DA 07-0122
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 201
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DUSTIN DUMONT RAHN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause Nos. DC 04-157 and 05-1148
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Sheri Kathleen Sprigg, Assistant
Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Ann Marie McKittrick,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: December 6, 2007
Decided: June 10, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 The Thirteenth Judicial District Court, Yellowstone County, entered judgment against
Dustin Dumont Rahn after he pled guilty, pursuant to a plea agreement, to sexual intercourse
without consent and tampering with witnesses or informants. Rahn appeals. We reverse and
remand.
¶2 The dispositive issue is whether the District Court abused its discretion in ruling the
State of Montana did not breach the plea agreement.
BACKGROUND
¶3 In February of 2004, the State charged Rahn with sexual intercourse without consent
and felony intimidation. Several months later, Rahn and the State agreed that he would
participate in sexual offender treatment through a diversion agreement filed with the District
Court, and Rahn waived his right to speedy trial. The court continued Rahn’s trial date on
that basis.
¶4 In December of 2005, the State filed a Notice of Intent to Prosecute the original
charges based on Rahn’s failure to complete the terms and conditions of the diversion
agreement and the sexual offender treatment program. The State also filed an Information
charging Rahn with another count of sexual intercourse without consent and two counts of
tampering with witnesses.
¶5 In September of 2006, Rahn and the State filed a plea agreement covering both
criminal cases. Rahn agreed to plead guilty to the 2004 charge of sexual intercourse without
consent and one count of tampering with witnesses, and the State agreed to dismiss the
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charges of felony intimidation, the 2005 sexual intercourse without consent charge and one
count of tampering with witnesses. In addition, the State agreed, with regard to the sexual
intercourse without consent charge,
to recommend a sentence of twenty years to Montana State Prison, with ten of
those years to be suspended. The State will further argue that Mr. Rahn should
not be eligible for parole until he has completed phases 1 and 2 of the Sex
Offender Treatment Program. This offer is contingent upon Mr. Rahn being
designated a Level 2 or lower by a MSOTA [Montana Sexual Offender
Treatment Association] qualified evaluator. If Mr. Rahn is evaluated as a
Level 3, then the State will agree to recommend a sentence of 30 years to
Montana State Prison with 10 of those years to be suspended, and will further
argue that he must complete phases 1 and 2 of the Sex Offender Treatment
Program before being considered for parole.
The State also agreed to recommend a concurrent 5-year prison sentence for the tampering
with witnesses charge.
¶6 At his sentencing hearing, Rahn presented testimony by MSOTA-certified evaluator
Charles I. Newell, who had conducted a sexual offender evaluation of Rahn from July 13 to
18, 2006. Newell opined that Rahn was a “high level 2” offender. Over Rahn’s objection
that the State was breaching the plea agreement—which the District Court overruled—the
State then presented testimony by MSOTA member Michael D. Sullivan. Sullivan testified
that he had not evaluated Rahn, but he attacked the validity of Newell’s assessment. Sullivan
testified that, given the various psychological test scores Newell reported for Rahn, Rahn
should be designated a level 3 offender. The State then argued that, if the court designated
Rahn as a level 3 offender, it should sentence him to 30 years in prison with 10 years
suspended.
¶7 The District Court designated Rahn a Level 3 offender and sentenced him to 30 years
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in prison with 10 years suspended for sexual intercourse without consent, to run concurrently
with 5 years in prison for tampering with witnesses. Rahn appeals.
STANDARD OF REVIEW
¶8 We review a district court’s decision on a claim that the State breached a plea
agreement for abuse of discretion. State v. Bartosh, 2007 MT 59, ¶ 18, 336 Mont. 212, ¶ 18,
154 P.3d 58, ¶ 18 (citation omitted).
DISCUSSION
¶9 Did the District Court abuse its discretion in ruling the State of Montana did not
breach the plea agreement?
¶10 In overruling Rahn’s objection to Sullivan’s testimony, the District Court said part of
its concern was that Newell’s report designated Rahn a “high level two offender,” and the
court did not know what that meant. On that basis, the court said, it was willing to hear
evidence to help determine the appropriate designation. The State then presented Sullivan’s
testimony. Rahn contends the State breached the plea agreement by doing so.
¶11 Designation of sexual offenders in one of three levels is statutory. Before a person
convicted of a sexual offense is sentenced, either the Montana Department of Corrections or
a sexual offender evaluator must provide the sentencing court with a report recommending
one of the following offender designation levels: level 1, when the risk of a repeat sexual
offense is low; level 2, when the risk of a repeat sexual offense is moderate; or level 3, when
the risk of a repeat sexual offense is high, a threat to public safety exists and the offender is a
sexually violent predator. Section 46-23-509(2), MCA. The sentencing court reviews the
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sexual offender evaluation, any statement by a victim, and any statement by the offender and
then designates the defendant as a level 1, 2 or 3 offender. Section 46-23-509(3), MCA.
¶12 We observe that the statutory designation levels do not provide for “high” or other
adjectival variations within the three levels. As a result, the portion of Newell’s
recommendation that Rahn be designated a “high” level 2 offender is outside the statutory
scheme.
¶13 As set forth above, the plea agreement between the State and Rahn required Rahn to
obtain a sexual offender evaluation from an MSOTA qualified evaluator. Rahn obtained an
evaluation from Newell. Newell’s evaluation was attached to the presentence investigation
report, and Rahn presented Newell as a witness at the sentencing hearing. As stated above,
Newell assessed Rahn as a “high level 2” sexual offender.
¶14 In State v. Rardon, 2005 MT 129, 327 Mont. 228, 115 P.3d 182 (Rardon III), we
pointed out that a plea agreement is a contract between the State and the defendant and, as
such, is subject to contract law standards. The State may not retain the benefits of such an
agreement while avoiding its obligation thereunder. Indeed, prosecutors must meet “strict
and meticulous standards of both promise and performance” in fulfilling such agreements.
Where the State has agreed to recommend a sentence in conformity with the recommendation
of an MSOTA evaluation, the State is obligated to present its case to the sentencing judge in
a way that does not undermine its contractual obligation. Rardon III, ¶¶ 18-19 (citations
omitted).
¶15 The Rardon appeals—State v. Rardon, 1999 MT 220, 296 Mont. 19, 986 P.2d 424
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(Rardon I), overruled, State v. Munoz, 2001 MT 85, 305 Mont. 139, 23 P.3d 922; State v.
Rardon, 2002 MT 345, 313 Mont. 321, 61 P.3d 132 (Rardon II); and Rardon III—are
instructive. In Rardon I, the State had agreed, pursuant to a plea agreement, to recommend a
sentence “in conformity with” recommendations from a Sexual Offender Amenability
Evaluation and the presentence investigation, neither of which had yet been performed. The
Sexual Offender Amenability Evaluation, when it was completed, recommended outpatient
treatment. The presentence investigation recommended 40 years at Montana State Prison
with 20 years suspended, and sexual offender treatment. At the sentencing hearing, the State
recommended 70 years imprisonment with no parole until Rardon completed sex offender
treatment, but at least 30 years in prison. The district court sentenced Rardon to 75 years in
prison with 15 years suspended. Rardon I, ¶¶ 4-9. On appeal, we held that the district court
had abused its discretion in failing to require the State to abide by the terms of the plea
agreement, and reversed and remanded for resentencing. Rardon I, ¶¶ 17-18.
¶16 At the hearing on resentencing, the prosecutor opined that Rardon deserved a lengthy
sentence and, in accordance with the plea agreement, recommended a sentence of 40 years in
prison with 20 years suspended, subject to conditions. The prosecutor called the victims to
the stand and elicited their opinions that Rardon should be incarcerated for the rest of his life.
The district court sentenced Rardon to 75 years in prison with 25 years suspended. Rardon
II, ¶¶ 10-12. On appeal, we determined that the prosecutor’s “fervor” in soliciting and
offering evidence from the victims that would almost undoubtedly cause the court to question
the propriety of the recommended sentence amounted to a breach of the plea agreement.
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Rardon II, ¶ 22. As a result, we again reversed and remanded for resentencing. Rardon II,
¶ 26.
¶17 On resentencing following Rardon II, the prosecutor again recommended that Rardon
be sentenced to 40 years in prison with 20 years suspended, and again presented the victims
as witnesses, but this time did not elicit testimony opposing the State’s recommended
sentence. The district court did not accept the proffered recommendations, but imposed a 50-
year prison sentence with 13 years suspended. Rardon III, ¶ 12. On appeal, we noted the
absence of hard and fast criteria to apply in determining whether the State has undermined a
plea bargain sentence recommendation. We held that, because the prosecutor had not elicited
improper testimony or undermined the State’s recommended sentence, the prosecutor did not
breach the plea agreement. Rardon III, ¶¶ 20-21.
¶18 We recently reaffirmed that “[i]t is unacceptable for a prosecutor to present
information and to aggressively solicit testimony that is clearly intended to undermine the
plea agreement and to convince the sentencing court that a plea bargained sentence
recommendation should not be accepted.” Bartosh, ¶ 19 (citation omitted). We determined,
however, that the prosecutor had not breached the plea agreement because the prosecutor was
not responsible for the inclusion in the presentence investigation report of certain
objectionable telephone conversation transcripts. Bartosh, ¶ 20.
¶19 The agreement in the present case is clear and unambiguous. Rahn performed his
obligations thereunder. He pled guilty to the 2004 charge of sexual intercourse without
consent and one count of tampering with witnesses. An MSOTA qualified evaluator
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recommended a designation as a level 2 sexual offender. The plea agreement provided that,
upon such a designation, the State would recommend a sentence of 20 years to Montana State
Prison with 10 of those years suspended, and no parole eligibility until Rahn had completed
phases 1 and 2 of the Sex Offender Treatment Program. At the sentencing hearing, the State
called witness Sullivan to support a higher sexual offender designation and a longer sentence.
Clearly, Sullivan’s testimony was intended to convince the District Court that the plea-
bargained sentencing recommendation should not be accepted.
¶20 The State’s concern, as set forth in a presentence motion asking the District Court’s
permission to release Newell’s report to Sullivan, was that it could not understand why Rahn
did not simply obtain an updated evaluation from Sullivan—who had evaluated him in 2004.
That claimed concern is, among other things, irrelevant. The plea agreement required Rahn
to obtain an evaluation from an MSOTA qualified evaluator, not from a specific examiner.
Rahn met his obligations under the plea agreement.
¶21 On appeal, the State contends Rahn breached the plea agreement by submitting a
psychosexual evaluation that was “flawed on its face.” The State contends that, because
Rahn had “already obtained” Newell’s “high level 2” evaluation, he breached the implied
covenant of good faith and fair dealing by withholding the evaluation for five months.
¶22 The State’s argument is raised for the first time on appeal and, as the State is aware,
we generally do not consider arguments raised for the first time on appeal. See e.g. State v.
Long, 2005 MT 130, ¶ 35, 327 Mont. 238, ¶ 35, 113 P.3d 290, ¶ 35 (citation omitted). In the
present case, Rahn objected to the State calling Sullivan as a witness on the grounds the State
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was breaching the plea agreement. The State did not respond with an argument that Rahn
was breaching the agreement or an implied covenant thereof. We decline to allow the State
to do so for the first time on appeal.
¶23 Rahn complied with the plea agreement. However, the State’s conduct in presenting
Sullivan’s testimony and his recommended level 3 sex offender designation was not what had
been agreed upon in the plea agreement and, thus, we conclude the State breached its
agreement with Rahn. We hold, therefore, that the District Court abused its discretion in
overruling Rahn’s objection that the State was breaching the plea agreement. Consequently,
we further hold that the District Court abused its discretion in admitting Sullivan’s testimony
and letter.
¶24 Finally, in the event we reverse the sentence, the State asserts entitlement to an
opportunity to demonstrate on remand that specific performance of the plea agreement would
result in a miscarriage of justice, based on the same facts and arguments by which it justified
Sullivan’s letter and testimony. The State relies on Munoz, in which defendant Munoz had
moved to withdraw his guilty plea following the State’s breach of a plea agreement. The
district court denied the motion, and Munoz appealed. Munoz, ¶¶ 7, 8. The State admitted
on appeal that it had breached the plea agreement, but argued the sentencing court—rather
than the defendant—should have the right to choose the remedy. Munoz, ¶¶ 10, 11. We
disagreed. We held the sentencing court could disallow Munoz’s choice of remedy only if
the State demonstrated by clear and convincing evidence that his choice of remedy would
result in a miscarriage of justice. No such showing had been made in that case. Munoz, ¶ 38.
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¶25 In the present case, unlike in Munoz, the remedy sought by the defendant is to require
the State to make the sentencing recommendation it agreed to, before a new judge, not to
withdraw his guilty plea. Allowing the State to make a “miscarriage of justice” argument on
remand via Sullivan’s letter and testimony—the very evidence by which it breached the plea
agreement—would itself be a miscarriage of justice, because it would effectively deny Rahn
any remedy for the State’s breach.
¶26 Pursuant to Munoz, “a non-breaching defendant must be afforded the initial right to
choose from available remedies where the State breaches a plea agreement.” Munoz, ¶ 38.
Here, Rahn’s choice of remedy is to hold the State to its bargain. On remand, the State’s
obligation is clear. The plea agreement clearly contemplated either a level 2 or a level 3
designation. Rahn obtained a recommendation for a level 2 designation. The State is
obligated to make the corresponding sentencing recommendation contained in the plea
agreement.
¶27 Reversed and remanded for resentencing by a different judge consistent with this
opinion.
/S/ KARLA M. GRAY
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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State v. Rahn
Combined Opinion