                                                                                           April 9 2008


                                           DA06-0202

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 119



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ANDREW BROTHERTON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Sanders, Cause No. DC-2005-31
                        Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Noel K. Larrivee, Attorney at Law, Dayton, Montana

                For Appellee:

                        Hon. Mike McGrath, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Robert Zimmerman, Sanders County Attorney, Thompson Falls, Montana



                                                    Submitted on Briefs: January 4, 2007

                                                               Decided: April 9, 2008


Filed:

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

¶1     Andrew Brotherton appeals two conditions imposed on his sentence by the District

Court for the Twentieth Judicial District, Sanders County. We affirm in part and reverse

in part.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     The State charged Brotherton by information on August 11, 2005, with criminal

possession of dangerous drugs, a felony, in violation of § 45-9-102, MCA (Count I);

criminal distribution of dangerous drugs, a felony, in violation of § 45-9-101, MCA

(Count II); criminal possession of dangerous drugs with intent to distribute, a felony, in

violation of § 45-9-103, MCA (Count III); criminal possession of drug paraphernalia, a

misdemeanor, in violation of § 45-10-103, MCA (Count IV); and driving while license

suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA (Count V). The

facts underlying these offenses occurred on or about August 1, 2005.

¶3     Brotherton initially pleaded not guilty. Shortly thereafter, he voluntarily enrolled

in a 45-day, inpatient chemical-dependency program, which he completed successfully.

The parties ultimately entered into a plea agreement under § 46-12-211(1)(b), MCA,

wherein Brotherton agreed to plead guilty to Count III (criminal possession of dangerous

drugs with intent to distribute) and the State, in return, agreed that the court should defer

imposition of sentence for a period of 18 months and place Brotherton on supervised

probation. In addition, the State agreed to dismiss the remaining counts. The District

Court accepted the plea agreement and Brotherton’s guilty plea on December 13, 2005,

and ordered a presentence investigation.


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¶4     A probation/parole officer with the Department of Corrections (“DOC”)

conducted the presentence investigation and filed a report (“PSI”) on February 7, 2006.

Among other things, the PSI recited Brotherton’s background, his criminal history, and

the circumstances of the offense. According to the PSI, Brotherton was 28 years old at

the time of his offense.      The PSI further stated that on or about August 1, 2005,

Brotherton “knowingly had in his possession a Dangerous Drug, marijuana,” and he

traveled to a specified address “with the intent to distribute the dangerous drug,

marijuana.” This was his first felony conviction, though he previously had been arrested

in California for driving while in possession of dangerous drugs. In addition, he was

cited for a number of traffic infractions in Montana during the mid- to late-90s, though

none of these were alcohol- or drug-related (they involved nighttime speeding, reckless

driving, and no insurance).

¶5     Brotherton also had a significant history of chemical use. He first used marijuana

at age 15 and began using it on a regular basis at age 17. Also at age 17, he first used

cocaine and methamphetamine. At age 21, he began abusing methamphetamine with

such frequency that he lost 50 pounds and ended up with sinus and dental problems, and

he sold drugs to pay for his habit. He joined the United States Army Reserve in 1995 and

was discharged 13 months later after testing positive for drugs.       According to the

probation/parole officer’s investigation, Brotherton “has lost freedom, a marriage, and

self respect as a result of his abuse of drugs and the behaviors he engaged in to support

his habit. He is now clean and engaged in the family business. Should [Brotherton]

continue with his present course his future is assured.”


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¶6     The probation/parole officer recommended 23 conditions of probation in the PSI.

At issue on this appeal are Conditions 12 and 21, which stated as follows:

       12. The Defendant shall not possess or consume intoxicants/alcohol, nor
       will he enter any place intoxicants are the chief item of sale. He will
       submit to Breathalyzer testing or bodily fluid testing for drugs or alcohol as
       requested by his Probation & Parole Officer.
       ....
       21. The Defendant will not enter any casinos or play any games of chance.

¶7     At the February 14, 2006 sentencing hearing, Brotherton and the State indicated

that they had received copies of the PSI and did not have any additions or corrections to

make to it. But Brotherton objected to Conditions 12 and 21 on the ground that there was

no nexus between either of these conditions and his conviction of criminal possession of

dangerous drugs with intent to distribute. He moved the court to delete both conditions.

The State objected, arguing that “when a person drinks their inhibitions are lowered and

they are more susceptible to suggestions from their friends, such as smoking marijuana.

And it’s only for a period of 18 months. . . . We think it’s in his best interest.”

¶8     The District Court denied Brotherton’s motion and sentenced him in accordance

with the plea agreement.        In addition, the court incorporated the 23 conditions

recommended in the PSI. The court entered written judgment on March 6, 2006, and an

amended judgment (to correct two clerical errors) on April 3, 2006.               This appeal

followed.

                                           ISSUE

¶9     Brotherton contends that the District Court erred in imposing Condition 12 (the

alcohol/intoxicants condition) and Condition 21 (the gambling condition). The State



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concedes that the District Court erred in imposing Condition 21 and agrees with

Brotherton that we should grant his request to vacate that condition. Accordingly, the

sole issue on appeal is whether the District Court erred in imposing Condition 12.

                                STANDARD OF REVIEW

¶10    In State v. Ashby, 2008 MT 83, ___ Mont. ___, ___ P.3d ___, we announced a

new standard of review applicable to challenges to the legality and/or propriety of

sentencing conditions.    First, we review the condition for legality.        Ashby, ¶ 9.    A

sentencing condition is illegal if the sentencing court lacked statutory authority to impose

it, if the condition falls outside the parameters set by the applicable sentencing statutes, or

if the court did not adhere to the affirmative mandates of the applicable sentencing

statutes. See State v. Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, ¶ 15, ___ P.3d ___,

¶ 15; see also e.g. State v. Grindheim, 2004 MT 311, ¶ 54, 323 Mont. 519, ¶ 54, 101 P.3d

267, ¶ 54; State v. Meyers, 2007 MT 230, ¶ 21, 339 Mont. 160, ¶ 21, 168 P.3d 645, ¶ 21.

This determination is a question of law and, as such, our review of the condition’s

legality is de novo. Stephenson, ¶ 15. Second, we review the reasonableness of the

sentencing condition for an abuse of discretion.1 Ashby, ¶ 9. A sentencing court abuses

its discretion when it acts arbitrarily without employment of conscientious judgment or

exceeds the bounds of reason, resulting in substantial injustice. See State v. Ruiz, 2005

MT 117, ¶ 22, 327 Mont. 109, ¶ 22, 112 P.3d 1001, ¶ 22; State v. Burke, 2005 MT 250,

¶ 11, 329 Mont. 1, ¶ 11, 122 P.3d 427, ¶ 11.

       1
         This second prong does not apply to conditions that are mandated by statute. See
e.g. § 46-18-206, MCA. With such conditions, there is no exercise of discretion by the
sentencing court and our review, accordingly, is for legality only.

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                                     DISCUSSION

¶11    Sentencing courts have exclusive authority to impose criminal sentences. See

§ 46-18-103, MCA (“All sentences under this chapter shall be imposed exclusively by the

judge of the court.”). However, a sentencing court’s authority to impose a criminal

sentence derives from the law; it is not inherent. See State v. Hicks, 2006 MT 71, ¶ 41,

331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (“A district court’s authority in sentencing a

criminal defendant is defined and constrained by statute, and the court has no power to

impose a sentence in the absence of specific statutory authority.”); State v. Hatfield, 256

Mont. 340, 346, 846 P.2d 1025, 1029 (1993) (“We have long held that a district court has

no power to impose a sentence in the absence of specific statutory authority.”). Thus, a

sentence is legal only if it is authorized by applicable sentencing statutes and imposed by

the sentencing court pursuant to those statutes. See Stephenson, ¶¶ 15, 22.

¶12    The Montana Code contains a number of provisions authorizing or requiring

sentencing courts to impose conditions on sentences. See e.g. §§ 46-18-201(4), -202(1),

MCA (authorizing conditions that are reasonable and necessary for rehabilitation or for

the protection of the victim or society); §§ 46-18-206, -255, MCA (mandating certain

conditions under specified circumstances); see also § 46-23-1001(4), MCA (defining

“probation” as the release of a defendant “subject to conditions imposed by the court and

subject to the supervision of the [DOC] upon direction of the court”); § 46-23-1011(1),

MCA (instructing the DOC to supervise probationers during their probation period “in

accord with the conditions set by a sentencing judge”).




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¶13    In addition, the Code authorizes the DOC to “adopt rules for the conduct of

persons placed on . . . probation, except that the department may not make any rule

conflicting with . . . conditions of probation imposed by a court.” Section 46-23-1002(3),

MCA. The DOC has promulgated a number of such rules, including complying with all

laws; seeking and maintaining employment; obtaining permission from the probation

officer before changing employment, changing place of residence, or leaving the

jurisdiction; submitting written monthly reports to the officer; not owning, possessing, or

being in control of a firearm or deadly weapon; and submitting to a search of his/her

person, vehicle, or residence by the officer upon reasonable cause.          See generally

Admin. R. M. 20.7.1101(1)-(8) (1995).       The DOC may recommend these rules as

conditions of probation, see § 46-23-1011(4)(a), MCA, and the recommended conditions,

if they satisfy the applicable sentencing statutes, may in turn be incorporated by the court

in the sentencing order, see § 46-18-801(1), MCA; Stephenson, ¶¶ 15, 22.

¶14    The alcohol/intoxicants condition at issue here is not explicitly mandated in the

Code; thus, the statutory authority for this condition would be §§ 46-18-201(4) and

-202(1)(f), MCA (2005). The former authorizes a sentencing judge, when deferring

imposition of sentence or suspending all or a portion of execution of sentence, to impose

upon the offender “any reasonable restrictions or conditions.” Section 46-18-201(4),

MCA.       “Reasonable restrictions or conditions” include those enumerated in

§ 46-18-201(4)(a)-(m), MCA (2005), as amended at § 46-18-201(4)(a)-(n), MCA (2007),

as well as those which the judge considers “necessary for rehabilitation or for the

protection of the victim or society,” § 46-18-201(4)(n), MCA (2005), recodified at


                                             7
§ 46-18-201(4)(o), MCA (2007).          Similarly, § 46-18-202(1)(f), MCA, authorizes a

sentencing judge to impose on a sentence any limitation “reasonably related to the

objectives of rehabilitation and the protection of the victim and society.”       See also

§ 46-18-801(1), MCA (“Conviction of an offense does not deprive the offender of a civil

or constitutional right, except as provided in the Montana constitution or as specifically

enumerated by the sentencing judge as a necessary condition of the sentence directed

toward the objectives of rehabilitation and the protection of society.”).

¶15    In State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, we held that

in order to be “reasonably related to the objectives of rehabilitation and the protection of

the victim and society,” a sentencing limitation or condition must have “some correlation

or connection to the underlying offense for which the defendant is being sentenced.”

Ommundson, ¶ 11; accord State v. Malloy, 2004 MT 377, ¶ 8, 325 Mont. 86, ¶ 8, 103

P.3d 1064, ¶ 8. Based on Ommundson and Malloy, Brotherton argues that Condition 12

must be stricken because it is “unrelated to the offense for which Brotherton was

convicted – possession of dangerous drugs.” In this regard, he points out that “there is

not any reference whatsoever [in the PSI] that Brotherton abused alcohol, or has every

[sic] been involved in any improper use of alcohol.” He also notes that he has openly

admitted to involvement with marijuana, cocaine, and methamphetamine in the past and

that he was treated for abusing drugs, not alcohol, in the chemical-dependency program.

Simply put, he contends that there is nothing in his charged offense or personal history

that indicates any misuse of alcohol.




                                              8
¶16    We recently modified our Ommundson test in Ashby following numerous

challenges to, and our consideration of arguments for and against, the imposition of

“stock” or “standard” conditions of sentence recommended by the DOC or by

probation/parole officers in their presentence investigation reports. For the most part,

these challenges involved conditions imposing alcohol, gambling, and casino restrictions.

Although a number of sentencing courts have characterized these conditions as “stock” or

“standard” conditions, this characterization is accurate only in the sense that, in recent

years, the conditions have been recommended by probation/parole officers as a matter of

course in their presentence investigation reports. True “stock” or “standard” conditions

are those which have been legislatively authorized; and the alcohol, gambling, casino,

and other such restrictions addressed in Ashby are not contained in any such list of

“stock” or “standard” conditions in the Montana Code. See Ashby, ¶ 23.

¶17    We held in Ashby that “a sentencing judge may impose a particular condition of

probation so long as the condition has a nexus to either the offense for which the offender

is being sentenced, or to the offender himself or herself.” Ashby, ¶ 15. This test is based

on the requirements set forth in §§ 46-18-201(4) and -202(1)(f), MCA, that the condition

be reasonable and necessary for rehabilitation or for the protection of the victim and

society, see Ashby, ¶¶ 13-14; Ommundson, ¶¶ 5, 11, and the test applies to all conditions

which purport to be authorized by these statutes, i.e., conditions which are not explicitly

mandated by law elsewhere in the Code to be imposed on sentences.

¶18    In modifying our “nexus” test to allow consideration of the characteristics of the

offender as well as the offense itself, we acknowledged two important concerns. On one


                                            9
hand, confining the sentencing court’s ability to craft probation conditions based solely

on the condition’s connection to the underlying offense ignores the fact that every

sentence is, to a large extent, sui generis—in any given case, the imposition of a

particular condition may be appropriate based on concerns unique to the individual

defendant, regardless of the nature of the crime committed. On the other hand, and

conversely, the routine imposition of common conditions, such as those prohibiting

alcohol use, gambling, or entering casinos, sweeps too broadly—in any given case, the

imposition of these types of conditions may not be appropriate based on the individual

defendant or the underlying offense.

¶19    Our Ashby test allows a sentencing court discretion to craft conditions of sentence

appropriate to the management of probationers generally—e.g., requiring the probationer

to obey all laws, to stay in contact with his or her probation officer, and not to leave the

jurisdiction without first obtaining permission from the probation officer.            Such

conditions are so intrinsically applicable to anyone who has been placed on probation that

their imposition will always be appropriate. But our Ashby test also requires the court to

individualize its exercise of discretion so as to impose conditions that have some

correlation or connection either to the underlying offense or to the unique background

and characteristics of the individual offender. Moreover, we cautioned in Ashby that

courts may impose offender-related conditions only in those cases in which the history or

pattern of conduct to be restricted (e.g., alcohol or drug abuse) is “recent, and significant

or chronic.” Ashby, ¶ 15. “A passing, isolated, or stale instance of behavior or conduct




                                             10
will be insufficient to support a restrictive probation condition imposed in the name of

offender rehabilitation.” Ashby, ¶ 15.

¶20    Accordingly, in the case at hand, we must consider whether Condition 12—which

prohibits Brotherton from possessing or consuming alcohol/intoxicants and from entering

any place where intoxicants are the chief item of sale, and which requires him to submit

to testing for drugs or alcohol as requested by his probation officer—has a nexus to his

offense of criminal possession of dangerous drugs with intent to distribute or is properly

individualized, i.e., consistent with Brotherton’s unique background and characteristics.

¶21    The State offers a number of nonindividualized grounds for affirming the

imposition of Condition 12 in this case. For instance, the State asserts that “[a]lcohol

lowers inhibitions and the ability to think rationally.”       The State also opines that

“[p]eople often mix alcohol with drugs.” Such generalizations, however, are wholly

insufficient to show that Condition 12 has a nexus to Brotherton’s offense or his unique

background and characteristics. Indeed, if these general propositions were sufficient to

sustain a no-alcohol condition, then such a condition would be justified in every case.

We reject the suggestion that a no-alcohol condition falls under the rubric of “general

management” of probationers.

¶22    That aside, the State also provides a number of individualized justifications—

related to Brotherton’s unique background and characteristics—for Condition 12. The

State offers the rather ominous prediction that use of alcohol by Brotherton would be “a

recipe for disaster.” As support for this assertion, the State points out that Brotherton has

used illicit drugs since he was 15 and has sold drugs to pay for his addiction. In addition,


                                             11
the State asserts that Brotherton is “a recovering drug addict” who “clearly has a

chemical dependency problem.” The State argues that if Brotherton is allowed to drink

alcohol, “he will become more susceptible to the temptation to again use drugs,” or “there

is a real danger that [he] will simply replace his addiction for illegal drugs with the legal

drug of alcohol.”

¶23    We are persuaded by the State’s argument. Brotherton has a significant history of

chemical dependency. He began using illicit drugs at age 15 and has continued to do so

up through the instant offense (which was committed at age 28). He has sold drugs to

fund his addiction, and the instant offense involved possession of dangerous drugs with

intent to distribute. As a result of his drug abuse (methamphetamine in particular) and

the behaviors he engaged in to support his habit, he has not only suffered serious physical

consequences, but has also (according to the PSI) “lost freedom, a marriage, and self

respect.” At the time of sentencing, he had recently completed a chemical-dependency

program, and the probation/parole officer concluded that if he “continue[d] with his

present course his future is assured.” Finally, we agree with the State’s thesis that use of

alcohol, within the context of Brotherton’s chronic abuse of drugs, could impede his

rehabilitation. We reach this conclusion based on Brotherton’s significant history of

substance abuse and the reasonable possibility that, in the absence of Condition 12, he

may substitute one substance (alcohol) for another (drugs).

¶24    For the foregoing reasons, and pursuant to our decision in Ashby, we conclude that

Condition 12 has a sufficient nexus to Brotherton’s unique background and

characteristics. Thus, we hold that Condition 12 is a reasonable restriction necessary for


                                             12
Brotherton’s rehabilitation and, as such, is legal under §§ 46-18-201(4) and -202(1)(f),

MCA. Moreover, in light of the factual circumstances of this case, we conclude that the

District Court did not abuse its discretion in imposing this condition.

                                     CONCLUSION

¶25    We reverse the District Court’s imposition of Condition 21 (the gambling

condition) and remand this matter to the District Court with instructions to strike that

condition from Brotherton’s sentence. We affirm the District Court’s judgment in all

other respects.

¶26    Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this Opinion.


                                                         /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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