                                                                                               04/03/2018


                                          DA 16-0348
                                                                                           Case Number: DA 16-0348

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 75N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DAVID WAYNE MOFFETT,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Granite, Cause No. DC 15-04
                       Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Paul D. Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell,
                       Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Blaine Cooper Bradshaw, Granite County Attorney, Ben Krakowka,
                       Special Deputy County Attorney, Philipsburg, Montana


                                                    Submitted on Briefs: March 7, 2018

                                                                Decided: April 3, 2018



Filed:

                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     David Wayne Moffett (Moffett) appeals from the April 13, 2016 order denying his

motion to dismiss for presentence delay, and the resulting April 18, 2016 sentence imposed

by the Third Judicial District Court. We affirm.

¶3     On May 27, 2015, Moffett signed a Pre-Trial Agreement and agreed to plead guilty

to the felony charge of Assault with a Weapon, in violation of § 45-5-213, MCA. The

District Court held a change-of-plea hearing, found Moffett guilty based on his admission,

and ordered a Pre-Sentence Investigation Report (PSI Report). The District Court issued

its written order for the PSI Report on June 1, 2015.

¶4     On March 7, 2016, the PSI Report was filed with the District Court―285 days after

the court ordered it, and with no explanation for the delay. The court set a sentencing

hearing for March 23, 2016, but Moffett requested a continuance due to his attorney’s

scheduling conflict. Moffett also informed the District Court he intended to file a motion

to dismiss his case. The District Court continued the hearing to April 13, 2016―322 days

after Moffett’s guilty plea.

¶5     On March 25, 2016, Moffett filed a motion to dismiss, based on the delay between

the change-of-plea hearing and the sentencing. The District Court set a hearing on the

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motion for April 13, 2016, and heard arguments and orally denied the motion prior to the

sentencing. During the sentencing portion of the hearing, Susan Carroll, Probation and

Parole Officer for the Department of Corrections, testified Moffett paid $300 per month

out-of-pocket―a total of $3,000―for an alcohol-monitoring bracelet, and she

recommended the court consider crediting Moffett for the expense against any fines

imposed. After the April 13, 2016, hearing, the District Court issued written orders,

denying the motion to dismiss and sentencing Moffett to a three-year deferred sentence in

accordance with the plea agreement. The District Court did not impose a fine. This appeal

followed.

¶6     We review a district court’s denial of a motion to dismiss in a criminal case de novo

for correctness. State v. Betterman, 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971 (aff’d

___ U.S. ___, 136 S. Ct. 1609 (2016)).

¶7     Moffett argues the State’s delay in providing the PSI Report violated his due process

rights. Moffett argues he was prejudiced by the sentencing delay caused by the long wait

for the PSI Report, amounting to 301 days if the three-week delay caused by his attorney’s

scheduling conflict is counted against him. Moffett alleges he suffered prejudice because

the District Court required him to participate in the “24/7 sobriety program” while he

awaited sentencing, and as part of the program, he had to wear an alcohol-monitoring

bracelet at his own expense for the duration of the delay.

¶8     The State points to the District Court order, where the court acknowledged the delay

between the plea and sentencing was “unacceptable,” but further found the only prejudice

Moffett articulated was the expense of the alcohol-monitoring bracelet. The State argues

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the District Court correctly concluded this was insufficient to establish an oppressive

sentencing delay under Betterman. The State maintains the alcohol-monitoring bracelet

“motivated [Moffett] to maintain sobriety and demonstrated to the court that he had done

so, which benefited him when he was sentenced.”

¶9     Under Betterman, we determine whether a sentencing delay is oppressive and thus

violates due process by balancing two factors: the reasons for the delay and whether the

delay was oppressive. Betterman, ¶ 32 (“Though the reasons for a delay may be less than

purposeful, or the prejudice caused by the delay less than oppressive, there may still be a

constitutional violation when these two considerations are balanced against one another.”).

To be oppressive, the delay must be substantial and demonstrative, and not speculative.

Betterman, ¶ 37.

¶10    Here, the delay was institutional, and the prejudice Moffett suffered was the expense

of a monthly fee to participate in an alcohol-monitoring program. In State v. Maloney,

2015 MT 227, ¶¶ 40-41, 380 Mont. 244, 354 P.3d 611, we held that an institutional delay

of 241 days, mostly attributable to waiting for a PSI Report, seemed “excessive,” but

further determined Maloney’s claim of prejudice was overly speculative, and not

substantial and demonstrative. Like Maloney, Moffett also waited an excessive time for

his PSI Report. However, unlike Maloney’s purported prejudice of possibly receiving

certain services and anxiety and concern caused by the delay, Maloney, ¶¶ 41-42, Moffett’s

prejudice of paying for 10 months of wearing an alcohol-monitoring bracelet was not

speculative. Although Moffett demonstrated prejudice that was not speculative, he has not



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shown that the prejudice was substantial. Therefore, Moffett has not proven that his due

process rights were violated by an oppressive delay in sentencing.

¶11    We conclude that the District Court properly denied Moffett’s motion to dismiss

and then pronounced its sentence.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶13    Affirmed.


                                                 /S/ INGRID GUSTAFSON


We concur:

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




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