Withdraw Guilty plea, no mens re

DA 07-0673
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 32
STATE OF MONTANA,
v.
SHAUN WAYNE WISE, a/k/a SHANADOA JOHNSON,
Appellant Shaun Wise pled guilty to criminal mischief in the Twenty-First Judicial
District Court, Ravalli County. He later moved to withdraw his guilty plea, and the
District Court denied his motion. We reverse and remand.
The sole issue presented for our review is whether the District Court erred in
denying Appellant’s motion to withdraw his guilty plea.
Here, the colloquy was clearly inadequate and Wise made a timely request for
withdrawal. We have said that “[a] significant part of the voluntariness inquiry is an evaluation of the court’s plea colloquy with the defendant . . . .” State v. Chase, 2006 MT 19, 331 Mont. 1, 127 P.3d 1038 (overruled on other grounds, Deserly, Wise simply did not “own up” to a criminal intention required by the charge. Although the State cites to the affidavit filed in support of the Information, the information provided therein was either directed toward the dismissed exploitation charge, or simply discussed the damage Wise caused, again without indicating that there was a criminal design to cause the damage.
The District Court incorrectly concluded that there was a factual basis for Wise’s
plea, a violation of § 46-12-212(1), MCA, which casts doubt on the voluntariness of
Wise’s plea, and which he timely moved to withdraw. Because we resolve doubt about
the voluntariness of a plea in a defendant’s favor, we hold that the case-specific
considerations warrant withdrawal of the plea. We reverse the District Court’s denial and
remand the case to the District Court so that it may grant Wise’s motion.
Reversed and remanded for further proceedings consistent herewith.

“on probation” was not admissible under Rule 404(b)

DA 08-0107
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 27
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES DERBYSHIRE,
James Derbyshire was convicted in the Eighth Judicial District Court, Cascade
County, of one count of criminal possession of dangerous drugs (marijuana) with intent to distribute, a felony, in violation of § 45-9-103, MCA (2005). He appeals, arguing that the District Court erred in denying his pretrial motion to exclude evidence of his status as a probationer. We agree with Derbyshire and further conclude that the State has not demonstrated the error was harmless. We accordingly reverse Derbyshire’s conviction, vacate the District Court’s judgment, and remand this case for a new trial.
CONCLUSION
Testimony by the State’s witnesses that they were “probation officers” and that
Derbyshire was “on probation” was not admissible under Rule 404(b) or the transaction
rule. Thus, the District Court erred in denying Derbyshire’s motion to exclude evidence
of his status as a probationer. The State has not demonstrated that this error was
harmless. We accordingly reverse Derbyshire’s conviction, vacate the District Court’s
judgment, and remand this case for a new trial.
Reversed and remanded for a new trial.

alcohol-related restrictions are not “reasonably related”

DA 07-0631
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 1
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FORREST SCOTT SMART,
The issues on appeal are:
Did the District Court err in requiring polygraph testing as a condition of Smart’s suspended sentence?
Did the District Court err in imposing drug and alcohol prohibitions as conditions of Smart’s suspended sentence?
Having determined that the alcohol-related restrictions are not “reasonably related” to Smart’s sexual offenses nor are they necessary to promote rehabilitation since Smart does not have a history of significant or chronic alcohol abuse, we reverse and remand with instruction to the District Court to strike the alcohol conditions from Smart’s sentence. However, we affirm the inclusion of the polygraph examination for the reasons set forth above.

New Sentencing Condition upon revocation illegal

DA 07-0758
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 464
STATE OF MONTANA,
v.
JODI MICHELLE WHITE,
The sole issue on appeal is whether the sentence imposed by the District Court in August 2007 is illegal.
CONCLUSION
We hold under § 46-18-203(7)(c), MCA, that the District Court had no authority to impose new conditions on White’s 1997 sentence and that the court, thus, has no authority to reimpose those illegal conditions on White’s 2007 sentence. Accordingly, we reverse the District Court’s August 2007 judgment to that narrow extent and remand this case with instructions that the court strike all conditions on White’s current sentence which are not contained in the court’s February 1994, August 1994, and July 1996 judgments. We affirm the District Court’s August 2007 judgment in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.

DA 06-0134
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 444
STATE OF MONTANA,
v.
WILLIAM JOHN MATT,
Matt raises three issues on appeal:
1. Did the District Court err in limiting Matt’s cross-examination of one of the State’s witnesses?
2. Did Matt’s trial counsel provide constitutionally ineffective assistance of counsel?
3. Was Matt’s constitutional right to be present at all critical stages of his trial violated and, if so, was the violation harmless error?
¶3 Because we conclude that Matt’s conviction must be reversed under Issue 3, we do not address Issues 1 and 2. Moreover, since this case is being remanded for a new trial, we do not provide substantial details regarding the facts underlying the charged offense.
Matt raises three issues on appeal:
1. Did the District Court err in limiting Matt’s cross-examination of one of the State’s witnesses?
2. Did Matt’s trial counsel provide constitutionally ineffective assistance of counsel?
3. Was Matt’s constitutional right to be present at all critical stages of his trial violated and, if so, was the violation harmless error?
¶3 Because we conclude that Matt’s conviction must be reversed under Issue 3, we do not address Issues 1 and 2. Moreover, since this case is being remanded for a new trial, we do not provide substantial details regarding the facts underlying the charged offense.

jail time credit for time served in another state

DA 07-0449
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 375
STATE OF MONTANA, v. ROBERT ROY MILLIGAN,
Whether the District Court failed to credit Milligan with the full 215 days of incarceration before his sentencing.
A defendant’s sentence may be credited with the time he or she was incarcerated only if that incarceration was directly related to the offense for which the sentence is imposed. State v. Erickson, 2008 MT 50, ¶ 19, 341 Mont. 426, ¶ 19, 177 P.3d 1043, ¶ 19. Milligan’s
arrest in Idaho is directly related to the offenses his sentence imposed. Milligan is allowed full credit for time served.
We affirm in part, reverse in part, and remand for entry of an amended sentence consistent herewith.

DA 07-0017
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 371
MARTIN MARIANO BACA,, v. STATE OF MONTANA,
1. Did the trial court err in sentencing Baca for a felony PFMA offense instead of a misdemeanor PFMA?
In its response brief on appeal, the State reiterates its concession in the District Court that Baca’s 1999 conviction could not be used to enhance his current PFMA offense to a felony. The State also concedes that, in light of the circumstances of this case, the District Court erred in concluding that Baca’s 1997 South Dakota simple assault conviction should be considered a prior PFMA conviction under the § 45-5-206(3), MCA, enhancement
provisions.
Affirmed in part, reversed in part and remanded for resentencing on the PFMA conviction as a misdemeanor offense.

Jail time credit, 46-18-403(2)

DA 07-0120
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 344
STATE OF MONTANA, v. RANDY ALLEN DENNISON,
1. Did the District Court exceed its sentencing authority by imposing conditions on Dennison’s parole?
2. Did the District Court err by imposing a total fine of $28,850 against Dennison?
Pursuant to § 46-18-403(2), MCA, a person may be granted credit on a fine for each day of incarceration prior to conviction, except that the amount credited may not exceed the amount of the fine. Here, neither the $27,750 credit given by the District Court nor the 555 days of time served at $50 per day upon which it was based is challenged on appeal.
¶22 Remanded with instructions that the District Court enter an amended judgment deleting all reference to conditions of parole and reinstating its 2006 total fine of $9,200, less credit for time served, for a net fine of $0.

Insufficent evidence, liability insurance, Driving with no proof of insurance

DA 07-0204
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 354
STATE OF MONTANA, v. ROBERT G. FARMER
The sole issue on appeal is whether the District Court erred in denying Farmer’s motion to dismiss for insufficient evidence § 61-6-301, MCA,
We conclude the State failed to present sufficient evidence to prove beyond a reasonable doubt that Farmer did not have valid liability insurance for his vehicle at the time of the traffic stop. Consequently, we further conclude the State failed to prove Farmer violated § 61-6-301, MCA. We hold, therefore, that the District Court erred in denying Farmer’s motion to dismiss for insufficient evidence.
¶16 Reversed and remanded to the District Court with instructions to vacate the judgment and dismiss the charge.

Condition No. 10 also exceeds the District Court’s sentencing authority, and insofar as it denies Nelson the right and privilege to use medical mariju

DA 07-0339
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 359
STATE OF MONTANA,
v.
TIMOTHY SCOTT NELSON,
Timothy Scott Nelson (Nelson) appeals two sentencing conditions imposed on him in the District Court of the Ninth Judicial District Court, Pondera County. We reverse the imposition of the challenged sentencing conditions and remand for further proceedings consistent with this Opinion
Issue One: Did the District Court exceed its statutory authority by requiring Nelson to comply with Condition No. 10 during the term of his deferred sentence?
Did the District Court exceed its authority when it imposed Condition No. 9 and required Nelson to comply with federal law which prohibits the possession of marijuana and does not provide an exception for the use of medical marijuana pursuant to state law?
We conclude the District Court exceeded its authority by requiring Nelson to comply with Condition No. 9, insofar as it subjected him to the possibility that his deferred sentence could be revoked based upon a violation of federal law. While Nelson may be generally required to obey federal law, an exception must be made for lawful use of medical marijuana under the MMA. Condition No. 10 also exceeds the District Court’s sentencing authority, and insofar as it denies Nelson the right and privilege to use medical marijuana as contemplated by the MMA, it must be stricken as well. Therefore, we reverse the imposition of these two conditions and remand for further proceedings consistent with this Opinion.

1 year time limit on misdemeanor prosecution 45-1-205

No. 02-620
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 159
KENNETH DEXTER,
Petitioner and Appellant,
v.
JACK SHIELDS, Justice of the Peace
and JOHN DOE, Sheriff of Fergus County,
Kenneth Dexter (Dexter) was sentenced to one year in jail for third offense DUI. His
sentence was suspended upon condition that he serve ninety days and pay a fine. He failed
to do either. Approximately three years later, he was arrested on an outstanding warrant
issued after his suspended sentence had expired. Presiding Justice of the Peace Jack Shields
(Shields) invoked his contempt of court powers and sentenced Dexter to jail for failing to
fulfill the conditions of his suspended sentence. Dexter filed an application for a Writ of
Habeas Corpus in the Montana Tenth Judicial District Court, Fergus County. The District
Court released Dexter pending a hearing on his application. The District Court subsequently
concluded, however, that Shields had the authority to find Dexter in contempt of court and
to punish Dexter accordingly. Dexter appeals. We reverse.

05-496
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 338
STATE OF MONTANA, Plaintiff and Appellee, v. DENNIS EUGENE WEST,
West now appeals, contending that the nearly 26-month delay in bringing him before the District Court on the alleged violation constituted “unnecessary delay” under § 46-18-203(4), MCA, and infringed his rights to due process under the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution.
We conclude that revoking West’s suspended sentence notwithstanding the 26-month delay in bringing him before the District Court implicates his due process rights. However, we have determined that the factual record presently before this Court is not adequate for deciding this claim on the merits. Accordingly, we set out the relevant legal principles in this Opinion and then remand the case to the District Court for further proceedings consistent with this Opinion.

official misconduct, statute of limitations

91-435
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
-vs-
MONA LORRAINE HAMILTON,
The issue is whether the official misconduct charges brought
against Hamilton were based on a continuing course of conduct so
that they were not barred by the one-year statute of limitation for
misdemeanors.
We hold that the charges against Hamilton are subject to the
general one-year statute of limitation for misdemeanor offenses.
Assuming the truth of the allegations in the information
against Hamilton and the affidavit upon which it is based, every
element of each offense in Counts IV, VII, and IX occurred more
than one year prior to the filing of the information. The order of
the District Court dismissing Counts IV, VII, and IX is therefore
affirmed

45-6-30 MCA, statute of limitations and theft

94-313
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
CLINTON MULLIN, JR., a/k/a . .
CLINT MULLIN, JR.,
The issue on appeal is:
Did the District Court err when it concluded that felony theft
was not continuous conduct for purposes of applying the statute of
limitations?
To accept the construction of § 45-6-301, MCA, suggested by
the State would be to hold, in effect, that there is no statute of
limitations applicable to the crime of theft unless the stolen
property is abandoned. We decline to do so. Such an extreme
departure from the plain language of our statute of limitations
found at § 45-1-205 (2) (a) , MCA, is better left to the Legislature.
We conclude that the District Court was correct in its
interpretation of the law.

Felony assualt insufficiency of evidence

No. 96-236
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 138
STATE OF MONTANA,
Although Cochran raises several issues on appeal, we address only one, which is
dispositive of this case: did the District Court abuse its discretion when it denied
Cochran’s motion for a directed verdict.
We conclude that the evidence presented was not sufficient to establish that it was Cochran who assaulted Jackson. Accordingly, we hold that the District Court abused its discretion when it failed to direct a verdict in favor of Cochran and dismiss the case. Cochran’s conviction for felony assault is reversed and her sentence is vacated.

Entrapment

NO. 79-63
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
THE STATE OF MONTANA
VS
ROBERT A. KAMRUD
Appellant presents several issues on appeal but we need consider only one: Did the District Court err in denying defendant's pretrial motion to dismiss on the grounds that entrapment was established as a matter of law? While the defendant may well have had the intent to possess marijuana, the idea for him to sell it or to give it away certainly originated with the police officers and not with defendant. Therefore, we hold that under these facts, entrapment was established as a matter of law. The judgment of the District Court is reversed with directions to dismiss the information.

Santobello error at revocation hearing

DA 07-0744
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 331
STATE OF MONTANA,
Did the Hill County District Court err in denying Jones’s motion to withdraw his admissions to the revocation petition?
Jones believed that “the State”—whether it was operating in Hill or Silver Bow County—would be bound by the plea agreement and judgment in Silver Bow County. Because this promise was unenforceable, and later on turned out to be unfulfilled, Jones’s admissions to the Hill County revocation petition were involuntary.

accomplice testimony error

2001 MT 233
STATE OF MONTANA,v.
STEVEN FRANCIS
Did the District Court commit reversible error when it
admitted Derrick Steilman's out of court statements?
An erroneously admitted hearsay statement by an admitted participant in a murder that the
defendant also participated in the murder and that the defendant was the one who inflicted
the lethal blows is qualitatively very damning, especially in light of the complete absence of any other direct evidence of the defendant's participation (e.g., other admissible eyewitness testimony, a confession, or other physical evidence). Accordingly, we must
admit that there is a reasonable possibility that Steilman's confession implicating Francis might have contributed to Francis' conviction.
Reversed and remanded for a new trial.

Defendants’ rights violated by the warrantless electronic monitoring and recording of

2008 MT 296
STATE OF MONTANA, No. 05-676
v.
MICHAEL THADDEUS GOETZ,
Were the Defendants’ rights under Article II, Sections 10 and 11 of the Montana Constitution violated by the warrantless electronic monitoring and recording of their one-on-one conversations with confidential informants, notwithstanding the confidential informants’ consent to the monitoring?
The electronic monitoring and recording of those conversations without a warrant or the existence of an established exception to the warrant requirement violated the Defendants’ rights under Article II, Sections 10 and 11. As a result, we hold the District Court erred in denying the Defendants’ motions to suppress evidence derived from the warrantless electronic monitoring and recording of the three conversations at issue on the basis that the activities at issue did not constitute searches.
Reversed and remanded for further proceedings consistent with this opinion.

Ineffective assistance of counsel

008 MT 193
WILLIAM M. HALLEY,
v.
STATE OF MONTANA,
Did the District Court err in denying Halley’s Petition for Post-Conviction Relief

In the case before us, the District Court abused its discretion in failing to comply with the Gallagher guidelines when presented with a claim of ineffective counsel and a request for substitute counsel. It further erred in failing to inquire adequately whether Halley’s waiver of his right to counsel and request to represent himself was voluntarily, knowingly and intelligently made.
As a result, the District Court’s Opinion and Order Denying Petitioner’s Petition for Post-Conviction Relief is based on incorrect conclusions of law.
CONCLUSION
For the foregoing reasons, we vacate Halley’s guilty pleas, reverse the District Court’s denial of his petition, and remand this matter for retrial.