                                                                                          December 30 2014


                                           DA 12-0742
                                                                                          Case Number: DA 12-0742

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 342


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JAMES PILLER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 88-145
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Kristen L. Larson (argued),
                        Assistant Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued),
                        Assistant Attorney General; Helena, Montana

                        Scott Twito, Yellowstone County Attorney; Ingrid Rosenquist, Deputy
County
                        Attorney; Billings, Montana


                                                        Argued: June 25, 2014
                                                      Submitted: July 2, 2014
                                                       Decided: December 30, 2014

Filed:




                                             Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     James Piller appeals from the order of the Thirteenth Judicial District Court,

Yellowstone County, which upon revoking Piller’s suspended sentence for his 1988

conviction for sexual intercourse without consent, resentenced Piller to ten years at Montana

State Prison (MSP) with five years suspended, and imposed 14 new conditions on his

suspended sentence. We affirm.

¶2     The sole issue on appeal is whether the District Court’s imposition of 14 new

conditions on Piller’s suspended sentence violates ex post facto principles.1

                   PROCEDURAL AND FACTUAL BACKGROUND

¶3     In 1988, James Piller was charged by information for sodomizing a three-year-old girl

whom he was babysitting. Piller pled guilty to sexual intercourse without consent, a felony.

The District Court sentenced Piller to 30 years at MSP with ten years suspended.

¶4     Piller escaped from MSP on June 11, 1992, and was apprehended the same day. He

was charged with escape, intimidation, and possession of a weapon by a prisoner. The Third

Judicial District Court, Powell County, sentenced Piller to ten years for each count, to run

concurrent with each other.

¶5     Piller did not complete sex offender treatment while incarcerated at MSP. In April

and June of 2007, probation officer John Boyd made several requests to the District Court to

amend Piller’s conditions of probation because he considered Piller an “untreated sex

offender.” On April 21, 2007, Piller was discharged to serve the suspended portion of his


1
 Piller also raised the issue that his written revocation order did not give him credit for 486 days
served. The State conceded this issue in their brief; therefore, we do not address this argument in
                                                   2
sentence. The conditions for his suspended sentence were based on the original 1988

sentencing as follows:

           1. The defendant shall not frequent any place where intoxicating liquor or
              beer is the chief item of sale nor shall he use intoxicants or beer; nor
              shall he purchase, use, possess, give, sell or administer any narcotic or
              dangerous drugs or have in his possession same without proper
              prescription by a doctor.

           2. The defendant shall not enter into any game of chance nor shall
              defendant frequent any place where gambling may be taking place.

           3. The defendant shall conduct himself in a law abiding manner and shall
              not violate any law of the United States or of the State of Montana or
              any other State, or the ordinance of any city or town of this State or
              other State during the said term.

           4. The defendant shall maintain as steady employment as possible
              [during] said term, and he shall to the best of his ability fully and
              completely contribute to the support of his family.

           5. The defendant is placed under the supervision and control of the Adult
              Probation and Parole Field Services and is to abide by their rules and
              regulations.

           6. The defendant shall enroll in and successfully complete the sex
              offenders program at the Montana State Prison prior to parole.

¶6     The first report of violation of probation conditions was filed against Piller on January

18, 2011, for failing to give his probation officer a current address, calling his probation

officer a “bitch,” using threatening language in a meeting, and for living with another

convicted felon. Piller’s probation officer recommended that Piller’s sentence be revoked,

that he be resentenced to the Department of Corrections for six years with three years

suspended, and that Piller have 14 additional conditions added to his suspended sentence. At


this opinion.
                                               3
a hearing on June 29, 2011, the District Court orally found that Piller had substantially

violated the conditions of his parole.

¶7     Piller later filed a disposition memorandum objecting to the probation officer’s

recommendation that new conditions be placed on his suspended sentence. On November

10, 2011, the District Court filed an order imposing a new sentence of ten years with all time

suspended, and imposing the 14 new conditions to Piller’s suspended sentence, as

recommended by the probation officer.

¶8     Piller appealed the November 10, 2011 order to this Court. However, the parties

stipulated that Piller’s matter was not ripe for appeal because Piller’s sentence had not been

orally pronounced from the bench in Piller’s presence. In an order dated May 31, 2012, we

remanded Piller’s case back to the District Court for oral pronouncement of the sentence and

a written judgment including credit for time served, as well as a specific provision

considering and granting or denying credit for Piller’s street time.

¶9     On March 22, 2012, Piller was again cited for parole violations, including a privacy in

communications charge. The State petitioned to revoke Piller’s suspended sentence, and the

District Court held a revocation hearing on August 13, 2012. On September 6, 2012, the

District Court held a disposition hearing. On October 18, 2012, the District Court entered an

order of revocation and sentenced Piller to ten years at MSP with five years suspended, and

reimposed the following 14 new conditions on his suspended sentence:

          1. The Defendant will enter and successfully complete sex offender
             treatment with a MSOTA clinical member or associate member with
             supervision, or equivalent, who is approved by the State and the
             Probation Officer and at his own expense. The Defendant shall abide
             by all treatment rules and recommendations of his treatment provider.
                                              4
2. The Defendant shall not frequent places where children congregate.
   This includes but is not limited to: schools, parks, playgrounds, malls,
   movies, fairs, parades, swimming pools, carnivals, arcades, parties,
   family functions, holiday festivities, or any other place or function
   where children are present or reasonably expected to be present unless
   accompanied by an approved and appropriately trained, responsible
   adult who is aware of the Defendant’s sexual conviction and approved
   by his Probation Officer and sex offender treatment provider. The
   Defendant shall obtain permission from his Probation Officer prior to
   going to any of the above places.

3. The Defendant will not access or have in his possession or under his
   control any material that describes or depicts human nudity, the
   exploitation of children, consensual sex acts, non-consensual sex acts,
   sexual acts involving force or violence, including but not limited to;
   computer programs, computer links, photographs, drawings, video
   tapes, audio tapes, magazines, books literature, writings, etc. without
   prior written approval of his Probation Officer and therapist. The
   Defendant will not frequent adult book[ ] stores, topless bars, massage
   parlors or use the services of prostitutes.

4. The Defendant will not view television shows or motion pictures,
   which are geared towards his sex offending cycle, or as a stimulus to
   arouse deviant thoughts or fantasies. (i.e., shows based on sexualization
   of underage girls or boys, etc.)

5. The Defendant shall not have access to the Internet without prior
   permission from his Probation Officer and sex offender therapist. If the
   Internet access is allowed, the Defendant must allow the Department of
   Corrections to install rating control software and conduct random
   searches of the hard drive for pornography or other inappropriate
   material nor shall he have on any computer he may own, any software
   that is intended for data elimination, encryption or hiding data.

6. The Defendant shall not involve himself in any type of employment,
   service or recreational pursuit that involves the supervision of children.
   Under no circumstances should the Defendant be in a position of power
   and authority over children.

7. Pursuant to MCA 46-18-255 (1), the Defendant shall be subject to
   reasonable employment or occupational . . . prohibitions and

                                    5
               restrictions designed to protect the class or classes of persons
               containing the likely victims of further offenses.

            8. The Defendant’s residence, changes and any co-habitants must have
               prior approval of his Probation Officer. The Defendant will not reside
               in a residence where there are any children under the age of 18 without
               the written approval of his therapist and Probation Officer.

            9. The Defendant shall not access “900” number telephone sex lines and
               shall have a “900” number block on his telephone.

            10. The Defendant will not have a cell phone, or such other
                technology/device, with photo, video, or Internet capabilities allowed.
                If a cell phone is used, all bills and records will be made available to
                the Probation Officer.

            11. The Defendant shall remain in Aftercare or Relapse Prevention Class
               for the entirety of his supervision unless released at the discretion of the
               Probation Officer and therapist.

            12. The Defendant shall reenter treatment at any time if deemed
                appropriate by the Probation Officer and therapist.

            13. The Defendant shall submit to annual polygraph testing.

            14. The Defendant will not date, live with, or otherwise align himself with
                any person with children under the age of 18 without the express prior
                approval of his therapist and Probation Officer. If this approval is
                granted, they shall both be involved with his treatment to the extent that
                his treatment provider recommends.

¶10   Piller appeals the imposition of the 14 new conditions placed on his suspended

sentence.




                                 STANDARD OF REVIEW

                                                6
¶11    We review a criminal sentence only for legality—that is, whether the sentence falls

within the statutory parameters. State v. Tirey, 2010 MT 283, ¶ 19, 358 Mont. 510, 247 P.3d

701.

                                       DISCUSSION

¶12    Whether the imposition of 14 new conditions on Piller’s suspended sentence for a

1988 crime violates ex post facto principles.

¶13    Piller argues that the 14 new conditions imposed on his suspended sentence upon the

revocation of his original sentence violate ex post facto principles because they were not

authorized by the revocation statute in effect at the time of his offense in 1988, § 46-18-203,

MCA (1987). The statute at that time allowed a judge or magistrate to revoke the suspension

and order the person to serve the remainder of his prison term or continue the suspended

sentence under the original terms. State v. Leistiko, 256 Mont. 32, 35-36, 844 P.2d 97, 99

(1992).

¶14    The revocation statute was later amended to allow district courts greater discretion at

a revocation hearing. Under the amended statute, a district court could “continue the

suspended sentence with modified or additional terms and conditions,” or order “the

defendant to serve either the sentence imposed or any lesser sentence.”                Section

46-18-203(7)(b)-(c), MCA (1991). In 2001, the statute was made expressly retroactive,

allowing district courts to impose additional or different conditions on the suspended

sentences at revocation of all parolees under the jurisdiction of the Department of

Corrections. 2001 Mont. Laws, ch. 493, § 10.



                                                7
¶15    Piller bases his ex post facto argument on the simple premise that the law in effect at

the time of the crime controls as to the possible sentence, as well as the revocation of that

sentence. State v. Goff, 2011 MT 6, ¶ 18, 359 Mont. 107, 247 P.3d 715 (citing State v.

Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297). Piller further argues that

“[d]istrict courts cannot apply a sentencing statute enacted after the commission of an

offense because to do so violates the prohibition on ex post facto laws.” State v. Southwick,

2007 MT 257, ¶ 25, 339 Mont. 281, 169 P.3d 698 (citing State v. Gone, 179 Mont. 271, 280,

587 P.2d 1291, 1297 (1978)). As it would pertain to the facts of this case, Piller’s argument

is misplaced.

¶16    Both the United States Constitution and the Montana Constitution prohibit the

imposition of ex post facto laws. Article I, Section 9 of the United States Constitution states:

“No Bill of Attainder or ex post facto Law shall be passed.” Article II, Section 31 of the

Montana Constitution states: “No ex post facto law . . . shall be passed by the legislature.”

¶17    Montana adopted federal ex post facto jurisprudence and applied it to the ex post facto

clause of the Montana Constitution2 in State ex rel. Nelson v. Ellsworth, 142 Mont. 14,

380 P.2d 886 (1963). The defendant in Ellsworth argued that a law passed after the

commission of his offense which delayed his parole eligibility was ex post facto as applied to

him. We adopted the definition of ex post facto laws as set forth in the 1798 United States

Supreme Court case, Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648 (1798):



2
  The 1889 Montana Constitution, as interpreted in Ellsworth in 1963, contained substantially the
same prohibition on ex post facto laws as our current Montana Constitution: “No expost facto
law . . . shall be passed by the legislative assembly.” Mont. Const. (1889) art. III, § 11.
                                                   8
       Laws under the following circumstances are to be considered ex post facto
       laws within the words and intent of the prohibition: 1st. Every law that makes
       an action done before the passing of the law, and which was innocent when
       done, criminal; and punishes such action. 2d. Every law that aggravates a
       crime, or makes it greater than it was when committed. 3d. Every law that
       changes the punishment, and inflicts a greater punishment, than the law
       annexed to the crime when committed.

Ellsworth, 142 Mont. at 19, 380 P.2d at 888 (quoting Calder v. Bull, 3 U.S. at 390, 1 L. Ed.

at 650) (emphasis added). We held that the new law delaying parole eligibility increased the

defendant’s punishment and was therefore ex post facto as applied to him. Ellsworth, 142

Mont. at 20, 380 P.2d at 889.

¶18    Piller argues that his October 15, 2012 sentence must be governed by the 1987 version

of § 46-18-203, MCA, because that was the revocation statute that was in effect at the time

of his original offense in 1988. Essentially, Piller contends our analysis should go no further

than applying the law in effect at the time of the crime to control the possible sentence, citing

Goff, ¶ 18. The State argues that because the 2001 amendments to § 46-18-203, MCA, were

expressly made to apply retroactively3 to all “offenders who are under the custody or

supervision of the department of corrections,” 2001 Mont. Laws, ch. 493, § 10, Piller should

be subject to the 14 new conditions added to his suspended sentence at revocation under

traditional ex post facto jurisprudence. The State points out that Piller’s sentence as a whole

was not made more punitive because he was always subject to his original 30 year prison

term, and his current sentence allows him to serve the remaining five years on parole rather

than incarcerated.


3
 “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.”
Section 1-2-109, MCA.
                                               9
¶19    In State v. Griffin, 2007 MT 289, 339 Mont. 465, 172 P.3d 1223, we upheld a

modification to the defendant’s suspended sentence under a subsequent version of

§ 46-23-1011(4), MCA, because the modification, which required participation in the

Intensive Supervision Program, was “not punitive in nature.” Griffin, ¶ 19. Griffin is similar

to the instant case in that a sex offender was challenging the imposition of different

conditions on his suspended sentence. Griffin, ¶ 12.

¶20    Similarly, in State v. Tirey, 2010 MT 283, 358 Mont. 510, 247 P.3d 701, we upheld

changes to parole conditions at a revocation, holding: “[T]he mere fact that the original

sentence imposed had only conditions A, B, and C while the sentence at revocation has

conditions A, B, C, D, and E does not necessarily mean that the sentence at revocation is

greater.” Tirey, ¶ 27. While reiterating that “[t]he law in effect at the time an offense is

committed controls as to the possible sentence for the offense, as well as the revocation of

that sentence,” Tirey, ¶ 26, we nevertheless held that under the 1995 version of our

revocation statute, § 46-18-203(7)(c), MCA (1995), the district court could impose new

conditions, provided it did not increase the defendant’s punishment. We noted:

       A proper analysis requires that we look at the substance of the conditions to
       determine whether they are punitive in nature. . . . Secondly, the new
       conditions must be reviewed in the context of the entire sentence. That is,
       whether the defendant’s overall sentence is the same or whether the defendant
       is being sentenced to more or less punishment than the sentence originally
       imposed.

Tirey, ¶ 28.




                                             10
¶21    In State v. Claassen, 2012 MT 313, 367 Mont. 478, 291 P.3d 1176, we applied the

retroactive provision of our revocation statute, § 46-18-203(9), MCA (2011), in upholding a

change in a sex offender’s tier-level designation made at a revocation proceeding. We

addressed application of the 2011 version of the law as follows:

       The State argues that because Claassen committed the underlying offense
       between December 2002 and September 2003, the 2001 version of the MCA
       governs his original sentence and his revocation. However, § 46-18-203,
       MCA (2011), contains an express retroactivity provision. Therefore, all
       references to § 46-18-203, MCA, are to the 2011 version. Because we
       generally apply the law in effect at the time a crime was committed, State v.
       Stoner, 2012 MT 162, ¶ 12, 365 Mont. 465, 285 P.3d 402, all other statutory
       references in this Opinion are to the 2001 MCA.

Claassen, ¶ 24, n.2.

¶22    We reinforce that a sentence must fall within the parameters provided by the

applicable statute at the time of the offense. State v. Montoya, 1999 MT 180, ¶ 15,

295 Mont. 288, 983 P.2d 937. However, a law with a retroactive applicability date does not

per se violate ex post facto principles as Piller suggests. “[S]imply because a statute operates

on events antecedent to its effective date does not make the statute ex post facto.” State v.

Mount, 2003 MT 275, ¶ 67, 317 Mont. 481, 78 P.3d 829 (citations omitted). Rather, as we

first articulated in Ellsworth, “Every law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime when committed,” is ex post facto.

Ellsworth, 142 Mont. at 19, 380 P.2d at 888 (emphasis in original). Relevant to the issue

presently before us, “A proper analysis requires that we look at the substance of the

conditions to determine whether they are punitive in nature.” Tirey, ¶ 28.




                                              11
¶23     In analyzing whether the 14 new conditions imposed on Piller’s sentence are ex post

facto, we must determine whether or not the conditions themselves inflict a greater

punishment. The 14 additional conditions placed on Piller’s suspended sentence are standard

conditions for sex offenders placed on parole. We have previously held that standard

conditions placed on a sex offender’s suspended sentence “are not punitive in nature.” Tirey,

¶ 29.    Furthermore, Piller conceded at oral argument that the new conditions are

non-punitive. Looking at the sentence as a whole, Piller’s ten year sentence with five years

suspended received at revocation—including the 14 new parole conditions—is no greater

than the 30 years of incarceration to which he was sentenced in 1988 (of which Piller served

approximately 20 years). Tirey, ¶ 28; § 46-18-203(7), MCA (if a defendant has violated

terms of parole, at revocation a district court may impose any sentence that could have been

originally imposed that does not include a longer imprisonment or commitment term than the

original sentence).

                                      CONCLUSION

¶24     The 14 additional conditions imposed on Piller’s sentence at revocation were

authorized pursuant to the 2011 version of our revocation statute, § 46-18-203, MCA.

Because the conditions are not punitive in nature, they are not ex post facto. Accordingly,

we affirm the District Court’s imposition of the 14 additional conditions placed on Piller’s

suspended sentence at revocation.

¶25     This matter is remanded to the District Court for modification of the written

revocation order to reflect that Piller is granted credit for time served in the amount of 486

days.
                                             12
                           /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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