March 18 2008
DA 07-0025
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 89
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BRITTEN WINKEL, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 06-188,
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt (argued),
Assistant Appellate Defender, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General; Mark W. Mattioli
(argued), Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Sheila Kolar, Deputy County
Attorney, Billings, Montana
For Amici Curiae:
Willliam F. Hooks (argued) and Chad Wright, Hooks & Wright, P.C.,
Helena, Montana (Montana Association of Criminal Defense Lawyers)
Merle Raph, Attorney at Law, Shelby, Montana (Montana County
Attorneys Association)
Diana L. Koch, Special Assistant Attorney General, Helena,
Montana (Montana Department of Corrections)
Argued and Submitted: October 24, 2007
Decided: March 18, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Britten Winkel, Jr. (“Winkel”), appeals from the sentence imposed by the
Thirteenth Judicial District, Yellowstone County, following his conviction for felony and
misdemeanor drug possession charges. We affirm.
¶2 We restate the issues as follows:
¶3 I. Did the District Court err in prohibiting Winkel, as a condition of his suspended
sentence, from possessing or consuming alcohol or other intoxicants?
¶4 II. Did the District Court err in prohibiting Winkel, as a condition of his
suspended sentence, from entering any casinos or playing games of chance?
BACKGROUND
¶5 On October 27, 2005, police executed a search warrant for the residence shared by
Winkel and his girlfriend, Shelly Pete. Police searched the couple’s bedroom, and found
a glass pipe with suspected methamphetamine residue, 1.2 grams of methamphetamine,
baggies of white powder suspected to be methamphetamine, and 13.3 grams of
marijuana, divided into individually sealed bags. The police also found various drug
paraphernalia, including a drug ledger, scales, plastic baggies, razors, and bindle material.
¶6 Winkel was charged with one felony count of possession of a dangerous drug in
violation of § 45-9-102, MCA, and a misdemeanor count of criminal possession of drug
paraphernalia in violation of § 45-10-103, MCA. Winkel pled guilty to both charges.
The District Court sentenced him to three years and six months imprisonment, all of
which was suspended. The court imposed several conditions on Winkel’s suspended
sentence, including the following restrictions relevant to this appeal:
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12. The Defendant shall not possess or consume intoxicants/alcohol, nor
will he enter any place intoxicants are the chief item of sale. He will
submit to Breathalyzer testing or bodily fluid testing for drugs or alcohol as
requested by his Probation & Parole Officer.
....
23. The Defendant will not enter any casinos or play any games of chance.
At the sentencing hearing, Winkel objected to these two conditions and asked that they be
stricken. Winkel argued that since alcohol and gambling were not factors in his crime,
the conditions were not rationally related to his offense.
¶7 Winkel’s pre-sentence investigation report (PSI) revealed that he had a somewhat
lengthy criminal history, including a prior conviction for a DUI in 1989. Winkel also had
a prior drug-related felony conviction for custodial interference: he supplied a sixteen-
year-old girl with marijuana and methamphetamine and had sexual intercourse with her.
Winkel reported to the PSI officer that his alcohol use was “rare,” but admitted to using
various illicit drugs over the course of the last thirty years. The PSI recommended that
Winkel complete a chemical dependency evaluation, and enroll in an appropriate
treatment and relapse prevention program. Nothing in the PSI report suggested that
Winkel ever gambled, much less had a gambling problem.
¶8 The District Court refused to strike condition twelve and explained that it
prohibited Winkel from using both alcohol and drugs. The court held that since Winkel’s
offense was drug-related, the condition had a sufficient nexus to his offense. The court
also refused to strike condition number twenty-three, stating simply: “Number 23, I will
not delete. You need to stay out of casinos and not do that.”
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¶9 On appeal, Winkel renews his objections to these two sentencing conditions. We
affirm.
STANDARD OF REVIEW
¶10 In our recent decision in State v. Ashby, we announced a dual standard of review
for probation conditions. State v. Ashby, 2008 MT 83, ¶ 9, ___ Mont. ___, ¶ 9, ___ P.3d
___, ¶ 9. First, we review a sentencing condition for legality, which is a question of law
that we review de novo. Ashby, ¶ 9. Next, we review the reasonableness of the condition
to determine whether the district court has abused its discretion. Ashby, ¶ 9.
DISCUSSION
¶11 Under § 46-18-202(1)(f), MCA, a judge may impose restrictions or conditions on
a suspended sentence which are “reasonably related to the objectives of rehabilitation and
the protection of the victim and society.” Section 46-18-202(1)(f), MCA. A condition is
“reasonably related to the objectives of rehabilitation and the protection of the victim and
society,” § 46-18-202(1)(f), MCA, if it has “some correlation or connection to the
underlying offense for which the defendant is being sentenced.” State v. Ommundson,
1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11. The objectives of a
condition must be: “(1) to rehabilitate the offender by imposing restitution or requiring
treatment so that he or she does not repeat the same criminal conduct that gave rise to the
sentence; and (2) to protect society from further similar conduct.” Ommundson, ¶ 11. In
Ashby, we expanded the rule in Ommundson to uphold conditions of probation “so long
as the condition has a nexus to either the offense for which the offender is being
sentenced, or to the offender himself or herself.” Ashby, ¶ 15. However, we cautioned
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that an offender-related condition may only be imposed when the “history or pattern of
conduct to be restricted is recent, and significant or chronic.” Ashby, ¶ 15.
¶12 I. Did the District Court err in prohibiting Winkel, as a condition of his
suspended sentence, from possessing or consuming alcohol or other intoxicants?
¶13 The District Court attached the following condition to Winkel’s suspended
sentence: “The Defendant shall not possess or consume intoxicants/alcohol, nor will he
enter any place intoxicants are the chief item of sale. He will submit to Breathalyzer
testing or bodily fluid testing for drugs or alcohol as requested by his Probation & Parole
Officer.” Winkel argues that this condition is illegal, because alcohol played no role in
his offense. Further, he attests, he never sold methamphetamine in bars. Finally, Winkel
claims he has no history of alcohol abuse that would affect his rehabilitation.
¶14 Winkel pled guilty to possession of a dangerous drug, methamphetamine. He also
pled guilty to possession of drug-related paraphernalia. The drug-related nature of
Winkel’s offense alone suffices as a sufficient nexus to this condition. This condition,
which prohibits Winkel from possessing or ingesting intoxicants, and requires him to
submit to drug testing, clearly serves the purpose of rehabilitating the offender and
protecting society. Ommundson, ¶ 11.
¶15 The District Court’s restriction on possessing or ingesting intoxicants is especially
appropriate in the instant case. Winkel’s PSI report reveals a long history of chemical
dependency. Winkel began using illegal drugs at age sixteen, when he first tried
marijuana. In a 2002 PSI report, the Columbus Police Department characterized Winkel
as a “regular user” of marijuana and methamphetamine. Winkel also admitted to using
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crystal meth, mushrooms, and hash. Perhaps most troubling is Winkel’s tendency to
minimize his chemical dependency. In the PSI, Winkel reported he had never had any
problems with alcohol use, despite his DUI conviction. Winkel claimed that October 24,
2005, was the first time he had tried meth, despite clear evidence in the record to the
contrary. Winkel’s PSI reflects a pattern of substance abuse that is both recent and
chronic.
¶16 In sum, the District Court’s condition prohibiting Winkel from using intoxicants
has a nexus to both the underlying crime and the offender. Winkel was sentenced for
possession of illegal drugs, thus the condition prohibiting him from using drugs or
alcohol is related to his offense. This nexus to the underlying offense is enough to satisfy
Ommundson. However, given Winkel’s significant history of substance abuse, the no-
intoxicants condition is also justified by a strong nexus to the offender in the instant case.
The condition is within the parameters set by § 46-18-202(1)(f), MCA, because it is
reasonably related to the objectives of rehabilitation and the protection of the victim and
society.
¶17 II. Did the District Court err in prohibiting Winkel, as a condition of his
suspended sentence, from entering any casinos or playing games of chance?
¶18 Section 23-5-119, MCA, requires all casinos offering card games, sports pools,
and video gaming to have a license to serve alcoholic beverages. Section 23-5-119(1),
MCA. As such, all casinos in Montana serve and sell alcohol. By the terms of his
probation, Winkel is prohibited from consuming or possessing alcohol, or entering any
place where i t is the “chief item of sale.” As discussed above, this condition is
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reasonably related to Winkel’s rehabilitation and to the protection of society for two
reasons: (1) it is connected to the drug-related nature of his underlying offense, and (2) it
is called for by his recent and chronic history of substance abuse and chemical
dependency.
¶19 The District Court found that Winkel’s rehabilitation would be jeopardized if he
had access to intoxicants like alcohol. Further, the District Court found that it was
necessary for the protection of society to prohibit Winkel from access to any
intoxicants—whether alcohol or illegal drugs. The additional condition prohibiting
Winkel from entering casinos, where alcohol is universally and conspicuously available,
is consistent with the condition prohibiting him from possessing or consuming
intoxicants. The objectives of this condition meet both prongs of the Ommundson test.
Ommundson, ¶ 11. First, the condition furthers Winkel’s rehabilitation by restricting his
access to intoxicants. Second, it protects society by preventing Winkel from consuming
intoxicants, especially relevant in this case because all of Winkel’s offenses were drug or
alcohol-related.
CONCLUSION
¶20 In conclusion, we uphold both of the challenged conditions of Winkel’s sentence.
The condition restricting Winkel from use of intoxicants has a nexus to both his offense
and the offender himself; thus, it satisfies the requirements of Ommundson and § 46-18-
202(1)(f), MCA. The no-casinos condition is also within the parameters set by § 46-18-
202(1)(f), MCA, and Ommundson. Since alcohol is inseparable from gambling in
Montana casinos, this condition achieves the same objectives of rehabilitation and
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protection. We conclude the District Court did not abuse its discretion by imposing these
conditions upon his sentence. Thus, we affirm the District Court’s sentence.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS
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