                                                                                                12/19/2017


                                           DA 15-0771
                                                                                            Case Number: DA 15-0771

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 312



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JEFFORY A. LAFIELD,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-14-608
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robin Meguire, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: September 27, 2017

                                                                Decided: December 19, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     This appeal results from a November 4, 2015 judgment, wherein Jeffory Alan

LaField (LaField) pled guilty to the criminal offense of felony driving under the influence

of alcohol, fourth or subsequent offense, and three misdemeanors: obstructing a peace

officer, driving a motor vehicle without a license, and failure to carry proof of insurance.

LaField alleges violation of his due process rights, errors in sentencing, and that he was

denied effective assistance of counsel. We affirm and remand for entry of an amended

judgment.

¶2     We restate the issues on appeal as follows:

       Issue One: Whether the District Court deprived LaField of his right to due
       process during sentencing.

       Issue Two: Whether the District Court’s imposition of the suspended sentence
       condition requiring LaField to obtain permission before engaging in business,
       purchasing real property, purchasing an automobile, or incurring a debt, should
       be stricken because of a lack of factual nexus.

       Issue Three: Whether LaField was deprived of effective assistance of counsel
       during sentencing.

       Issue Four: Whether the sentencing conditions in the written judgment should be
       amended to conform to oral pronouncement of the conditions.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On November 15, 2014, Missoula County Sheriff Deputy Ross Jessop (Deputy

Jessop) was driving southbound on Montana Highway 93. He observed a red 1997

Suzuki automobile swerve over the fog line.          Deputy Jessop observed the vehicle

following traffic too closely, nearly collide with another vehicle, and nearly collide with


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Deputy Jessop’s marked patrol car. Deputy Jessop initiated a traffic stop, and the driver

pulled off the highway into an adjacent parking lot. The driver told Deputy Jessop his

name was Robert Richard Fowler, but was unsure of his birthdate.           Deputy Jessop

identified the driver as LaField. LaField was unable to produce a valid driver’s license or

proof of insurance.

¶4       Deputy Jessop observed that LaField exhibited signs of intoxication, including

smelling of alcohol, droopy blood-shot eyes, extremely slurred speech, and coordination

problems. LaField admitted to having consumed alcohol. Deputy Jessop initiated a field

sobriety test. LaField was unable or unwilling to comply with the protocol. Deputy

Jessop arrested La Field for Driving Under the Influence of Alcohol (DUI). A check of

LaField’s driving history showed he was currently on probation for a felony DUI

conviction in Ravalli County, and LaField’s driving privileges were suspended. LaField

resisted Deputy Jessop’s efforts to place him under arrest. As Deputy Jessop placed him

in the back of his patrol car, LaField kicked Deputy Jessop.

¶5       On December 1, 2014, LaField was charged with Felony Driving Under the

Influence of Alcohol and/or Drugs, a Fourth or Subsequent Offense, Assault on a Peace

Officer, Obstructing a Peace Officer, Driving a Motor Vehicle While Privilege to do so is

Suspended or Revoked, and Failure to Carry Proof of Insurance in Vehicle. The State

filed a notice of intent to designate and sentence LaField as a persistent felony offender

(PFO).

¶6       The State provided LaField with a public defender, Louis Villemez. On December

9, 2014, with counsel present, LaField entered a not guilty plea to each charge. Villemez

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informed the court he was representing LaField on a limited basis, as LaField planned to

secure different representation. On January 20, 2015, LaField appeared for an omnibus

hearing without counsel, but informed the court Randi Hood was his public defender.

The court continued the hearing. On January 27, LaField appeared at the omnibus

hearing with Dave Stenerson, Regional Deputy of the Office of Public Defender (OPD).

On February 2, the court granted Hood’s motion to withdraw as counsel and ordered

Stenerson to appear to discuss the status of LaField’s public defender representation. On

February 20, LaField was assigned Reed Mandelko as his public defender. On March 9,

Mandelko filed a motion to suppress, alleging Deputy Jessop lacked particularized

suspicion to stop LaField. However, a possible conflict arose that required Mandelko to

withdraw as LaField’s counsel. On April 7, Stenerson appeared in District Court and

Daniel Miller was substituted as LaField’s new public defender. On May 5, Miller

represented LaField at the omnibus hearing. Before an evidentiary hearing was held,

Miller filed a motion to withdraw as counsel, which the court granted. Thereafter, the

OPD expressed its opposition to representing LaField. On June 1, the court ordered

briefing on whether LaField forfeited his right to court-appointed counsel and requested a

list of potential contract attorneys the court could appoint to represent LaField. The

District Court appointed Craig Shannon to represent LaField.          OPD withdrew its

opposition to assigning counsel and the court vacated the briefing schedule.

¶7    Regarding the motion to suppress, the court granted counsel’s motion for

discovery and subpoena duces tecum. After a full briefing by both parties and a July 31,

2015 evidentiary hearing, the court denied LaField’s motion to suppress. At the August

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25 pretrial conference, LaField’s counsel presented the court with LaField’s Guilty Plea

and Waiver of Rights and explained LaField intended to enter a plea to four of the five

charges and the State would dismiss the charge of felony assault on a peace officer.

When questioned by the court, LaField confirmed he understood his rights and was

entering his plea knowingly and voluntarily. The court accepted the plea and ordered a

pre-sentence investigation (PSI) report.

¶8     After the PSI report was completed, LaField’s counsel filed a sentencing

memorandum and objection to both the PSI writer’s characterization of his criminal

history and recommended thirty-year prison sentence. Counsel argued the recommended

sentence was excessive based on the mitigating factors in this case and when compared to

other felony DUI sentences that did not result in any injury.

¶9     At the October 20, 2015 sentencing hearing, LaField and his counsel were given

the opportunity to explain the mitigating factors regarding why LaField drove while

intoxicated. The court accepted LaField’s description of the mitigating factors. LaField

disagreed with the PSI report summary of his criminal history.        The District Court

allowed LaField to explain his criminal history and the court accepted his summary over

the PSI report. LaField then requested several of the recommended probation conditions

be either amended or stricken. Of the thirty-two sentencing conditions, the District Court

struck six conditions and amended two others.          Relevant to this appeal are two

conditions, one requiring LaField to obtain permission from his probation officer to

engage in business, purchase property or a vehicle, or take on debt, and the other

requiring LaField to obtain a mental health evaluation. LaField then requested the court

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review and submitted into evidence seven photographs which allegedly depicted

LaField’s injuries sustained during the arrest. The District Court denied his request to

enter them into evidence but did allow them to be placed in the file for consideration.

¶10    LaField then requested five minutes to read a letter to the court.        The court

cautioned LaField to address only issues relevant to his current sentencing. When given

the opportunity to address the court, LaField raised issues related to his previous DUI

conviction. The court interrupted LaField and admitted the letter into the record, denying

LaField any further time to address the court. The court sentenced LaField to a net

sentence of twenty years to run consecutively to his other felony DUI sentence. LaField

appeals.

                               STANDARD OF REVIEW

¶11    This Court reviews whether a district court violated a defendant’s constitutional

rights at sentencing de novo. State v. Sherman, 2017 MT 39, ¶ 9, 386 Mont. 363, 390

P.3d 158. Claims of ineffective assistance of counsel present mixed issues of law and

fact which we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d

88. We review criminal sentences that include at least one year of actual incarceration

for legality only. The term “legality” in this context signifies that we will not review a

sentence for mere inequity or disparity. Rather, our review is confined to determining

whether the sentencing court had statutory authority to impose the sentence, whether the

sentence falls within the parameters set by the applicable sentencing statutes, and whether

the court adhered to the affirmative mandates of the applicable sentencing statutes. We

have characterized this “legality” standard more generally as reviewing for correctness.

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The question is one of law and the determination is whether the district court interpreted

the law correctly. This determination is a question of law and, as such, our review is

de novo. State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815.

                                       DISCUSSION

¶12    Issue One: Whether the District Court deprived LaField of his right to due
       process during sentencing.

¶13    LaField claims he was deprived of his right to due process to participate fully in

the sentencing hearing because the District Court denied him the opportunity to finish

reading his letter to the court and refused to admit and consider seven photographs

showing physical injury resulting from his arrest. Further, he argues the District Court

deprived him of his due process rights based on bias because the judge appeared

distracted, disinterested, and called LaField a “loser.”

¶14    The Montana and United States Constitutions guarantee against depriving a person

of liberty without due process of law, and these protections apply in sentencing hearings.

U.S. Const. Amend. XIV, § 1; Mont. Const. art. II, § 17; Sherman, ¶ 12. “Due process

requires that an offender be given an opportunity to explain, argue, and rebut any

information, including pre-sentencing information, that may lead to a deprivation of life,

liberty, or property.” State v. Webb, 2005 MT 5, ¶ 18, 325 Mont. 317, 106 P.3d 521;

Sherman, ¶ 12. Montana law requires a court to provide both parties a reasonable

“opportunity to be heard on any matter relevant to the disposition . . . .” Section

46-18-115(1), (3), MCA. Based on our review of the record we conclude LaField was

given a reasonable opportunity to be heard during sentencing.


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¶15    First, LaField asserts the District Court denied him his due process rights by

interrupting him and refusing to let him finish reading his letter into the record, thus

denying him his right to be heard. We disagree. The District Court heard LaField and

his counsel on the extenuating circumstances on the night of the DUI. The District Court

accepted the extenuating circumstances as true and said it would consider them in

sentencing. The court allowed LaField to read his letter for over five minutes during

sentencing. Prior to LaField reading the letter, the court required LaField to discuss only

relevant issues.   Only when LaField directly violated the court’s limitation did the

District Court interrupt LaField. LaField was given a “reasonable opportunity to be

heard” on matters relevant to the disposition of his sentence.            Sherman, ¶ 14;

§ 46-18-115(1), (3), MCA.

¶16    Next, LaField asserts the District Court denied him his due process rights by

denying his request to admit seven photographs allegedly depicting the injuries he

sustained at the hands of the arresting officers on the night of his arrest. LaField asserts

the District Court erred by denying him the right to “rebut” the sentencing condition of

anger management counseling. Sherman, ¶ 14; § 46-18-115(1), (3), MCA. However, the

District Court determined the photographs were not relevant to sentencing, as the assault

on a peace officer charge had been dismissed. Section 46-18-115(1), MCA. Despite this,

LaField argues the District Court imposed anger management counseling based on the

court’s impression he was a “hothead,” and the photos would have shown he was not at

fault for his anger the night of the DUI. LaField was given the opportunity to rebut the

court’s determination he would benefit from anger management counseling, both in his

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letter to the court and through his counsel. Moreover, while the court refused to accept

the photos as evidence, it did allow the photos to be placed in the file.

¶17    The District Court considered LaField’s criminal history and previous anger

outbursts when imposing the condition.        District courts “may consider any relevant

evidence relating to the nature and circumstances of the crime, the character of the

defendant, the defendant’s background history, mental and physical condition, and any

evidence the court considers to have probative force.” State v. Otto, 2017 MT 212, ¶ 11,

388 Mont. 391, 401 P.3d 193 (citing Driver v. Sentence Review Div. in the Sup. Court of

Mont., 2010 MT 43, ¶ 17, 355 Mont. 273, 227 P.3d 1018); State v. Collier, 277 Mont. 46,

63, 919 P.2d 376, 387 (1996)). Here, the record demonstrates that the District Court did

not impair LaField’s ability to “explain, argue, and rebut” the court’s imposition of a

condition requiring anger management counseling by refusing to allow the introduction

of the photographic evidence. Sherman, ¶ 14.

¶18    Finally, LaField argues the District Court was biased, therefore depriving him of

his due process rights. LaField asserts record and non-record based indicia of judicial

bias including: the judge called him a “loser,” his status as a Montana Freeman, his

history with judges, and that the judge was repeatedly distracted and disinterested. In

Montana, judges must remain impartial. State v. Skinner, 2007 MT 175, ¶ 36, 338 Mont.

197, 163 P.3d 399. However, failure to make a timely objection during trial constitutes a

waiver of the objection. Section 46-20-104(2), MCA. This Court has made it clear that

where a defendant does not object at trial to the remarks and conduct of the trial judge,

the issue will not be considered upon appeal. State v. Olsen, 2004 MT 158, ¶ 12, 322

                                              9
Mont. 1, 92 P.3d 1204; State v. Ahmed, 278 Mont. 200, 210, 924 P.2d 679, 683 (1996).

LaField failed to object to the District Court’s actions at the sentencing and does not

argue the statements amount to plain error. Skinner, ¶ 36 (failure to object to a claim

waives that claim unless a substantial right of the party is affected necessitating plain

error review). LaField failed to object to the District Court’s alleged bias; as a result, we

decline to address this issue.

¶19    The District Court gave LaField a reasonable opportunity to “explain, argue, and

rebut” the mitigating factors for his DUI and the sentencing recommendation for anger

management. Sherman, ¶ 12. The anger management counseling condition was based on

LaField’s history. Section 46-18-115(6), MCA. LaField failed to preserve his claim for

judicial bias by failing to object to the District Court’s conduct. LaField’s due process

rights were not infringed.

¶20    Issue Two: Whether the District Court’s imposition of the suspended sentence
       condition requiring LaField to obtain permission before engaging in business,
       purchasing real property, purchasing an automobile, or incurring a debt, should
       be stricken because of a lack of factual nexus.

¶21    LaField asserts the District Court erred when it imposed condition 7 of his

suspended sentence because it had no factual nexus to the crime for which he was being

sentenced and the condition would hinder his ability to make a living. Condition 7 reads:

“The Defendant must obtain permission from his/her Probation & Parole Officer before

engaging in a business, purchasing real property, purchasing an automobile, or incurring

a debt.” LaField relies on the rule stated in State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont.

187, 179 P.3d 1164, that “in imposing conditions of sentence, a sentencing judge may


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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.”

¶22    Ashby is not controlling here. Ashby requires a nexus between the condition and

the offense when the condition is imposed under § 46-18-201 or -202, MCA. However,

LaField’s condition was not imposed under § 46-18-201 or -202, MCA. Rather, the

condition was imposed under the legislative authority in § 46-23-1002(3), MCA, which

grants the Department of Corrections the power to “adopt rules for the conduct of persons

placed on parole or probation.”     One rule, identical to that imposed on LaField, is

articulated in Admin. R. M. 20.7.1101(6) (2008): “The offender must obtain permission

from his/her supervising officer before engaging in business, purchasing real property,

purchasing an automobile, or incurring a debt.” The condition that a factual nexus exist

between the condition and the offender or the offense does not apply here. See State v.

Essig, 2009 MT 340, ¶ 26, 353 Mont. 99, 218 P.3d 838; State v. Hernandez, 2009 MT

341, ¶ 6, 353 Mont. 111, 220 P.3d 25. The condition on LaField’s suspended sentence is

authorized by statute and rule. Admin. R. M. 20.7.1101(6) (2008); § 46-23-1002(3),

MCA. The District Court did not err.

¶23    Because LaField asserted condition 7 was a financial penalty and was going to

affect his ability to work, the only relevant inquiry is whether the District Court abused

its discretion by imposing this standard condition. A standard condition adopted by the

Department of Corrections will be included as a condition of a probationary sentence

unless the District Court determines, in the exercise of its discretion, that a standard

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condition is inappropriate under the sentence it is imposing.          Hernandez, ¶ 7;

§ 46-23-1002(3), MCA (a standard condition of probation, adopted as a rule by the

Department of Corrections, may not conflict with conditions imposed by a sentencing

court). Thus, we will review the sentencing judge’s conclusion that a standard condition

should be imposed for an abuse of discretion. Hernandez, ¶ 7. An abuse of discretion

occurs when a district court acts arbitrarily without conscientious judgment or exceeds

the bounds of reason. State v. McLaughlin, 2009 MT 211, ¶ 9, 351 Mont. 282, 210 P.3d

694.   The District Court found condition 7 to be appropriate after discussion with

counsel. The District Court did not abuse its discretion.

¶24    Issue Three: Whether LaField was deprived of effective assistance of counsel
       during sentencing.

¶25    LaField argues that he was provided ineffective assistance of counsel (IAC)

because counsel failed to object to, or make a clear record of, several instances of the

District Court judge’s bias and demeanor towards him, including a comment that he was

a “loser,” the presence of law enforcement officers in the courtroom, and that counsel

allowed LaField to plead guilty while a motion to dismiss and suppress was pending.

¶26    The right to counsel in a criminal proceeding is protected by the Sixth Amendment

to the United States Constitution, as incorporated through the Fourteenth Amendment, as

well as Article II, Section 24 of the Montana Constitution. State v. Stratton, 2017 MT

112, ¶ 9, 387 Mont. 384, 394 P.3d 192. We review claims of IAC on direct appeal if the

claims are based solely on the record and in petitions for postconviction relief if the

alleged errors are non-record based. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270


                                            12
P.3d 88. Before reaching the merits of an IAC claim on direct appeal, this Court must

determine whether the allegations are properly before it. State v. Kougl, 2004 MT 243,

¶ 14, 323 Mont. 6, 97 P.3d 1095.

¶27   To succeed on an IAC claim, a defendant must establish: (1) that counsel’s

performance was deficient; and (2) that the deficient performance prejudiced the defense.

Clary, ¶ 30. A record that is silent about the reasons for counsel’s actions or omissions

seldom provides sufficient evidence to rebut the “strong presumption” that counsel’s

actions fell “within the wide range of reasonable professional assistance.” Clary, ¶ 30

(citing State v. Sartain, 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032).

Accordingly, if the record does not demonstrate why counsel did or did not take the

actions constituting the alleged ineffective assistance, the claims are better raised in a

petition for postconviction relief. Clary, ¶ 30. However, counsel’s failure to object may

generally be considered record-based, and therefore appropriate on direct appeal. See

State v. White, 2001 MT 149, ¶ 15, 306 Mont. 58, 30 P.3d 340. Though sometimes

difficult to determine if an IAC claim is record or non-record based, the definitive

question is why? If counsel fails to object, does the record fully explain why counsel

took the particular course of action?          If not, then the matter is best-suited for

post-conviction proceedings which permit a further inquiry into whether the particular

representation was ineffective. White, ¶ 20.

¶28   LaField contends his IAC claims are reviewable on direct appeal because there is

no justification why his counsel would not object to the judge’s demeanor or the law

enforcement officers in attendance.       The State argues that the record does not

                                               13
demonstrate why LaField’s counsel took or did not take certain actions. We agree.

However, after a review of the record, the court’s comment that LaField was a “loser”

was in direct response to defense counsel’s assertion that the incident was a

“garden-variety 5th DUI.” Following the comment, counsel defended his client to the

court, explaining why LaField was not a “loser.” The court and counsel continued to

discuss LaField’s driving offense history and how LaField’s offense compared to other

individuals who had been sentenced for similar crimes.

¶29    Review of the sentencing transcript in its entirety reveals that the comment was an

isolated one in the context of a hearing in which LaField presented fully, and the judge

listened patiently to, his case for a lenient sentence. Defense counsel’s decision not to

object was well-grounded in light of the record as a whole. Despite an incomplete record

on the reason for counsel’s failure to object at sentencing, LaField cannot meet the test

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The

record as a whole demonstrates that LaField would not have had a meritorious due

process claim on the grounds of judicial bias by virtue of the judge’s demeanor or the

presence of law enforcement officers in the courtroom. LaField’s ineffective assistance

of counsel claim is without merit.

¶30    LaField’s claim that there was no reasonable strategic basis why counsel allowed

LaField to plead guilty when a motion to dismiss and suppress was pending is without

merit. As the record demonstrates, after the July 31, 2015 evidentiary hearing on the

motion, the District Court issued a ruling denying the motion; LaField has not appealed

that ruling. This ineffective assistance of counsel claim is without merit.

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¶31    Issue Four: Whether the sentencing conditions in the written judgment should be
       amended to conform to oral pronouncement of the conditions.

¶32    LaField argues condition 17 of the judgment is illegal and should be amended to

comport with court’s oral pronouncement. A district court’s “oral pronouncement of a

criminal sentence . . . is the ‘legally effective sentence and valid, final judgment.’” State

v. Thompson, 2017 MT 107, ¶ 8, 387 Mont. 339, 394 P.3d 197 (citing State v. Johnson,

2000 MT 290, ¶ 15, 302 Mont. 265, 14 P.3d 480 (quoting State v. Lane, 1998 MT 76,

¶ 40, 288 Mont. 286, 957 P.2d 9)). A “written judgment is merely evidence of the oral

sentence.”   Johnson, ¶ 15.      Thus, “in the event of a conflict between the oral

pronouncement of sentence and the written judgment and commitment, the oral

pronouncement controls.” Lane, ¶ 48.

¶33    LaField argues the oral pronouncement required him to obtain a mental health

evaluation only if one did not occur on September 15. This specifically contradicts the

written judgment requiring LaField to obtain a mental health evaluation and pay for it,

without consideration of whether an evaluation had occurred on September 15. The State

concedes the issue. The District Court’s oral pronouncement requiring LaField to obtain

and pay for a mental health evaluation only if one did not already occur differs from the

written judgment. Therefore, the written judgment—condition 17—must be amended.

                                     CONCLUSION

¶34    LaField’s due process rights were not infringed.         Condition 7 of LaField’s

suspended sentence is authorized by statute and rule. The District Court did not err or




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abuse its discretion by including it as a sentencing condition. LaField’s ineffective

assistance of counsel claims are without merit.

¶35   As the State concedes, the District Court’s oral pronouncement requiring LaField

to obtain a mental health evaluation only if one did not already occur and the requirement

that LaField bear the cost of obtaining the mental health evaluation differs from the

written judgment, and the judgment must be amended.

¶36   Affirmed and remanded for action in conformity with this Opinion.



                                                  /S/ MICHAEL E WHEAT


We Concur:


/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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