                                                                                         March 18 2009


                                         DA 07-0341

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 82



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

GORDON EDWARD MAKARCHUK,

               Defendant and Appellant.


APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DC 03-403B
                     Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender; Joslyn Hunt, Assistant Appellate
                     Defender; Helena, Montana

              For Appellee:

                     Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
                     Assistant Attorney General; Helena, Montana

                     Ed Corrigan, Flathead County Attorney; Kalispell, Montana



                                                 Submitted on Briefs: June 4, 2008

                                                             Decided: March 17, 2009


Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Gordon Edward Makarchuk (Makarchuk) appeals from the order,

judgment, and sentence of the Eleventh Judicial District Court, Flathead County, denying

his motion for new trial, setting conditions of parole and probation, and refusing to credit

him time served on house arrest pending trial. We affirm in part and reverse in part.

¶2     We consider the following restated issues on appeal:

¶3     1. Was Makarchuk’s constitutional right to be present at critical stages of the trial

violated when he was absent from a portion of the conference settling jury instructions?

¶4     2. Did the District Court err when denying Makarchuk’s motion for a new trial by

concluding that the State’s closing argument was proper?

¶5     3. Did the District Court exceed its statutory authority by imposing conditions on

Makarchuk’s parole?

¶6     4. Did the District Court err by failing to credit Makarchuk for time served on

house arrest as a condition of his release on bond pending trial?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶7     In September 2003, Makarchuk was living in a camper trailer located on a dairy

farm. The farm owners had initially permitted Makarchuk to stay on the property in

exchange for work, but eventually asked Makarchuk to leave. However, Makarchuk did

not leave, and was thereafter cited for trespass and escorted off the property. A short

time later, Makarchuk returned to the property and was again cited for trespass. While on

the property, police officers smelled strong chemical odors emanating from the trailer and

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obtained a search warrant. While searching the trailer, police discovered materials and

chemical residues used in the manufacture of methamphetamine and consistent with

operation of a drug lab.     Makarchuk was arrested and charged with the offense of

operating an unlawful clandestine laboratory, a felony, pursuant to § 45-9-132(1), MCA.

Makarchuk pled not guilty.

¶8     Prior to trial, Makarchuk moved for release on his own recognizance. The motion

was denied. Thereafter, pursuant to a stipulation, Makarchuk was “released upon formal

house arrest” with several conditions.       Nearly nine months later, the court revoked

Makarchuk’s release on bond when he violated the conditions of release.

¶9     Trial commenced on October 16, 2006, and the State presented uncontroverted

evidence that a meth lab was present in the trailer where Makarchuk was living. It was

Makarchuk’s theory at trial that he was unaware of the drug lab because he was kicked

off the property and was absent from the trailer for a few days. Makarchuk testified that

he returned to the property for purposes of gathering his belongings and that before the

police arrived he called two people, Jim Bernard and Matt Marvin, and asked them to

come over and help him. Makarchuk testified that he would not have made the telephone

calls if he had known there was a drug lab in the trailer. Neither Jim Bernard nor Matt

Marvin testified at trial.

¶10    At the close of evidence, the District Court excused the jury and began to settle

jury instructions with counsel in-chambers. Part way through the conference, Prosecutor

Dan Guzynski realized that Makarchuk was not present. When asked if Makarchuk

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waived his right to be present, Defense Counsel John Putikka stated: “I don’t know if I

specifically advised him he had the right to be here. I told him he didn’t need to be here

unless he wanted to be, and he said no, that’s okay.” The court directed that Makarchuk

be brought to the conference, and the following dialogue occurred:

      THE COURT: Mr. Makarchuk, sorry to disturb, whatever it is you went
      downstairs to do. We’re settling instructions, and I know that Mr. Putikka
      told you we were going to do this, and my impression was he asked you if
      you wanted to be here and you said that was fine, you would go on
      downstairs.

      MR. PUTIKKA: I didn’t specifically ask you if you waived your right to
      be here, and so that’s some concern of the State, so they brought you up
      here, did you want to be here did I misunderstand[?]

      MR. MAKARCHUK: If it’s no trouble.

      THE COURT: It’s no trouble for you to stay for the rest, although we have
      done a fair amount, but I want to make sure you don’t want us to repeat for
      you everything that we have done up to this point.

      MR. MAKARCHUK: I’m fine, I think it’s out of my hands at this point, or
      whatever if it was.

      THE COURT: Okay. And so even though we have done some things here
      outside of your presence, you will waive your presence up to this point, but
      you’d just as soon stay for the rest, am I understanding you right?

      MR. MAKARCHUK: Yes.

Makarchuk remained in-chambers for the remainder of the conference.

¶11   During the State’s rebuttal closing argument the prosecutor referenced

Makarchuk’s testimony stating:

      [I]t is the State’s burden to prove a case, we have that burden of proof, and
      we acknowledge that, but, you know, when the Defendant is trying to put a
      fact in front of you they have the opportunity to call other witnesses besides
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      the Defendant. All—the whole case—the Defendant’s case is propelled by
      one thing, and that’s what [Makarchuk] says. [Makarchuk] says he made a
      phone call in that shop. Did they get phone records—did they get phone
      records from the farm? Did they subpoena those phone records, get phone
      records to show that calls were made? Did they call Jim Bernard to the
      stand? Did they call Matt Marvin to the stand? No.

Makarchuk’s counsel objected and an off the record side-bar conference ensued.

Following the sidebar, Guzynski continued his argument, again commenting on

Makarchuk’s testimony and asking the jury to “determine his credibility.”

¶12   The jury subsequently found Makarchuk guilty of operating an unlawful

clandestine methamphetamine laboratory. Makarchuk filed a motion for new trial on the

basis that the State’s closing argument created reversible error and denied him due

process of law and a fair trial. The motion was denied.

¶13   The District Court sentenced Makarchuk to twenty years in the Montana State

Prison with ten years suspended with conditions.          The judgment provides nineteen

enumerated conditions of “parole and probation.” The District Court did not credit

Makarchuk for the 264 days he was released on house arrest pending trial. Makarchuk

appeals.

                              STANDARD OF REVIEW

¶14   Whether a criminal defendant’s right to be present at all critical stages of his trial

was violated is a question of constitutional law for which our review is plenary. State v.

Roedel, 2007 MT 291, ¶ 35, 339 Mont. 489, 171 P.3d 694; State v. Mann, 2006 MT 160,

¶ 10, 332 Mont. 476, 139 P.3d 159; State v. Matt, 2008 MT 444, ¶ 12, 347 Mont. 530,

199 P.3d 244. Statutes are presumed to be constitutional. State v. Samples, 2008 MT
                                         5
416, ¶ 14, 347 Mont. 292, 198 P.3d 803. We review a district court’s denial of a motion

for new trial for abuse of discretion. State v. Misner, 2007 MT 235, ¶ 20, 339 Mont. 176,

168 P.3d 679. We review criminal sentences for legality only, to determine whether they

are within the parameters set by statute. State v. Vernes, 2006 MT 32, ¶ 27, 331 Mont.

129, 130 P.3d 169.

                                     DISCUSSION

¶15 1. Was Makarchuk’s constitutional right to be present at critical stages of the
trial violated when he was absent from a portion of the conference settling jury
instructions?

¶16    Makarchuk argues that the District Court violated his Sixth Amendment right

under the United States Constitution, and corresponding right under Article II, Section 24

of the Montana Constitution, to be present at all criminal proceedings against him when

he was absent from the in-chamber conference where counsel settled a portion of the jury

instructions.   Makarchuk asserts that the conference was a critical stage of the

proceedings for which he did not effectively waive his right to be present, and his

exclusion from the conference amounts to “structural error, thereby requiring reversal of

[his] conviction and a new trial.”

¶17    The State responds that pursuant to § 46-16-410(4), MCA, the presence of the

defendant is not required during the settlement of jury instructions. The State contends

that conferences consisting of “purely legal” matters are not critical stages of trial

because the “criminal defendant can do little to aid his defense.” In the alternative, the

State argues that Makarchuk waived his right to be present at the conference, and failed

                                        6
to challenge the constitutionality of § 46-16-410(4), MCA, which allows a defendant to

be absent from the settling of jury instructions. The State asks that we affirm under the

same rationale as in Roedel, where we declined to undertake a constitutional analysis

when the statute had not been challenged (“Roedel does not challenge the statute’s

constitutionality. Accordingly, we will not address whether § 46-16-410(4), MCA,

impermissibly relieves a court of the obligation to obtain an express waiver of a

defendant’s presence from the settling of jury instructions.” Roedel, ¶ 60).

¶18       In his reply brief, Makarchuk acknowledges the failure to challenge § 46-16-

410(4), MCA, in the District Court, and offers a belated constitutional challenge to the

statute. Makarchuk explains that Roedel was decided after Makarchuk’s opening brief

was filed, and therefore the statute was not challenged earlier.1 Makarchuk reasons that

Roedel represents a “new development in the law that in order to make a constitutional

argument, the constitutionality of a statute must first be challenged” and asks that we not

apply the new development to his case, but declare the statute unconstitutional despite the

lack of a previous challenge.

¶19       However, this principle is not a new development in the law.                Statutes are

presumed to be constitutional, and “[a]bsent a successful constitutional challenge to the

propriety of a statute, we are obligated to apply it.” Elliott v. State Dept. of Revenue,

2006 MT 267, ¶ 15, 334 Mont. 195, 146 P.3d 741. Absent the extraordinary showing

necessary for the Court to undertake review under the plain error doctrine, likewise not


1
    Of course, the statute was subject to challenge even before Roedel was decided.
                                                7
argued in Makarchuk’s opening brief, constitutional challenges must generally be raised

in the district court. Additionally, we have explained that “[w]e will not address the

merits of an issue presented for the first time in a reply brief on appeal.” Pengra v. State,

2000 MT 291, ¶ 13, 302 Mont. 276, 14 P.3d 499.

¶20    Having failed to challenge the constitutionality of § 46-16-410(4), MCA, in the

District Court or in his opening brief on appeal, Makarchuk has failed to preserve the

issue. Accordingly, we will not consider his arguments regarding the constitutionality of

§ 46-16-410(4), MCA, and affirm this issue pursuant to our decision in Roedel.

¶21 2. Did the District Court err when denying Makarchuk’s motion for a new
trial by concluding that the State’s closing argument was proper?

¶22    Makarchuk argues that the State’s remarks during rebuttal closing argument

deprived him of his right to a fair trial and due process of law, as guaranteed by the

Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the

Montana Constitution. Makarchuk contends that “the State’s closing argument impinged

on [his] presumption of innocence and attempted to mislead the jury about the burden of

proof” when Guzynski “criticized [him] for failing to present certain evidence . . . and for

failing to call particular witnesses . . . .” Makarchuk asserts that the only way to correct

this error is for a new trial to be granted.

¶23    The State responds that the “comments at issue were appropriate argument about

the facts in evidence and the credibility of Makarchuk as a witness, prefaced by a

commitment that the State bore the burden of truth.” The State argues that Makarchuk


                                               8
has not demonstrated that he was actually prejudiced by the comments and accordingly

the District Court did not err by denying his motion for a new trial.

¶24    We consider alleged improper statements during closing argument in the context

of the entire argument. State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, 125

P.3d 1114. We will not presume prejudice from the alleged misconduct, rather the

defendant must show that the argument violated his substantial rights. Roubideaux, ¶ 11.

While it is improper for the prosecution to comment on the failure of a defendant to

testify, “the prosecution is permitted to point out facts at issue which could have been

controverted by persons other than the defendant, but were not.” State v. Rodarte, 2002

MT 317, ¶ 14, 313 Mont. 131, 60 P.3d 983 (citing Lockett v. Ohio, 438 U.S. 586, 98

S. Ct. 2954 (1978)). Moreover, while the prosecutor may not comment on evidence not

in the record and may not offer a personal opinion about the credibility of witnesses, the

prosecutor may comment on contradictions in testimony as well as comment on evidence

presented and suggest inferences the jury may draw therefrom. State v. Daniels, 2003

MT 247, ¶ 26, 317 Mont. 331, 77 P.3d 224.

¶25    Makarchuk asserts that Guzynski’s closing argument impermissibly suggested that

the jury should infer guilt from his failure to subpoena the phone records or have Marvin

and Bernard testify. Makarchuk likens his case to the plurality decision in State v.

Newman, 2005 MT 348, 330 Mont. 160, 127 P.3d 374. In Newman, two members of this

Court voted to reverse the criminal conviction based on a conclusion that prosecutorial

comments during closing argument had deprived the defendant of a fair trial by referring

                                          9
to the defense’s failure to present witnesses to support his theory of the case. However,

we recently explained that “[b]ecause it represents the view of just two members of the

Court, the concurring opinion in Newman does not constitute controlling authority.”

State v. Kolb, 2009 MT 9, ¶ 26, 349 Mont. 10, 200 P.3d 504. Consequently, Newman

offers no precedential value for this issue, and we analyze the current alleged error

pursuant to our other well established rules regarding the acceptable scope of closing

argument.

¶26    First, Makarchuk’s argument that the State attempted to mislead the jury about the

burden of proof is rebutted by the correct explanation offered to the jury by prosecutor

Guzynski, that the State retained the burden of proof and the obligation to prove its case.

We noted the significance of such a statement made by the prosecutor in rejecting a

similar burden of proof argument offered by the defendant in Roubideaux. Second,

during Makarchuk’s closing argument, defense counsel argued at length about the

weakness of the State’s case in light of Makarchuk’s testimony that he telephoned

persons to come to the camper. Consequently, the State’s rebuttal argument referencing

the phone records and lack of testimony by Marvin and Bernard was, as the District Court

concluded, presented to “point out facts at issue which could have been controverted by

persons other than the defendant.” Rodarte, ¶ 14. Finally, considering the closing

argument in context and as a whole, Roubideaux, ¶ 15, it is clear that the State was asking

the jury to evaluate Makarchuk’s credibility—an important consideration given defense

counsel’s primary reliance on Makarchuk’s testimony. Indeed, Guzynski stated several

                                        10
times that it was “important that you evaluate [Makarchuk’s] credibility.” Such an

argument about witness credibility is well within the permissible scope of closing

argument.      Accordingly, the District Court did not abuse its discretion by denying

Makarchuk’s motion for a new trial.

¶27 3. Did the District Court exceed its statutory authority by imposing
conditions on Makarchuk’s parole?

¶28       Makarchuk argues that the District Court lacked authority to set conditions of

parole.     Makarchuk asserts that while a “district court has the authority to impose

conditions of probation” under § 46-18-202(2), MCA, “no explicit statutory authority

allows [the court], except in specific circumstances, to impose conditions affecting

parole,” adding that his situation does not fall within any of these specific circumstances.

¶29       The State responds that Makarchuk waived this argument on appeal by failing to

raise an objection at the time of sentencing. The State also asserts that the District Court

is authorized to impose conditions on parole pursuant to § 46-18-202(1)(f), MCA,

because it allows the court to impose “any other limitation reasonably related to the

objectives of rehabilitation and the protection of the victim and society.” Makarchuk

replies that he may raise this issue for the first time on appeal pursuant to State v.

Lenihan, 184 Mont. 338, 602 P.2d 997 (1979).

¶30       Generally, we refuse to review on appeal an issue which the party failed to object

to at trial. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. However,

in Lenihan we provided an exception to that rule and allowed appellate review of

criminal sentences alleged to be illegal or in excess of statutory mandates, regardless of
                                           11
whether the defendant raised an objection in the trial court.       Kotwicki, ¶ 8.     The

challenged sentence must be plausibly illegal, and not just objectionable. Kotwicki,

¶¶ 16-18.

¶31   Recently, in State v. Burch, 2008 MT 118, 342 Mont. 499, 182 P.3d 66, we

rejected the State’s argument, likewise offered here, that “the statutes governing a

sentencing judge’s authority gives a judge residual authority to impose parole conditions

. . . .” Burch, ¶ 24. We concluded that “nothing in § 46-18-201, MCA, gives sentencing

judges the authority to impose parole conditions.” Burch, ¶ 26. Consequently, we agree

with Makarchuk that, while a district court has authority in limited situations to impose

conditions of parole, see e.g. Burch, ¶ 30 (explaining that a district court has authority

pursuant to § 46-18-255(1), MCA, to impose conditions of parole on defendants

convicted of a sexual or violent offense), Makarchuk does not fit within those recognized

exceptions. Accordingly, the parole conditions imposed by the District Court are illegal

as being beyond the statutory authority of the court, and are properly challenged on

appeal pursuant to Lenihan and Kotwicki. We reverse Makarchuk’s sentence to the

extent the conditions imposed by the District Court apply to Makarchuk’s parole.

¶32 4. Did the District Court err by failing to credit Makarchuk for time served
on house arrest as a condition of his release on bond pending trial?

¶33   Makarchuk’s last issue is that the District Court erred by not crediting his sentence

for time served while on house arrest pending trial. Makarchuk argues that, pursuant to

§ 46-18-203(7)(b), MCA, he is entitled to credit for the approximately nine months he

served on house arrest. The State responds that Makarchuk failed to preserve this issue
                                        12
for appeal because he did not “object or request at sentencing that credit be given for the

time that he was released on house arrest.” Moreover, the State asserts that the Lenihan

exception does not apply because it is within the court’s discretion, as opposed to

“statutorily required,” to credit an offender with the type of house arrest at issue here.

Because the District Court was not required to credit Makarchuk’s sentence with the time

spent, even if he had objected, the State argues that the issue renders the sentence

objectionable, but not illegal for purposes of Lenihan.

¶34      However, though the State offers a viable argument, Makarchuk notes that we

recently denied his petition for habeas corpus which had raised this issue, explaining that

he had also raised the issue on direct appeal and concluding that “we will address the

issue raised in Makarchuk’s petition in the appeal with the benefit of the full District

Court record.”2

¶35      Home arrest procedures are governed by Title 46, Chapter 18, Part 10 of the

Montana Code Annotated. “Home arrest” is statutorily defined as “the use of a person’s

home for purposes of confinement and home arrest procedures and conditions imposed

under this part.” Section 46-18-1001, MCA. Pursuant to § 46-18-1002(1), MCA, a

defendant may petition the sentencing court for an order directing that all or a portion of

his sentence be served on house arrest. If such an order is granted, it must include a

specific plan setting forth the conditions of the house arrest. Section 46-18-1002(3),

MCA. Pursuant to § 46-18-203(7)(b), MCA, upon revocation of a suspended or deferred


2
    Makarchuk v. State, OP 07-0600.
                                         13
sentence, “[c]redit must be allowed for time served in a detention center or home arrest

time already served.”

¶36   We considered a similar issue in State v. Gulbranson, 2003 MT 139, 316 MT 163,

69 P.3d 1187, overruled on other grounds, State v. Herman, 2008 MT 187, ¶ 12 n. 1, 343

Mont. 494, 188 P.3d 978. Gulbranson sought credit for time he spent on “informal house

arrest” which was a condition of his release on bond. We concluded that informal house

arrest was not the “‘house arrest’ as provided for in Title 46, Chapter 18, Part 10 of the

MCA,” because it was not a condition of his suspended sentence and Gulbranson was not

required to wear an electronic monitoring device. Gulbranson, ¶ 12. We concluded that

§ 46-18-203(7)(b), MCA, did not require Gulbranson’s sentences be credited with the

time served on informal house arrest. Gulbranson, ¶ 12.

¶37   The situation here is similar to Gulbranson. Like Gulbranson, Makarchuk was not

required to wear an electronic monitoring device and was assigned to house arrest as a

condition of his release on bond, rather than as a condition of his later suspended

sentence. The only difference between these cases is that Makarchuk’s release was

ordered pursuant to a stipulation and was conditioned by use of the term “formal house

arrest.” Makarchuk argues that this difference in wording and the “formal stipulation”

requires a different outcome than in Gulbranson, and that the District Court “should have

to credit Makarchuk for the time . . . .” However, though the house arrest here was

described within the bond release order as “formal,” and was stipulated to by the parties,

it nonetheless does not meet the statutory definition of “home arrest” as contemplated by

                                        14
Title 46, Chapter 18, Part 10. “Home arrest” is a procedure for serving a suspended

sentence and, as the State notes, § 4 6-18-203(7)(b), MCA, “does not require that

Makarchuk receive credit for the time he spent on formal house arrest as a condition of

his pretrial release.” Consistent with our opinion in Gulbranson, we conclude that the

District Court was not required to credit Makarchuk with the 264 days he spent on house

arrest, and did not impose an illegal sentence by refusing to do so.

¶38    Affirmed.

                                                 /S/ JIM RICE


We concur:


/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON




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