                                                                                          April 29 2008

                                         DA 07-0085

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 146


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSEPH CORBIN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC-06-432
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; David Avery
                      Assistant Appellate Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Mark W.
                      Mattioli, Assistant Attorney General, Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney; Andrew Paul,
                      Deputy Missoula County Attorney, Missoula, Montana



                                                 Submitted on Briefs: February 20, 2008

                                                            Decided: April 29, 2008

Filed:
                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court


¶1     Joseph Corbin appeals from the judgment and sentence entered by the Fourth Judicial

District Court, Missoula County, on his plea of guilty to the criminal offense of theft, a

felony. We affirm.

                                     BACKGROUND

¶2       Corbin, age 20, entered into a plea bargain agreement with the State of Montana

pursuant to which he agreed to plead guilty to felony theft and the State agreed to dismiss a

charge of accountability for burglary. The parties jointly agreed to recommend a three-year

deferred imposition of sentence together with “[a]ny condition of probation recommended by

Probation and Parole, including, but not limited to” a list of ten conditions. Additional

“special conditions of probation” also were listed, including restitution.

¶3     The District Court accepted the guilty plea and ordered a presentence investigation

report (PSI) which ultimately recommended 26 conditions of probation. During the

sentencing hearing in December of 2006, Corbin’s counsel objected to a number of the

recommended conditions, primarily those relating to alcohol and drugs. He contended the

conditions were illegal because they lacked a nexus to Corbin’s felony theft offense and were

not contained in the plea agreement. Prior to finalizing the conditions of the deferred

imposition of sentence, the District Court had Corbin submit to a urinalysis and, based in

part on the .045 blood alcohol result, imposed the alcohol- and drug-related conditions.

Corbin appeals.

                               STANDARDS OF REVIEW
                                              2
¶4     We recently adopted a dual standard of review in cases challenging the legality and/or

propriety of probation conditions. State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, ___

P.3d ___, ¶ 9. We review de novo the legality of a sentencing condition. We then review the

reasonableness of the challenged condition to determine whether the sentencing court abused

its discretion. Ashby, ¶ 9 (citations omitted).

                                         DISCUSSION

¶5    Did the District Court err in imposing alcohol- and drug-related conditions as part of
Corbin’s deferred sentence?

¶6     Corbin challenges the following conditions imposed by the District Court: 1) that he

not possess or use alcohol and not enter bars; 2) that he submit to random testing for drugs or

alcohol; 3) that he undergo a mandatory chemical dependency evaluation and follow all

resulting recommendations; 4) that he attend AA/NA at the discretion of his probation

officer; 5) that he participate in counseling at his probation officer’s discretion; and 6) that he

not enter casinos if alcohol is the chief item of sale. Because it is undisputed in this case that

Corbin’s felony theft offense did not involve alcohol or drugs, Corbin contends these

conditions—argued only in the aggregate as alcohol/drug-related conditions—are illegal

because they have no nexus to the offense. He relies generally on State v. Ommundson, 1999

MT 16, 293 Mont. 133, 974 P.2d 620, and, more particularly, on State v. Greeson, 2007 MT

23, 336 Mont. 1, 152 P.3d 695, and State v. Holt, 2006 MT 151, 332 Mont. 426, 139 P.3d

819, for the proposition that a nexus to the offense is required before this Court will uphold

conditions of probation.


                                                3
¶7     We recently expanded the Ommundson rule somewhat, however. In Ashby, the

defendant pled guilty to one count of issuing a bad check, a felony common scheme. The

sentencing court imposed, among other things and over the defendant’s objections, alcohol-

and gambling-related restrictions as conditions of a deferred imposition of sentence. Ashby,

¶ 1. We concluded on appeal that we will uphold conditions 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.” We also cautioned sentencing courts that, while they could

consider an offender’s history with alcohol and drugs and impose an alcohol- or drug-related

condition if they determined in their discretion that such a condition would assist in alcohol

or drug rehabilitation, such offender-related conditions could be imposed “only in those

cases in which the history or pattern of conduct to be restricted is recent, and significant or

chronic.” Ashby, ¶ 15.

¶8     In Ashby, nothing of record supported a finding that an alcohol restriction would assist

in rehabilitating the offender because there was no evidence that he had a drug or alcohol

problem; thus, we reversed the imposition of that condition. Ashby, ¶ 19. Regarding the

gambling-related condition, the record also did not indicate a history of gambling by Ashby;

however, it did reveal evidence of considerable financial irresponsibility over a period of

years. On that basis, we upheld the sentencing court’s reasonable determination that a

prohibition on gambling would help rehabilitate Ashby’s financial management abilities.

See Ashby, ¶ 21.




                                              4
¶9     In the present case, as mentioned above, the felony theft offense was not related in

any way to alcohol or drug use. Unlike in Ashby, however, the PSI here indicated chemical

use by Corbin, as well as convictions of the misdemeanor offense of criminal possession of

drug paraphernalia in 2004 and 2006. According to Corbin’s own report to the probation

officer, he began drinking alcohol around age 14, currently drank no more than every third

weekend and “mostly smoked pot,” which he had also begun around age 14 and continued

weekly. Indeed, Corbin related having violated his juvenile probation by having dirty UAs.

Corbin’s mother, with whom he was living at the time of the offense, believed his chemical

use affected him greatly and hoped he would receive treatment. Furthermore, as stated

above, Corbin had consumed intoxicants prior to attending his sentencing hearing. Under

Ashby, this alcohol- and drug-related history and conduct is recent, significant and chronic.

¶10    We also note that, while Corbin does not argue the casino-related condition

separately, the District Court tied the prohibition against entering casinos to casinos where

“alcohol is the chief item of sale” to clarify that the condition was alcohol-related and not a

restriction on gambling. We upheld an alcohol-related casino restriction in State v. Winkel,

2008 MT 89, ¶¶ 18-19, 342 Mont. 267, ¶¶ 18-19, ___ P.3d ___, ¶¶ 18-19.

¶11     We conclude the alcohol- and drug-related conditions of Corbin’s deferred sentence

are legal and are reasonably related to his rehabilitation. Thus, we hold the District Court did

not err or abuse its discretion in imposing these conditions.

¶12    Affirmed.


                                                   /S/ KARLA M. GRAY
                                               5
We concur:


/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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