February 15 2011
DA 10-0083
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 23
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GARY ARNOLD SAVAGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 1988-8220
Honorable John W. Larson, 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; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: January 20, 2011
Decided: February 15, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 The Fourth Judicial District Court, Missoula County, revoked Gary Arnold Savage’s
suspended sentence. While Savage does not appeal the revocation of his suspended
sentence, he appeals from certain conditions that were previously imposed on his suspended
sentence and the procedure utilized in imposing those conditions. He also argues he received
ineffective assistance of counsel when his attorney failed to file objections to the new
probation conditions imposed.
¶2 Savage raises the following issues on appeal:
¶3 Issue 1: Did the District Court err by prospectively delegating its sentencing authority
to the executive branch of government?
¶4 Issue 2: Does the Department of Corrections (DOC) sentencing modification
procedure, through its use of a condition modification form, violate a probationer’s rights to
due process and assistance of counsel?
¶5 Issue 3: Are conditions prohibiting contact with vulnerable populations and from
accessing human nudity unconstitutionally vague and overbroad?
¶6 Issue 4: Did Savage receive ineffective assistance of counsel?
¶7 Excluding Savage’s ineffective assistance of counsel claim, we conclude the other
arguments he raises on appeal are not justiciable. Accordingly, this Opinion is limited to the
justiciability of Issues 1 through 3 and Savage’s ineffective assistance of counsel claim. We
affirm.
BACKGROUND
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¶8 In 1988, Savage pled guilty to three counts of sexual intercourse without consent and
was sentenced to forty years on each count, with all counts running concurrently. The
District Court suspended ten years on each count, subject to certain terms and conditions.1
¶9 Savage was discharged from the Montana State Prison (MSP) on April 27, 2005.
Prior to his discharge, a probation officer visited Savage and presented him with a DOC form
that recommended Savage’s conditions of supervision be modified, 2 pursuant to § 46-23-
1011, MCA. The form contained an “offender notification” that allowed Savage to select
between a box indicating he agreed with the modifications or a box indicating he disagreed
with the modifications and requested a hearing. Savage indicated his agreement. When
Savage was discharged, he signed a condition of probation form that contained essentially
the same conditions as agreed upon in the DOC condition modification form.
¶10 In September 2005, the State moved the District Court to amend Savage’s judgment
to add the conditions contained in the DOC condition modification form. Savage objected,
and the State withdrew its motion. Savage remained on probation, subject to the conditions
enumerated in the original judgment.
¶11 The State filed a petition to revoke Savage’s suspended sentence in September 2006,
based upon Savage’s misdemeanor traffic violations, admission of cocaine use, and failure to
1
The conditions included obey federal/state laws; remain under the court’s jurisdiction; submit to
searches and polygraph examinations; obtain therapy; no victim contact; and, pay court-appointed
attorney’s fees and surcharges.
2
The proposed modifications required Savage to register as a sex offender; refrain from possessing
or consuming intoxicants, associating with other probationers and/or inmates, contacting children
under the age of eighteen, entering casinos, and using or possessing pornography; submit to alcohol
and/or drug testing, supervision and ISP, and DNA testing; and, attend sex offender counseling.
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maintain employment. Savage’s suspended sentence was revoked, and the District Court
sentenced Savage to ten years imprisonment, all re-suspended, subject to the conditions
imposed in the original judgment,3 plus the conditions Savage agreed to in the DOC
condition modification form. The court imposed the additional condition that Savage refrain
from contacting youths or disabled persons outside of his immediate family without first
obtaining permission. At Savage’s request, the court stayed his sentence and set a briefing
schedule to allow him time to file objections to the new conditions imposed. Savage never
filed a brief or requested a continuance to file one.
¶12 In January 2007, the State filed a supplemental petition to revoke Savage’s sentence,
alleging he was having unsupervised contact with his daughter and other minors. The
District Court revoked Savage’s three concurrent ten-year suspended sentences and
sentenced Savage to ten years on each count, with five years suspended on each count. The
court imposed all previous conditions.
¶13 Savage was discharged from MSP in April 2009 and began serving the suspended
portion of his sentence. After his discharge, a probation officer approached Savage and
presented him with a DOC condition modification form that included the conditions that
Savage avoid contact with minors and vulnerable populations, including the developmentally
disabled and elderly, unless accompanied by an approved, responsible adult and that Savage
avoid places where children congregate, refrain from accessing material that describes or
depicts human nudity, and refrain from contacting the victims or their immediate family
3
The polygraph test requirement was excluded.
4
members. Savage consented to these conditions. The State petitioned the District Court to
add the above conditions to Savage’s sentence, indicating that because Savage did not object
to the conditions, there was no need for a hearing. The District Court added the conditions.
¶14 In November 2009, the State filed a petition to revoke Savage’s suspended sentence,
alleging that he had contact with his elderly aunt and his niece (members of a vulnerable
population) and had viewed pornography on his computer (which he admitted). At a hearing
on the matter, Savage’s counsel asked for a continuance because Savage believed some of
the amended conditions might be illegal. The court proceeded with the hearing and revoked
Savage’s suspended sentence. He was sentenced to five years on each count, all counts
running concurrently.
¶15 Savage appeals, but does not challenge the revocation of his suspended sentence.
DISCUSSION
¶16 Although he does not challenge the revocation of his suspended sentence, Savage
raises in Issues 1 through 3 several collateral constitutional claims challenging the
procedures used to modify the conditions of his suspended sentence and the specific
conditions imposed. Savage argues that the District Court prospectively delegated its
sentencing authority to a probation officer (via the DOC condition modification form), thus
violating his rights to due process and counsel during a critical stage of the proceedings.
Additionally, he asserts that the no contact with vulnerable populations and no access to
human nudity conditions most recently imposed by the District Court are unconstitutionally
vague and overbroad.
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¶17 We decline to review the above claims because no justiciable controversy exists. This
Court has previously noted that the existence of a justiciable controversy is a threshold
requirement to a court’s adjudication of a dispute. Clark v. Roosevelt Co., 2007 MT 44, ¶
11, 336 Mont. 118, 154 P.3d 48. “A justiciable controversy is one upon which a court’s
judgment will effectively operate, as distinguished from a dispute invoking a purely political,
administrative, philosophical or academic conclusion.” Id. A matter is moot where
judgment will not operate to grant relief, and, absent relief, “a decision on the merits of the
issue raised would be merely advisory.” Id. We will not submit advisory opinions. Id.
¶18 Savage admitted that he viewed pornography and does not challenge the revocation of
his suspended sentence on that basis. Because we cannot grant him relief, any opinion on the
merits would be merely an advisory one. We do not render advisory opinions and, therefore,
decline to address Issues 1 through 3.
¶19 Issue 4: Did Savage receive ineffective assistance of counsel?
¶20 Ineffective assistance of counsel claims raise mixed questions of law and fact that we
review de novo. State v. Gunderson, 2010 MT 166, ¶ 66, 357 Mont. 142, 237 P.3d 74.
¶21 Savage argues that his counsel did not effectively represent him in 2006 when he
failed to file a brief objecting to the additional and modified conditions that were imposed on
Savage’s suspended sentence. Savage asserts that there can be no justification for counsel’s
failure to ignore the court’s briefing schedule. The State urges us to decline to review
Savage’s claim on the basis that it is undeveloped. See M. R. App. P. 12(1)(f).
Alternatively, the State argues that Savage’s claim is without merit because even if his
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counsel had filed a brief, he would not have been successful in challenging the added
conditions.
¶22 We review ineffective assistance of counsel claims using the two-part test set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052. In order for a criminal defendant
to prevail on an ineffective assistance of counsel claim, he or she must demonstrate (1) that
counsel’s performance fell below an objective standard of reasonableness and (2) that a
reasonable probability exists that, but for counsel’s errors, the result of the proceeding would
have been different. Gunderson, ¶¶ 67-68.
¶23 Before we reach the merits of such claim on direct appeal, we must determine whether
the claim is properly before us, or if it would more appropriately be addressed in a petition
for postconviction relief. Id. at ¶ 70. If a claim is record-based—the record contains the
answer as to why counsel took or failed to take a certain action—the claim is appropriate for
direct appeal. Id. at ¶¶ 70-71. If the claim is based on matters outside of the record, the
claim is more appropriately addressed in a petition for postconviction relief where the
defendant can develop a record as to why counsel acted the way he or she did. Id. at ¶ 71.
¶24 Here, we simply do not know why Savage’s counsel chose to ignore the briefing
schedule and did not file a brief or request for a continuance to file a brief. Because we are
left asking “why,” we conclude that this matter should be addressed in a petition for
postconviction relief, rather than on direct appeal.
CONCLUSION
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¶25 We decline to review Savage’s collateral challenges to the revocation of his
suspended sentence because the claims are not justiciable. Savage’s ineffective assistance of
counsel claim is more appropriately addressed in a petition for postconviction relief. We
affirm the order of the District Court revoking Savage’s suspended sentence and
resentencing Savage to five years at MSP.
/S/ MICHAEL E WHEAT
We Concur:
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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