State v. Lessard

June 3 2008

DA 07-0223

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 192

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CHRIS LESSARD,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 2006-136(A)
Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Gregory Hood, Assistant Public Defender, Kalispell, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana

Submitted on Briefs: February 20, 2008

Decided: June 3, 2008

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Chris Lessard appeals three conditions on his sentence imposed by the District

Court for the Eleventh Judicial District, Flathead County. We affirm in part, reverse in

part, and remand with instructions.

BACKGROUND

¶2 Between June 1, 2005, and March 17, 2006, a number of Flathead County

residents reported that their carved bears had been stolen. According to one of the

victims, he purchased his carving approximately 15 to 20 years earlier from an Idaho

chainsaw carver. He stated that it cost $350 at that time and would cost a minimum of

$600 to replace now. Another victim valued his stolen bear at $250. All in all, the

aggregate value of the stolen property was estimated at $3,000.1

¶3 On February 27, 2006, the Kalispell Police Department received several tips that

Lessard and his wife had been bragging about going “bear hunting” and that they were

the perpetrators of this 10-month crime spree. The police executed a search of Lessard’s

residence, where they found a number of the stolen bears. Some of the bears, however,

had already been sold at garage sales. Lessard claimed that he had no knowledge the

carvings had been stolen and that he was “unknowingly in possession of stolen property.”

¶4 The State charged Lessard by information on March 20, 2006, with theft (common

scheme), a felony, in violation of § 45-6-301, MCA. Lessard initially pleaded not guilty;

1
Remarkably, this sort of thing goes on in other parts of the country. In western
Missouri, on March 30, 2008, some “lousy thieves” stole Big Bertha, the 6-foot, 500-
pound carved wooden bear that stood in front of Bill Struewe’s sewer and plumbing
business. See Toriano L. Porter, Who stole Bertha? The Examiner (Independence, Mo.)
(Apr. 2, 2008).

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however, the parties ultimately entered into a plea agreement under § 46-12-211(1)(b),

MCA, wherein Lessard agreed to plead guilty to the charge and the State, in return,

agreed to recommend that the court defer imposition of sentence for a period of three

years. Thereafter, Lessard entered a plea of no contest, which the District Court accepted

on December 7, 2006.

¶5 A probation/parole officer with the Department of Corrections conducted a

presentence investigation and filed a report (“PSI”) on January 22, 2007. Among other

things, the PSI recited Lessard’s background, his criminal history, and the circumstances

of the offense. According to the PSI, Lessard was 24 years old and presently

unemployed. He had a prior conviction for felony residential burglary in Pierce County,

Washington, which occurred in 2003.

¶6 Lessard reported that he first tried alcohol at age 18 and rarely drinks. On the

matter of illegal drugs, the probation/parole officer noted the following:

The Defendant indicated he tried marijuana on only one occasion, when he
was nineteen years old. It should be noted a glass marijuana pipe was
discovered in the master bedroom of the Defendant’s home when law
enforcement conducted the search pursuant to this crime. He eventually
admitted to law enforcement that he owned the pipe and had last smoked
marijuana two days prior to the search conducted on March 13, 2006.

In addition, as a result of the 2003 conviction in Pierce County, Washington, Lessard was

ordered to complete drug and alcohol treatment “at the discretion” of his supervising

officer, but the records were unclear as to whether the supervising officer ever ordered

Lessard to do so, and Lessard claimed that he had never received any chemical-

dependency counseling.

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¶7 The probation/parole officer recommended a number of conditions of probation in

the PSI. At issue on this appeal are the following three recommended conditions:

• “The Defendant shall not possess or consume intoxicants/alcohol, nor will he
enter any place intoxicants are the chief item of sale.”

• “He will submit to Breathalyzer testing or bodily fluid testing for drugs or
alcohol as requested by his Probation & Parole Officer.”

• “The Defendant will not enter any casinos or play any games of chance.”

¶8 At the January 26, 2007 sentencing hearing, Lessard indicated that he had received

a copy of the PSI, had reviewed it, and did not have any corrections to make to it.

However, he objected to the three recommended conditions quoted above on the ground

that there was no nexus between these conditions and the underlying offense for which he

was being sentenced. In addition, he pointed out that the PSI “indicates that [he] rarely

drinks, he does not have any sort of alcohol problem, in addition to which there is no

indication that this offense involved any sort of alcohol.” In response, the prosecutor

argued “there is a nexus in this case that when outstanding restitution is being owed that

gambling and the purchase of alcohol should be prohibited.”

¶9 The District Court overruled Lessard’s objection. The court stated that it would

defer imposition of sentence for a period of three years, subject to the conditions

recommended in the PSI, including the three challenged conditions. In addition, the court

ordered Lessard to pay restitution. After the court imposed the sentence, and while still

on the record, the prosecutor asked Lessard whether he drinks, to which Lessard

responded: “I have a beer about once every two months.” In addition, the prosecutor

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asked Lessard whether he gambles, to which Lessard responded: “Five dollars once

every two, three weeks.”

¶10 The court’s written judgment, entered April 4, 2007, recited the three-year

deferred imposition of sentence, which was made subject to a number of conditions,

including the following:

9) He may not consume or possess intoxicants, nor may he
frequent bars or other businesses where alcohol is the chief item of sale.
10) He must submit to drug and alcohol testing (breath or bodily
fluid testing) on a regular or random basis as required by his supervising
officer.
....
20) He may not gamble or frequent casinos.

¶11 This appeal followed.

ISSUE

¶12 The sole issue on appeal is whether Conditions 9, 10, and 20 are illegal or

unreasonable.

STANDARD OF REVIEW

¶13 We review challenges to sentencing conditions under a two-prong standard. First,

we review the challenged condition for legality. State v. Ashby, 2008 MT 83, ¶ 9, 342

Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9. A sentencing condition is illegal if the sentencing

court lacked statutory authority to impose it, if the condition falls outside the parameters

set by the applicable sentencing statutes, or if the court did not adhere to the affirmative

mandates of the applicable sentencing statutes. State v. Brotherton, 2008 MT 119, ¶ 10,

342 Mont. 511, ¶ 10, 182 P.3d 88, ¶ 10; see also State v. Stephenson, 2008 MT 64, ¶ 15,

342 Mont. 60, ¶ 15, 179 P.3d 502, ¶ 15. This determination is a question of law and, as

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such, our review of the condition’s legality is de novo. Brotherton, ¶ 10. Second, we

review the reasonableness of the challenged condition for an abuse of discretion (unless

the condition is mandated by statute, in which case there is no exercise of discretion by

the sentencing court). Ashby, ¶ 9; Brotherton, ¶ 10. A sentencing court abuses its

discretion when it acts arbitrarily without employment of conscientious judgment or

exceeds the bounds of reason, resulting in substantial injustice. Brotherton, ¶ 10.

DISCUSSION

¶14 A sentencing court’s authority to impose a criminal sentence derives from the law;

it is not inherent. See State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d

206, ¶ 41; State v. Hatfield, 256 Mont. 340, 346, 846 P.2d 1025, 1029 (1993). Therefore,

a sentencing condition is legal only if it is authorized by applicable sentencing statutes.

See Brotherton, ¶¶ 11-13.

¶15 The conditions at issue here are not explicitly mandated by law in the Montana

Code; thus, the statutory authority for the conditions would be §§ 46-18-201(4) and

-202(1)(f), MCA (2005). The former authorizes a sentencing judge, when deferring

imposition of sentence or suspending all or a portion of execution of sentence, to impose

upon the offender “any reasonable restrictions or conditions.” Section 46-18-201(4),

MCA. “Reasonable restrictions or conditions” include those enumerated in

§ 46-18-201(4)(a)-(m), MCA (2005), as amended at § 46-18-201(4)(a)-(n), MCA (2007),

as well as those which the judge considers “necessary for rehabilitation or for the

protection of the victim or society,” § 46-18-201(4)(n), MCA (2005), recodified at

§ 46-18-201(4)(o), MCA (2007). Similarly, § 46-18-202(1)(f), MCA, authorizes a

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sentencing judge to impose on a sentence any limitation “reasonably related to the

objectives of rehabilitation and the protection of the victim and society.”

¶16 In State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, we held that

in order to be “reasonably related to the objectives of rehabilitation and the protection of

the victim and society,” a sentencing limitation or condition must have “some correlation

or connection to the underlying offense for which the defendant is being sentenced.”

Ommundson, ¶ 11. We recently expanded this test in Ashby. Specifically, we held that a

sentencing judge may impose a particular condition of probation pursuant to

§§ 46-18-201(4) and -202(1)(f), MCA, if the condition has a nexus either to the offense

for which the offender is being sentenced or to the offender himself or herself. Ashby,

¶ 15; see also Brotherton, ¶ 17.

¶17 Our Ashby test allows a sentencing court discretion to craft conditions of sentence

appropriate to the management of probationers generally, but also requires the court to

individualize its exercise of discretion so as to impose conditions that have some

correlation or connection to the underlying offense or to the unique background and

characteristics of the individual offender. However, with respect to offender-related

conditions, we cautioned in Ashby that courts may impose such conditions only where the

history or pattern of conduct to be restricted (e.g., alcohol or drug abuse) is “recent, and

significant or chronic. A passing, isolated, or stale instance of behavior or conduct will

be insufficient to support a restrictive probation condition imposed in the name of

offender rehabilitation.” Ashby, ¶ 15.

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¶18 In the case at hand, therefore, we must consider whether each of Conditions 9, 10,

and 20 has a nexus either to Lessard’s offense of theft or to his unique background and

characteristics. We will address each condition in turn.

Condition 9

¶19 Under Condition 9, Lessard “may not consume or possess intoxicants, nor may he

frequent bars or other businesses where alcohol is the chief item of sale.” Lessard

contends that this condition is illegal and must be stricken. He points out that there is no

evidence in the record that alcohol or intoxicants were connected in any way to his

offense. More specifically, he asserts that he did not commit the crime while under the

influence of alcohol or in an effort to procure alcohol. Furthermore, he points out that

there is no indication in the PSI that he has a history of alcohol abuse. In short, Lessard

contends that neither the PSI nor the District Court’s judgment recites any facts which

would support a restriction on the use of intoxicants/alcohol.

¶20 Much of the State’s argument in response is directed at persuading this Court to

modify the Ommundson test so that sentencing courts may look beyond the circumstances

of the particular crime and consider “the individual defendant’s history and his or her

‘characteristics, circumstances, needs, and potentialities.’ ” This argument was addressed

and resolved—largely in favor of the State’s position—in our Ashby decision. (The

State’s brief in this case was filed before Ashby was handed down.) There is no reason to

address the argument again in this Opinion.

¶21 With respect to Condition 9, the State does not contend that a nexus exists

between the intoxicants restriction and Lessard’s stealing the carved bears. Indeed, as

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Lessard points out, there is no evidence in the record that this offense involved or was

related to alcohol use. Instead, the State makes several arguments related to criminal

defendants generally and to Lessard specifically.

¶22 As for the former, the State offers a number of generalizations about the evils of

alcohol—e.g., alcohol reduces inhibitions and impairs judgment. The State asserts that

“the connection between alcohol use and crime and recidivism is established” and that

“the risk of recidivism is compounded when felony offenders are allowed to drink

alcohol.” As an example of this, the State informs us that the defendant/probationer in

State v. Jones, 2006 MT 209, 333 Mont. 294, 142 P.3d 851, was drinking in a bar before

he killed Gisela Morris (a fact not stated in the Jones opinion). The State also reports that

93.1 percent of 654 offenders committed to Montana prelease centers had “a condition of

substance abuse or chemical dependency disorder either at admission or discharge.”

¶23 Such broad generalizations and predictions based on statistics, however, are

entirely inconsistent with the individualized sentencing that the State advocates and that

Ashby requires. Moreover, we have rejected similar arguments offered by the State in a

number of prior cases. For instance, the State asserted in Brotherton that “[a]lcohol

lowers inhibitions and the ability to think rationally” and that “[p]eople often mix alcohol

with drugs.” Brotherton, ¶ 21. Addressing these assertions, we stated that “[s]uch

generalizations . . . are wholly insufficient to show that [the no-alcohol condition at issue]

has a nexus to Brotherton’s offense or his unique background and characteristics. Indeed,

if these general propositions were sufficient to sustain a no-alcohol condition, then such a

condition would be justified in every case.” Brotherton, ¶ 21. Likewise, in State v.

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Greeson, 2007 MT 23, 336 Mont. 1, 152 P.3d 695, the State appeared to rely on the

prosecutor’s contention during Greeson’s sentencing that alcohol consumption reduces

judgment and could contribute to Greeson’s willingness to commit future similar crimes

(her conviction was for identity theft). Greeson, ¶ 14. We concluded that the State’s

position was “totally without merit”:

[I]t may well be that alcohol consumption reduces judgment and could thus
relate to any person’s “willingness” to commit a crime, although a
prosecutor’s unsupported commentary on such matters is not evidence of
any kind. Such general commentary is wholly inadequate, however, to
establish a nexus between Greeson and the offense of which she was
convicted or to establish that the alcohol and testing condition at issue here
would in any real way promote Greeson’s rehabilitation or protect society.

Greeson, ¶ 15; see also State v. Armstrong, 2006 MT 334, ¶¶ 14-15, 335 Mont. 131,

¶¶ 14-15, 151 P.3d 46, ¶¶ 14-15; State v. Holt, 2006 MT 151, ¶ 51, 332 Mont. 426, ¶ 51,

139 P.3d 819, ¶ 51.

¶24 Turning, then, to Lessard’s individual characteristics, the State notes that Lessard

admitted at the sentencing hearing to having a beer “about once every two months.”

However, evidence of such alcohol use clearly fails to establish a “recent, and significant

or chronic” history or pattern of alcohol abuse. Ashby, ¶ 15.

¶25 Alternatively, the State offers a highly critical view of Lessard’s character. In

particular, the State asserts that Lessard “is a recidivist manipulator whose word cannot

be trusted.” The State contends that Lessard “minimizes his criminal behavior and

problems” and has the “potentiality” for “avoiding accountability and abusing

substances.” Thus, the State urges, Lessard’s claim that he rarely drinks alcohol “has to

be met with skepticism.”

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¶26 Setting aside the fact that the District Court made no such finding concerning

Lessard’s credibility, the State’s commentary on Lessard’s character is not evidence of

any kind. Cf. Greeson, ¶ 15; Armstrong, ¶ 15. More to the point, none of the State’s

conclusory assertions establishes a nexus between Condition 9 and Lessard’s background

and characteristics. It seems that the State would have us deduce, based on the State’s

critical assessment of Lessard’s character, that Lessard lied to the District Court and to

the author of the PSI about how often he consumes alcoholic beverages and that he

actually has a recent, and significant or chronic history of alcohol abuse that justifies the

no-alcohol condition on his sentence. We refuse to engage in such speculation. We

emphasize that conjecture of this nature cannot supplant the required showing that the

condition at issue has a nexus either to the offense for which the offender is being

sentenced or to the offender himself or herself.2 Ashby, ¶ 15.

¶27 Based on the record before us, we hold that Condition 9 is not reasonably related

to Lessard’s offense of theft, is not necessary to ameliorate a problem with alcohol, and is

not more likely to protect society from further bouts of stealing carved bears. See Ashby,

¶ 19. Accordingly, Condition 9 is illegal and must be stricken.

Condition 10

2
In this regard, the State points out in its recitation of the factual background of
this case that Lessard’s father was sentenced to seven years in prison for raping a ten-
year-old boy and that his mother went to prison for fifteen years for withholding evidence
in a murder investigation. (Lessard reported this information to the probation/parole
officer, who noted it in the PSI.) We are at a complete loss to understand what bearing
these matters have on this appeal and the probation conditions at issue. Indeed, we reject
any suggestion that the conditions of Lessard’s probation may be based on the criminal
convictions of his parents.

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¶28 Under Condition 10, Lessard “must submit to drug and alcohol testing (breath or

bodily fluid testing) on a regular or random basis as required by his supervising officer.”

Given our holding under Condition 9, the alcohol testing contemplated by Condition 10

must be stricken.

¶29 As for the drug-testing requirement, Lessard’s argument here is essentially the

same as his argument under Condition 9—namely, that neither the PSI nor the District

Court’s judgment recites any facts which would support a requirement of continuous drug

testing. He states that there is no indication in the PSI of a history of drug abuse.

¶30 In response, the State points out that Lessard indicated to the probation/parole

officer that he had tried marijuana on only one occasion (when he was 19 years old), yet

the police found a glass marijuana pipe in the master bedroom of Lessard’s home when

they searched it and he eventually admitted to law enforcement that he owned the pipe

and had last smoked marijuana two days prior to the search (i.e., on March 11, 2006).

The State contends, therefore, that Lessard is “an abuser of illegal drugs.” Finally, the

State argues more generally that drug-testing requirements enable probation officers to

monitor probationers’ compliance with probation conditions.

¶31 While there is no evidence in the record establishing a nexus between the drug-

testing condition and Lessard’s offense of stealing the carved bears, we conclude that

there is a sufficient connection between this condition and Lessard’s background and

characteristics. As just noted, the police found a glass marijuana pipe in the master

bedroom of Lessard’s home, and he admitted both that he owned the pipe and that he had

smoked marijuana just two days earlier. Ownership of a glass marijuana pipe is

12
suggestive (though by no means conclusive) of nonsporadic marijuana use. Moreover,

Lessard was untruthful when he told the probation/parole officer that he had tried

marijuana on only one occasion five years earlier. This fact further supports the

conclusion that the extent of his drug use was more significant than he let on.

¶32 We hold that there is sufficient evidence in the record of recent and significant

drug use to justify the drug-testing requirement in Condition 10. Because this

requirement has a sufficient nexus to Lessard’s background and characteristics, it is not

illegal. Furthermore, given the circumstances discussed above, we conclude that the

District Court did not abuse its discretion in imposing this requirement.

Condition 20

¶33 Under Condition 20, Lessard “may not gamble or frequent casinos.” Lessard

contends that this condition is illegal and must be stricken because there is no evidence in

the record that gambling had anything to do with his offense. In response, the State

points out that Lessard estimated during the sentencing hearing that he gambles “[f]ive

dollars once every two, three weeks.” In addition, the State argues that the case at hand is

analogous to State v. Kroll, 2004 MT 203, 322 Mont. 294, 95 P.3d 717, in which we

affirmed gambling restrictions based on the nature of Kroll’s offense (issuing bad

checks), his evident “lure to easy money-making schemes,” the fact that he had been

charged with issuing or negotiating a bad check on multiple prior occasions, and the fact

that he owed in excess of $13,000 in restitution and held no job. See Kroll, ¶¶ 30-31.

The State characterizes Lessard as someone who “wants something for nothing” and

“does not care who he hurts to get it.” The State also points out that Lessard owes two of

13
his victims $850 but has “limited means” with which to pay this (according to the PSI, he

was unemployed and his only income was $623 per month in Social Security Disability

Insurance benefits).

¶34 We cannot agree that these assertions establish a nexus between Condition 20 and

either Lessard’s offense of stealing carved bears or his individual background and

characteristics. Aside from Lessard’s statement that he gambles “[f]ive dollars once

every two, three weeks,” there is nothing in the record even suggesting that he has a

history of gambling, that he stole the carved bears as part of an “easy money-making

scheme,” or that he has failed in the past to fulfill financial obligations. Lessard’s

“limited means” and his statement about gambling “[f]ive dollars once every two, three

weeks” are not sufficient to establish a recent, and significant or chronic gambling or

money-management problem.

¶35 The State suggests that Condition 20 facilitates the State’s effort to ensure timely

payment of restitution. Yet, while a restitution obligation is indeed a component of an

offender’s rehabilitation, see Armstrong, ¶ 11, the Legislature has provided a separate

mechanism for ensuring that the restitution is paid, see §§ 46-18-244 to -249, MCA. The

mere existence of a restitution obligation—without any evidence in the record that the

offender has a history of gambling or financial irresponsibility—is insufficient to justify a

gambling condition on the sentence.

¶36 We conclude that Condition 20 is not reasonably related to Lessard’s offense of

theft, is not necessary to ameliorate a problem with gambling, and is not likely to protect

14
society from further bouts of stealing carved bears. Accordingly, Condition 20 is illegal

and must be stricken.

CONCLUSION

¶37 We conclude that the alcohol and gambling conditions were too much, that no

conditions would be too little, and that the drug-testing condition was just right.

Accordingly, we reverse the District Court’s imposition of Conditions 9 and 20. In

addition, we reverse Condition 10’s alcohol-testing requirement, but we affirm Condition

10’s drug-testing requirement. We remand this matter to the District Court with

instructions to strike the illegal conditions from Lessard’s sentence.

¶38 Affirmed in part, reversed in part, and remanded with instructions.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS

Justice John Warner concurs.

¶39 I agree with the result of the Court’s opinion. In this case the record is insufficient

to sustain Conditions 9 and 20 of Lessard’s deferred sentence. However, this is not to say

that a probation restriction on possessing or ingesting alcohol cannot be justified when

the offender has a proven history of abuse of a different intoxicant, such as

15
methamphetamine or marijuana. See State v. Winkel, 2008 MT 89, ¶¶ 15, 16, 342 Mont.

267, ¶¶ 15, 16, 182 P.3d 54, ¶¶ 15, 16.

¶40 With this proviso, I concur in the Court’s opinion.

/S/ JOHN WARNER

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