March 8 2011
DA 10-0028
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 40
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SHANNON DAVID BULLPLUME,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Glacier, Cause No. DC 05-024
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Eileen A. Larkin, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana
Larry D. Epstein, Glacier County Attorney, Cut Bank, Montana
Submitted on Briefs: February 1, 2011
Decided: March 8, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Shannon Bullplume pleaded no contest in the District Court of the Ninth Judicial
District, Glacier County, to mitigated deliberate homicide. He appeals his sentence. We
affirm.
ISSUES
¶2 Bullplume raises two issues on appeal:
¶3 1. Whether the State breached the pre-sentence agreement.
¶4 2. Whether the District Court’s sentence violated Bullplume’s due process rights.
BACKGROUND
¶5 On April 22, 2005, Bullplume was involved in a fight with Fernandel Omeasoo,
Jr. During the course of the fight Omeasoo was fatally stabbed. Bullplume subsequently
entered into a plea agreement whereby he agreed to plead no contest to mitigated
deliberate homicide, § 45-5-103(1), MCA. The District Court rejected the plea
agreement and offered Bullplume the opportunity to withdraw his plea. Bullplume
withdrew the plea, went to trial, and was convicted of deliberate homicide. He was
sentenced to 80 years at Montana State Prison for deliberate homicide, with a consecutive
10-year term for weapon enhancement. On appeal, this Court determined that Bullplume
had never effectively withdrawn his original no contest plea, reversed the conviction and
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remanded the case for sentencing on the mitigated deliberate homicide charge.1 On
remand Judge Dirk Sandefur assumed jurisdiction.
¶6 On July 30, 2009, the District Court held a status conference. Bullplume and the
State told the District Court they were discussing a potential joint sentencing
recommendation. The District Court informed the parties that it intended to review the
transcript of Bullplume’s trial, in order to become familiar with the case. While the
prosecutor endorsed this proposition, counsel for Bullplume expressed skepticism. The
District Court assured the parties it could distinguish between information pertinent to a
deliberate homicide conviction, and information pertinent to a mitigated deliberate
homicide sentencing.
¶7 On August 31, 2009, Bullplume, his counsel and the prosecutor all signed a pre-
sentence agreement. The parties agreed to jointly recommend 40 years at Montana State
Prison, with 10 suspended. Under the agreement, both sides were obligated to refrain
from arguing for any sentence other than the one jointly recommended. Furthermore, the
State agreed to not call any witnesses at the sentencing hearing. The pre-sentence
agreement explicitly noted it was non-binding, and the District Court was free to impose
any legal sentence for mitigated deliberate homicide. On October 29, 2009, Probation
Officer Scott Brotnov filed an updated Pre-Sentence Investigation report (PSI). The PSI
recommended 40 years with no time suspended.
1
A more detailed recitation of the facts regarding these prior events is set forth in State v.
Bullplume, 2009 MT 145, 350 Mont. 350, 208 P.3d 378 (Bullplume I).
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¶8 On November 12, 2009, the parties appeared at a sentencing hearing. Bullplume
called Brotnov as a witness and examined him about the harsher sentence recommended
in the PSI. On cross-examination, the prosecutor inquired whether Brotnov had relied on
any criminal records from the Blackfeet Tribal Court. Bullplume also called Carl Pepion,
Acting Chief Judge of the Blackfeet Tribe. Pepion testified that in his teenage years,
Bullplume had been drunk and disorderly at times. On cross-examination, the prosecutor
briefly asked how long Pepion had known Bullplume, and whether their prior interactions
had involved Bullplume drinking.
¶9 Just before sentencing, the District Court announced that it understood the State
and Bullplume had made a joint sentencing recommendation. The District Court then
rejected that recommendation and sentenced Bullplume to 40 years in Montana State
Prison, with no time suspended. The District Court included a 20-year restriction on
Bullplume’s parole eligibility. Bullplume has appealed his sentence, arguing that the
prosecutor breached the pre-sentence agreement, and that his sentence for mitigated
deliberate homicide was imposed as punishment for Bullplume’s successful appeal of his
prior conviction.
STANDARDS OF REVIEW
¶10 Where a defendant was sentenced to more than one year of actual incarceration,
and therefore is eligible for sentence review, we review the sentence for legality only.
State. v. Gunderson, 2010 MT 166, ¶¶ 37-38, 357 Mont. 142, 237 P.3d 74. Whether a plea
agreement was breached is a question of law this Court reviews de novo. State v.
Shepard, 2010 MT 20, ¶ 8, 355 Mont. 114, 225 P.3d 1217. This Court reviews de novo
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whether a district court violated a defendant’s constitutional rights at sentencing. State v.
Hill, 2009 MT 134, ¶ 20, 350 Mont. 296, 207 P.3d 307.
DISCUSSION
¶11 Whether the State breached the pre-sentence agreement.
¶12 Bullplume alleges the State breached the pre-sentence agreement in three ways.
He argues a breach occurred when the State endorsed the District Court’s decision to read
the trial transcript. Additionally, he asserts the State improperly elicited testimony in
support of a different sentence. Finally, he claims the State failed to jointly recommend
the agreed-to sentence.
¶13 Agreements made between a defendant and the State are equivalent to contracts
and subject to contract law standards. State v. Rardon, 2005 MT 129, ¶ 18, 327 Mont.
228, 115 P.3d 182 (Rardon III). In order to retain the benefit attained by a defendant’s
plea, the State must strictly meet any conditions imposed by the agreement. State v.
Rahn, 2008 MT 201, ¶ 14, 344 Mont. 110, 187 P.3d 622. Once the State agrees to
recommend a specific sentence, the prosecutor is obligated to approach sentencing in a
manner that will not undermine the agreement. Rardon III, ¶ 19. There are no hard and
fast criteria to determine when a breach has occurred, and each case must be assessed on
its own unique facts. Id. at ¶ 20.
¶14 First, the Court need not address Bullplume’s argument that the State breached the
agreement when it endorsed the District Court’s decision to read the trial transcript. The
pre-sentence agreement did not exist at the time of the status hearing. The status hearing
took place on July 30, 2009. The agreement was not signed until August 31, one month
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later. Bullplume articulates no legal theory how the State allegedly breached a non-
existent contract. Moreover, this Court’s order specifically stated that the District Court
was not bound by the previously-rejected plea agreement on remand. Bullplume I, ¶ 35.
The District Court’s rejection of the original plea agreement essentially frustrated the
purpose of that document and left neither party bound by its terms.
¶15 Second, the prosecutor’s cross-examination of Brotnov and Judge Pepion did not
breach the pre-sentence agreement. Bullplume called both the probation officer and
Tribal Court Judge as his witnesses. Nothing in the agreement precluded the State from
cross-examination. The State’s questioning of Judge Pepion elicited no new information.
The brief cross-examination of Brotnov merely clarified that the PSI’s recommended
sentence had not been influenced by improper consideration of Blackfeet Tribal Court
records. Nothing in the State’s questions reflected an attempt to undermine, or resulted in
the undermining of the pre-sentence agreement.
¶16 Third, the State fulfilled its obligation to make a joint recommendation of
sentence. The State willingly entered into the pre-sentence agreement, thereby informing
the District Court of a joint sentence recommendation. Nothing in the prosecutor’s
subsequent conduct reflected any deviation from that agreement. Bullplume asserts the
State failed in its obligation to file a sentencing memorandum in support of the joint
sentence. However, nothing in the pre-sentence agreement required the State to take such
an action. To the extent that Bullplume complains the State’s recommendation was
unenthusiastic, his argument has no legal significance. This Court has recognized that a
prosecutor’s enthusiasm is irrelevant so long as he or she acts in good faith and does not
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undermine the agreement. State v. Rardon, 2002 MT 345, ¶ 22, 313 Mont. 321, 61 P.3d
132 (Rardon II) (citing State v. Van Buren, 112 Wash. App. 585, 49 P.3d 966 (Wash.
App. Div. 2 2002)). Based upon the facts of this case, there was no breach of the pre-
sentence agreement.
¶17 Whether the District Court violated Bullplume’s due process rights.
¶18 Bullplume asserts that his sentence for mitigated deliberate homicide was imposed
as punishment for the successful appeal of his original deliberate homicide conviction.
He argues that his re-sentence amounts to equivalent time in prison, for a lesser charge.
The Due Process Clause of the Fourteenth Amendment prohibits judicial vindictiveness
against a defendant who successfully attacks his previous conviction. North Carolina v.
Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072, 2080 (1969). To avoid a presumption of
judicial vindictiveness, an increased sentence must be based upon objective information
concerning identifiable conduct that occurred subsequent to the original sentence, and
reasons supporting the sentence must be made part of the record. State v. Redfern, 2004
MT 277, ¶ 12, 323 Mont. 225, 99 P.3d 223; State v. Jackson, 2007 MT 186, ¶ 14, 338
Mont. 344, 165 P.3d 321. A defendant who mounts a due process challenge for judicial
vindictiveness must initially show that he or she actually received an increased sentence.
State v. Heath, 2005 MT 280, ¶¶ 10-11, 329 Mont. 226, 123 P.3d 228; Redfern, ¶¶ 10-11.
¶19 Bullplume asserts that the 20-year parole restriction, in his sentence for mitigated
deliberate homicide, constitutes an increased sentence. He contends this restriction
burdens him with an incarceration period equivalent to his original deliberate homicide
sentence. This argument fails for two reasons. First, Bullplume’s facts are in error. A
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prisoner serving a sentence for a length of time is ineligible for parole until he has served
at least one-quarter of the entire sentence. Section 46-23-201(3), MCA. Bullplume’s
deliberate homicide sentence was for a 90-year prison term. He was ineligible for parole
until he served 22.5 years of that sentence. Therefore, the 20-year parole restriction in
the mitigated deliberate homicide sentence is less than, not equivalent to, the pre-parole
eligibility period under Bullplume’s original sentence. Bullplume’s response to this
discrepancy is an inexplicable assertion that “for the sake of argument” the Court should
simply ignore ten years of his original sentence. There is no legal or factual basis for
such an assertion.
¶20 Second, Bullplume’s entire reliance on parole eligibility is misplaced. Parole is a
privilege, not a right. McDermott v. McDonald, 2001 MT 89, ¶ 19, 305 Mont. 166, 24
P.3d 200. It is a matter of grace, granted by the Parole Board pursuant to § 46-23-201,
MCA. Id. In Rardon III, this Court concluded that the imposition of a lengthier pre-
parole eligibility period does not necessarily constitute an increased sentence. Rardon
III, ¶¶ 29-30. The reduction in Rardon’s overall sentence, from 50 to 37 years, offset any
change in his parole eligibility. Rardon III, ¶ 29. Bullplume’s original sentence
guaranteed 22.5 years in prison, with a potential term of 90 years. His sentence for
mitigated deliberate homicide guarantees incarceration for 20 years, but decreases his
overall term to 40 years. Bullplume’s re-sentence both shortens the pre-parole eligibility
period and greatly reduces his maximum incarceration term. This does not constitute an
increased sentence.
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¶21 The record does not support Bullplume’s allegation of judicial vindictiveness, and
consequently, there is no merit to his due process argument. Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
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