December 6 2011
DA 11-0278
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 304N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PAUL D. LAMERE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 06-0695
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Paul Dewayne Lamere, self-represented; Deer Lodge, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mark W. Mattioli,
Appellate Services Bureau Chief; Helena, Montana
Scott Twito, Yellowstone County Attorney; Rod Souza, Deputy
County Attorney; Billings, Montana
Submitted on Briefs: October 19, 2011
Decided: December 6, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Paul Dewayne Lamere appeals the April 26, 2011 order of the Thirteenth Judicial
District Court denying his motion for credit for time served and denying his motion to
amend the judgment by striking conditions of his sentence for burglary. We affirm.
¶3 Yellowstone County charged Lamere with Burglary and Attempted Sexual
Intercourse Without Consent in September 2006. Lamere was released on bond and
required to comply with electronic monitoring. In the meantime, Cascade County
initiated proceedings to revoke Lamere’s suspended sentence from a 2003 theft
conviction. On July 19, 2007, the Eighth Judicial District Court revoked that sentence
and sentenced him to five years, with three suspended.
¶4 Pursuant to a plea agreement, Lamere pleaded guilty to the Yellowstone County
burglary charge in exchange for dismissal of the attempt charge. Lamere admitted to
entering the home of an eighty-two-year-old woman with the purpose of sexually
assaulting her. In the plea agreement, Lamere agreed to complete Phase I of sex offender
treatment. The agreement did not require Lamere to register as a sex offender under
§ 46-23-512, MCA.
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¶5 On April 15, 2009, the District Court sentenced Lamere to forty-five years in
prison with ten years suspended. Adhering to the recommendation from Lamere’s
psychosexual evaluation, the District Court ordered Lamere be designated a Level II
offender under § 46-23-509(3)(b), MCA. Lamere appealed the designation to this Court
on the ground that burglary is not a sexual offense under § 46-23-502(9)(a), MCA. In our
Order of March 3, 2010, we remanded to the District Court “for the limited purpose of
striking the sexual offender risk designation from Lamere’s sentence.”
¶6 In May 2010, Lamere moved to amend the judgment to include an additional 930
days’ credit for time served on “home arrest.” In February 2011, following the District
Court’s order striking Lamere’s Level II sex offender designation, Lamere moved to
strike nine additional provisions of the April 2009 judgment and sentence, including sex
offender treatment and other limitations on his access to sexual materials. Lamere filed
another motion in March 2011, claiming credit for time served related to the Cascade
County proceeding to revoke his probation on the theft conviction.
¶7 The District Court addressed Lamere’s motions in its April 26, 2011 Order. The
court noted Lamere’s successful appeal to the Montana Supreme Court resulted in
striking the sexual offender designation and held he was barred from now seeking
removal of additional conditions from the judgment. Regarding Lamere’s motion for
additional credit for time served, the District Court concluded Lamere was entitled to
receive credit only for jail time served in connection with the Yellowstone County
burglary charge.
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¶8 The District Court correctly observed Lamere failed to raise on direct appeal any
issues regarding the conditions of his sentence. Moreover, Lamere agreed in his written
plea agreement to complete sex offender treatment while incarcerated. Finally, though
the sexual offender risk designation was appropriately stricken from the sentence, the
circumstances of the crime and the psychosexual evaluation indicate the additional
conditions are appropriate. A district court may fashion sentence conditions which have
either a nexus to the offense for which the offender is being sentenced, or to the offender
himself. State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164. Here, there is
a clear nexus between Lamere’s burglary offense and the conditions imposed. Lamere’s
stated intention to sexually assault an elderly woman merits the court’s imposition of sex
offender-related conditions.
¶9 We also reject Lamere’s claim for additional credit against his prison sentence.
Home arrest is a component of a sentence already imposed, rather than a condition of
pretrial release. Sections 46-18-1002, 46-18-203(7)(b), MCA. “‘Home arrest’ is a
procedure for serving a suspended sentence and [the law] ‘does not require that [the
defendant] receive credit for the time he spent on formal house arrest as a condition of his
pretrial release.’” State v. Makarchuk, 2009 MT 82, ¶ 37, 349 Mont. 507, 204 P.3d 1213.
Although Lamere was subjected to electronic monitoring, he was not confined to his
home and the monitoring occurred as a condition of his release on bond prior to
sentencing. He was not entitled to credit for that time.
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¶10 The District Court credited Lamere with the time he served at the Yellowstone
County Detention Facility from August 24, 2006, through September 5, 2006. The court
found Lamere’s incarceration after that point was incurred in connection with the Eighth
Judicial District Court’s sentence and had to be addressed in that matter. Lamere offers
no evidence from that proceeding or legal authority to support his claim for credit due to
time spent in jail on the Cascade County offense and we conclude he has failed to meet
his burden of proving error by the District Court.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
¶12 Affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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