                                                                                           06/30/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: DA 20-0008


                                       DA 20-0008
                                                                        FILED
 STATE OF MONTANA,                                                      JUN 30 2020
                                                                      Bowen Greenwood
                                                                    Clerk of Suprerne Court
             Plaintiff and Appellee,                                   Stata of Montana




       v.                                                           ORDER

CHELSEA CUMBAA,

              Defendant and Appellant.



       Appellant Chelsea Cumbaa entered a guilty plea to the charge of perjury, a felony,
pursuant to a plea agreement that provided for dismissal of other charges pending against
her. On appeal, she challenges several conditions imposed by the District Court as part of
her sentence.    The challenged conditions were recommended in the pre-sentence
investigation report, and were orally pronounced by the District Court during the
sentencing hearing as follows:
       The defendant shall not use or possess alcohol or illegal drugs unless
       prescribed by a licensed physician nor shall the defendant enter or seek
       employment at any establishment where alcohol is the chief item of sale.



       The defendant shall subject [sic] be subject to the testing of her breath and
       bodily fluid, upon the reasonable request.

       Defendant shall obtain a chemical dependency evaluation at the defendant's
       own expense if requested by the supervising officer.

Cumbaa objected to the conditions as lacking a nexus to her crime or rehabilitation.
       In her opening brief, Cumbaa again argues these conditions lack the necessary nexus
to either her crime or her rehabilitation and therefore constitute an abuse of discretion by
the sentencing court. In response, the State argues the conditions prohibiting the use or
possession ofalcohol and illegal drugs, and subjecting Cumbaa to alcohol and drug testing,
are Standard Conditions adopted by the Department of Corrections (DOC) pursuant to
statutory authority to "adopt rules for the conduct of persons placed on parole or probation
. . . ." Section 46-23-1002(3), MCA; State v. Hernandez, 2009 MT 341, ¶ 4, 353 Mont.
111, 220 P.3d 25. These Standard Conditions are set forth in Admin. R. M.20.7.1101(9).
As we explained in Hernandez, conditions adopted by the DOC pursuant to statutory
authority and rule are not subject to the nexus requirement. Hernandez,¶6 (citing State v.
Ashby,2008 MT 83,¶¶ 14-15,342 Mont. 187, 179 P.3d 1164). Rather, standard conditions
will be imposed upon a probationary sentence unless the sentencing court determines, in
its discretion, that "a standard condition is inappropriate under the sentencing it is
imposing." Hernandez, ¶ 7. Here, the District Court determined the conditions were
appropriately imposed in response to Cumbaa's nexus objection.
       However, the State acknowledges that the conditions prohibiting Cumbaa from
entering or seeking employment at establishments where alcohol is the chief item for sale,
and requiring her to obtain a chemical dependency evaluation upon the request of her
supervising officer, are not Standard Conditions and, further, the District Court made no
findings regarding the required nexus to Cumbaa or her crime for imposition of these
conditions. Therefore, the State concedes these conditions should be stricken from
Cumbaa's sentence.
       In her reply brief, Cumbaa expresses complete agreement with the State's position,
including that the conditions prohibiting her possession of alcohol or illegal drugs, and
requiring alcohol and drug testing, were appropriately imposed. Consequently,the parties'
briefing demonstrates there is no longer a dispute between them,and this matter is resolved.
Good cause appearing,
       IT IS ORDERED that this matter is remanded to the Eighteenth Judicial District
Court, Gallatin County,for entry of an amended judgment herein. The District Court shall
strike the conditions prohibiting Cumbaa from entering or seeking employment at
establishments where alcohol is the chief item for sale, and requiring her to obtain a



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chemical dependency evaluation upon the request of her supervising officer. In all other
respects, the judgment shall remain as originally imposed.
      IT IS FURTHER ORDERED that this appeal is DISMISSED WITH PREJUDICE.
      The Clerk is directed to provide a copy of this Order to counsel of record, to the
Eighteenth Judicial District Court, and to Hon. Rienne McElyea.
      DATED this 36 day ofJune, 2020.




                                                             Chief Justice




                                                     gi-;/ M 24.21,_


                                                               Justices
