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No. 00-089
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 13
STATE OF MONTANA,
Plaintiff/Respondent,
v.
DENNIS BRISTER
Defendant/Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Marge Johnson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carl B. Jensen, Jr., Cascade County Public Defenders' Office, Great Falls, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Montana Attorney General,
Helena, Montana; Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: January 17, 2002
Decided: January 29, 2002
Filed:
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__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 In July 1984, Dennis Brister (Brister) was sentenced to the Montana State Prison
(MSP) for twenty years, ten years of which were suspended, for the felony crime of sexual
assault, after being found guilty of sexually assaulting two of his young nieces. After
serving his time at MSP, he began his ten-year suspended sentence in December 1992. In
May 1998, he committed felony theft and was sentenced to five years with the Montana
Department of Corrections. As a result of this felony, Brister's ten-year suspended
sentence for sexual assault was revoked and replaced with another ten-year suspended
sentence conditioned upon compliance with twenty-six specifically defined sentencing
conditions. Brister contends that many of these conditions were not, nor could have been,
included in his original sexual assault sentence, and must be stricken. However, he does
not provide this Court with his original conditions of probation. Brister appeals the
imposition of the new conditions, claiming they are in violation of his constitutional
protections from double jeopardy and ex post facto laws. We reverse and remand.
ISSUES
¶2 The following is a restatement of the issues.
1. Did Brister waive his objections by failing to contemporaneously object when the
sentence was pronounced and did he file a timely appeal from the District Court's
sentence?
2. Did the District Court's sentence violate Brister's constitutional protections
against double jeopardy?
3. Did the District Court err in imposing new conditions upon a continuation of
Brister's suspended sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On July 12, 1984, Brister was sentenced to the MSP for twenty years, ten years
suspended, for the felony crime of sexual assault, after being found guilty of sexually
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assaulting two of his young nieces. He was released and began his ten-year suspended
sentence in December 1992. Under his original sentence, he was subject to the rules and
regulations of the Adult Probation and Parole Field Services Office during his entire
suspension period. Brister signed the set of rules applicable to his suspended sentence on
December 22, 1992, but did not provide a copy of these rules to the District Court or this
Court for the record in this case.
¶4 On May 22, 1998, Brister was charged with felony theft by the Missoula County
Sheriffs Department and on June 4, 1998, was placed in the Missoula County Jail on a
$10,000.00 bond. According to Brister's voluntary interview with a detective for the
Sheriff's Department, Brister, while under the influence of alcohol and drugs, stole
numerous firearms and ammunition, among other items, from a neighbor for the purpose
of selling them. Upon sobering up, however, he reconsidered this moneymaking venture
and disposed of the guns and ammunition at various locations.
¶5 Brister entered into a plea agreement with the Montana Department of Corrections
(DOC) under which he would serve five years for felony theft.
¶6 This felony theft was committed before Brister's ten-year suspended sentence for
sexual assault had run and, during its commission, Brister violated various conditions of
his probation. On June 12, 1998, Brister's probation and parole officer prepared a Report
of Violation in which he listed three probation/parole violations: 1) failing to comply with
all applicable laws; 2) drinking alcohol, and 3) testing positive for marijuana use.
¶7 On June 18, 1998, a Cascade County Deputy Attorney filed a Petition for Revocation
of Brister's ten-year suspended sentence based upon Brister's felony theft charge and
admissions and Brister's parole officer's Report of Violation. The Petition requested that
the District Court issue a warrant for Brister's arrest on probation/parole violations. A
bench warrant was issued on June 18, 1998, by District Judge Marge Johnson, of the
Montana Eighth Judicial Court, Cascade County, in conjunction with an Order revoking
Brister's suspended sentence. At Brister's first Answer Hearing on September 30, 1998,
Brister answered "Not True" to the parole violation charges but subsequently reappeared
on October 20, 1998, and changed his answers to "True."
¶8 While awaiting a Disposition Hearing for the probation/parole violations, Brister
underwent a sexual offender evaluation as required under § 46-18-111, MCA (1983). This
evaluation was performed on April 1, 1999, the report of which was relied upon by the
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District Court judge at Brister's Disposition Hearing on July 21, 1999. At the Hearing,
Judge Johnson orally pronounced sentence. She revoked Brister's ten-year suspended
sentence but reimposed another ten-year suspended sentence to run consecutively to the
five-year felony theft sentence. This new ten-year suspended sentence was conditioned
upon Brister complying with twenty-six specific conditions. These conditions included,
inter alia, that Brister pay various costs and fees, such as victim counseling and
restitution, supervision, confinement, workers compensation, victim witness, felony
charges, and court information technology fees. (Conditions 10-13 and 22-24
respectively.) Additionally, in the interests of community safety, Judge Johnson imposed
several restrictions on Brister's access to children by prohibiting him from 1) living within
three blocks of a school (Condition 18); 2) working or being around children, including
his own four year old son and his three stepsons, without supervision by someone
specially trained to supervise sexual offenders (Conditions 19 and 21); and 3) being placed
in a position of authority over children (Condition 20). Brister was also designated a level
II sexual offender and required to register as a sexual offender with law enforcement
communities. (Condition 27). Brister did not object to any of these conditions at the time
they were imposed.
¶9 Brister filed an Objection, under § 46-18-117, MCA (1999) (now repealed), to the
District Court's Sentence on September 21, 1999. In his objection, Brister claimed that the
conditions imposing the payment of fees (Conditions 10-13 and 22-24), those designed to
limit his access to children (Conditions 18-21) and the condition requiring that he register
as a sex offender with the State (Condition 27) were not included in his original suspended
sentence. He further argued that several of the additional conditions could not have been
included in his original sentence because the statutory authority for them had not yet been
adopted. Brister maintained that the additional conditions were violations of the
protections against double jeopardy and ex post facto laws. He requested that the District
Court correct his sentence by removing the additional conditions.
¶10 In its Response to Brister's objection, the State made no mention of Brister's ex post
facto claim but responded only to the double jeopardy claim, indicating that it was "unable
to address [Brister's] argument on this point until such time as it is presented at a hearing
before the Court." The State then requested a hearing on the matter. A hearing was never
set and the Court did not issue any further order on the matter.
¶11 Brister filed his notice of appeal from the District Court's "denial of [his] Motion to
Correct Sentence" on January 4, 2000.
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STANDARD OF REVIEW
¶12 We generally review a district court's decision to revoke a suspended sentence to
determine whether the court abused its discretion and whether the court's decision was
supported by a preponderance of the evidence in favor of the State. State v. Shockley, 2001
MT 180, ¶ 8, 306 Mont. 196, ¶ 8, 31 P.3d 350, ¶ 8 (citing State v. Nelson, 1998 MT 227, ¶
16, 291 Mont. 15, ¶ 16, 966 P.2d 133, ¶ 16). Where the issue is whether a court followed
statutory requirements applicable to revocation of a suspended sentence, however, the
question raised is a matter of law, and our review is plenary. Shockley, ¶ 8. We decide the
case sub judice pursuant to this latter standard.
DISCUSSION
¶13 The State raises the following timeliness issues: Did Brister waive his objections by
failing to contemporaneously object when the sentence was pronounced, and did he file a
timely appeal from the District Court's sentence?
¶14 The State argues that because Brister failed to object to the conditions of his current
suspended sentence during his sentencing hearing, Brister's present objections are
untimely and, therefore, waived. The State cites § 46-20-104(2), MCA, which states that
"[f]ailure to make a timely objection during trial constitutes a waiver of the objection"
unless certain exceptions, not applicable to this case, apply.
¶15 This Court has stated on numerous occasions that a defendant must raise an objection
in a timely manner or the objection is waived and this Court will not hear it on appeal. See,
e.g., State v. Baker, 2000 MT 307, ¶ 30, 302 Mont. 408, ¶ 30, 15 P.3d 379, ¶ 30; State v.
Harris, 1999 MT 115, ¶ 11, 294 Mont. 397, ¶ 11, 983 P.2d 881, ¶ 11. Additionally, we
have repeatedly stated that an important purpose of contemporaneous objections is to give
the trial judge the first opportunity to correct any error. See State v. Tucker, 2000 MT 255,
301 Mont. 466, 10 P.3d 832; State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111;
State v. Finley (1996), 276 Mont. 126, 915 P.2d 208 (overruled in part on other grounds
by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817); State v. Weinberger
(1983), 204 Mont. 278, 665 P.2d 202.
¶16 Notwithstanding the wisdom of this rule, this Court has established a narrow but
important exception. In State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997, we held
that "the better rule [is] to allow an appellate court to review any sentence imposed in a
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criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates,
even if no objection is made at the time of sentencing." Lenihan, 184 Mont. at 343, 602
P.2d at 1000. Thus, even if a defendant fails to contemporaneously object at sentencing,
we will accept jurisdiction of an appeal that has been timely filed which alleges that a
sentence is illegal or exceeds statutory authority.
¶17 The Lenihan rule should not be confused with the "plain error" rule, under which this
Court may, in exceptional cases, discretionarily review a claimed error which affects
fundamental constitutional rights where failing to review the claim may result in "a
manifest miscarriage of justice, leave unsettled the question of fundamental fairness of the
proceedings or compromise the integrity of the judicial process." Harris, 1999 MT 115, ¶
12, 294 Mont. 397, ¶ 12, 983 P.2d 881, ¶ 12. The Lenihan rule is much narrower than the
"plain error" doctrine, as it deals specifically with post-trial sentencing rather than the
fundamental fairness of a trial.
¶18 Lenihan aside, we are also faced here with the application of § 46-18-117, MCA
(1999) (now repealed). Section 46-18-117, MCA (1999), authorized the district court to
correct an erroneous sentence or disposition at any time and to correct a "sentence
imposed in an illegal manner within 120 days after the sentence is imposed or after
remand from an appellate court." While Brister did not voice any objection at his
sentencing hearing, he nonetheless provided the District Court with an opportunity to
correct any sentencing errors by filing an objection to the court's sentence under § 46-18-
117, MCA (1999), on September 21, 1999. Shortly thereafter, the State requested an
extension of time in which to respond to Brister's reconsideration request. The State's
response, filed on October 29, 1999, requested that the District Court schedule a hearing to
address the issues raised in Brister's objection. Sixty days elapsed from the filing of the
State's request for a hearing and the District Court neither responded to Brister's objection
nor to the State's request. Brister therefore concluded, not illogically, that the State's
request for a hearing was deemed denied, and in an effort to preserve his right to appeal,
he filed his Notice of Appeal.
¶19 In State v. St. John, 2001 MT 1, ¶ 16, 304 Mont. 47, ¶ 16, 15 P.3d 970, ¶ 16, we were
asked to determine whether St. John was barred from raising certain issues on appeal. We
stated, "[o]ur review of the record reveals that St. John did not object to the District
Court's failure to consider sentencing alternatives under § 46-18-225, MCA, nor did he
request reconsideration of the court's sentence under § 46-18-117, MCA." (Emphasis
provided). In the case at bar, Brister did request reconsideration of the court's sentence
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under § 46-18-117, MCA (1999), and he promptly filed his notice of appeal upon
expiration of the 120 days allowed for correction of the sentence. Therefore, we conclude
that while he failed to contemporaneously object to the District Court's sentence, under the
rationales of both Lenihan and St. John, Brister retains his right to appeal his purportedly
illegal sentence.
¶20 The State argues that Rule 5(b), M.R.App.P., requires that, "in criminal cases an
appeal from a judgment . . . must be taken within 60 days. . . ." The State maintains that
because Brister filed his appeal on January 4, 2000, from a written judgment entered on
August 27, 1999, his appeal is untimely and should be dismissed by this Court. We
disagree. The combined application of Rule 5(b), M.R.App.P., § 46-18-117, MCA (1999),
and the St. John case compels a different result. While Rule 5(b), M.R.App.P., instructs an
appellant to file an appeal within 60 days in a criminal case, § 46-18-117, MCA (1999),
allows the district court to "correct a sentence imposed in an illegal manner within 120
days after the sentence is imposed." As explained above, Brister requested such a
correction. We therefore conclude that, under the specific facts in this case, Brister
preserved his right to appeal.
¶21 We note that this Court has been somewhat inconsistent in the past, when addressing
the question of whether failure to contemporaneously object to an illegal sentence at the
time it is pronounced results in a waiver of the issue on appeal. It seems we established the
sound rule in Lenihan, then inexplicably departed from it at times, while reaffirming it at
others. To the extent we have previously ruled in State v. Smith, 2001 MT 111, 305 Mont.
298, 27 P.3d 39, State v. St. John, 2001 MT 1, 304 Mont. 47, 15 P.3d 970, and State v.
Taylor, 2000 MT 202, 300 Mont. 499, 5 P.3d 1019, that failure to raise a
contemporaneous objection to an illegal sentence at the time of hearing results in a waiver
of the defendant's objection, we overrule these cases as to that issue.
¶22 We next address whether the District Court's sentence violated Brister's constitutional
protections against double jeopardy.
¶23 Brister directed his attorney to argue that imposing the new conditions in his
suspended sentence constituted a second sentencing for a single crime and, therefore,
violated his rights against double jeopardy. He states that, as a result, the case should be
dismissed in its entirety. Brister's attorney concedes that he finds no basis for this claim,
and therefore no argument was included in Brister's appeal on this issue.
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¶24 This Court has held on several occasions that revocation of a suspended sentence
based upon violations of probationary conditions and reinstatement of the original
sentence does not violate a person's constitutional rights against double jeopardy. State v.
Oppelt (1979), 184 Mont. 48, 601 P.2d 394; State v. Lange (1989), 237 Mont. 486, 775
P.2d 213; State v. Walker, 2001 MT 170, 306 Mont. 159, 30 P.3d 1099. Based upon the
analysis and conclusion below, we need not address whether the inclusion of the
additional conditions is also a violation of his rights against double jeopardy.
¶25 We last examine whether the District Court erred in imposing new conditions upon
Brister's suspended sentence, when it reimposed a ten-year suspended sentence upon terms
and conditions not contained in Brister's original sentence.
¶26 Brister was charged by information on September 12, 1983, for the August 1983
assault against his niece. He was originally sentenced in 1984. We have held that the law
in effect at the time of the commission of the crime controls as to the possible sentence.
State v. Stevens (1995), 273 Mont. 452, 904 P.2d 590. Therefore, we look to the
revocation statute in effect at the time Brister committed his crime to determine what
conditions the District Court could fairly and legally impose upon reinstatement of
Brister's suspended sentence.
¶27 The revocation statute in effect at the time Brister committed the offense was § 46-18-
203, MCA (1983). This statute provided the district court in a revocation proceeding two
alternatives--either revoke the suspended sentence and order the defendant to serve the
remainder of his prison term, or continue the suspended sentence under the original terms.
Here, the District Court did neither. Rather, it reimposed a suspended sentence
conditioned upon multiple new conditions and terms not contained in the original
sentence. This course of action was not permitted under the revocation statute in effect at
the time Brister's crime was committed. Therefore, the District Court had no authority to
impose new conditions upon the continuation of Brister's suspended sentence. State v.
Leistiko (1992), 256 Mont. 32, 844 P.2d 97 (citation omitted); Shockley, ¶ 11.
¶28 Having concluded the District Court exceeded its authority in imposing new
conditions upon the continuation of Brister's suspended sentence, we again turn to the
statute in effect at the time Brister committed his crime to determine what alternatives
were available to the District Court. As noted above, the statute in effect in 1983 gave the
District Court two alternatives -- either revoke the suspended sentence and order Brister to
serve the remainder of his prison term, or continue his suspended sentence under its
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original terms. Section 46-18-203, MCA (1983). In the past, we have resolved a similar
problem by simply vacating the offending new conditions. Shockley, ¶ 11. However,
because it is readily apparent that the District Court expended considerable effort in
fashioning new terms and conditions to attach to Brister's suspended sentence, we are
unable to surmise what the court would have chosen to do had it realized it was limited to
the two statutory choices discussed above. Therefore, we conclude the proper remedy here
is to remand this matter to the District Court for a new disposition hearing in which to
determine whether to strike all the new conditions added by the Court and continue
Brister's suspended sentence under the original conditions, or revoke suspension and order
Brister committed to the Montana Department of Corrections for the remainder of his
sentence, as permitted under § 46-18-203, MCA (1983).
¶29 We therefore reverse and remand for further proceedings consistent with this Opinion.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
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