Big Sky Blawg

On appeal, C.D.H. argued that it was an ex-post facto violation to apply a version of MCA § 41-5-1513 not in effect at the time of his crime. SCOMONT ruled that C.D.H. had not preserved the issue for appeal because the objection at trial was too generalized. Citing State v. LaFreniere, 2008 MT 99 ¶ 12, the Court reiterated that an “objection must be specific in order to preserve the issue for appeal.” An objection that is “very generalized in nature and which does not specify what authority, rule, statute, or constitutional provision might be violated by the court’s decision, is insufficient to preserve that issue on appeal.” LaFreniere, ¶ 12.

Here, the Court described C.D.H.’s trial argument:

C.D.H. mainly argued in support of his ex parte motion to the District Court to remove the registration requirement that the court should apply the former version of § 41-5-1513,MCA [sic]. C.D.H. argued that this Court long has held “that the person must be sentenced under the statute in effect at the time of the offense.” C.D.H. cited for support, our decision in State v. Southwick, 2007 MT 257, ¶ 25, 339 Mont. 281, ¶ 25, 169 P.3d 698, ¶ 25, and other related cases. C.D.H.’s motion made no mention of any constitutional prohibitions on application of the 2007 amendment to § 41-5-1513, MCA.

At the hearing, C.D.H. conceded that the legislature intended for the 2007 amendment to § 41-5-1513, MCA, to apply retroactively. He then argued “I think it’s still an ex post facto application of the statute … this case was going on pending this legislature doing this.” The court attempted to solicit further argument and authority for C.D.H’s constitutional claim. The court noted that registration also was a possibility under the old statute. The court specifically asked C.D.H.: “Where is the ex post facto argument?” C.D.H. responded again that it was ex post facto as his case was pending “and just for the record judge, I would like to make that argument.” The court asked C.D.H. if it should consider another brief on that point. C.D.H. responded “no, you have everything that you need to make that decision, judge.”

The Court’s reliance on LaFreniere seems misplaced. There, the defendant’s counsel made no ex post facto argument. “At no time did LaFreniere argue before the District Court the issue of an ex post facto violation.” LaFreniere, ¶ 13. I have not read the transcript from the District Court, but the summary reproduced above indicates that C.D.H. did make such an argument. An ex post facto violation derives its name from the ex post facto clause of the United States Constitution, found in Article 1, Section 10, and its corollary in the Montana Constitution. By stating the name of the violation, C.D.H. referenced the authority his argument relied upon. And not only did C.D.H. reference the relevant constitutional provision, but he also cited to Southwick. A case that, by my reading, stands for the proposition that sentencing under a newly enacted statute, not in effect at the time of the defendant’s crime, is an ex post facto violation.

Could C.D.H. have made a more thorough, eloquent argument? Probably. But were the attorney’s statements so deficient as to render Constitutional protections void for his client? I simply cannot see how.

Finally, my favorite discovery from reading these cases. In LaFreniere, SCOMONT states its reason for requiring specificity in order to preserve an issue for appeal as this:

it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.

I’m glad we’re looking out for the feelings of the state Judiciary. And if a few fundamentals get trampled in the process? Oh well.

Download Matter of C.D.H.
Download LaFreniere
Download Southwick

3:51 p.m. A man in Bigfork, who calls the sheriff’s office habitually, called again. As usual, he said everything was OK in Bigfork and any report otherwise was false. He also mentioned that he hadn’t done anything wrong.

That is all.

On Wednesday, The Supreme Court of the United States decided Herring v. United States. Although the focus of this blawg is primarily Montana law, current interpretations of the federal constitution bear on what happens in the state – and I thought the decision was interesting.

In Herring, SCOTUS was presented with the issue of whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and arrest him. Chief Justice Roberts, writing for the majority, held that “[w]hen police mistakes are the result of negligence such as that described here, rather than systemic errors or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way.”

According to the majority, the exclusionary rule is not an individual right and applies only when it will result in appreciable deterrence. Because originally the purpose of the exclusionary rule was to provide incentive for the government to stop violating suspect’s constitutional rights, a Fourth Amendment violation does not necessarily mean that the exclusionary rule applies. Instead, “[t]he deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” In conducting the balancing test required by the exclusionary rule, the more culpable the officers, the more reason to suppress the evidence. Triggering the exclusionary rule requires deliberate, reckless or grossly negligent conduct on the part of the officers under the majority opinion. Recurring or systemic negligence are also mentioned.

As Ginsburg’s dissent points out, this seems to be assuming that the exclusionary rule “is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless.” The problem, as she mentions, is that this contradicts a basic assumption of tort law – that liability for negligence creates an incentive to act with greater care. Justice Ginsburg also points out that the exclusionary rule is the only significant means of redress an individual has in a situation like Herring’s.

We’ll have to wait to see the ultimate significance of this opinion. In some ways, the facts of Herring are quite specific and provide ample grounds for distinctions. At one point the majority describes the error at issue as a result of isolated negligence attenuated from the search. Limited to situations like that, the decision is of relatively little consequence.

On the other hand, the majority opinion certainly supports the proposition that negligent violations of the Fourth Amendment are immune from the exclusionary rule. This would be a significant expansion of the so-called “good faith” exception and blow to what protections remain of the Fourth Amendment.

If I were arguing for suppression in federal court post-Herring, I would latch on to the attenuation language and hold on to with everything I had. But maybe that’s just me…

Herring v. U.S.

Smart pled guilty to two counts of sexual intercourse without consent.  At sentencing, the District Court imposed a prohibition on drinking and drug use and on entry into bars and a requirement that Smart submit to annual polygraph testing, if requested as part of a Sex Offender Treatment or Aftercare.  Both conditions were challenged on appeal.

With Justice Cotter writing the majority opinion, SCOMONT held that a district court may impose a polygraph examination requirement on a defendant for sex offender treatment purposes (citing State v. Hameline, 2008 MT 241).  And, because Smart did not suffer from significant or chronic alcohol abuse, nor was there a nexus between alcohol abuse and his crimes, the Court held that the alcohol-related restrictions should be stricken.

Download State v. Smart PDF

In February of 1994, White pled guilty to theft and was given a three year deferred sentence. Six months later, in August, her deferred sentence was revoked for consuming alchohol and a ten year sentence was imposed. She was required to serve 30 days in the Flathead County Detention Center and the rest of the sentence was suspended. Additionally, she was required to pay a fine of $1,000, pay a surcharge of $100, and submit to screening for Intensive Supervised Probation. In 1996, the 1994 judgement was amended to require White to submit to blood, breath or urine analysis at the request of her probation officer.

In May of 1997, the District Court found that White had consumed alchohol, thereby violating her probation and revoked her suspended sentence. Among other changes, the court added the requirements that she attend AA meetings four times a week (unless her probation officer said otherwise), and to attend counseling that her probation officer thought necessary.

A District Court has no power to impose a sentence in the absence of specific statutory authority. State v. Ruiz, 2005 MT 117, ¶ 12. MCA § 46-18-203(7)(c) authorizes a court revoking a suspended sentence to “require the defendant to serve either the sentence imposed or any lesser sentence.” The additional conditions imposed on White in 1997 where in excess of this statutory authority and, therefore, illegal. Despite White’s claim that the entire sentence was illegal, the Court held that the proper remedy is simply to strike the offending conditions.