January 6 2009
DA 07-0631
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 1
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FORREST SCOTT SMART,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 2006-239
Honorable G. Todd Baugh, 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, Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Ann-Marie McKittrick,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: October 29, 2008
Decided: January 6, 2009
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Forrest Scott Smart (Smart) entered a guilty plea in Montana’s Thirteenth Judicial
District Court to two counts of sexual intercourse without consent. The District Court
accepted the State’s recommendation and sentenced Smart to twenty years in the
Montana State Prison (MSP) with ten years suspended. The court also imposed
numerous conditions on the suspended portion of Smart’s sentence. Smart appeals the
imposition of the condition requiring annual polygraph testing and the conditions
imposing drug and alcohol prohibitions. We reverse in part and affirm in part.
ISSUES
¶2 The issues on appeal are:
¶3 Did the District Court err in requiring polygraph testing as a condition of Smart’s
suspended sentence?
¶4 Did the District Court err in imposing drug and alcohol prohibitions as conditions
of Smart’s suspended sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 In March 2006, Smart was charged with numerous counts of sexual intercourse
without consent, one count of felony intimidation, and one count of felony witness
tampering. These charges stemmed from accusations by two young girls, one of whom
was Smart’s niece, who alleged that he had sexually abused them for several years.
Smart subsequently entered into a plea agreement to two counts of sexual intercourse
without consent and the State agreed to dismiss the remaining charges. With the
2
exception of two irrelevant conditions, the plea agreement did not address conditions to
be imposed during the suspended portion of Smart’s sentence.
¶6 On October 29, 2007, the District Court held a sentencing hearing at which the
parties presented arguments regarding probation conditions. At the hearing, Smart
objected to the proposed imposition of a polygraph testing condition on the grounds that
polygraph test results are not admissible in Montana’s courts and that his health problems
would make such testing particularly unreliable. He also objected to imposition of
prohibitions on drinking and drug use and on entry into bars because these conditions
lacked a factual nexus to his offenses. The District Court nonetheless imposed these
challenged conditions when it sentenced Smart to twenty years at MSP, with ten years
suspended. Smart appeals the three challenged probation conditions.
STANDARD OF REVIEW
¶7 We review challenges to sentencing conditions using a two-prong test. First, we
review for legality; then, because § 46-18-201(4)(o), MCA, authorizes sentencing judges
to impose conditions on deferred or suspended sentences that constitute “reasonable
restrictions or conditions considered necessary for rehabilitation or for the protection of
the victim or society,” the “reasonableness” of such conditions will be reviewed for an
abuse of discretion. State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164,
¶ 9.
DISCUSSION
¶8 Did the District Court err in requiring polygraph testing as a condition of Smart’s
suspended sentence?
3
¶9 As noted above, at the sentencing hearing, the District Court imposed a condition
that required Smart to “submit to annual polygraph testing, if requested as part of Sex
Offender Treatment or Aftercare.” (Italics in original.) Smart objected but the court
overruled his objection. On appeal, Smart argues that Montana law prohibits the use of
polygraph results in judicial proceedings; therefore, imposition of this requirement was
illegal. As an illegal condition, Smart asserts, it should be stricken.
¶10 The State argues that polygraph testing of sexual offenders helps treatment
providers overcome high rates of dishonesty, denial and minimization among the
offenders. Relying on State v. Fogarty, 187 Mont. 393, 610 P.2d 140 (1980) (overruled
in part on other grounds, State v. Burke, 235 Mont. 165, 171, 766 P.2d 254, 257 (1988)),
the only Montana case at the time this appeal was presented that dealt with polygraph
testing as a condition of probation, the State argues that the polygraph testing imposed on
Smart was lawful. In Fogarty, we explained that only an offender’s probation officer, not
the county attorney or police, can request a polygraph examination, and adverse
examination results, “in and of themselves,” should not be sufficient to cause the
revocation of probation. Fogarty, 187 Mont. at 417, 610 P.2d at 154.
¶11 While the State appropriately points us to Fogarty, we addressed this issue more
recently in State v. Hameline, 2008 MT 241, 344 Mont. 461, 188 P.3d 1052. In
Hameline, after summarizing relevant cases in which we held that polygraph examination
results were not admissible in court proceedings or sentencing hearings, we held that a
district court may impose a polygraph examination requirement on a defendant for sex
offender treatment purposes. We noted that Hameline presented no authority under
4
which “we have held that requiring a person to undergo a polygraph test is, in and of
itself, illegal,” nor did he cite legal authority prohibiting a court from requiring
therapeutic polygraph testing. Hameline, ¶¶ 19-20.
¶12 We further noted in Hameline that, as a condition of Hameline’s probation, the
district court required Hameline to be in either an approved and certified sex offender
treatment program or an aftercare program during the entirety of his sentence. Hameline,
¶ 20. Similarly, Smart is required to remain in Aftercare or Relapse Prevention Class for
the entirety of his supervision unless expressly released by his probation officer and
therapist. Under Fogarty and Hameline, we conclude the District Court did not err in
imposing a therapeutic polygraph testing condition on Smart’s sentence.
¶13 Did the District Court err in imposing drug and alcohol prohibitions as conditions
of Smart’s suspended sentence?
¶14 Smart argues that the District Court’s inclusion of drug and alcohol prohibitions
was erroneous because such conditions have no nexus to his offense or to him as an
offender. He asserts that a sentencing court may impose only those probation conditions
“reasonably related to the objectives of rehabilitation and the protection of the victim and
society.” Section 46-18-202(1)(f), MCA. He maintains, and the State does not dispute,
that he has no substance abuse problems and that his offenses were not related to
substance abuse. The Pre-Sentence Investigation corroborates Smart’s claim and states
that neither the current charges nor his arrest records indicate that any prior offenses were
related to the use of illegal drugs or alcohol. Smart argues that the imposition of these
conditions was impermissible, invalid and an abuse of the District Court’s discretion.
5
¶15 The State counters that requiring a recidivist sex offender to refrain from alcohol
use is reasonably related to rehabilitation and public safety. It asserts that “[t]he issue is
not whether Smart can control his alcohol use; the issue is whether he should be given the
right to consume a substance that is known to reduce sexual impulse control, even when
consumed in moderate amounts.” The State maintains that such a restriction is well
within the bounds of reason and should be affirmed.
¶16 Again, we have recently decided a relevant case, State v. Krueger, 2008 MT 265,
345 Mont. 147, 190 P.3d 318. Krueger, after entering a guilty plea for felony sexual
assault, appealed the sentencing court’s imposition of alcohol restrictions. We noted that
“nothing in the record ties alcohol use to the sexual assault offense.” Krueger, ¶ 7.
Additionally, Krueger’s PSI stated that Krueger was “not much of a drinker” and that
alcohol was “never a problem.” Krueger, ¶ 7. Relying on Ashby, we reversed the
alcohol-related condition stating that, like Ashby, Krueger did not use alcohol during the
commission of his offense and he had no history of alcohol abuse. We opined that such a
restriction was not justified on the ground of rehabilitation because the sentencing court
cannot “rehabilitate a non-existing problem.” Krueger, ¶¶ 9-10. As in Krueger, the
District Court here did not establish a nexus between alcohol abuse and Smart’s crimes
nor did it establish a nexus between any of Smart’s personality traits and the use of
alcohol by him. Under these circumstances, the District Court erred in imposing the
alcohol-related restriction.1
CONCLUSION
1
In any event, use of illegal drugs is a crime in and of itself.
6
¶17 Having determined that the alcohol-related restrictions are not “reasonably
related” to Smart’s sexual offenses nor are they necessary to promote rehabilitation since
Smart does not have a history of significant or chronic alcohol abuse, we reverse and
remand with instruction to the District Court to strike the alcohol conditions from Smart’s
sentence. However, we affirm the inclusion of the polygraph examination for the reasons
set forth above.
/S/ PATRICIA COTTER
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS
7