State v. Hernandez

October 20 2009

DA 08-0501

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 341

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DAVID REKO HERNANDEZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 07-0391
Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant
Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Ann Marie McKittrick,
Deputy County Attorney, Billings, Montana

Submitted on Briefs: September 10, 2009
Decided: October 20, 2009

Filed:

__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 David Reko Hernandez was convicted in the Thirteenth Judicial District Court,

Yellowstone County, of sexual assault on a child. He was sentenced to serve twenty-five

years at Montana State Prison with the last ten years of the sentence suspended and was

designated a Level III Offender and a Sexually Violent Predator. Hernandez appeals

from the imposition of a condition on his suspended sentence which restricts his entering

into some financial transactions.

¶2 In its sentencing order, over the objection of Hernandez, the District Court

ordered, as a condition of the suspension of the last ten years of his sentence, that:

The Defendant will obtain permission from his Probation & Parole Officer
before financing or purchasing a vehicle, property, or engaging in business.
The Defendant will not go into debt without his Probation & Parole
Officer’s permission. Restitution, child support, fines, and fees will be the
Defendant’s priority financial obligations.

Hernandez appeals the District Court’s imposition of this condition on his suspended

sentence.

¶3 Generally, we review a criminal sentence for legality only; that is, whether the

sentence falls within the statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 5, 335

Mont. 344, 151 P.3d 892. A sentencing judge may impose upon the offender reasonable

restrictions or conditions considered necessary for rehabilitation or for the protection of

the victim or society. Sections 46-18-201(4)(o), -202(1)(f), MCA. While this Court

generally reviews a sentence for legality only, we may review the reasonableness of

conditions imposed under §§ 46-18-201(4)(o), -202(1)(f), MCA, for abuse of discretion,
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if the conditions are objected to at sentencing. State v. Ashby, 2008 MT 83, ¶¶ 9, 22, 342

Mont. 187, 179 P.3d 1164. For a condition to be reasonable, it must have a nexus to

either the offender or the offense. Ashby, ¶ 15. Hernandez argues on appeal that because

the condition of his suspended sentence restricting financial transactions has no nexus to

either himself or to the offense, the District Court erred in imposing it.

¶4 The condition on Hernandez’s suspended sentence at issue here was not imposed

under § 46-18-201(4)(o) or under § 46-18-202(1)(f), MCA. Rather, it was imposed under

the legislative authority in § 46-23-1002(3), MCA, which provides that the Montana

Department of Corrections has the power to:

[A]dopt rules for the conduct of persons placed on parole or probation,
except that the department may not make any rule conflicting with
conditions of parole imposed by the board or conditions of probation
imposed by a court.

Section 46-23-1002(3), MCA.

¶5 ARM 20.7.1101(6) provides that as a condition of probation:

The offender must obtain permission from his/her supervising officer
before engaging in business, purchasing real property, purchasing an
automobile, or incurring a debt.

¶6 The condition on Hernandez’s suspended sentence, that he obtain the permission

of his supervising officer before engaging in certain financial transactions, is authorized

by statute and rule. Thus, the Ashby requirement of a nexus to the offender or to the

offense does not apply. Ashby, ¶ 14-15.

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¶7 Section 46-23-1002(3), MCA, provides that a standard condition of probation

which the Department of Corrections adopts by rule, may not conflict with conditions

imposed by a sentencing court. Thus, a standard condition adopted by the Department of

Corrections will be included as a condition of a probationary sentence unless the District

Court determines, in the exercise of its discretion, that a standard condition is

inappropriate under the sentence it is imposing. We will review the sentencing judge’s

conclusion that a standard condition should or should not be imposed for an abuse of

discretion. An abuse of discretion occurs when a district court acts arbitrarily without

conscientious judgment or exceeds the bounds of reason. State v. McLaughlin, 2009 MT

211, ¶ 9, 351 Mont. 282, 210 P.3d 694.

¶8 Hernandez’s only objection to the imposition of the condition in question was that

it is not related to his offense. He offered nothing which indicated that such condition

would impose a hardship on him. The sentencing judge considered the facts that

Hernandez’s priority financial obligations while serving the suspended portion of his

sentence would be restitution, child support, fines, and fees; that his probation officer

could authorize any reasonable financial transaction; and that oversight was appropriate

because his handling money and material possessions could cause Hernandez problems

while on probation. Thus, the District Court declined to delete the condition of probation

that Hernandez must obtain permission from his Probation & Parole Officer before

financing or purchasing a vehicle or property, engaging in business, or incurring debt.

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We conclude that the District Court did not act arbitrarily without conscientious judgment

or exceed the bounds of reason in imposing such condition.

¶9 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BRIAN MORRIS

Chief Justice Mike McGrath specially concurs.

¶10 For the purposes of this opinion, I concur with the majority.

¶11 However, I believe that the authority to impose sentences for felony convictions

lies within the exclusive power of the district courts. See § 46-18-103, MCA. And the

Legislature has provided the Sentence Review Division for the exclusive review of

legally authorized felony sentences. Sections 46-18-901 through -905, MCA. This Court

described the sentence review process in Ranta v. State, 1998 MT 95, ¶ 27, 288 Mont.

391, 958 P.2d 670:

[The sentence review procedure] functions as an appellate process because
it is the only opportunity a criminal defendant has to challenge an otherwise
lawful sentence on equitable grounds. See State v. Simtob (1969), 154
Mont. 286, 288, 462 P.2d 873, 874. In conducting its review, the Sentence
5
 Review Division functions as an arm of this Court. Section 46-18-901,
MCA. Were the legislature to abolish the review division, the function of
reviewing sentences on equitable grounds would thus simply return to this
Court. Additionally, like decisions issued directly by this Court, the
decisions of the review division are final, cannot be appealed, and are
reported in the Montana Reports. Section 46-18-905, MCA.

See also State v. Triplett, 2008 MT 360, ¶ 27, 346 Mont. 383, 195 P.3d 819.

¶12 The traditional standard of review of sentences by this Court was for legality only.

State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937. In State v.

Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, 974 P.2d 620, overruled in part, State v.

Herman, 2008 MT 187, ¶ 12, 343 Mont. 494, 188 P.3d 978 (overruling abuse of

discretion standard of review outside of certain exceptions), this Court held that for a

condition of sentence to be reasonable under § 46-18-202, MCA, it must have some

“correlation or connection to the underlying offense.” The Court has entertained

numerous challenges since. Then in State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187,

179 P.3d 1164, this Court adopted a new standard of review, first reviewing a sentence

condition for legality, then reviewing “reasonableness” factors for abuse of discretion.

The Court further expanded Ommundson’s nexus rule to include a connection to either

the offense or the offender, rather than to the offense alone. Ashby, ¶¶ 7, 15. I would

overrule Ommundson and its progeny and return to the standard that reviews felony

sentences for legality only.

¶13 Conditions of probation are often designed to benefit the offender. Offenders do

not have a constitutional right to a suspended sentence or probation. Rather, conditions

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of a sentence or probation are designed to provide rehabilitation and protect the public.

Section 46-18-101, MCA.

¶14 A felony sentence necessarily involves consideration of a number of factors, most

all of which are subjective. Article II, § 28 of the Montana Constitution provides that

laws for the punishment of a crime shall be founded on the principles of prevention,

reformation, public safety, and restitution for victims. Section 46-18-101, MCA,

establishes the correctional and sentencing policy of the State of Montana: a broad array

of aspirations that include punishment commensurate with the crime, protection of the

public, victim restitution, and opportunities for offender rehabilitation. State policy is

designed to “encourage and provide opportunities for the offender’s self-improvement to

provide rehabilitation and reintegration of offenders back into the community.” Section

46-18-101(2)(d), MCA. A lengthy list of principles is provided by the Legislature to

achieve these policies. Section 46-18-101(3), MCA.

¶15 All of these factors must be considered by district courts in imposing a sentence.

It is the district court that has direct access to the parties involved, the facts of the case,

the victims, and the community impact. Moreover, it is the district court that can best

determine, based on this information, a course of rehabilitation best suited for the

individual offender. It is a difficult and demanding responsibility. Sentencing discretion

by necessity must be very broad.

¶16 The Legislature has created the process to review sentences. Hernandez did not

apply to the Sentence Review Division to review the conditions of his sentence, nor has
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he argued that his sentence is illegal. I would overrule Ommundson and dismiss this

appeal for failure to follow proper procedure.

/S/ MIKE McGRATH

Justice James C. Nelson, dissenting.

¶17 I believe that under our current precedents, Justice Cotter’s Dissent (¶¶ 23-27,

infra) sets forth the correct analysis of the sentencing condition at issue here, and I

accordingly join it. In so doing, however, I acknowledge some of the arguments made by

Chief Justice McGrath in his Special Concurrence (¶¶ 10-16, supra).

¶18 As the Chief Justice notes, this Court held in State v. Montoya, 1999 MT 180, 295

Mont. 288, 983 P.2d 937, that we review criminal sentences for legality only. Montoya,

¶ 15. We modified that holding in State v. Herd, 2004 MT 85, 320 Mont. 490, 87 P.3d

1017, upon recognizing that the Sentence Review Division (SRD) has authority to review

only those sentences which consist of a year or more of actual incarceration. Herd, ¶ 21

(citing § 46-18-903(1), MCA). We held that if an offender is sentenced to one year or

more of actual incarceration and thus is eligible for review by SRD, then we will review

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the sentence for legality only, but if the offender is statutorily ineligible for SRD, then we

will review the sentence for both legality and abuse of discretion. Herd, ¶ 22. Here,

Hernandez was sentenced to serve 25 years at the Montana State Prison with the last ten

years of the sentence suspended. Opinion, ¶ 1. As such, he is eligible for SRD and we

should review his sentence for legality only. Herd, ¶ 22; § 46-18-903(1), MCA.

¶19 The problem is that we have no clear test for determining whether a condition of

sentence is legal.1 This Court traditionally reviewed a sentencing condition for legality

by determining whether the condition had “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, 974 P.2d 620. In other words, there had to be a

“nexus” between the condition and the underlying offense. Ommundson, ¶ 12, modified,

State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164 (expanding

Ommundson to include a nexus between the condition and the offender); see also e.g.

Herd, ¶ 17; State v. Armstrong, 2006 MT 334, ¶ 11, 335 Mont. 131, 151 P.3d 46; State v.

Greeson, 2007 MT 23, ¶ 12, 336 Mont. 1, 152 P.3d 695; State v. Marshall, 2007 MT 218,

¶ 20, 339 Mont. 50, 170 P.3d 923. Moreover, where necessary, we applied the abuse of

1
The majority’s assertion that the condition on Hernandez’s suspended sentence is
authorized by § 46-23-1002(3), MCA, is patently false. This statute grants authority to
the Department of Corrections to adopt “rules” for the conduct of persons placed on
probation. The statute does not grant authority to sentencing courts to impose probation
conditions, nor does it state that “rules” adopted by DOC are automatically included as
“conditions” in a court-imposed sentence unless expressly rejected by the court. All
criminal sentences are to be imposed by the sentencing court “exclusively,” see
§ 46-18-103, MCA; and the court’s authority to impose conditions on a suspended
sentence derives from §§ 46-18-201(4) and -202(1), MCA, not § 46-23-1002(3), MCA.
9
discretion standard for determining whether the condition was excessive in terms of

harshness or duration. See e.g. Herd, ¶¶ 17, 24-25 (concluding that the district court

abused its discretion in barring Herd from driving a motor vehicle for 40 years, although

this condition had a nexus to her offense).

¶20 But in State v. Stiles, 2008 MT 390, 347 Mont. 95, 197 P.3d 966, the Court

interpreted Ashby as placing the nexus test under the abuse of discretion prong of our

two-pronged standard of review, see Stiles, ¶ 13, though the Court did not articulate what

test is to be used under the legality prong. Thus, we no longer have a test for reviewing a

sentencing condition for legality. The “correlation or connection” test is what we

presently use to determine whether the sentencing court abused its discretion. As a result,

if we were to limit ourselves to reviewing felony sentences for legality only, as the Chief

Justice suggests (Special Concurrence, ¶ 12), we effectively would conduct no review at

all. In the present case, for instance, we would simply observe that the condition

Hernandez challenges is “similar to” those we reviewed in Ashby and, as such, is legal.

See Stiles, ¶ 14.

¶21 For these reasons, although the Chief Justice’s arguments have some facial appeal,

I conclude that until this Court articulates a sensible test for determining the legality of a

sentencing condition, it is inadvisable to limit our review of conditions to legality only.

Moreover, for the reasons articulated by Justice Cotter here (¶ 26, infra), and given my

arguments in State v. Essig, 2009 MT 340, ¶¶ 39-46, ___ Mont. ___, ___ P.3d ___

10
(Nelson & Cotter, JJ., concurring in part and dissenting in part), I would not employ two

different definitions of “abuse of discretion” when reviewing conditions of sentence.

¶22 I dissent.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter dissents.

¶23 I dissent from several conclusions reached by the Court.

¶24 First, the Court states the condition at issue was imposed not under § 46-18-201 or

-202, MCA, but rather pursuant to § 46-23-1002(3), MCA. Opinion, ¶ 4. However, this

statute confers upon DOC the authority to adopt rules for the conduct of persons placed

on probation; it is not a grant of authority to the court to implement DOC administrative

rules or impose a sentence pursuant to such rules. When sentencing a defendant, a court

remains constrained by the sentencing provisions set forth in Title 46, chapter 18, MCA.

State v. Kampf, 2008 MT 198, ¶ 22, 344 Mont. 69, 186 P.3d 223. This being so, the

Court’s reliance upon § 46-23-1002(3), MCA, for sentencing authority is entirely

misplaced. So too is its statement that a standard condition adopted by DOC may be

deleted from a judgment (see Opinion, ¶ 7), as it wrongly presupposes the routine

inclusion of DOC conditions into a judgment, until and unless specifically removed.

Again, it is the function of the court to sentence pursuant to the sentencing statutes, and

nowhere in those statutes does the Legislature state that a court may cede its sentencing
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responsibility to DOC. Because a court must sentence pursuant to established statutory

authority, the Court’s further conclusion that the sentencing condition in question falls

outside these sentencing statutes and outside of the Ashby nexus requirement as well (see

Opinion, ¶ 6), is wrong. The Ashby nexus requirement is intended to apply to all

conditions a court imposes upon a sentence.

¶25 Turning to Ashby, we have unfortunately injected confusion into our sentencing

jurisprudence by defining an “abuse of discretion” in the context of imposing conditions

of sentence as occurring “when a district court acts arbitrarily without the employment of

conscientious judgment or exceeds the bounds of reason, in view of all the

circumstances . . . .” State v. Nelson, 2008 MT 359, ¶ 20, 346 Mont. 366, 195 P.3d 826,

(quotation omitted).1 The Court perpetuates this confusion here by relying on State v.

McLaughlin, 2009 MT 211, 351 Mont. 282, 210 P.3d 694, for the same proposition.

Opinion, ¶ 7. Notably, McLaughlin is not even a sentencing case; rather, it addresses

abuse of discretion in the context of the admissibility of evidence.

¶26 As we said in Ashby and in State v. Stiles, 2008 MT 390, 347 Mont. 95, 197 P.3d

966, a court abuses its discretion if it imposes a condition upon a sentence which lacks a

nexus to either the offense or the offender. See Ashby, ¶ 9; Stiles, ¶ 13. In the interests of

consistency and simplicity of application, we should use the nexus analysis in

determining whether a court abuses its discretion in imposing a sentencing condition.

Therefore, I disagree with the Court’s reliance at ¶ 7 upon McLaughlin. Moreover, I

1
As the author of Nelson, I accept responsibility for some of this confusion.
12
would reverse Nelson to the limited extent that it endorses the wrong abuse of discretion

standard for application in the context of reviewing sentencing conditions.

¶27 Finally, applying the nexus analysis to the condition at issue, I would conclude

that the District Court abused its discretion in adopting the condition requiring the

defendant to obtain permission from his Probation & Parole Officer before financing or

purchasing items or going into debt, because the condition has no nexus to either the

offense or the offender. Hernandez was not convicted of a financial crime. Moreover, he

was working two jobs and had no debt at the time of the crime, nor did he have any

history of financial irresponsibility. This being the case, the adoption of this condition

was an abuse of the court’s discretion. I would remand with instructions to vacate the

condition. I therefore dissent.

/S/ PATRICIA O. COTTER

Justices James C. Nelson and W. William Leaphart join the Dissent of Justice Patricia O.

Cotter.

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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