United States v. Brooks

No. 94-220
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

UNITED STATES OF AMERICA,

ROBERT ALLAN BROOKS,
Defendant and Appellant.

ORIGINAL PROCEEDING: Certified Question from the Missoula
Division of the United States District
Court, District of Montana, The Honorable
Charles C. Lovell, Judge presiding

COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr. (argued),
Cannon & Sheehy, Helena, Montana
For Respondent:
Sherry Scheel Matteucci, United States Attorney,
Robert J. Brooks (argued), Assistant
United States Attorney, Butte, Montana
For Amicus Curiae:
Lois Adams and David L. Ohler, Legal Counsel,
Department of Corrections & Human Services,
Helena, Montana

Submitted: October 4, 1994
Decided: February 24, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Defendant Robert Allan Brooks argues in the Missoula Division

of the United States District Court, District of Montana, that he

was not deprived of his civil and constitutional rights to possess

a firearm while under the supervision of the Montana Department of

Corrections Probation and Parole Division. The Federal Court

certified the question to this Court for consideration and

decision. We hold that under the facts of this case, defendant was

not deprived of his civil and constitutional rights.

On May 9, 1994, the Federal Court filed an order in this Court

certifying for consideration and decision the following question:

Whether a criminal defendant was deprived of his
civil and constitutional rights to possess a firearm
while he was on probation under the following
circumstances:

a. the Montana sentencing court in his felony
judgment of conviction did not impose a condition of
probation that the defendant could not possess a firearm,
but rather ordered him to comply with all terms and
conditions established by the Probation and Parole
Division of the Department of Corrections; and

b. at the time of the sentencing, the Department
of Institutions of the State of Montana had in effect an
administrative rule establishing conditions of probation
that included a condition denying probationers the right
to own, possess, or control a firearm.

By order filed May 17, 1994, this Court accepted jurisdiction

of the certified question and stated that "[t]his Court will decide

the certified question on the basis of the facts forwarded by the

said [Federal] District Court . . . .I' Those facts are as follows:

On January 6, 1989, the Lake County District Court adjudged

Brooks guilty of the offense of theft. Brooks received a five-year

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suspended sentence. The District Court did not impose a condition
of probation that Brooks could not possess a firearm. However, as
a condition of probation, the District Court placed Brooks under
the jurisdiction of the Probation and Parole Division of the
Department of Corrections (Probation Division) and ordered that he
comply with all terms and conditions established by the Probation
Division.
Brooks signed a standard Probation Division form containing
the conditions of his probation and parole. The form provides in
pertinent part:
8. WEAPONS: You shall not own, possess or be in control
of any firearm or deadly weapon as defined by state
statute. The Federal Gun Control Act of 1968, prohibits
any person who is under indictment or has been convicted
of a felony to possess or carry a firearm while engaged
in any act or sporting activity such as hunting.
Brooks was subsequently indicted in Federal Court on different
charges. Count I of the indictment alleged that Brooks was a felon
in possession of a firearm, in violation of federal law. Prior to
trial, Brooks moved to dismiss Count I on the ground that, as a
matter of law, he had not been "convicted of a crime punishable for
a term exceeding one year," as that term is defined by federal law.
The Federal Court entered an order reserving ruling on the issue
pending further proof by the government. At trial, the Federal
Court found that the government put forth sufficient proof, and
Brooks' motion to dismiss was denied. The jury returned guilty
verdicts on both counts of the federal indictment. Brooks has
filed a motion for a new trial, again arguing that he does not fit

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within the federal definition. The Federal Court has not rendered

sentence and judgment pending this Court's resolution of the

certified question.

At the time Brooks was convicted in state district court, the

Department of Corrections had in effect, pursuant to 10.7.1101(E),

ARM, a standard condition forbidding probationers from possessing

firearms. The Federal Court heard testimony at trial that the

Probation Division was required to apply the standard condition to

every probationer. Since the Probation Division was required by

administrative rule to impose the "no firearm" condition in every

case, the Federal Court "assumed that the sentencing judge was

aware of the regulation and thus, as a prerequisite to imposing the

condition to abide by the conditions of the Probation Division,

determined that Defendant's right to possess a firearm should be

suspended."

Our function in construing and applying statutes is to effect

legislative intent. State ex rel. Neuhausen v. Nachtsheim (1992),

253 Mont. 296, 299, 833 P.2d 201, 204; State ex rel. Roberts v.

Public Service Com'n of State of Montana (1990), 242 Mont. 242,

246, 790 P.2d 489, 492. In determining that intent, we look first

to the plain meaning of the words used in the statute. Stansbury

v. Lin (1993), 257 Mont. 245, 249, 848 P.2d 509, 511; Roberts,

790 P.2d at 492. If the Legislature's intent can be determined

from the plain meaning of the statute's words, we will look no

further. Neuhausen, 833 P.2d at 204. It is only when the intent

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cannot be determined from the language of the statute that we will

examine the legislative history. Roberts, 790 P.2d at 492.

The plain language of § 46-18-801(l) and O), MCA,

specifically vests in the sentencing judge the power to deprive a

convicted offender of civil or constitutional rights:

(1) Conviction of any offense shall not deprive the
offender of any civil or constitutional rights except as
they shall be specifically enumerated bv the sentencing
conditions
iudqe ast;zcessary f
o the sentence directed
toward objectives of rehabilitation and the
protection of society.
(2) No person shall suffer any civil
constitutional disability not specifically included g
the sentencins iudse in his order of sentence.

(Emphasis added.) The plain language of these subsections also

requires any such deprivation to be "specifically enumerated" and

"specifically included" in the sentencing order.

Whether the Probation Division is required by administrative

rule to impose the "no firearm" condition in every case, or whether
the state district court was aware of the standard Probation

Division conditions, does not change the clear mandate of

§ 46-18-801, MCA. The statute explicitly requires the sentencing
judge to specifically enumerate and specifically include any civil

or constitutional deprivation in the sentencing order. Imposing a

condition of sentence which assigns a convicted offender to the

supervision of the Probation Division does not meet the statutory
requirements.

Because the language of § 46-18-801(l) and (2), MCA, is clear
on its face, we do not look beyond that language to interpret the

statute. Neuhausen, 833 P.2d at 204.

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 In answer to the certified question, we hold that, because the

sentencing court did not specifically enumerate and specifically

include in the sentencing order that Brooks was prohibited from
possessing a firearm, the Probation Division of the Montana
Department of Corrections and Human Services could not and did not

deprive him of that right as a condition of probation.

We concur:

Chief Justice

Justices

sitting for Justice )J'bhn C. Harrison
/
Justice James C. Nelson specially concurring:

I concur that the defendant was not deprived of his civil or

constitutional right to carry a firearm by the inclusion of that
prohibition in his probation agreement or by Department of

Corrections rule 20.7.1101(5), ARM. Section 46-18-801(l) and (21,

MCA, is clear on that point; the power to deprive an offender of a
civil or constitutional right or to impose a civil or

constitutional disability as a condition of sentence is reserved to

the district court and requires specific enumeration by the

sentencing judge.

However, in light of that conclusion and in fairness to
probation officers who must continue to supervise probationers and

parolees, many of whom are under supervision for violent crimes or

for offenses committed with weapons, I believe that it is necessary

that we also point out that it does not follow from our opinion

that probationers and parolees may now begin carrying weapons

contrary to the provisions of their probation agreements.

The exercise of the civil and constitutional right to bear

arms found in the Second Amendment of the United States

Constitution and at Article II, Section 12 of the Montana

Constitution, like any civil liberty or constitutional right, may

be waived or restricted with the agreement and consent of the

person to whom the right inures. As a sentencing condition the

court, here, required the defendant to report to the probation

department, to sign rules and conditions of probation and to set up

a reporting schedule with the probation officer. The defendant did

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that, and he signed a probation agreement pursuant to which he

agreed and consented to certain restrictions on his civil liberties

and constitutional rights during the term of the agreement,
including, among others, a restriction on his right to possess

weapons. The defendant agreed and consented to those restrictions

in order to gain the benefit of probation rather than remain

incarcerated.

The weapons (and other) restrictions imposed under the

defendant's probation agreement remain valid and fully enforceable

because the defendant agreed, for a certain period of time, to

certain limitations on his exercise of constitutional rights and
civil liberties of which he had not been deprived. This

interpretation is consistent with dicta in the recent case of U. S.

v. Wryn (9th Cir. 1991), 952 F.2d 1122. In that case the defendant

was convicted in federal court of conspiracy to distribute and
possession with intent to distribute LSD, based in part, on his

state probation officer's discovery of that drug in his house

during a warrantless search. On appeal, the Ninth Circuit noted

that the Montana Department of Institutions administrative rule and

the defendant's probation agreement specifically required court

approval for the probation officer's warrantless search of the

probationer's residence without his consent. The court held that

since there had not been court approval for the warrantless search,

the search was invalid. In so holding, however, the court observed

that,

had the warrantless search of the probationer Wryn's home
been authorized by either Montana state law or bv Wrvn's

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 probation agreement we would consider the search
"reasonable" under the fourth amendment.

Wryn, 952 F.2d at 1124. (Emphasis added.)

In the instant case, while the sentencing court did not

deprive the defendant of his civil and constitutional right to bear

arms under § 46-18-801(l) and (Z), MCA, the probation agreement

which he signed restricted his exercise of that right, and that

restriction, accordingly, remains valid and fully enforceable under
the terms of the agreement.

Justice Karla M. Gray concur ncurrence.

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Chief Justice J. A. Turnage, dissenting:

I respectfully dissent.

This Court's interpretation of § 46-18-801, MCA, and its
application to the District court ' s judgment of the felony

conviction of Robert Allen Brooks, Lake County Cause No. DC-88-72,

dated January 6, 1989, is wrong
The District Court did impose a condition of probation that

Brooks could not possess a firearm. The District Court judgment in

relevant part stated:

1. That the Defendant be placed under the jurisdic-
tion of the Adult Probation and Parole Division of the
State of Montana Department of Institutions and that he
comply with all of the terms and conditions established
by said Division.

10. That the Defendant shall report to the Proba-
tion Department immediatelv after the release from the
Court for the purpose of siqninq rules and conditions of
probation, and to set up a reporting schedule with a
Probation Officer. [Emphasis added. 1
Brooks on January 12, 1989, in the presence of his probation

and parole officer, signed a document entitled, "Conditions of

Probation and Parole," which in relevant part provided:

8. WEAPONS: You shall not own, possess or be in control
of any firearm or deadly weapon as defined by state
statute. The Federal Gun Control Act of 1968, prohibits
any person who is under indictment or has been convicted
of a felony to possess or carry a firearm while engaged
in any act of sporting activity such as hunting.

. .

AGREEMENT BY PROBATIONER/PAROLEE

I understand that this Probation/Parole is granted
to' and accepted by me, subject to the conditions,
limitations, restrictions stated herein, and with the
knowledge that the Board of Pardons, Sentencing Court, or

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 the Department of Institutions have the power, at any
time, in case of violation of the conditions, limitations
and restrictions of Probation or Parole to cause my
detention and/or return to prison. I have read, or have
had read to me, the foreqoinq conditions of mv proba-
tion/parole. I fullv understand them and I agree to
abide bv and strictly follow them, and fullv understand
the penalties involved should I in any manner violate the
foreqoinq conditions, limitations and restrictions.
[Emphasis added. 1

The majority of this Court correctly states that this Court's

function in construing and applying statutes is to effect legisla-

tive intent but from that point they go astray.

The legislature will be amazed at what we conclude to be its

intent in this case. By what I submit to be a hypertechnical

interpretation of § 46-18-801, MCA, arrived at without fully

discussing or considering the relevant parts of the District Court

judgment and the agreement by probationer/parolee Brooks and with
no case law citation from any other jurisdiction that provides

persuasive precedent, the majority has reached a wrong conclusion.

The Supreme Court of Arizona reached a logical and persuasive

conclusion in a probation case by allowing incorporation by

reference of conditions of probation. State of Arizona v. Stotts

(Ariz. 19851, 695 P.Zd 1110. Appellant Stotts was convicted of

felony aggravated assault. In his sentencing order, the trial

judge set out three conditions for probation:

"(1) That he be returned through the Washington
State Parole hold' to enter Washington Correctional
Center;
"(2) That he be accepted at the Western State
Hospital for evaluation and inpatient treatment, and
"(3) That he follow all the conditions required by
the [Arizona] Probation Department."
stotts, 695 P.2d at 1116. The Arizona Supreme Court went on to

conclude that Stotts was bound by conditions of probation which
were imposed on him after sentencing, stating:

Appellant received no written copy of any conditions
of probation at the time of his sentence. In November of
1978, however, the State of Washington applied for an
Interstate Compact with Arizona. In this application for
Interstate Compact that he signed, appellant agreed to
make his home at Western State and to return to Arizona
when duly instructed by proper authorities. Appellant
also agreed to comply with the conditions of probation as
fixed by both Arizona and Washington. Subsequently, in
April of 1979, appellant signed and apparently received
a copy of an Interstate Compact with Conditions of
Probation. He signed and apparently received more
conditions in July of 1981. His probation was revoked
because of a violation of one of these subsequent written
conditions.

Though we emphasize that all probationers should
receive written conditions at the time probation is
imposed, we do not find the failure to do so in this case
invalidated the probation revocation. A combination of
four factors justifies this conclusion: first, though
appellant's original "unwritten probation" was, upon
imposition, unenforceable by revocation, it was valid;
second, the subsequent furnishing with appellant of
written conditions and his signing of those conditions
cured the probation's unenforceability; third, the
subsequent written conditions were not more burdensome
than the unwritten conditions; and, fourth, there were no
due process violations in basing revocation upon the
subsequent written conditions.

stotts, 695 P.2d at 1116.

Clearly, in the present case, the District Court's judgment

properly incorporated by reference paragraph 8 of the Conditions of

Probation and Parole, a condition lawfully adopted under the

Montana Administrative Procedures Act

The majority's unduly restrictive interpretation and applica-

tion of 5 46-18-801, MCA, renders it in direct opposition to other

code sections relating to probation and parole. The legislature

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has specifically granted the Department of Corrections and Human

Services the authority to adopt rules which govern parolees,
probationers, and inmates on supervised release. Section 46-23-
218, MCA, states:

Authority of board to adopt rules. The board may adopt
any other rules it considers proper or necessary with
respect to the eligibility of prisoners for parole, the
conduct of parole hearings, and conditions to be imposed
upon parolees. [Emphasis added. 1

Inmates on supervised release are likewise subject to conditions

which are not set out verbatim by the sentencing judge. See § 46-

23-405, MCA (authorizing the Department of Corrections and Human

Services to establish rules governing inmates on supervised release

programs). Like conditions of probation, conditions placed on

parolees and individuals on supervised release programs are

ultimately the result of that individual's criminal conviction.

Under the majority's interpretation of 5 46-18-801, MCA, such

conditions cannot be delegated to the Department of Corrections and

Human Services, but rather must be set by the sentencing judge.

Such an interpretation defeats the purpose of those statutes which
authorize the Department of Corrections and Human Services to set

conditions.

The majority correctly points out that we must construe

statutes to effect the legislature's intent. In light of the fact

that the legislature empowered the Department of Corrections and
Human Services to establish reasonable conditions of parole,

probation, and supervised release, the legislature certainly did

not intend § 46-18-801, MCA, to nullify this power.

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 By incorporating by reference the conditions of probation, the

sentencing judge properly restricted Brooks's right to possess a

firearm. Such an interpretation is consistent with 5 46-18-801,

MCA, and does not frustrate those statutory provisions which

empower the Department of Corrections and Human Services to set

reasonable conditions of probation, parole and supervised release.

The majority holding that the district courts of Montana are

prohibited from incorporating by reference reasonable and rational

probation and parole rules lawfully adopted to the Montana

Administrative Procedures Act, when those conditions are agreed to

and signed by the probationer/parolee, will work irreparable harm

to the management of an overburdened probation system. Judicial

proceedings will follow this opinion challenging what most

certainly are many district court judgments of felony convictions

and provisions relating to parolees.
I would answer the certified question by stating that Brooks

was lawfully denied the right to possess a firearm during the

period of his probation for a felony conviction.

Justice Fred J. Weber joins in the dissent of Chief Justice
Turnage.

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