State v. Brinson

June 9 2009

DA 07-0392

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 200

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CHANCE LEMAR BRINSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2005-553
Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Katie Irene Olson, Jasper, Smith Olson, P.C., Missoula, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney, Suzy Boylan,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: April 1, 2009

Decided: June 9, 2009

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to a plea agreement, Chance Brinson pleaded guilty in September 2006

to one count of sexual intercourse without consent, a felony, in violation of § 45-5-503,

MCA. The Fourth Judicial District Court, Missoula County, then sentenced him to the

Montana State Prison for 20 years, with 10 years suspended. In addition, the court

imposed 56 terms and conditions on the suspended portion of the sentence. Thereafter,

Brinson filed two motions to withdraw his guilty plea, which the District Court

summarily denied.

¶2 Brinson now appeals, contending that the District Court erred in denying his

motions to withdraw his guilty plea. Brinson also challenges three of the terms and

conditions of his sentence. We affirm.

ISSUE 1: Brinson’s motions to withdraw his guilty plea

¶3 We review a district court’s denial of a motion to withdraw a guilty plea de novo.

State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, 114 P.3d 254. The question of

whether a plea was entered voluntarily is a mixed question of law and fact, which we

review de novo. State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057.

¶4 In the Plea Bargain Agreement, the parties agreed to the following sentence as the

appropriate disposition of the case:

Count 1: A maximum of 20 years all suspended on the condition
that the Defendant complete a sex offender evaluation with an MSOTA
[Montana Sexual Offender Treatment Association] qualified evaluator and
that the evaluator concludes that the Defendant is a low risk to reoffend and
can be treated in the community. In the event the evaluator concludes the
defendant is not a low risk to re-offend and/or cannot be treated in the

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 community, the State and Defendant will be free to argue for an appropriate
sentence.

¶5 The District Court accepted Brinson’s guilty plea on September 14, 2006, and

ordered a presentence investigation report (PSI). Meanwhile, Brinson obtained two

psychosexual evaluations. The first evaluation (the Clodfelter Evaluation), dated October

23, 2006, was prepared by an MSOTA-qualified evaluator (Lindsay Clodfelter) who

concluded that Brinson should be designated a level 2 offender, i.e., a “moderate risk” of

a repeat sexual offense. The second evaluation (the Zook Evaluation), dated December

20, 2006, was prepared by a non-MSOTA-qualified evaluator (Donna Zook) who

concluded that Brinson should be designated a level 1 offender, i.e., a “low risk” of a

repeat sexual offense. See § 46-23-509(2), MCA. The probation/parole officer who

prepared the PSI reviewed both evaluations and recommended that Brinson be designated

a level 2 offender and that he be sentenced to the Montana State Prison for 20 years with

10 years suspended.

¶6 At the sentencing hearing, the District Court interpreted the plea agreement as

follows: If an MSOTA evaluator concludes that Brinson is a level 1 offender (low risk to

reoffend), then the agreement is binding, but if an MSOTA evaluator gives a designation

higher than level 1, then each side may argue for the appropriate sentence. Thus, the

court reasoned that since the only MSOTA evaluation provided to the court stated that

Brinson was a level 2 offender (moderate risk to reoffend), the 20-year, all-suspended

sentence contained in the plea agreement was not binding. Notably, defense counsel

stated that he “regret[ted]” having included the MSOTA language in the plea agreement,

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but he acknowledged that the prosecutor could argue any sentence that she felt was

appropriate. The District Court ultimately adopted the sentencing recommendations in

the PSI and sentenced Brinson to 20 years at the Montana State Prison with 10 years

suspended.

¶7 Brinson argues on appeal that his plea was not voluntary and that involuntariness

constitutes “good cause” for withdrawing a plea. Furthermore, citing State v. Deserly,

2008 MT 242, ¶ 15, 344 Mont. 468, 188 P.3d 1057, and State v. Lone Elk, 2005 MT 56,

¶ 21, 326 Mont. 214, 108 P.3d 500, he argues that a defendant’s plea is not voluntary if it

was induced, “however slightly,” by misrepresentation, including unfulfilled or

unfulfillable promises. Brinson claims that such circumstances occurred here and,

therefore, that he should have been allowed to withdraw his guilty plea. Specifically, he

explains that he pleaded guilty with the understanding that the Zook Evaluation, in which

he was found to be a level 1 offender, would “carry the same weight” at sentencing as the

Clodfelter Evaluation, in which he was found to be a level 2 offender. Yet, according to

Brinson, the Zook Evaluation turned out to be “useless” because Zook was not MSOTA

qualified. Brinson thus contends that his belief that the sentencing judge would accept

the Zook Evaluation and impose the sentence contained in the plea agreement was “an

unfulfillable promise.” Brinson further argues that, “by some degree, ‘however slight,’ ”

his attorney misled him (albeit “unintentionally”) into thinking that the Zook Evaluation

would satisfy the terms of the plea agreement. Thus, Brinson concludes that he was

induced by a misrepresentation and an unfulfillable promise to change his plea to guilty

and that his plea, therefore, was not voluntary.

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¶8 Brinson is correct that involuntariness constitutes “good cause” for withdrawal of

a guilty plea under § 46-16-105(2), MCA. See Lone Elk, ¶ 19. Brinson is also correct

that a defendant’s plea of guilty is not voluntary if the court, the prosecutor, defense

counsel, or some other party induced the plea by threats (or promises to discontinue

improper harassment), misrepresentation (including unfulfilled or unfulfillable promises),

or promises that are by their nature improper as having no proper relationship to the

prosecutor’s business (e.g., bribes). See Deserly, ¶ 12; Lone Elk, ¶ 21; Brady v. United

States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970). But the “however slightly”

standard that Brinson accurately quotes from Deserly, ¶ 15, and Lone Elk, ¶ 21, is not

correct.

¶9 In Warclub, we explained that the Court in Lone Elk had inadvertently adopted the

“however slightly” language from a portion of the Brady opinion in which the Supreme

Court discussed Bram v. United States, 168 U.S. 532, 18 S. Ct. 183 (1897), and the

voluntariness of confessions, not guilty pleas. See Warclub, ¶ 18 and n. 1; see also e.g.

State v. Reavley, 2003 MT 298, ¶ 16, 318 Mont. 150, 79 P.3d 270. We stated that our

intention in Lone Elk had been to adopt Brady’s standard for the voluntariness of guilty

pleas, but without incorporating Bram’s “however slight” standard for the voluntariness

of confessions. See Warclub, ¶ 18; accord State v. Leitheiser, 2006 MT 70, ¶¶ 18-19,

331 Mont. 464, 133 P.3d 185. Nevertheless, we recently quoted the “however slightly”

language from Lone Elk in Deserly, ¶¶ 15, 19.1 Although this language was not critical to

1
The State brought this to our attention in its response brief in State v. Crawford
(No. 08-0210), filed October 14, 2008.

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our decision in Deserly, it was, in any event, incorrect. Accordingly, so as to eliminate

any further confusion and inconsistency in this area of law, we again disapprove the

“however slightly” language contained in Deserly, ¶¶ 15, 19, and Lone Elk, ¶¶ 21, 22, and

we overrule these two cases on this specific point.

¶10 Our reaffirmation that the “however slightly” standard does not apply to the

analysis of a plea’s voluntariness does not change our decision in this case. As the State

correctly points out, Brinson’s decision to plead guilty could not have been influenced in

any way by the Zook Evaluation or any expectation arising out of that evaluation for the

simple reason that he signed the plea agreement and entered his plea of guilty before any

psychosexual evaluation had been completed.2 Indeed, Brinson acknowledges that he did

not even request an evaluation by Zook until after he had received the Clodfelter

Evaluation in October 2006 (a month after he had entered his guilty plea).

¶11 Brinson asserts that when he entered into the plea agreement, he was “armed with

the good faith belief” that he would be designated a low risk to reoffend. Brinson further

asserts that after receiving the Zook Evaluation, his “reasonable expectation of the

potential of a suspended sentence was bolstered.” As we explained in Deserly, however,

the issue is whether, at the time the defendant entered his guilty plea, he was induced to

do so by any of the circumstances contemplated by Brady or Lone Elk. Deserly, ¶ 18.

Any sentencing expectations that arise subsequent to his change of plea do not determine

2
Brinson pleaded guilty on September 14, 2006. According to Clodfelter’s report,
she reviewed the public defender’s file on September 8 and first interviewed Brinson on
September 22. Her final report is dated October 23. According to Zook’s report, she met
with Brinson on December 9, and her report is dated December 20.

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whether the plea was voluntary at the time it was entered. Thus, the fact that Brinson’s

expectations were “bolstered” three months after he entered his guilty plea is totally

irrelevant to whether his plea was voluntary at the time it was entered.

¶12 Furthermore, we explained in State v. Humphrey, 2008 MT 328, 346 Mont. 150,

194 P.3d 643, that “while a defendant’s subjective perceptions shed light on his state of

mind, which in turn bears on the voluntariness of his plea, allegations of having had

certain mental impressions at the time of the plea must be supported by objective proof in

the record.” Humphrey, ¶ 23. Here, the plea agreement clearly states that a sentence of

20 years, all suspended, is the appropriate sentence “on the condition that the Defendant

complete a sex offender evaluation with an MSOTA qualified evaluator and that the

evaluator concludes that the Defendant is a low risk to reoffend and can be treated in the

community” (emphasis added). While Brinson may have had a “good faith belief” that

he ultimately would be designated a low risk to reoffend, he has presented no objective

proof that he was assured of receiving this designation. The plea agreement contains no

such guarantee. To the contrary, it explicitly contemplates that a “low risk” designation

may not be forthcoming: “In the event the evaluator concludes the defendant is not a low

risk to re-offend and/or cannot be treated in the community, the State and Defendant will

be free to argue for an appropriate sentence.” And as for Brinson’s purported belief, at

the time he pleaded guilty, that an evaluation prepared by a non-MSOTA-qualified

evaluator would satisfy the condition contained in the plea agreement (which required an

MSOTA-qualified evaluator), Brinson has not shown with objective proof that this belief

was reasonably justified. Humphrey, ¶ 23.

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¶13 Brinson has not persuaded us that his plea was involuntary because it was induced

by a misrepresentation or an unfulfillable promise. Accordingly, we hold that the District

Court did not err in denying his motion to withdraw his guilty plea.

ISSUE 2: Brinson’s Sentencing Challenges

¶14 When this Court reviews a condition on a deferred or suspended sentence, the

threshold question is whether the condition is legal. State v. Nelson, 2008 MT 359, ¶¶ 19,

27, 346 Mont. 366, 195 P.3d 826 (citing State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187,

179 P.3d 1164). If the condition is legal, we then determine whether the district court

abused its discretion in imposing the condition. Nelson, ¶ 20 (citing Ashby, ¶ 9).

¶15 Brinson challenges three of the terms and conditions of his sentence:

Unnumbered Condition: “[A]ny contact the Defendant has with his daughter shall
be supervised until such time as a counselor makes a different recommendation.”

Condition 46: “The Defendant will not view television shows or motion pictures,
which are geared toward his/her sex offending cycle, or as a stimulus to arouse
deviant thoughts or fantasies. (i.e., shows based on sexualization of underage girls
or boys, etc.).”

Condition 48: “The Defendant will not have a cell phone, or such other
technology/device, with photo, video, or Internet capabilities allowed. If a cell
phone is used, all bills and records will be made available to the supervising
officer.”

¶16 Under §§ 46-18-201(4)(n) and -202(1)(f), MCA (2003),3 a sentencing court may

impose on a deferred or suspended sentence any reasonable restrictions or conditions that

are necessary and reasonably related to the objectives of rehabilitation or the protection

3
Brinson committed the charged offense in September 2005. The law in effect at
the time an offense is committed controls as to the possible sentence for the offense.
State v. Brister, 2002 MT 13, ¶ 26, 308 Mont. 154, 41 P.3d 314; accord State v. Striplin,
2009 MT 76, ¶ 30, 349 Mont. 466, 204 P.3d 687.

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of the victim and society. We have upheld two types of sentencing conditions under

these provisions: those which limit a defendant’s conduct and those requiring payment of

restitution to a victim of the offense. See State v. VanWinkle, 2008 MT 208, ¶ 13, 344

Mont. 175, 186 P.3d 1258; State v. Stiles, 2008 MT 390, ¶ 14, 347 Mont. 95, 197 P.3d

966. The three conditions Brinson challenges here limit his conduct as contemplated by

§§ 46-18-201(4)(n) and -202(1)(f), MCA. Accordingly, they are legal conditions of

sentence. Stiles, ¶ 14.

¶17 We apply a nexus test to determine whether a district court abused its discretion in

imposing the challenged sentencing condition. Stiles, ¶ 13. Specifically, we will strike a

condition if it lacks a nexus either to the offense for which the offender is being

sentenced or to the offender himself or herself. Ashby, ¶ 15. Moreover, with respect to

offender-related conditions, sentencing courts may impose such conditions only where

the history or pattern of conduct to be restricted (e.g., alcohol or drug abuse) is “recent,

and significant or chronic.” Ashby, ¶ 15.

¶18 Here, with respect to the condition stating that any contact Brinson has with his

underage daughter (born in September 1997) must be supervised until such time as a

counselor makes a different recommendation, we note that Brinson initially objected to

this condition but ultimately agreed that it “makes sense.” Specifically, he stated

(through counsel): “I would agree supervised visitation on an interim basis until -- until a

professional was satisfied that unsupervised visitation was appropriate makes sense.”

Whether Brinson withdrew his objection is somewhat unclear. But, in any event, while

he contends that he “has not been found to have any sexual inclinations toward his

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daughter” and that his daughter “was in no way involved in the underlying matter,” we

agree with the State that this condition bears a nexus to his offense of sexual intercourse

without consent. That offense involved a 14-year-old girl (Brinson was 34 at the time),

and Brinson has been designated a level 2 offender, which means there is a “moderate”

risk of a repeat sexual offense. Section 46-23-509(2)(b), MCA.

¶19 As for Condition 46, which prohibits Brinson from watching certain types of

television shows or motion pictures, and Condition 48, which limits his use of cell phones

and other such devices with photo, video, or Internet capabilities, Brinson makes a brief

and largely conclusory argument that these conditions are “overbroad” and have no nexus

to him or to his underlying offense. As the State points out, however, these conditions

were discussed during the sentencing hearing. The court explained that Brinson would

violate Condition 46 “if there’s some similarity between what he’s watching and what

happened in this case.” The court further clarified with regard to Condition 48 that

Brinson was not prohibited from using a cell phone for employment purposes and that the

probation officer could have access to his phone records simply to verify that the phone

was not being used for improper purposes. We agree with the State that such restrictions

have a nexus to Brinson’s sexual offense and that these limitations on his ability to access

and view pornographic material are reasonably related to the objectives of his

rehabilitation. Indeed, Brinson stated (through counsel) at the sentencing hearing: “I

would agree that [Brinson] needs to avoid pornography and -- and shows like that.”

¶20 We conclude that the District Court did not abuse its discretion in imposing the

three conditions challenged by Brinson.

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¶21 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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