No
No. 97-389
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 259
296 Mont. 335
989 P.2d 361
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DALE EDWARD SIMPSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Mineral,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Montana Appellate Defender Office, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
M. Shaun Donovan, Mineral County Attorney, Superior,
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Montana
Submitted on Briefs: October 14, 1999
Decided: October 25, 1999G5
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1.The Fourth Judicial District Court, Mineral County, accepted guilty pleas from
Dale Edward Simpson (Simpson) to charges of felony assault and intimidation. The
court orally pronounced sentence and its subsequent written judgment included
conditions not orally imposed at the sentencing hearing. Simpson appeals. We
reverse and remand.
¶2.The issue is whether the conditions included in the District Court's written
judgment, but not recited at the oral pronouncement of sentence, are invalid.
BACKGROUND
¶3.This case arose out of a July 10, 1996, incident near the Henderson exchange on
Interstate 90 in Mineral County, Montana. The State of Montana (State) originally
charged Simpson by information with three felony offenses: assault, intimidation and
criminal endangerment. According to the charging document, Simpson assaulted a
five-year-old girl, threatened her mother that he would break the girl's neck, and
chased both victims near and/or across the interstate highway where they could have
been injured or killed by oncoming traffic. He ultimately pled guilty to felony assault
and intimidation.
¶4.After Simpson entered his guilty pleas, the court orally pronounced sentence
committing him to the Montana State Prison for a total of 30 years, including 20
years for being a persistent felony offender, with 10 years suspended. The court also
recommended that Simpson be required to complete a chemical dependency
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program before being eligible for parole and that appropriate measures be taken to
prevent him from assaulting prison staff. The written judgment imposed the same
prison sentence, but also imposed 20 conditions on the suspended sentence which
were not articulated in the oral pronouncement of sentence. Simpson appeals.
DISCUSSION
¶5.Are the conditions included in the District Court's written judgment, but not
recited at the oral pronouncement of sentence, invalid?
¶6.In State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40, we held
that the oral pronouncement of a criminal sentence is the "legally effective sentence
and valid, final judgment[;]" the written judgment is merely evidence of the oral
sentence. Lane, ¶ 48. Moreover, in the event of conflict between the oral
pronouncement of sentence and the written judgment and sentence, the oral
pronouncement controls. Lane, ¶ 48.
¶7.The appeal in the present case was pending at the time Lane was decided. Thus,
the threshold question is whether Lane is applicable to this case. The State concedes
that, under State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d 260, rev'd on other
grounds, 518 U.S. 37 (1996), Lane may be retroactively applied to cases such as this
one in which the appeal was pending when Lane was decided. Additionally, in State v.
Waters, 1999 MT 229, ¶ 20, ___ P.2d ___, ¶ 20, 56 St.Rep. 901, ¶ 20, we specifically
overruled State, City of Bozeman v. Peterson (1987), 227 Mont. 418, 739 P.2d 958, and
State v. Redding (1984), 208 Mont. 24, 675 P.2d 974, to the extent they contradicted
our holding in Egelhoff on the retroactive application of new rules of law in criminal
cases.
¶8.The only dispute in this case is whether a sufficient conflict exists between the oral
and written sentences to render the written sentence invalid. In Lane, the sentence
orally imposed on the defendant included a condition that he complete sex offender
treatment before becoming eligible for parole, whereas the written sentence omitted
that condition. We approved the sentencing court's later correction of the written
sentence to match the oral sentence by means of a nunc pro tunc order. Lane, ¶ 48. In
the present case, as in Waters, we have the opposite situation--the written sentence
includes conditions not included in the sentence imposed orally.
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¶9.The State argues that the sentence orally imposed upon Simpson was ambiguous
and that the written sentence merely clarified it. We were persuaded by a similar
argument in Waters but only to the extent that, at the oral sentencing, the defendant
was meaningfully apprised of--and granted an opportunity to respond to--some of
the conditions later imposed in the written sentence. Waters, ¶¶ 31-32. We rejected
the argument, however, insofar as it related to conditions later imposed in the
written sentence of which the defendant received no notice at the oral sentencing.
Waters, ¶¶ 33-34.
¶10.Here, the District Court orally imposed a sentence which did not follow that
recommended in either the plea agreement or the presentence investigation, the
latter of which included conditions on any suspended sentence. Instead, it
pronounced the total prison sentence, suspended part of that sentence and made two
additional recommendations. Thus, unlike Waters, this case does not involve an oral
pronouncement of sentence which put Simpson on notice that the court intended to
impose additional conditions from a plea agreement or presentence investigation.
¶11.The State argues that no direct conflict exists between the oral pronouncement of
sentence and the written judgment because the oral pronouncement was silent
regarding any conditions of Simpson's suspended sentence and the written judgment
merely filled in the blanks, so to speak, thereby clarifying the ambiguity created by
the absence of conditions in the oral pronouncement. Its argument is apparently
premised on the notion that sentencing courts are not authorized to suspend a
sentence without conditions. Indeed, the State posits that "every suspension of
sentence is necessarily conditional . . . . " We disagree.
¶12.First, we conclude that a direct conflict exists between a suspended sentence
without conditions and a suspended sentence with numerous conditions attached of
which the defendant had no notice. We further conclude that no ambiguity existed in
the District Court's oral pronouncement of sentence in the present case: a term of
imprisonment was imposed, a portion was suspended and two recommendations
were made. Nothing could be more clear. In fact, the record reflects that the court
inquired of counsel at the end of its oral pronouncement whether there were any
questions and the prosecutor responded in the negative.
¶13.Finally, the State's proposition that every suspended sentence is necessarily
conditional is simply incorrect. Section 46-18-201, MCA (1995), sets forth the
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sentences which may be imposed on a person "found guilty of an offense upon a
verdict or a plea of
guilty . . . . " The relevant portions of that statute provide that the court may
"suspend execution of sentence for a period . . . . The sentencing judge may impose
on the defendant any reasonable restrictions or conditions during the period of
suspended sentence." Section 46-18-201(1)(b), MCA (1995). The structure and
language used in these portions of § 46-18-201(1)(b), MCA (1995), make it clear that
both the suspension of sentence and the imposition of conditions on such a suspended
sentence are discretionary with the sentencing court. Thus, while it may be
uncommon for a court to suspend part or all of a sentence without attaching
conditions, it is within the court's discretion to do so.
¶14.For these reasons, we hold that the District Court's oral pronouncement of
sentence in this case was unambiguous and that its subsequent written judgment
directly conflicted with the oral sentence imposed. As a result, pursuant to Lane, we
further hold that the conditions set forth in the written judgment are invalid and the
written judgment must be conformed to the oral pronouncement of sentence.
¶15.Reversed and remanded for further proceedings consistent with this opinion.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM REGNIER
Chief Justice J. A. Turnage dissenting.
¶16 The conditions imposed in the written judgment as to Simpson's suspended sentence
do not directly conflict with the sentence orally imposed upon him at the sentencing
hearing. Furthermore, the imposition of a ten-year suspended prison sentence with
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absolutely no terms governing that suspension is senseless--especially where, as here, the
defendant has a history of unemployment and transience. I would rule that the sentence
orally pronounced was ambiguous and remand for resentencing as we did in Waters.
/S/ J. A. TURNAGE
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