State v. Roundstone

September 14 2011

DA 10-0402

IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 227

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JULE CHANCE ROUNDSTONE,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 2008-268
Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Shiloh Hernandez,
Assistant Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney; Melissa Broch,
Deputy County Attorney, Helena, Montana

Submitted on Briefs: May 11, 2011

Decided: September 14, 2011

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Jule Roundstone appeals from the denial of his motion to dismiss and the sentence

for felony escape imposed by the First Judicial District Court, Lewis and Clark County.

We affirm. We address the following issues:

¶2 I. Did the District Court err by denying Roundstone’s motion to dismiss?

¶3 II. Is § 45-7-306, MCA, void for vagueness as applied to Roundstone?

¶4 III. Did the prosecution violate Roundstone’s due process rights by seeking an

unusually severe sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 In 2006, Roundstone was convicted of assault with a weapon and sentenced to a

five-year commitment to the Department of Corrections (DOC or Department). He was

placed at the Montana State Prison (MSP). In March 2007, Roundstone was transferred

to the Helena Prerelease Center (HPRC or prerelease). In July of 2007, while still placed

at HPRC, Roundstone appeared before the Board of Pardons and Parole (Board). The

Board granted his parole conditioned, inter alia, upon successfully completing prerelease

center requirements and obtaining employment. The Board projected Roundstone would

complete the requirements of the prerelease center about September 11, 2007.

Roundstone requested a ten-day furlough to obtain employment in Hardin. Pursuant to

the furlough rules which he signed, Roundstone agreed that he would “report to the

supervising Probation & Parole Officer immediately upon arrival in the community and

daily thereafter as instructed by the officer,” and was warned that “[a]bsconding from
2
furlough or failure to return on time will be considered felony escape.” His Furlough

Request And Permit indicated that he would return to the prerelease center on October 4,

2007 “if necessary,” depending on whether he obtained employment or sought a ten-day

furlough extension. If Roundstone obtained employment while on furlough, his

probation officer would convey this information to the Board, which could issue a parole

certificate, without requiring him to return to HPRC.

¶6 Roundstone’s furlough request was granted, and he was released from the

prerelease center on September 24 for a ten-day period running through October 4.

Roundstone reported to his probation officer, Cotton Secrest, in Hardin on the first day of

his furlough, but failed to report thereafter. On October 9, Secrest initiated arrest

proceedings for Roundstone, who was apprehended in November 2007.

¶7 Roundstone was charged with felony escape pursuant to § 45-7-306, MCA

(2007).1 The Amended Information alleged that Roundstone, “an inmate subject to

official detention with the Montana Department of Corrections, temporarily assigned to

the Helena Pre-Release Center, purposely or knowingly removed himself from official

detention.” The Information also alleged that Roundstone “failed to report to his

Probation and Parole Officer.” The State filed a Notice of Persistent Felony Offender

pursuant to § 46-13-108, MCA, indicating its intention to seek that designation if

Roundstone was found guilty.

1
Issue is not taken by the parties with application of the 2007 version of the escape statute. To
the extent the 2005 version could be applicable to Roundstone’s actions in September 2007, the
statutory language is the same.
3
¶8 Roundstone moved to dismiss the charge, arguing he could not commit escape

because he was not subject to official detention while on furlough. He characterized

furlough as “a program of parole,” which is exempted under the escape statute. The State

responded that Roundstone had inmate status at HPRC, which constituted a community

corrections facility or program, and he was therefore subject to official detention. The

District Court conducted a hearing at which Annette Carter, a State Probation and Parole

Officer and supervisor, testified. The District Court granted Roundstone’s motion as to

his failure to report to his probation officer while he was on furlough, reasoning that

Roundstone was “on a parole-related furlough.” The District Court denied the motion as

to the allegation that Roundstone had “‘removed himself from official detention,’”

reasoning that when Roundstone was released on furlough, he was instructed to return to

HPRC, “a form of ‘official detention.’” Accordingly, the District Court denied

Roundstone’s motion “to the extent that the Amended Information charge[d]

[Roundstone] with failing to report back to official detention” at HPRC.

¶9 The State then moved for leave to file a Second Amended Information “in order to

conform more closely with the Court’s Order.” The Second Amended Information

alleged that Roundstone committed escape by failing to return to official detention at

HPRC following temporary leave for the specific purpose of obtaining employment.

Roundstone pled not guilty to this charge and filed another motion to dismiss, which was

denied. Roundstone filed a petition for writ of supervisory control with this Court

challenging the denial of both motions to dismiss, and we denied the petition.

4
¶10 Roundstone then entered a guilty plea to the charge, reserving the right to appeal

the denial of his motions to dismiss. Roundstone was sentenced to ten years to the DOC,

with five years suspended.

STANDARD OF REVIEW

¶11 “The denial of a motion to dismiss in a criminal case presents a question of law

which we review de novo.” State v. Knowles, 2010 MT 186, ¶ 23, 357 Mont. 272, 239

P.3d 129. The District Court’s denial of Roundstone’s motion to dismiss based on its

interpretation of the escape statute was a conclusion of law. See State v. Chandler, 277

Mont. 476, 478, 922 P.2d 1164, 1165-66 (1996). This Court reviews conclusions of law

for correctness. State v. Knudson, 2007 MT 324, ¶ 11, 340 Mont. 167, 174 P.3d 469.

¶12 “Our review of constitutional questions is plenary.” State v. G’Stohl, 2010 MT 7,

¶ 7, 355 Mont. 43, 223 P.3d 926. Statutes have a presumption of constitutionality, and

we will construe a statute to avoid an unconstitutional interpretation whenever possible.

State v. Samples, 2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803. The party

challenging a statute has the burden of demonstrating the statute is unconstitutional.

G’Stohl, ¶ 7. Ineffective assistance of counsel claims present mixed issues of law and

fact, which are reviewed de novo. State v. Sartain, 2010 MT 213, ¶ 11, 357 Mont. 483,

241 P.3d 1032.

¶13 We review allegations of prosecutorial error de novo, “considering the

prosecutor’s conduct in the context of the entire proceeding.” State v. Rardon, 2005 MT

129, ¶ 14, 327 Mont. 228, 115 P.3d 182.

5
 DISCUSSION

¶14 I. Did the District Court err by denying Roundstone’s motion to dismiss?

¶15 Section 45-7-306(2), MCA, sets forth the crime of escape, providing that “[a]

person subject to official detention commits the offense of escape if the person

knowingly or purposely eludes official detention or fails to return to official detention

following temporary leave granted for a specific purpose or limited time.” Further

defined is “official detention,” the interpretation of which is the central issue in this

appeal. Roundstone argues the District Court erred in denying his motion to dismiss the

escape charge against him because he was not in “official detention” while on furlough.

Alternatively, Roundstone argues that, while on furlough, he should also be considered

on “parole” and therefore exempt from the definition of “official detention.”

A. Official Detention

¶16 Roundstone contends dismissal of the escape charge is required under State v.

Roberts, 275 Mont. 365, 912 P.2d 812 (1996). The State argues that § 45-7-306, MCA,

was substantially amended after Roberts.

¶17 Roberts was an inmate at MSP and was granted parole subject to conditions,

including finding housing and employment. Roberts, 275 Mont. at 366, 912 P.2d at 813.

Roberts was approved for a ten-day furlough from MSP. Roberts, 275 Mont. at 366, 912

P.2d at 813. Roberts failed to meet with his parole officer as scheduled and was charged

with felony escape under § 45-7-306, MCA. Roberts, 275 Mont. at 366, 912 P.2d at 813.

Roberts moved to dismiss the charge arguing that he was not subject to official detention

6
while on furlough. Roberts, 275 Mont. at 366, 912 P.2d at 813. The State contended that

Roberts was in a supervised release program, a category of “‘official detention’” under §

45-7-306(1), MCA. Roberts, 275 Mont. at 367, 912 P.2d at 813. The district court

denied his motion, and he was convicted. Roberts, 275 Mont. at 367, 912 P.2d at 813.

On appeal, we analyzed the supervised release program statutes and administrative rules,

concluding the “term ‘supervised release program’ contained in § 45-7-306(1), MCA,

clearly and unambiguously refers to the supervised release program . . . and not to the

furlough associated with parole proceedings under § 46-23-215, MCA.” Roberts, 275

Mont. at 368, 912 P.2d at 814. Because it was “clear that Roberts was released from the

MSP into the parole-related furlough program and not into the supervised release

program,” we reversed. Roberts, 275 Mont. at 369, 912 P.2d at 815.

¶18 As the State notes, the statutes have been revised since Roberts. Section 45-7-

306(1), MCA (1993), applied in Roberts, defined “‘[o]fficial detention’” as a listing of

imprisonment, confinements, detentions and program placements.2 In 1997, the statute

was amended, and now more broadly defines “‘[o]fficial detention’” to mean the

“placement of a person in the legal custody of a municipality, a county, or the state” as a

2
Section 45-7-306(1), MCA (1993), stated: “‘Official detention’ means imprisonment which
resulted from a conviction for an offense, confinement for an offense, confinement of a person
charged with an offense, detention by a peace officer pursuant to arrest, detention for extradition
or deportation, placement in a community corrections facility or program, supervision while
under a supervised release program, participation in a county jail work program under 7-32-2225
through 7-32-2227, or any lawful detention for the purpose of the protection of the welfare of the
person detained or for the protection of society. ‘Official detention’ does not include supervision
of probation or parole, constraint incidental to release on bail, or an unlawful arrest unless the
person arrested employed physical force, a threat of physical force, or a weapon to escape.”
7
result of, inter alia, an arrest, detention, charge, conviction or program placement.3 See §

45-7-306(1)(a), MCA (emphasis added). Legislative history reveals that one purpose of

the 1997 amendments was to address our decision in Roberts. See Mont. Sen. Jud.

Comm., Minutes of the Hearing on H. Bill 43, 55th Legis., Reg. Sess., Exhibit 5, at 1

(Jan. 29, 1997) (“The 1997 proposed amendments are intended to clarify finally that any

person who has been charged with or convicted of a felony who is under lawful custody

of the state . . . (other than a probationer or parolee) is guilty of felony escape if he

escapes from or fails to return to that custody following temporary leave granted for a

specific purpose. . . . This will also remedy another Montana Supreme Court opinion,

State v. Roberts, in which the Court held that an escape while on a 10-day leave from

MSP to find employment for future parole status did not constitute a felony.”).

Moreover, the supervised release statutes and the administrative rules referenced in

Roberts have all been repealed. See Laws of Montana, 1997, ch. 322, § 15, at 1483; see

also Admin. R. M. 20.7.102, 20.7.103. Thus, Roberts does not control the outcome here.

3
Section 45-7-306(1), MCA (2007) states: “(1) (a) ‘Official detention’ means placement of a
person in the legal custody of a municipality, a county, or the state as a result of:
(i) a conviction for an offense or of having been charged with an offense;
(ii) the actual or constructive restraint or custody of a person by a peace officer pursuant to
arrest, transport, or court order;
(iii) detention for extradition or deportation;
(iv) placement in a community corrections facility or program;
(v) supervision while under a supervised release program;
(vi) participation in a county jail work program under 7-32-2225 through 7-32-2227; or
(vii) any lawful detention for the purpose of the protection of the welfare of the person detained
or for the protection of society.
(b) Official detention does not include supervision of a person on probation or parole, constraint
incidental to release on bail, or an unlawful arrest unless the person arrested employed physical
force, a threat of physical force, or a weapon to escape.”

8
¶19 Notably, the holding in another case, relied upon by the State, has also been the

subject of legislative action. The State argues that because Roundstone was furloughed

from a prerelease center, he was in a “community corrections facility or program” and

therefore within “official detention” under § 45-7-306(1)(a)(iv), MCA. In support, the

State cites Chandler, 277 Mont. at 480, 922 P.2d at 1166, where we held, after a survey

of the applicable statutes, that a prerelease center is a community corrections facility or

program for purposes of the escape statute. See also State v. Romannose, 281 Mont. 84,

89, 931 P.2d 1304, 1307 (1997).

¶20 However, in 1997, the Legislature enacted House Bill 125, which clarified that

community corrections facilities were distinct from prerelease centers. The bill

authorized courts to sentence offenders to a “prerelease center or prerelease program” as

a sentencing option separate from community corrections facilities. See Laws of

Montana, 1997, ch. 322, § 1, at 1471-73 (emphasis omitted). According to a DOC

exhibit submitted to legislative committees, “Section 1 of the proposed statute clarifies

that community correction facilities and pre-release centers are two different entities by

allowing judges to sentence offenders to either facility.” Mont. Sen. Finance & Claims

Comm., Minutes of the Hearing on H. Bill 125, 55th Legis., Reg. Sess., Exhibit 1, at 1

(Mar. 19, 1997) (emphasis added).4 The exhibit also stated:

4
Section 46-18-201, MCA, has undergone subsequent legislative amendments, but the 1997
clarification that a judge may sentence an offender to either a community corrections facility or
to a prerelease center remains under the 2007 version of the statute. See §§ 46-18-201(3)(e) and
(f), and 46-18-201(4)(h) and (i), MCA (2007).

9
 There are many references in the statutes to “community corrections
facilities,” but, only a few references to pre-release centers. Unfortunately,
everyone from attorneys and judges to lay persons perceive “community
corrections facility” and “pre-release center” are interchangeable, and treat
them as interchangeable. They are not. A community corrections facility is
something created by and for an individual community pursuant to the
community corrections act, M.C.A. § 53-30-301 et seq. A pre-release
center is a department of corrections entity pursuant to M.C.A. § 53-1-202
which the department administers. We need to clearly differentiate between
the two, and specify how they should be treated differently by department
of corrections, judges, offenders, and attorneys.

Mont. Sen. Finance & Claims Comm., Minutes of the Hearing on H. Bill 125, Exhibit 1,

at 1. The legislation made other changes to distinguish between the two programs.5 As

testified by DOC representatives, “[t]his bill takes the DOC out of the community

corrections process . . . . This bill intends to clarify that the DOC’s role is in pre-release

and not in community corrections facilities. The community corrections business is a

local entity.” Mont. Sen. Finance & Claims Comm., Minutes of the Hearing on H. Bill

125, at 2-3. The legislation was intended to clearly differentiate between prerelease

programs administered by the DOC and community corrections facilities administered

locally. Consequently, Chandler is no longer controlling on this question, and the State’s

5
Section 53-1-203(1)(c), MCA, was amended to remove the term “community based” before the
phrase “prerelease centers.” Laws of Montana, 1997, ch. 322, § 5, at 1477. The definition of a
“‘community corrections facility or program’” within the Community Corrections Act (CCA)
was revised to state that such a facility is “established by a local or tribal government” in
addition to being operated by the local or tribal government, or nongovernmental agency. Laws
of Montana, 1997, ch. 322, § 7, at 1478 (emphasis in original); § 53-30-303(2)(a), MCA (2007).
References to DOC were removed from various CCA provisions, including §§ 53-30-313(2)
(pertaining to the powers and duties of the community corrections boards), -314(2) (pertaining to
community corrections facilities and programs operated by tribal governments), and -315(3),
MCA (1995) (pertaining to community corrections facilities and programs operated by
nongovernmental agencies). Laws of Montana, 1997, ch. 322, §§ 9-11, at 1480-81.

10
argument that Roundstone was in official detention by virtue of being in “a community

corrections facility or program” under § 45-7-306(1)(a)(iv), MCA, fails.

¶21 The State also argues that Roundstone was subject to official detention while on

furlough pursuant to § 45-7-306(1)(a)(i), MCA, by which detention is defined as the

“placement of a person in the legal custody of . . . the state as a result of . . . a conviction

for an offense . . . .” The State argues this definition was satisfied because “when

Roundstone was in prison, he was in the legal custody of the State as a result of a

conviction for an offense.” When Roundstone was transferred to HPRC, a DOC

program, he remained in the custody of DOC. Accordingly, the State argues that “[w]hen

Roundstone was temporarily released on a furlough, his status did not change and he

continued to be subject to official detention.”6

6
Roundstone argues the State forfeited this argument for failure to raise it in the District Court.
“‘The general rule is that issues not raised before the trial court and new legal theories are not
considered by this Court on appeal . . . .’” State v. Montgomery, 2010 MT 193, ¶ 11, 357 Mont.
348, 239 P.3d 929 (citation omitted). In the Amended Information, the State alleged that
Roundstone was subject to official detention with DOC, temporarily assigned to the prerelease
center, and purposely or knowingly removed himself from official detention. The State argued
in its brief in opposition to Roundstone’s motion to dismiss: “In September, 2007, Roundstone
was on inmate status at the Helena Pre-Release and was given a furlough to go to Hardin for the
purpose of finding employment. . . . Despite the furlough, Roundstone was still subject to the
rules of the pre-release . . . .” The District Court referenced § 45-7-306(1)(a)(i), MCA, in its
order denying Roundstone’s motion to dismiss. While the State did not expressly cite § 45-7-
306(1)(a)(i), MCA, its theory was encompassed by the provision. The State’s appellate
arguments fall within the scope of its theory before the District Court—that Roundstone was
subject to official detention while on furlough from the prerelease center. The District Court
indicated its awareness of § 45-7-306(1)(a)(i), MCA. Thus, the unfairness that the rule seeks to
avoid is not present here, and rejecting consideration of the State’s arguments would be an
“unduly harsh application” of the waiver rule. See Whitehorn v. Whitehorn Farms, Inc., 2008
MT 361, ¶ 23, 346 Mont. 394, 195 P.3d 836 (“[W]e conclude that [the appellant’s] appellate
argument, while clearly a change in emphasis, is not an entirely new theory, and that excluding
consideration of his arguments would be an unduly harsh application of the rule.”). Further, “we
have permitted parties to bolster their preserved issues with additional legal authority or to make
11
¶22 State prisons and prerelease centers are part of adult correctional services

“included in the department of corrections to carry out the purposes of the department.”

Sections 53-1-202(1); -202(2)(a) and (b)(i), MCA. DOC is required to maintain, by

contract, prerelease centers for such purposes as “preparing inmates of a Montana prison

who are approaching parole eligibility or discharge for release into the community.”

Section 53-1-203(1)(c)(i), MCA. Roundstone was placed at the prerelease facility, from

which he was released on furlough, with a scheduled return date of October 4, 2007

unless further developments negated the requirement to return. On furlough, Roundstone

remained in the legal custody of DOC. Section 46-23-215(3), MCA (“While on furlough,

the prisoner remains in the legal custody of the department and is subject to all other

conditions recited by the hearing panel.”).

¶23 Roundstone was placed at MSP and the prerelease center, then given furlough,

only by virtue of having been convicted of the assault charge. Thus, under the broader

language enacted in 1997, Roundstone was “place[d]” in the “legal custody of . . . the

state” as a result of “a conviction for an offense.” Section 45-7-306(1)(a)(i), MCA.

Roundstone remained in official detention while on furlough from the prerelease center

and, therefore, subsection (i) of § 45-7-306(1)(a), MCA, is satisfied and he is guilty of

escape. This conclusion is consistent with the Legislature’s intent in amending the

escape statute in 1997. Mont. Sen. Jud. Comm., Minutes of the Hearing on H. Bill 43, at

further arguments within the scope of the legal theory articulated to the trial court.”
Montgomery, ¶ 12.
12
6 (House Bill 43 “includes any inmate in the custody of the Department or any inmate on

furlough.”).7,8

B. Furlough and Parole

¶24 Roundstone next argues that he was actually on parole and thus excluded from

“official detention” by § 45-7-306(1)(b), MCA, which provides that “[o]fficial detention

does not include supervision of a person on probation or parole . . . .” Roundstone argues

that furlough should be considered parole under the statutes, given the essential

characteristics of parole. Noting that parole is defined as “the release to the community

of a prisoner by the decision of a hearing panel prior to the expiration of the prisoner’s

term, subject to conditions imposed by the hearing panel and subject to supervision of the

department,” § 46-23-103(5), MCA (emphases added), Roundstone compares a definition

of furlough from Black’s Law Dictionary as “[a] brief release from prison.” Black’s Law

Dictionary 745 (Bryan A. Garner ed., 9th ed., West 2009) (emphasis added). He cites §
7
Section 46-23-215(3), MCA, was amended in 2011 to clarify by express statement that
offenders on furlough are in official detention and are subject to escape charges. See Laws of
Montana, 2011, ch. 102, § 8, at 395 (emphasis in original) (“While on furlough, the prisoner . . .
is subject to official detention as defined in 45-7-306. The prisoner remains in the legal custody
of the department and is subject to all other conditions ordered by the hearing panel or the
presiding officer of the board or a designee.”).
8
This conclusion is also consistent with court decisions discussing furlough generally. See e.g.
Smith v. State, 361 A.2d 237, 238 (Del. 1976) (“We choose to adopt the majority rule holding
that a prisoner’s failure to return from work release or furlough constitutes an escape.”); State v.
L’Italien, 363 N.W.2d 490, 492 (Minn. App. 1985) (affirmed conviction for escape when
defendant did not return from a four-day furlough and noted “[w]hat is absurd is the idea that an
inmate is immune from prosecution for escape when, instead of returning from a furlough, he
flees”); Commonwealth v. Hughes, 305 N.E.2d 117, 119 (Mass. 1973) (“We hold that there was
no error and that the failure to return from furlough constitutes the crime of escape . . . .”);
Commonwealth v. Bey, 292 A.2d 519, 521 (Pa. Super. 1972) (defendant who failed to return to
prison after three-day furlough was “under restraint” while on furlough and “escaped when he
failed to return from the furlough”).
13
46-23-215(3), MCA, which provides that “[w]hile on furlough, the prisoner remains in

the legal custody of the department and is subject to all other conditions recited by the

hearing panel.” Roundstone’s argument is that this “parallel” language necessarily means

that furlough should be considered parole because it satisfies the statutory definition of

parole.9

¶25 Section 46-23-218, MCA, authorizes the Board of Pardons and Parole to adopt

rules pertaining to parole. See also Admin. R. M. 20.1.101(3)(a) (2007) (the Board “is

responsible for the oversight of Montana’s inmate parole and furlough programs”);

Admin. R. M. 20.1.101(1)(d)(i) (2010). The Standard Operating Procedures of the

Probation and Parole Bureau provide that “[f]urlough offenders are not eligible for Gate

Money until such time as they are on parole status,” and if the offender secures

acceptable living arrangements and/or employment, then the offender “may be eligible to

be placed on parole status without returning to the correctional facility.” (Emphases

added.) The Procedures state that “[i]f the offender fails to report as ordered to the

supervising parole officer or fails to return to the facility as ordered in the furlough

permit, the offender may be charged with escape . . . .” Before release, Roundstone

signed next to a provision in the Furlough Program Rules that stated, “[a]bsconding from

9
At the time of Roundstone’s offense, furlough was not expressly defined by regulation.
Effective December 10, 2010, administrative rules were amended and furlough is now defined
expressly in Admin. R. M. 20.25.202(6) (2010) as “temporary absence from confinement for the
purposes authorized by the board.” A parolee has been defined as “a person whom the board has
granted parole, who has signed the rules of parole and been given a parole certificate, and whose
parole has not been revoked.” Admin. R. M. 20.25.202(11) (2010). The State acknowledges
these rules do not apply to Roundstone because they were amended after his furlough and
subsequent charge.
14
furlough or failure to return on time will be considered felony escape.” This same

document noted that furlough provided an opportunity to seek employment or living

arrangements “in order to develop a parole plan” and that if such employment or living

arrangements were obtained and approved, then the offender “may be eligible to be

placed on parole.” (Emphasis in original.) Roundstone’s probation officer was

authorized to initiate the final steps for the Board’s issuance of a parole certificate upon

completion of the conditions. These Procedures and Program Rules indicate that

furlough must be satisfactorily completed before attaining parole. Consistent herewith,

we held in Romannose that the evidence did not support defendant’s claim to be a parolee

when he was on “‘live-out’” status from a prerelease center. Romannose, 281 Mont. at

89, 931 P.2d at 1308. In making that determination, we noted that the defendant was on

inmate status while a resident of the prerelease, and he signed forms acknowledging that

any unauthorized absence would constitute felony escape and that he was in official

detention until the Board formally approved him for parole. Romannose, 281 Mont. at

89, 931 P.2d at 1308.

¶26 This position was supported by evidence at the hearing. Carter testified that

Roundstone was on inmate status when he was transferred from prison to the prerelease

center and on inmate status when he left the prerelease center on furlough. Carter

explained that “everybody on furlough is an inmate.” Additionally, the court asked

Carter whether a person can be an inmate and be on parole at the same time, to which

Carter responded, “No. . . . During that furlough status . . . he’s still considered an

15
inmate. They do not start that parole status until the completion of the furlough.” Carter

testified that Roundstone was “eligible for parole” but “not actually placed on parole until

the Parole Board completes a parole certificate.”

¶27 While Roundstone urges us to conclude that furlough is “pre-certificate parole . . .

and after furlough is completed the prisoner is granted post-furlough parole,” we decline

to do so, as it would essentially require rewriting the statutes. While, admittedly, both

furlough and parole are forms of “release” and are subject to the Board’s conditions, the

Legislature has not provided in statute that furlough is, in fact, parole.10 There are

regulatory distinctions between the two based on statute which this Court recognized in

Romannose. Neither is there ambiguity requiring application of the rule of lenity, as

Roundstone urges. We affirm the District Court’s denial of the motion to dismiss. 11

¶28 II. Is § 45-7-306, MCA, void for vagueness as applied to Roundstone?

¶29 Alternatively, Roundstone raises an as-applied constitutional challenge to § 45-7-

306, MCA, on vagueness grounds. Roundstone concedes he did not raise the issue in the

District Court and thus requests plain error review or review for ineffective assistance of

his counsel in failing to raise the issue.

10
We note that § 46-23-215(3), MCA (2011), has recently been amended by the Legislature to
specifically clarify that offenders on furlough are not on parole. See Laws of Montana, 2011, ch.
102, § 8, at 395 (emphasis in original) (“While on furlough, the prisoner is not on parole and is
subject to official detention as defined in 45-7-306.”).
11
To the extent our analysis differs from the District Court’s, we affirm the District Court on the
ground it “reached the right result, although for the wrong reason.” Ronning v. Yellowstone Co.,
2011 MT 79, ¶ 8, 360 Mont. 108, 253 P.3d 818.
16
¶30 “A law that is so vague that it leaves ordinary people uncertain as to what conduct

it prohibits or that it may authorize or encourage arbitrary and discriminatory

enforcement is repugnant to the Due Process Clauses of the Constitutions of Montana and

the United States.” G’Stohl, ¶ 9. A statute can violate due process on vagueness grounds

if: (1) the statute fails to give actual notice to citizens, that is, whether the statute fails to

give a person of ordinary intelligence fair notice that the contemplated conduct is

forbidden, or (2) it fails to establish minimal guidelines to govern law enforcement. State

v. Dixon, 2000 MT 82, ¶¶ 27-28, 299 Mont. 165, 998 P.2d 544; G’Stohl, ¶ 10.12

¶31 Generally, a constitutional issue is waived if not raised at the earliest opportunity.

State v. Mainwaring, 2007 MT 14, ¶ 20, 335 Mont. 322, 151 P.3d 53. However, this

Court may discretionarily review claimed errors that implicate the fundamental rights of a

defendant pursuant to plain error review. State v. Norman, 2010 MT 253, ¶ 17, 358

Mont. 252, 244 P.3d 737. “The decision to invoke plain error review is a discretionary

one that is to be used sparingly on a case-by-case basis.” State v. Hayden, 2008 MT 274,

¶ 17, 345 Mont. 252, 190 P.3d 1091. A party must “(1) show that the claimed error

implicates a fundamental right and (2) ‘firmly convince’ this Court that failure to review

the claimed error would result in a manifest miscarriage of justice, leave unsettled the

question of the fundamental fairness of the trial or proceedings, or compromise the

12
Roundstone argues that Dixon’s “actual notice” language is no longer controlling law in light
of G’Stohl’s “fair notice” language. We disagree. Both Dixon and G’Stohl describe “actual
notice” as whether “the statute gives a person of ordinary intelligence fair notice that their
contemplated conduct is forbidden.” Dixon, ¶ 28; G’Stohl, ¶ 14 (emphases added).
17
integrity of the judicial process.” Norman, ¶ 17. We require that the alleged error be

“‘plain.’” State v. Taylor, 2010 MT 94, ¶ 15, 356 Mont. 167, 231 P.3d 79.

¶32 The Sixth Amendment of the United States Constitution and Article II, Section 24

of the Montana Constitution guarantee the right of effective assistance of counsel.

Sartain, ¶ 29. We review claims of ineffective assistance of counsel (IAC) under the

two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow

v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. A defendant must prove that

(1) counsel’s performance was deficient in that it fell below an objective standard of

reasonableness, and (2) counsel’s performance prejudiced the defense. Whitlow, ¶¶ 10,

12, 20. We first consider whether IAC claims are more suitable for postconviction relief.

State v. Main, 2011 MT 123, ¶ 48, 360 Mont. 470, 255 P.3d 1240; Sartain, ¶ 30. “[W]e

ask ‘why’ counsel did or did not perform as alleged and then seek to answer the question

by reference to the record.” State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d

1095 (citing State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340). If the

record on appeal explains “why,” we will address the issue on appeal. Kougl, ¶ 14. If, as

is often the case, the claim is based on matters outside the record, we decline to address

the issue and allow the defendant to pursue a claim in postconviction proceedings where

a record can be developed. Kougl, ¶ 14. It is unnecessary to ask “why” counsel

performed as alleged where there is no plausible justification for counsel’s actions or

inaction. Kougl, ¶ 15.

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¶33 We decline to take up Roundstone’s vagueness challenge under either of his

arguments. Roundstone did not raise a vagueness challenge below, despite significant

pre-trial motion practice, but instead pled guilty. The above discussion in Issue One

describes the clear notices Roundstone received about furlough and the expectations of

him, including reporting to his probation officer and returning to the prerelease center.

He was advised that failure to do so could lead to an escape charge. We conclude that his

assertions of vagueness do not compel our review under plain error.

¶34 Regarding the IAC claim, the record does not disclose the reasons counsel did not

raise a vagueness challenge or that there is no plausible justification for trial counsel’s

failure to do so. It is plausible that counsel did not think the vagueness challenge was

meritorious or that the decision was strategic, given that a plea agreement had been

negotiated. See State v. Frasure, 2004 MT 305, ¶ 12, 323 Mont. 479, 100 P.3d 1013

(“counsel are not expected to make motions that theoretically might help their clients if

the motions lack merit”); State v. Maine, 2011 MT 90, ¶ 39, 360 Mont. 182, 255 P.3d 64

(“[t]he only evidence is that counsel failed to raise it, and it is certainly possible that

counsel did conduct an investigation and decided that the facts did not support such a

defense”). We dismiss the IAC claim without prejudice to pursuing postconviction relief.

¶35 III. Did the prosecution violate Roundstone’s due process rights by seeking an
unusually severe sentence?

¶36 Roundstone claims the prosecutor sought an unusually harsh sentence in response

to Roundstone’s challenge of the escape charge, which violated his due process rights.

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¶37 The principle of prosecutorial vindictiveness originates from the idea that it is

unconstitutional for the State or its agent to penalize a person for exercising his or her

legal rights. See U.S. v. Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488 (1982); see

also Blackledge v. Perry, 417 U.S. 21, 27-28, 94 S. Ct. 2098, 2101-02 (1974). “‘To

punish a person because he has done what the law plainly allows him to do is a due

process violation of the most basic sort.’” Knowles, ¶ 28 (quoting Goodwin, 457 U.S. at

372, 102 S. Ct. at 2488 (internal quotation omitted)). Citing Blackledge, this Court has

stated that “[r]etaliatory action on the part of the prosecutor for the exercise of procedural

rights by an accused has been held to violate constitutional due process requirements.”

State v. Sather, 172 Mont. 428, 434-35, 564 P.2d 1306, 1310 (1977).

¶38 To establish that a prosecution was vindictive, a defendant must establish either

(1) actual vindictiveness, or (2) a rebuttable presumption of vindictiveness in those cases

in which a reasonable likelihood of vindictiveness exists. Wasman v. U.S., 468 U.S. 559,

566, 568-69, 104 S. Ct. 3217, 3222-23 (1984); Goodwin, 457 U.S at 373, 380-81, 104 S.

Ct. at 2488, 2492; see also U.S. v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). “In

sum, where the presumption applies, the sentencing authority or the prosecutor must

rebut the presumption that an increased sentence or charge resulted from vindictiveness;

where the presumption does not apply, the defendant must affirmatively prove actual

vindictiveness.” Wasman, 468 U.S. at 569, 104 S. Ct. at 3223.

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¶39 Roundstone concedes the presumption of vindictiveness is not at issue, and he

argues on the basis of actual vindictiveness. Roundstone’s argument is based upon

comments made by the prosecutor during the change of plea and sentencing hearing:

The practice of the [DOC] of giving concurrent sentences for somebody
who is a violent offender, or anybody else, and decides to walk away from
either prison or from a pre-release center, there has got to be a consequence.
All of the others, at least the ones that I’ve prosecuted, were not treated as
persistent felony offenders because they came in prior to getting to this
stage of the proceedings and accepted responsibility. And they accepted
responsibility. And I think that there ought to be a message, at least from
this county attorney and hopefully from the judges of this district, that if
you come to the Helena Pre-Release Center and you walk away from it,
there is going to be a consequence, and it’s not going to be concurrent time.
And if you make that mistake, then you ought to accept responsibility and
come into court and do so, because if you don’t, there is going to be a
consequence.

The evidence required to prove actual vindictiveness has been described as objective

proof “that the prosecutor’s charging decision was motivated by a desire to punish [the

defendant] for doing something that the law plainly allowed him to do,” see Goodwin,

457 U.S. at 384, 102 S. Ct. at 2494, or evidence of the prosecutor’s bad faith or malicious

actions. Blackledge, 417 U.S. at 28, 94 S. Ct. at 2102.

¶40 The plea agreement provided that each side was free to make sentencing

recommendations, which were understood by Roundstone to be nonbinding upon the

court. Probation and Parole Officer Carter testified at the sentencing hearing and, when

asked about sentences pursued by the DOC in escape cases, stated: “They generally look

at two-year sentences . . . . The bulk of the time they are concurrent to somebody’s

sentence. I actually have an issue with that. I don’t think there is any accountability for

21
people when they escape because it -- really there is no consequence for that.” When

asked by the court for her recommendation on Roundstone, Carter stated that, after

detention, “I would want to see some suspended time or significant amount of time to

make sure that he’s able to stay clean and sober because he was only out on furlough for

a matter of weeks when he escaped and then was consuming alcohol again.”

¶41 After Carter’s testimony, the State gave its recommendation of ten years with five

years suspended and then the prosecutor made the comments to which Roundstone

objects. While the comments could be viewed as careless, they came, notably, following

the concerns expressed by Carter about sentences which imposed no “accountability” or

“consequence[s]” on escape offenders, with the prosecutor adding that this sentence was

“not going to be concurrent time”—Carter’s specific criticism. The sentencing judge

wisely put the issue in proper perspective:

I’m not going to punish you for what you did as far as filing all of these
motions; I think that is fine. But the law requires me to give you five years.
So I’m going to -- and I think it’s important that you have some suspended
time, as [the prosecutor] suggested, for follow-up. And that doesn’t require
your incarceration, it just requires that you comply with their directives.

¶42 The prosecutor’s comments were brief and handled well by the sentencing court.

We conclude that Roundstone was not deprived of due process.

¶43 Affirmed.

/S/ JIM RICE

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We concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS

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