file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm




                                                               No. 99-550

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 164N

                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                      PATRICK ANDERSON,

                                                     Defendant and Appellant.

                          APPEAL FROM: District Court of the Seventh Judicial District,

                                                In and for the County of Dawson,

                                     The Honorable David Cybulski, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                Matthew J. Wald, Attorney at Law, Miles City, Montana

                                                            For Respondent:

                             Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

                                       Assistant Attorney General; Helena, Montana

                          Gerald Navratil, Dawson County Attorney; Vince Vanderhagen,

                                        Deputy County Attorney, Glendive, Montana




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (1 of 6)3/28/2007 2:24:45 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm

                                             Submitted on Briefs: February 24, 2000

                                                        Decided: June 20, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk


Justice Jim Regnier delivered the opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Patrick Anderson appeals from the Judgment and Order Suspending Sentence issued by
the Seventh Judicial District Court, Dawson County. We reverse.

¶3 Anderson raises the following issue on appeal:

¶4 Whether the District Court exceeded its sentencing authority?

                                                          BACKGROUND

¶5 On January 20, 1998, the State filed an Information charging Patrick Anderson with
felony Partner Assault, third offense, in violation of § 45-5-206, MCA. The State alleged
that on or about January 4, 1998, Anderson struck Kandi Anderson in the face, causing her
to fall and injure her head and right elbow. On June 9, 1998, the State filed an Information
charging Anderson with felony Family Member Assault, fourth offense, in violation of §
45-5-206, MCA. The State alleged that on or about May 30, 1998, Anderson spanked his
three-year-old son with his hand leaving multiple black and blue bruises. On June 11,
1998, the State filed a Motion for Joinder requesting that the District Court join these
separate charges for trial. The District Court granted the State's Motion for Joinder on
October 12, 1998.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (2 of 6)3/28/2007 2:24:45 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm


¶6 On November 12, 1998, Anderson entered a plea of guilty to the charge of Family
Member Assault and entered an Alford plea to the charge of Partner Assault. On March
17, 1999, the District Court ordered Anderson to pay a fine of $20,000 for each offense,
with all but $1000 suspended on each offense, and sentenced Anderson to five years
imprisonment at the Montana State Prison on each charge, to run consecutively, with all
ten years suspended upon Anderson's compliance with the terms of his probation. One of
the conditions of Anderson's suspended sentence provided:

The Defendant's visits with his son shall be supervised by a person approved by his
Probation Officer, until such time as his Probation Officer feels supervision is no longer
needed.

¶7 On April 15, 1999, Anderson filed a Motion to Correct Sentence, requesting the
District Court strike the condition governing his visits with his son. The District Court
denied Anderson's motion. Anderson appeals.

                                                 STANDARD OF REVIEW\

¶8 This Court reviews a criminal sentence to determine whether the sentence is within the
parameters provided by statute. See State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288,
¶ 15, 983 P.2d 937, ¶ 15.

                                                             DISCUSSION

¶9 Whether the District Court exceeded its sentencing authority?

¶10 Anderson contends that the District Court exceeded its sentencing authority by
delegating the discretionary authority to determine who shall supervise Anderson's visits
with his son and for how long such supervision shall be necessary to his probation officer.
The State asserts that the sentencing court has the discretion to place restrictions on
visitations between a defendant and a victim. However, the State takes no position on the
question of whether a court can delegate the authority to determine who will supervise
such visitations and for how long supervision shall be necessary to a probation officer.
The State does argue that, in the event we rule in favor of Anderson, this case should be
remanded to the sentencing court so that the court may modify its judgment to maintain
restrictions on Anderson's contact with his son.

¶11 A district court's authority to sentence a criminal defendant is defined and constrained

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (3 of 6)3/28/2007 2:24:45 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm


by statute. We have repeatedly held that a district court has no power to sentence in the
absence of specific authority. See State v. Wilson (1996), 279 Mont. 34, 37, 926 P.2d 712,
714. The District Court's authority to impose restrictions during the period of Anderson's
suspended sentence is governed by §§ 46-18-201 and -202, MCA (1997). Pursuant to
these statutes, the District Court had the authority to impose reasonable conditions
necessary for rehabilitation and for the protection of the victim and society. See §§ 46-18-
201(1)(a)(xii) and -202(1)(e), MCA (1997). The District Court also had the authority to
restrict Anderson's freedom of association. See § 46-18-202(1)(c), MCA (1997).

¶12 A district court's authority to impose restrictions necessary for the rehabilitation of the
defendant or the protection of society is not without limit. We have previously stated that
in order to be "reasonably related to the objectives of rehabilitation and 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." State
v. Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11. In
Ommundson, we reversed a condition of a district court sentence which required a
defendant convicted of driving under the influence of alcohol to participate in a sex
offender treatment program because there was no nexus between that condition and the
defendant's offense. Ommundson, ¶ 12.

¶13 We have also stated that a district court's authority to impose restrictions necessary for
the rehabilitation of the defendant or the protection of society does not include "delegation
of the actual and direct power and discretion to incarcerate for extended periods of time
from the court to a probation officer." State v. Hatfield (1993), 256 Mont. 340, 347, 846
P.2d 1025, 1029. In Hatfield, we reversed a district court sentence which granted a
probation officer the discretion to require the defendant to serve up to 180 days in jail in
the event the defendant was found to be not in compliance with the terms and conditions
of his suspended sentence. Hatfield, 256 Mont. at 346, 846 P.2d at 1029.

¶14 Neither of these two previously recognized limitations to a sentencing court's
authority to impose restrictions necessary for rehabilitation or protection, is precisely
implicated by Anderson's sentence. The restrictions on Anderson's contact with his son,
the victim of his assault, at least superficially have "some correlation or connection to the
underlying offense" for which Anderson was sentenced. In general, probation restrictions
on visitations between a defendant convicted of family member assault and the victim are
"reasonably related" to the objective of protecting the victim and society from further
similar conduct. See Ommundson, ¶ 11; see also § 46-18-202(1)(e), MCA (1997).

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (4 of 6)3/28/2007 2:24:45 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm


¶15 The method of imposing these restrictions-i.e., granting Anderson's probation officer
the discretion to determine who will supervise Anderson's visits with his son and when
supervision will no longer be necessary-is not strictly the "delegation of the actual and
direct power and discretion to incarcerate" which we found unlawful in Hatfield. 256
Mont. at 347, 846 P.2d at 1029 (emphasis added).

¶16 The precise problem with the District Court's delegation of authority in this instance
falls somewhere in between Ommundson and Hatfield; the court has delegated authority to
Anderson's probation officer with no guidance on how that authority is to be exercised.
The court simply granted the probation officer the authority to choose a person to
supervise visitations and to require supervision "until such time as his Probation Officer
feels supervision is no longer necessary." (Emphasis added.) There is no way to determine
whether Anderson's probation officer will exercise this unfettered discretion in such a
manner that Anderson's visitation condition will be reasonably related to either Anderson's
rehabilitation or the protection of the victim. For instance, the District Court's sentence
does not prevent the probation officer from simply determining that Anderson's visits do
not require supervision at all, because this determination is left to the probation officer's
feelings. Nor does the District Court's sentence prevent the probation officer from
appointing inappropriate supervision for Anderson's visits with his son. Accordingly, we
conclude that this provision of the District Court's sentence and judgment is unlawful in
that we are unable to determine whether it is reasonably related to the rehabilitation of the
defendant or the protection of the victim and society. On remand, the District Court might
set some standards upon which the probation officer can choose who will supervise the
Defendant and for how long such supervision will be required.

¶17 Anderson requests that this provision be stricken from the District Court's sentence
and judgment. The State urges us to remand this case to the District Court in order to
allow the court to lawfully restrict unsupervised contact between Anderson and his son if
the court so chooses.

¶18 We reverse and remand for resentencing.


                                                         /S/ JIM REGNIER

                                                               We Concur:



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (5 of 6)3/28/2007 2:24:45 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm


                                                       /S/ J. A. TURNAGE

                                               /S/ WILLIAM E. HUNT, SR.

                                                     /S/ KARLA M. GRAY

                                              /S/ W. WILLIAM LEAPHART




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-550%20Opinion.htm (6 of 6)3/28/2007 2:24:45 PM
