                                                                                         December 2 2008


                                       DA 06-0661

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2008 MT 405



STATE OF MONTANA,

          Plaintiff and Appellee,

     v.

TONYA SADOWSKY,

          Defendant and Appellant.



APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Missoula, Cause No. DC-2005-201
                    Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                    Scott B. Spencer, Office of the Public Defender, Missoula, Montana

            For Appellee:

                    Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,
                    Assistant Attorney General, Helena, Montana

                    Fred Van Valkenburg, Missoula County Attorney, Dale R. Mrkich,
                    Deputy County Attorney, Missoula, Montana



                                                 Submitted on Briefs: February 20, 2008

                                                            Decided: December 2, 2008


Filed:

                    __________________________________________
                                      Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Tonya Michelle Sadowsky (Sadowsky) entered a plea of guilty to the offense of

theft in a common scheme in the Fourth Judicial District Court, Missoula County. The

District Court sentenced Sadowsky to a term of six years, all deferred, and imposed

numerous conditions.     Sadowsky now appeals the imposition of several of those

conditions.

¶2     Sadowsky’s appeal presents the following issue:

¶3     Did the District Court err in imposing the conditions of no bars, drugs, alcohol, or

gambling, attendance at AA/NA, and a chemical dependency evaluation?

                                    BACKGROUND

¶4     The State charged Sadowsky with theft, a felony, which took place during her

three-month period as a manager of the Sleep Inn motel in Missoula. Sadowsky used a

variety of deceptive practices to obtain both money and services for herself and others.

The State alleged that Sadows k y had taken money by not depositing cash, by

manipulating a “direct billing” plan, and by keeping cash proceeds from the sale of

surplus property. Sadowsky also allegedly rented rooms to friends and family without

charging them.

¶5     Pursuant to a plea agreement, Sadowsky pled guilty to the offense of theft in a

common scheme on September 6, 2005. The plea agreement provided that the State

would recommend that the court “determine if a no alcohol/no bars provision should be

imposed.” The plea agreement also required a “testing clause for alcohol or drugs.” The

court ordered a pre-sentence investigation report (PSI).
                                             2
¶6     The State Department of Corrections Adult Probation and Parole completed the

PSI and submitted it to the court on October 13, 2005. Sadowsky admitted in the PSI to

drinking socially on occasion and also to past methamphetamine use. Sadowsky claimed,

however, that she had stopped using drugs before she moved to Missoula. The PSI also

noted that Sadowsky maintained that neither alcohol, nor drugs, was a factor in the

commission of the current crime. The PSI recommended, however, that Sadowsky “not

be allowed to be in bars or use alcohol.”

¶7     The PSI cited the large amount of restitution owed by Sadows k y and

recommended that any money that Sadowsky had for socializing be put toward her

restitution obligation. The PSI also cast doubt on Sadowsky’s claim of being drug free.

In fact, the PSI recommended that Sadowsky obtain a chemical dependency evaluation if

deemed necessary by her probation officer. The PSI suggested that a drug test at the start

of her probation should be the first step in that evaluation. The PSI also noted concern

with Sadowsky’s lack of any tangible explanation for why she had taken the money other

than she was “short of money” and suggested a conflict with that assertion and

Sadowsky’s statement that she had quit using drugs a few months before moving to

Missoula.

¶8     The PSI concludes by concurring with the plea agreement on the issue of drugs

and alcohol:

               14. The Defendant shall obtain a chemical dependency evaluation by
       a state approved treatment provider/facility, at her own expense, and follow
       all recommendations of said evaluation, if recommended by supervising
       Probation Officer.


                                            3
               15. The Defendant shall not posses, use/drink intoxicants/alcohol,
       nor will she enter any place intoxicants are the chief item of sale, to include
       all bars and casinos. She will submit to Breathalyzer testing or bodily fluid
       testing for drugs or alcohol as requested by her supervising officer, on a
       random or routine basis.

              16. The defendant shall attend AA/NA at the discretion of her
       Probation Officer.

                                          .   .   .

             18. The Defendant will not enter any casinos or play any games of
       chance.

¶9     The District Court agreed with the PSI’s recommended conditions. The court left

it to the probation officer’s discretion whether to impose the no alcohol restriction. The

probation officer could remove the no alcohol provision if the officer was satisfied that

allowing Sadowsky to drink alcohol and be in bars would not present any danger of

Sadowsky violating her probation. Sadowsky did not mention, let alone object, to the

provisions regarding gambling, AA/NA attendance or the chemical dependency

evaluation at the sentencing hearing.

                               STANDARD OF REVIEW

¶10    We review probation conditions under a dual standard of review: we first review

de novo the legality of the probation conditions; we then review the conditions’

reasonableness for abuse of discretion. State v. Stiles, 2008 MT 390, ¶ 7, ___ Mont. ___,

¶ 7, ___ P.3d ___, ¶ 7; State v. Brotherton, 2008 MT 119, ¶ 10, 342 Mont. 511, ¶ 10, 182

P.3d 88, ¶ 10; State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9.

                                        DISCUSSION



                                              4
¶11    Did the District Court err in imposing the conditions of no bars, drugs, alcohol, or
       gambling, attendance at AA/NA, and a chemical dependency evaluation?

¶12    We first address the District Court’s order prohibiting Sadowsky from gambling,

attending AA/NA, and requiring a chemical dependency evaluation.                        Section

46-18-201(4)(o), MCA, allows for a sentencing judge, on deferral of a sentence, to

impose upon the offender any reasonable restrictions or conditions during the period of

the deferred imposition or suspension of sentence. These conditions include any other

reasonable restrictions or conditions considered necessary for rehabilitation or for the

protection of the victim or society.

¶13    In Ashby, the Court warned that a defendant’s failure to object to an improper

condition at or before sentencing “may result in a waiver.” Ashby, ¶ 22. The record

shows that Sadowsky did not object to any conditions, other than the no alcohol/no bars,

at the sentencing hearing. Sadowsky raises the issues of gambling, attending AA/NA,

and the chemical dependency evaluation for the first time in her appeal. Sadowsky

asserts that all the suspect conditions are related to alcohol. A reading of the PSI reveals,

however, that the probation officer had multiple concerns about Sadowsky’s past history,

not just a concern of alcohol. As these conditions fall within statutory parameters set

forth in § 46-18-201(4)(c), MCA, and Sadowsky failed to object to these conditions at the

District Court, we refuse to address them for the first time on appeal. Stiles, ¶ 11.

¶14    We next deal with the no alcohol/no bars provision. Sadowsky properly objected

to this condition at her sentencing hearing. Sadowsky argued that this provision did not

apply because her crime did not involve drinking. We stated in Ashby that a court may


                                              5
require 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.” Ashby, ¶ 15.

¶15    The PSI revealed that Sadowsky used methamphetamine on a weekly basis for

over 10 years. The area director who oversees the Sleep Inn wrote a letter, which was

attached to the PSI, claiming Sadowsky admitted she stole the money to supply a drug

problem. Sadowsky maintains that she had quit using before moving to Missoula, but the

PSI cast doubt on Sadowsky’s claim that she had been able to quit without treatment.

Sadowsky also admitted that she had started drinking in high school, but maintains that

she drinks only socially at this time. Sadowsky’s father reported the family had been

“floored” when they learned of Sadowsky’s offense, and furthermore when Sadowsky

told them she had been using methamphetamine since the age of 18.

¶16    The PSI further documented Sadowsky’s history of substance usage. We recently

held the revelation of a history of chemical dependency represents a sufficient offender

nexus to support a no alcohol condition. State v. Winkel, 2008 MT 89, ¶¶ 15-16, 342

Mont. 267, ¶¶ 15-16, 182 P.3d 54, ¶¶ 15-16. Although Sadowsky’s current crime did not

include alcohol directly, the PSI established a sufficient nexus between past substance

abuse by Sadowsky and the no alcohol requirement. Ashby, ¶ 15; Winkel, ¶¶ 15-16.

¶17    Affirmed.


                                                 /S/ JOHN WARNER




                                            6
We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




                          7
