                                                                                               03/14/2017


                                          DA 16-0183
                                                                                           Case Number: DA 16-0183

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 56



CITY OF BILLINGS,

               Plaintiff and Appellee,

         v.

DANIEL BARTH,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 15-1013
                       Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Madison L. Mattioli,
                       Assistant Attorney General, Helena, Montana

                       Teague J. Westrope, Billings Deputy City Attorney, Billings, Montana



                                                   Submitted on Briefs: February 8, 2017

                                                               Decided: March 14, 2017


Filed:

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

¶1       Defendant Daniel Barth appeals the order and decision of the Thirteenth Judicial

District Court, Yellowstone County, affirming alcohol-related conditions included in

Barth’s sentence by the City of Billings Municipal Court. We address the following

issue:

         Whether the Municipal Court erred in imposing alcohol-related conditions on the
         defendant’s sentence.

¶2       We affirm.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶3       On January 29, 2015, Daniel Barth ran a stop sign while driving a Chevrolet

Avalanche and collided with a Dodge Caravan at an intersection in Billings, Montana.

Barth was identified as the driver of the Avalanche by a license plate recovered at the

scene and by the testimony of an eyewitness who picked him out of a photo lineup. The

occupants of the Caravan, a young mother and her eight-month-old child, suffered several

serious injuries, requiring medical treatment. Instead of remaining at the scene to check

on the well-being of the victims and to alert authorities of the accident, Barth fled. The

next day, Barth called police to report that his Avalanche had been stolen the night

before.

¶4       Barth was charged with: (1) negligent endangerment in violation of § 45-5-208,

MCA; (2) leaving the scene of an injury accident in violation of § 61-7-103, MCA; and

(3) failing to give notice of an accident in violation of § 61-7-108, MCA.            On

September 4, 2015, a jury found Barth guilty of all charges. At the sentencing hearing,
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the City introduced evidence of Barth’s criminal record, including seven convictions for

driving under the influence of alcohol (DUI), and other traffic violations. Barth’s most

recent alcohol-related conviction was a DUI in 2007. The City contended that it was

impossible to tell if alcohol was a factor in Barth’s accident in this case because he fled

the scene.

¶5     Citing concerns about Barth’s history with alcohol, the Municipal Court included

six conditions to Barth’s suspended sentence for negligent endangerment, four of which

pertained to alcohol use:

             3. Defendant shall be subject to random urinalysis and breath testing;

             4. Defendant shall not enter any place where alcohol is the primary
                item of sale including bars and casinos;

             5. Defendant shall not consume any alcohol, drugs, or mood-altering
                substances;

             6. Defendant shall complete a chemical dependency evaluation and
                shall follow all recommendations made by the licensed addictions
                counselor.

The Municipal Court specifically concluded that Barth was a danger to society because of

his history of DUIs.

¶6     Barth filed a timely appeal to the District Court regarding the four alcohol-related

conditions of his sentence. Barth did not appeal his convictions or the non-alcohol

related conditions of his sentence.      Barth argued that the Municipal Court did not

establish a sufficient nexus between his criminal history and the conditions imposed on

his sentence that related to alcohol. On January 27, 2016, the District Court issued an


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order and decision affirming the Municipal Court’s conditions. Barth timely appeals the

District Court’s order.

                               STANDARDS OF REVIEW

¶7     On an appeal from a municipal court, district courts function as an intermediate

appellate court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d

461. When the district court is subsequently appealed, we review the case as if the appeal

had originally been filed in this Court, and apply the appropriate standard of review.

Cantu, ¶ 10.

¶8     Sentencing conditions are reviewed first for the condition’s legality, and then for

abuse of discretion. Cantu, ¶ 11. A condition is illegal when there exists no statutory

authority to impose it, where the condition exceeds the limits of the relevant sentencing

statute, or where the court fails to “adhere to the affirmative mandates of the applicable

sentencing statutes.” State v. Heddings, 2008 MT 402, ¶ 11, 347 Mont. 169, 198 P.3d

242.   If the condition is legal, we then determine if the condition is a “reasonable

restriction, or condition considered necessary for rehabilitation or for the protection of the

victim or society.” Section 46-18-201(4)(q), MCA; Heddings, ¶ 14.

                                       DISCUSSION

¶9     Whether the Municipal Court erred in imposing alcohol-related conditions on the
       defendant’s sentence.

¶10    In order for a sentencing court to impose a condition on a defendant’s suspended

sentence, the court must find a nexus between the condition and the underlying offense or

the offender’s history. State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164.
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Offender-related conditions are appropriate only when the “history or pattern of conduct

to be restricted is recent, and significant or chronic.” Ashby, ¶ 15. A condition will be

invalidated where the nexus is absent altogether, or is “exceedingly tenuous.” State v.

Melton, 2012 MT 84, ¶ 18, 364 Mont. 482, 276 P.3d 900 (citing State v. Zimmerman,

2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109).

¶11   Section 46-18-201(4)(q), MCA, gives sentencing courts the legal authority to

impose any reasonable conditions on suspended sentences. At the sentencing hearing, the

Municipal Court made clear that the conditions imposed were designed to protect society

from Barth’s criminal behavior and alcohol abuse.        As there exists clear statutory

authority for the Municipal Court’s actions, the conditions imposed on Barth’s suspended

sentence were legal.

¶12   We next determine if the condition is reasonable.       In that regard, we assess

whether the “history or pattern of conduct to be restricted is recent, and significant or

chronic.” Ashby, ¶ 15. Barth does not dispute that his seven DUI convictions constitute

a significant and chronic problem; rather, he contends his alcohol abuse is not recent.

Barth argues that because his last DUI prior to the hit-and-run was eight years old, the

DUI is both remote and stale under Ashby. We disagree.

¶13   We have previously held that a history of chemical dependency, despite no

evidence of alcohol abuse in sixteen years prior to arrest, was a sufficient nexus to the

offender to support a condition prohibiting alcohol use. State v. Winkel, 2008 MT 89,

¶¶ 15-16, 342 Mont. 267, 182 P.3d 54. In Winkel, the concern was that alcohol would

                                           5
hinder Winkel’s rehabilitation in light of his extensive history with chemical dependency.

Similarly, Barth has developed a lengthy and substantial history of driving under the

influence, as well as reckless and careless driving over the last thirty years. As in Winkel,

Barth’s history suggests that alcohol presents a barrier to his rehabilitation and makes

him a danger to society. Barth’s eight-year-old DUI is decidedly more recent than the

sixteen-year gap in Winkel, and is sufficient to meet the recency requirement set forth in

Ashby. The Municipal Court’s alcohol-related conditions were both legal and reasonable,

and have a sufficient nexus to Barth’s history of alcohol abuse and reckless driving.

¶14    It is unfortunate for Barth that any evidence that his hit-and-run was not

alcohol-related evaporated when he chose to flee the scene. On that score, however,

Barth is the author of his own misfortune. More to the point, even if we were to give

Barth the benefit of the doubt that he was merely callous, rather than intoxicated, when

he fled the scene of an accident in which he seriously injured a mother and her

eight-month-old infant, his extensive DUI history, and obvious chemical dependency

issues, justified the alcohol-related conditions imposed by the Municipal Court.

                                     CONCLUSION

¶15    We affirm the District Court’s order upholding the Municipal Court’s

alcohol-related conditions on Barth’s sentence.




                                                  /S/ JAMES JEREMIAH SHEA


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We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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