. Section 45-10-103, MCA, merely specifies the presumption of entitlement to a

deferred imposition of sentence, without limitation as to which or what type of conditions

of deferral the sentencing court may impose as authorized under § 46-18-201(4), MCA.

¶18 We have long recognized the subtle, but technically significant statutory interplay

between the nature of a deferred imposition of sentence, a statutory presumption thereto,

and statutory authorization for imposition of jail-time as a condition thereof. In 1971, we

considered whether the statutory presumption of entitlement of first-offense CPDD

offenders to a deferred imposition of sentence under § 54-133(c), RCM (1947) (now

§ 45-9-102(3), MCA, as amended) precluded a sentencing court from imposing “jail time”

as a reasonable condition of a deferred sentence under the pre-1973 version of § 95-2206,

RCM (1947) (1967 Mont. Laws ch. 196, § 1—later repealed and replaced with 1973 Mont.

Laws ch. 513, § 31 (now § 46-18-201(4)(b), MCA, as amended)). See State v. Drew, 158

Mont. 214, 215-17, 490 P.2d 230, 231-32 (1971). Unlike the current version of

§ 46-18-201, MCA, the pre-1973 version of § 95-2206, RCM (1947), did not expressly

authorize limited jail-time as a condition of a deferred imposition of sentence and further,

distinctly provided separate sentencing alternatives for release on probation, deferred

imposition of sentence, suspended sentence, commitment “to a correctional institution,”

and imposition of “any restrictions or conditions on” any of those sentences as “deem[ed]

necessary.” Drew, 158 Mont. at 216, 490 P.2d at 232. Based on our grammatical

characterization of a deferred imposition of sentence as merely a “stay” of sentencing rather

than a sentence, we indiscriminately equated conditional jail-time as a “sentence to a term

in jail,” and thus inconsistent with “the end advantage to the entire concept of the deferred
16
sentence.” Drew, 158 Mont. at 217, 490 P.2d at 232-33.12 We accordingly reversed and

remanded for entry of a “judgment and deferred sentence not inconsistent with” the

pre-1973 version of § 95-2206(2), RCM (1947). Drew, 158 Mont. at 218, 490 P.2d at 233.

¶19 However, faced with the same issue on a petition for postconviction relief under the

same pre-1973 statutory scheme a year later, we expressly “clarified” Drew under a more

discriminate analysis. See Woodbury, 159 Mont. at 128-33, 495 P.2d at 1119-21. Upon

the guilty plea of an 18-year-old defendant to first-offense criminal sale of dangerous drugs

(based on the sale of “hits” of LSD to two teenage girls), the district court deferred

imposition of sentence for a period of two years, subject to various conditions of probation

including, inter alia, that the defendant serve 30 days in the county jail. Woodbury, 159

Mont. at 130, 495 P.2d at 1120. Finding the circumstances and issue “on ‘all fours’” with

Drew, we revisited the issue of whether “the concept of a ‘deferred imposition of

sentence,’” as imposed in accordance with a presumption of entitlement thereto, was

inconsistent with imposing “a period of incarceration in jail . . . as a condition thereof.”

Woodbury, 159 Mont. at 133, 495 P.2d at 1121. This time, however, we noted “a valid

[technical] distinction under the [pre-1973] law” between “granting a deferred imposition

upon conditions” and “imposing a jail sentence with conditions.” Woodbury, 159 Mont. at

133-36, 495 P.2d at 1121-23 (noting the distinguishing aspect of deferred sentences as the

opportunity for subsequent withdrawal of guilty plea or striking of guilty verdict and

12
In 1971, the referenced “end advantage” to a deferred imposition of sentence was discretionary
withdrawal of guilty plea or striking guilty verdict and dismissal of the charged offense(s). Section
95-2207, RCM (1947) (1967 Mont. Laws ch. 196, § 1).

17
dismissal of the charged offense(s)). While we did not directly overrule Drew, we further

noted that it involved an anomalous combination of a sentence and a deferred imposition

of sentence, and thus held that it was “distinguishable on its facts” and therefore “clarified”

“to the extent . . . in conflict with what is herein stated.” Woodbury, 159 Mont. at 137, 495

P.2d at 1123 (emphasis added).13

¶20 In In re Williams, 145 Mont. 45, 399 P.2d 732 (1965), in the context of an original

habeas corpus proceeding, we considered whether the resentencing to prison upon

revocation of a previously imposed deferred imposition of sentence that was conditioned,

inter alia, upon incarceration in the county jail during required alcohol treatment, subjected

the offender to unconstitutional double jeopardy of imprisonment. Williams, 145 Mont. at

49-51, 399 P.2d at 734-36. In holding that it did not, we noted that a probation condition

requiring the probationer to be “jail-based” did not “transform a probationary rule into a

term of imprisonment” and that the condition was reasonably related “to [the] promot[ion]

[of] the rehabilitation of an alcoholic as an alternative to sentencing . . . and punish[ment].”

Williams, 145 Mont. at 56-57, 399 P.2d at 738-39.

13
Our apparent grammatical characterization of a deferred imposition of sentence in Drew as
merely a “stay” of sentencing rather than a sentence was further problematically inconsistent with
then-existing but unreferenced provisions of the Code of Criminal Procedure defining: (1) a
“conviction” as “a judgment of conviction or sentence entered upon a . . . guilty” plea, verdict, or
finding on “an offense”; (2) a “judgment” as an “adjudication” of “guilty or not guilty and if the
adjudication is . . . guilty, it includes the sentence pronounced by the court”; and (3) a “sentence”
as “the punishment imposed on the defendant by the court.” Compare §§ 95-204, -207, and -211,
RCM (1947) (1967 Mont. Laws ch. 196, § 1) (emphasis added), with Drew, 158 Mont. at 217, 490
P.2d at 232.

18
¶21 In State v. Maldonado, 176 Mont. 322, 578 P.2d 296 (1978), citing Drew, the

convicted offender asserted on petition for postconviction relief that the district court

illegally imposed a jail term as an additional condition of a deferred imposition of sentence

upon continuing the deferred sentence following adjudicated probation violations.

Maldonado, 176 Mont. at 331, 578 P.2d at 301.14 We held to the contrary, noting that:

Drew merely stated that [the court] may not actually impose a sentence and
defer the imposition of part of that sentence. The [court] may, however, defer
imposition of sentence and make a jail term a condition of probation . . .
There is a valid distinction under the law in granting a deferred imposition
upon conditions, rather than imposing a jail sentence with conditions.[15]

Maldonado, 176 Mont. at 331, 578 P.2d at 301 (quoting Woodbury, 159 Mont. at 136, 495

P.2d at 1123 in part—internal punctuation omitted and emphasis added).16

14
Upon adjudication of a violation of a probation condition imposed upon a deferred imposition
of sentence, the court may revoke the deferred sentence and resentence the offender or,
alternatively, “continue the . . . deferred sentence” either “without a change in conditions” or “with
modified or additional terms and conditions.” Section 46-18-203(7)(a), MCA.
15
The quoted language from the Pacific Reporter precisely conforms to the language in our
original decision. Compare State v. Maldonado, No. 13883, slip op. at 9-10 (Mont. filed Apr. 12,
1978), with Maldonado, 578 P.2d at 301. However, a discrepancy exists between the language in
our original opinion and that published in the Montana Reports. Compare Maldonado, 176 Mont.
at 331, with Maldonado, No. 13883, slip op. at 9-10 (Mont. filed Apr. 12, 1978) (omitting language
in original).
16
We take this opportunity to distinguish our prior characterizations of a deferred imposition of
sentence as merely a stay of sentencing rather than a sentence. See Williams, supra; Drew, supra;
State v. Babbit, 175 Mont. 433, 436-39, 574 P.2d 998, 1000-02 (1978); State v. McCaslin, 2011
MT 221, ¶ 14, 362 Mont. 47, 260 P.3d 403. Williams and Drew are distinguishable on this narrow
point as decided under prior statutory schemes that did not expressly authorize limited jail-time as
a condition of a deferred imposition of sentence. See Drew, supra; Williams, supra. In addition
to having been subsequently “clarified” and limited in Woodbury, supra, Drew is further
distinguishable because our apparent grammatical characterization was inconsistent with the
unreferenced definitions of the statutory terms “conviction,” “judgment,” and “sentence” and
because the then-governing statutory scheme separately included distinct sentencing alternatives
for imprisonment, deferred imposition of sentence, and release “on probation,” inter alia. See
§§ 95-204, -207, and -211, RCM (1947) (1967 Mont. Laws ch. 196, § 1); Drew, supra. Though
19
¶22 Contrary to Thibeault’s assertion, nothing in the language of § 45-10-103, MCA, is

inconsistent with the language of § 46-18-201(1)(a)(i) and (4)(b), MCA, or otherwise

evinces any legislative intent to preclude sentencing courts from imposing “incarceration

in a detention center not exceeding 180 days,” as expressly authorized under

§ 46-18-201(4)(b), MCA, when imposing a deferred sentence in accordance with the

statutory presumption of entitlement thereto. In accordance with the express language of

§§ 45-10-103, 46-18-201(1)(a)(i), and (4)(b), MCA, and as similarly recognized in

Maldonado, Woodbury, and Williams, imposition of “incarceration in a detention center

not exceeding 180 days” as a condition of a deferred imposition of sentence is not a

“sentence of imprisonment” inconsistent with a “deferred imposition of sentence” as

referenced in §§ 45-10-103 and 46-18-201(1)(a), MCA (emphasis added). We hold that

the Justice Court’s imposition of a 10-day jail term as a condition of Thibeault’s deferred

imposition of sentence was a facially legal condition of a deferred imposition of sentence,

decided under a statutory scheme expressly authorizing limited jail-time as a deferred sentence
condition, Babbit is also distinguishable because that characterization occurred only in passing
incident to addressing the dispositive question of whether the imposition of a fine as a condition
of a deferred sentence was reasonably related to the subject crime, rehabilitation of the offender,
or public protection. See Babbit, 175 Mont. at 436-39, 574 P.2d at 1001-02. Our similar
characterization in McCaslin, that a “sentence is not imposed” on a deferred imposition of
sentence, is similarly distinguishable as passing dicta based on Drew. See McCaslin, ¶ 14. Our
statements in Williams, Drew, Babbit, and McCaslin are further inconsistent with §§ 46-1-202(7),
(11), (25), 46-18-201(1)(a), (4), -202, and -204, MCA, as recognized and applied in Tomaskie,
¶¶ 9-13. See also State v. Rice, 275 Mont. 81, 82-85, 910 P.2d 245, 246-47 (1996) (deferred
imposition of sentence is a final judgment “disposing of the criminal proceeding at issue” but is
not “imprisonment or punishment in the constitutional sense” for purposes of constitutional
double-jeopardy even if conditioned on jail-time—criminal sentencing encompasses
imprisonment, suspended sentence, or deferred imposition of sentence).

20
expressly authorized by § 46-18-201(4)(b), MCA, consistent with §§ 45-10-103 and

46-18-201(1)(a)(i), MCA.17

CONCLUSION

¶23 The Justice Court’s imposition of 10-day jail term as a condition of a deferred

imposition of sentence imposed pursuant to the statutory presumption of § 45-10-103,

MCA, was a facially legal condition of a deferred imposition of sentence, as expressly

authorized by § 46-18-201(4)(b), MCA. We hold that the Justice Court did not erroneously

impose 10 days of jail-time as a condition of Thibeault’s deferred imposition of sentence.

Affirmed.

/S/ DIRK M. SANDEFUR

17
The separate question of whether the Justice Court abused its discretion in imposing the 10-day
jail term as a condition of Thibeault’s deferred sentence is not at issue on appeal.
See §§ 46-18-201(4)(b), (p), and -202(1), MCA (in re reasonable relationship requirement for
discretionary sentencing conditions); Zimmerman, ¶ 17 (probation conditions must be reasonably
related “to rehabilitation or protection of society within the particular context of an offender’s
crime” or the offender’s “unique background, characteristics, or conduct”—statutorily authorized
conditions must have a substantial direct or indirect nexus to the subject offense or personal
circumstances of the offender); State v. Openshaw, 172 Mont. 511, 514-15, 565 P.2d 319, 321
(1977) (invalidating otherwise authorized jail-time condition of deferred sentence in excess of
maximum term of imprisonment for the subject offense as unreasonable); Williams, 145 Mont. at
56-58, 399 P.2d at 738-39 (holding that incarceration in county jail during required alcohol
treatment as a condition of deferred imposition of sentence was reasonably related “to promot[ing]
the rehabilitation of an alcoholic as an alternative to sentencing . . . and punish[ment]”).
See also City of Bozeman v. Cantu, 2013 MT 40, ¶ 20, 369 Mont. 81, 296 P.3d 461 (“passing,
isolated, or stale instance[s] of behavior or conduct” are generally “insufficient to support a
restrictive probation condition” based on “offender rehabilitation”—similarly lacking are
conditions that are overly broad, unduly punitive, or exceedingly tenuous in relation to the asserted
purpose and particular circumstances of the offense or the offender—internal citations and
punctuation omitted).

21
We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE

Justice Ingrid Gustafson, dissenting.

¶24 I would hold the sentencing condition of incarceration on Thibeault’s deferred

sentence for criminal possession of drug paraphernalia was an illegal sentencing condition

because the Justice Court did not adhere to the affirmative mandates of § 45-10-103, MCA,

and the condition fell outside the parameters set by that statute. Further, the Opinion’s

holding allows for absurd results.

¶25 “A sentencing condition is illegal if the sentencing court lacked statutory authority

to impose it, if the condition falls outside the parameters set by the applicable sentencing

statutes, or if the court did not adhere to the affirmative mandates of the applicable

sentencing statutes.” Heddings, ¶ 11. The applicable statutes in this case are §§ 45-10-103

and 46-18-201, MCA.

¶26 “When interpreting a statute, [this Court’s] objective is to implement the objectives

the legislature sought to achieve.” Mont. Vending, Inc. v. Coco-Cola Bottling Co.,

2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. “[T]he starting point for interpreting a

statute is the language of the statute itself.” Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056 (1980). When interpreting a

statute, a court may not “insert what has been omitted or . . . omit what has been inserted.”

Section 1-2-101, MCA. When several provisions are at issue, we must interpret the
22
provisions to “give effect to all.” Section 1-2-101, MCA. A more specific provision will

control over a more general provision. Section 1-2-102, MCA. “This Court operates under

the presumption that the Legislature does not pass meaningless legislation, and we will

harmonize statutes relating to the same subject in order to give effect to each statute.” State

v. Brendal, 2009 MT 236, ¶ 18, 351 Mont. 395, 213 P.3d 448.

¶27 Section 46-18-201, MCA, provides courts with general sentencing authority. It

instructs “a sentencing judge may defer imposition of sentence, except as otherwise

specifically provided by statute, for a period . . . not exceeding 1 year for a misdemeanor.”

Section 46-18-201(1)(a)(i), MCA. “When deferring imposition of sentence or suspending

all or a portion of execution of sentence, the sentencing judge may impose on the offender

any reasonable restrictions or conditions during the period of the deferred imposition or

suspension of sentence.” Section 46-18-201(4), MCA. Under § 46-18-201(4)(b), MCA,

this includes “incarceration in a detention center not exceeding 180 days.”

¶28 This statute provides sentencing judges with the authority to impose incarceration

as a condition of a deferred imposition of sentence “except as otherwise specifically

provided by statute.” Section 46-18-201(1)(a), MCA. Section 45-10-103, MCA,

specifically provides otherwise. In pertinent part, § 45-10-103, MCA, provides “[a] person

convicted of a first violation of this section is presumed to be entitled to a deferred

imposition of sentence of imprisonment.” (Emphasis added.) By its plain language,

§ 45-10-103, MCA, creates a presumption against imposing a condition of imprisonment

on a first-time offender. This plain language interpretation is further bolstered by

examining the language of other presumptions for deferrals contained in Title 45.
23
¶29 Four statutes in Title 45 create a presumption for a deferred sentence in certain

cases: §§ 45-6-301(9), 45-9-102(4), 45-9-113(3), and 45-10-103, MCA. The relevant

language of § 45-10-103, MCA, was added to the statute in 2001 to mirror the language of

§ 45-9-102(4), MCA (“A person convicted of a first violation under this section is

presumed to be entitled to a deferred imposition of sentence of imprisonment.”). See 2001

Mont. Laws ch. 100, § 2. A presumption for a deferred imposition of sentence for young

first-time offenders was included when what is now § 45-9-102, MCA, first was enacted

in 1969.1 See 1969 Mont. Laws. ch. 314, § 5. The clause “of imprisonment” was added to

the existing presumption in § 45-9-102(4), MCA, in 1983. See 1983 Mont. Laws. ch. 612,

§ 2.

¶30 The other two statutes creating a presumption in favor of a deferred sentence do not

include the “of imprisonment” language. See § 45-6-301(9), MCA (“A person convicted

of the offense of theft of property not exceeding $100 in value is presumed to qualify for a

deferred imposition of sentence as long as the person has not been convicted of a

misdemeanor or felony offense in the past 5 years.”); § 45-9-113(3), MCA (“A person

under 18 years of age convicted of a first violation under this section is presumed to be

entitled to a deferred imposition of sentence.”). Today’s decision holds the “of

imprisonment” language, specifically added by the Legislature to § 45-9-102(4), MCA, in

1983 and which it chose to later include in § 45-10-103, MCA, is mere surplusage. I must

disagree.

1
2001 Mont. Laws ch. 100 also expanded the presumption under § 45-9-102(4), MCA, to all
first-time offenders, not just those 21 years of age and younger.
24
¶31 What’s more, the holding of today’s Opinion could lead to absurd results in the

future. Under § 46-18-201(1)(a)(i), MCA, the sentencing court may defer a sentence for

up to a year and under § 46-18-201(4)(b), MCA, the sentencing court could include 180

days of incarceration as a condition of that deferred sentence. The maximum penalty under

§ 45-10-103, MCA, is 6 months incarceration. Thus, under the Opinion’s interpretation of

the statutes, the presumption in favor of deferral, which is clearly meant to provide for

lesser punishment of first-time offenders, imposes a potentially harsher sentence on a

first-time offender—six months of jail time followed by an additional six months of

probation-like conditions. Such an outcome could not have been the Legislature’s intent.

¶32 On a final note, regardless of this Court’s holding today, Thibeault will likely be

entitled to an expungement of his conviction in the future, as the voters of Montana

decriminalized possession of marijuana paraphernalia when they approved Ballot Initiative

No. 190 in the 2020 general election and the Montana Legislature has since provided a

mechanism for the expungement of marijuana convictions such as Thibeault’s. See

2021 Mont. Laws ch. 576, § 48. Today’s Opinion simply forces Thibeault to serve jail

time for something which is no longer a crime in Montana and for which he will be entitled

to expungement in the future.

¶33 I dissent.

/S/ INGRID GUSTAFSON

Justice James Jeremiah Shea joins in the dissenting Opinion of Justice Gustafson.

/S/ JAMES JEREMIAH SHEA
25