                                                                                     December 11 2007


                                         DA 07-0119

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2007 MT 329N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

PAUL SCOTT SORENSEN,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC 2004-1073
                     Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender, Lisa S. Korchinski,
                     Assistant Public Defender, Helena, Montana

              For Appellee:

                     Hon. Mike McGrath, Montana Attorney General, Ilka Becker,
                     Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, Yellowstone County Attorney, Gayle Stewart,
                     Deputy County Attorney, Billings, Montana



                                                  Submitted on Briefs: November 21, 2007

                                                             Decided: December 11, 2007


Filed:

                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    Paul Scott Sorensen (Sorensen) was charged with felony DUI and misdemeanor

Driving While License Suspended. After firing his attorney and while representing

himself, Sorensen entered into a plea agreement with the State whereby he would plead

guilty to felony DUI in exchange for a sentencing recommendation by the State to

include a $1,000 fine and a sentence of 13 months commitment to the Department of

Corrections (“DOC”) followed by a three-year suspended sentence to the DOC, subject to

the normal conditions of probation. The State also agreed to recommend that if Sorensen

successfully completed the Warm Springs Addictions Treatment and Change

(“WATCh”) program, the suspended portion of his sentence would be reduced to 30

months. Sorenson was also to receive credit for six months served in the Yellowstone

County Detention Center. Sorensen pled guilty on April 19, 2005.

¶3    On July 19, 2005, the District Court sentenced Sorensen in accordance with the

plea agreement.    The court’s written judgment and order, entered July 29, 2005,

provided:

             IT    IS   RECOMMENDED            that   defendant   PAUL    SCOTT


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       SORENSEN be considered for placement at WATCH (Warm Springs
       Addictions Treatment and Change Program) in Warm Springs, Montana. If
       defendant successfully completes the WATCH program, the suspended
       portion of the sentence shall be reduced to THIRTY (30) MONTHS AND
       SHALL RUN CONSECUTIVELY TO THE TERM IMPOSED ABOVE.

Sorensen did not appeal.

¶4     On April 6, 2006, the State petitioned to revoke Sorensen’s suspended sentence.

A probation violation hearing was held on August 1, 2006. The disposition hearing was

continued several times and finally conducted on December 12, 2006. The District Court

entered its order revoking Sorensen’s suspended sentence on December 22, 2006.

¶5     Sorensen argues that the State breached the plea agreement when it failed to

screen and submit his application to the WATCh program. John Boyd, the author of

Sorensen’s pre-sentence investigation report, testified that Sorensen was not screened for

the WATCh program because “he did not have enough time left on the mandatory 13-

month sentence in order to complete the WATCH program.”

¶6     Sorensen argues that whether the State never intended to recommend him or

whether its failure to recommend was inadvertent, the result is the same; i.e., the State

breached the plea agreement. Sorenson contends that an inadequate amount of time

remaining on his sentence was an unsatisfactory excuse for the State not to screen him for

the WATCh program. Sorensen goes on to argue that the District Court abused its

discretion when it neglected to hold the State accountable for failing to abide by the terms

of the plea agreement, and he argues that we should fashion a remedy that would include

vacating his suspended sentence and imposing the original sentence which has been

discharged due to time served.


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¶7    The State argues that the plea agreement was not breached because the prosecution

recommended precisely what the plea agreement called for, and because the District

Court imposed precisely the sentence recommended by the State. The State maintains

that even if we accept Sorensen’s argument that Boyd nevertheless should have

recommended Sorensen to the WATCh program, there was no breach of the plea

agreement by the prosecution. See State v. Bowley, 282 Mont. 298, 311, 938 P.2d 592,

600 (1997) (probation officer recommending a different sentence from the plea

agreement does not constitute a breach of the plea agreement by the prosecution, because

the recommendations of the probation officer and the prosecution are not equivalent).

Moreover, the State contends that Sorensen was offered the chance to withdraw his guilty

plea at the October 3, 2006 hearing regarding the WATCh program. Sorensen did not

move to withdraw his guilty plea, but rather requested a three-year DOC commitment, all

suspended. The State maintains that having failed to move to withdraw his guilty plea on

the basis of the “breach” of his plea agreement, Sorensen may not now raise this issue on

appeal of his sentence following revocation. Upon revoking the suspended sentence, the

District Court properly sentenced Sorensen to three years at Montana State Prison with

one year suspended pursuant to § 46-18-203(7), MCA.

¶8    We agree with the State. Having reviewed the record in this matter, the District

Court’s decision and the parties’ arguments on appeal, we have determined to decide this

case pursuant to Section I, Paragraph 3(d) of our 1996 internal operating rules, as

amended in 2003, which provides for memorandum opinions. It is manifest on the face

of the briefs and the record before us that Sorensen’s appeal is without merit because


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there are no facts in dispute and the legal issues are clearly controlled by settled Montana

law which the District Court correctly interpreted.

¶9     For the foregoing reasons we affirm the judgment of the District Court.



                                                 /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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