                                                                                            March 26 2013


                                           DA 11-0297

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 12A



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSHUA KAYE ANDRESS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 2010-487
                        Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                                    Submitted on Briefs: November 21, 2012

                                                                Decided: January 22, 2013

                                                               Amended: March 26, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     The defendant Joshua Kaye Andress appeals from his conviction of felony

violation of a permanent order of protection and tampering with a witness. We affirm in

part and reverse and remand in part.

¶2     Under the terms of a permanent order of protection (POP) dated March 2009,

Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In

October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was

within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony

probation at this time for previous violations of this POP. Nichols called the police and

Andress was subsequently arrested and charged with violating the order of protection.

¶3     While incarcerated at the Missoula County Detention Center, Andress created

various notes he claimed were for his attorney. One note, however, was obtained by a

soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the

note to give to one of Andress’s acquaintances, Morgan Styles. The note asked Styles to

make an untruthful statement to the authorities to help Andress. Randleas turned the note

over to the police upon his release which resulted in Andress being charged with

tampering with a witness. Following a jury trial in the Fourth Judicial District Court,

Andress was convicted on both counts and sentenced from the bench to 15 years for each

charge with 10 years for each charge suspended, to be served concurrently.              The

subsequent written sentence contained 26 terms and conditions that were not expressly

stated during oral pronouncement of sentence, and imposed fines and fees in the amount

of $260.


                                         2
¶4       On appeal, Andress does not challenge any action taken by the District Court nor

does he challenge his sentence; rather, he claims his attorney was ineffective in offering

erroneous jury instructions and in failing to file a motion to conform the written sentence

to the orally-pronounced sentence.

                                           ISSUE

¶5       The issue on appeal is whether counsel rendered ineffective assistance.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶6       In March 2009, after a few years of dating, Sara Nichols sought and obtained a

permanent order of protection against Josh Andress, claiming physical and mental abuse.

Andress responded by leaving at least ten extremely profane and frightening messages on

Nichol’s answering machine. These calls and other actions quickly resulted in multiple

violations of the POP, the third and subsequent offenses being felonies.

¶7       On October 16, 2010, while on probation for these charges, Andress entered the

Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly

thereafter at which time he saw Nichols was still there and he left again. Nichols claimed

he subsequently left and re-entered two more times. She also claimed that he approached

her after his third entrance, tapped her on the shoulder and spoke to her.1 He then left the

bar and returned for the last time. Nichols left and called 9-1-1. The police came and

interviewed Nichols, Nichols’ companion, and Andress, but did not arrest Andress that

night.    The following day, Nichols called Andress’s probation officer, the county


1
 Andress denied that he touched or spoke with Nichols, but while in the Missoula County
Detention Center he purportedly told Paul Randleas that he had done so.


                                           3
attorney’s office, and one of the responding police officers. Andress was subsequently

arrested and charged with violating the POP.

¶8    While jailed in Missoula County, Andress made numerous notes about his case.

He claims he made these notes to discuss with his attorney. One note, however, came

into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that

Andress gave him the note and asked that he deliver the message contained in it to

Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he

saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no

one and left the bar without returning. Styles never received the note, however, because

Randleas, a police informant, turned it over to the police. The police contacted Styles

who reported that he was not at the Rhino Bar that night and was out of town for that

entire weekend. Andress was charged with tampering with a witness.

¶9    A jury trial was conducted on January 31, 2011, and Andress’s defense was that

his contact with Nichols at the bar was unintentional and he never intended to violate the

order of protection. He also admitted writing the Styles note but denied giving it to

Randleas for delivery. A unanimous jury convicted Andress on both charges.

¶10   On March 23, 2011, the District Court judge orally pronounced sentence,

sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for

15 years for each charge with 10 years for each charge suspended. The sentences were to

run concurrently with each other but consecutive to a two-year sentence that had been




                                        4
imposed on Andress the day before in another Montana district court.2 On March 25,

2011, the District Court issued its written judgment which included the prison sentence as

well as 26 terms and conditions of probation and the requirement that Andress pay $260

in fines and fees.

¶11    Andress filed a timely appeal claiming his trial counsel was ineffective for

offering jury instructions that set forth an incorrect mental state for the charged offenses,

and for failing to move the District Court to conform Andress’s written sentence to his

oral sentence in accordance with § 46-18-116(2), MCA.

¶12    We affirm in part and reverse and remand in part.

                               STANDARD OF REVIEW

¶13    We review claims of ineffective assistance of counsel under the two-part test

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail

under Strickland, a defendant must show (1) that counsel’s performance was deficient,

and (2) that counsel’s deficient performance prejudiced him or her. Both prongs of this

test must be satisfied; thus, an insufficient showing on one prong negates the need to

address the other. This Court must also “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” State v.

Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective

assistance of counsel are mixed questions of law and fact which this Court reviews de

novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886.

2
 On March 22, 2011, Andress appeared before Judge Robert Deschamps on a Petition to Revoke
his probation for felony and misdemeanor violations of this same order of protection. Judge
Deschamps revoked Andress’s probation and sentenced him to two years at MSP.


                                          5
¶14     Jury instructions serve an important role in trial.        They guarantee decisions

consistent with the evidence and the law, which can be accomplished when the

instructions are as plain, clear, concise, and brief as possible. District courts have broad

discretion when issuing jury instructions, but this discretion is restricted by the overriding

principle that jury instructions must fully and fairly instruct the jury regarding the

applicable law. The instructions must prejudicially affect the defendant’s substantial

rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248

P.3d 303 (citations omitted).

¶15     The Supreme Court reviews a district court’s imposition of sentence for legality

only. This is a question of law which we review to determine whether the court’s

interpretation of the law is correct. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95

P.3d 717.

                                      DISCUSSION

¶16     Did Andress’s trial counsel provide ineffective assistance?

Jury Instructions

¶17     Andress was charged with violating § 45-5-626(1), MCA, which states in relevant

part:

        A person commits the offense of violation of an order of protection if the
        person, with knowledge of the order, purposely or knowingly violates a
        provision of . . . an order of protection under Title 40, chapter 15.

Andress stipulated to having knowledge of the protective order and its contents, including

the prohibition of being within fifteen hundred feet of Nichols.




                                          6
¶18    Andress was also charged with witness tampering. Section 45-7-206(1)(a), MCA,

provides, in relevant part:

       A person commits the offense of tampering with witnesses and informants
       if, believing that an official proceeding or investigation is pending or about
       to be instituted, the person purposely or knowingly attempts to induce or
       otherwise cause a witness or informant to: testify or inform falsely . . . .

¶19    By their express language, these statutes provide that violation of the statute

requires a person to commit an act “purposely or knowingly.” During settlement of jury

instructions, Andress’s counsel proposed instructions that defined the terms “purposely”

and “knowingly” as used in the statutes.          Counsel proposed the following jury

instructions derived from § 45-2-101, MCA, and the Montana Criminal Jury Instructions:

             A person acts purposely when it is his/her conscious object to
       engage in conduct of that nature; or to cause such a result.

              A person acts knowingly: when the person is aware of his or her
       conduct; or when the person is aware there exists the high probability that
       the person’s conduct will cause a specific result. (Emphasis added.)

The District Court accepted these proposed instructions and gave them to the jury.

¶20    Andress argues that his counsel’s proposed instructions included definitions of

purposely and knowingly that did not apply to his charged offenses and, as a result,

allowed the jury to convict him based upon his conduct, even if the jury believed his

defense that he did not intend to violate the POP or tamper with a witness.

¶21    Section 45-2-101(65), MCA, defines “purposely” in relevant part:

       [A] person acts purposely with respect to a result or to conduct described
       by a statute defining an offense if it is the person’s conscious object to
       engage in that conduct or to cause that result. When a particular purpose is
       an element of an offense, the element is established although the purpose is



                                         7
       conditional, unless the condition negatives the harm or evil sought to be
       prevented by the law defining the offense.

¶22    Section 45-2-101(35), MCA, defines “knowingly” as:

       [A] person acts knowingly with respect to conduct or to a circumstance
       described by a statute defining an offense when the person is aware of the
       person’s own conduct or that the circumstance exists. A person acts
       knowingly with respect to the result of conduct described by a statute
       defining an offense when the person is aware that it is highly probable that
       the result will be caused by the person’s conduct. When knowledge of the
       existence of a particular fact is an element of an offense, knowledge is
       established if a person is aware of a high probability of its existence.

¶23    Relying on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), and State v.

Patton, 280 Mont. 278, 930 P.2d 635 (1996), Andress claims that the District Court was

“required to instruct the jury on the definition of purposely and the definition of

knowingly that applies in the context of the particular crime.” We agree that Lambert

and Patton require courts to instruct the jury on the proper mental state element based

upon the charged offense; however, beyond that these cases are distinguishable in that

they address Montana’s criminal endangerment statute and our deliberate homicide

statute. We have not previously determined whether §§ 45-5-626 and 45-7-206(1)(a),

MCA, emphasize conduct or result of conduct.

¶24    Andress asserts the statutes he is charged with violating, as in Lambert, do not

particularize conduct which, if engaged in, results in commission of the offense; rather,

one may engage in a wide variety of conduct and still commit the offense. He maintains

that § 45-5-626, MCA, “seeks to avoid the ‘singular result’ of the violation of a

protective order, not the many forms of conduct that result in the violation of a protective

order.” Similarly, he opines that § 45-7-206(1)(a), MCA, seeks to avoid the “singular”


                                         8
result of causing a witness to testify falsely, without regard to the many forms of conduct

that could result in a witness testifying falsely.

¶25    In other words, it appears Andress is claiming that the correct jury instruction

would have instructed the jury that he could be guilty of violating the POP only if it was

his “conscious object,” or intention, to violate the order of protection or that he was

aware that it was highly probable that his conduct would violate the statute. Additionally,

vis-à-vis the witness tampering claim, because he admits he wrote the note but asserts he

did not give the note to Randleas to give to Styles and he did not write the note with the

purpose of committing witness tampering, the result-based purposely and knowingly jury

instruction should have been given. Therefore, Andress asserts the appropriate jury

instructions were:

       A person act purposely when it is his/her conscious object to cause such a
       result.

       A person acts knowingly when the person is aware there exists the high
       probability that the person’s conduct will cause a specific result.

The “result” contemplated in these definitions is violation of the particular statute.

¶26    Based upon his defense theories, he maintains his counsel’s failure to present the

appropriate jury instructions constitutes ineffective assistance.

¶27    For the following reasons, we conclude that the instructions given by the court

“fully and fairly” instructed the jury on the applicable law. Hovey, ¶ 10. Additionally,

we find no prejudice to Andress in the giving of these instructions.

¶28    The jury was presented with conflicting testimony throughout the trial. Andress

maintained he did not intentionally run into Nichols nor did he touch her or speak to her.


                                            9
Nichols’ testimony, however, strongly refuted Andress’s claims.               Appropriately, the

District Court expressly instructed the jurors that they were “the sole judges of the

credibility . . . of all the witnesses testifying in this case, and of the weight . . . to be given

their testimony.”

¶29    The jury heard evidence that Andress was forbidden under the order of protection

to be within fifteen hundred feet of Nichols. He knew of this prohibition. He nonetheless

entered the bar repeatedly after he saw her there, repeatedly placing himself well within

fifteen hundred feet of her. Additionally, the jury also heard from Nichols that Andress

approached her, touched her and spoke to her. Under these circumstances, Andress

consciously engaged in and was aware of the prohibited conduct knowing it was in

violation of the POP.       Both his conduct and the result of his conduct could have

reasonably led the jury to find him guilty under either the result-based jury instruction

argued by Andress on appeal or the jury instruction given.                  Therefore, the jury

instructions given fully and fairly instructed the jury on the mental state required to

violate an order of protection. Furthermore, Andress’s behavior defies his claim that he

did not intend to violate the POP. Had he left the bar after seeing Nichols for the first

time and not returned, his claim that he lacked intention to violate the POP may have had

greater credibility.

¶30    As to the witness tampering charge, Andress admitted that he wrote the note to

Styles but claims he did not give it to Randleas for delivery. Therefore, he had no intent

to tamper with a witness. Randleas testified otherwise. Based upon the jury’s unanimous

verdict of guilt on the witness tampering charge, it appears the jury found Randleas more


                                            10
credible than Andress. If, as believed by the jury, Andress gave Randleas a note to give

to Styles instructing Styles to lie under oath, Andress’s conduct and the result of his

conduct justified his conviction, and instructing the jury solely on the result-based

definition would not have changed the outcome.

¶31    As for his claim that his counsel was ineffective for proposing the jury

instructions, having determined that Andress suffered no prejudice from the instructions,

the second prong of Strickland has not been satisfied.

Nonconforming Judgment

¶32     Andress next claims that his trial counsel was ineffective for failing to move to

conform Andress’s written judgment to his orally-pronounced sentence in accordance

with § 46-18-116(2), MCA. The lengthy procedural record of this case suggests Andress

framed this issue on appeal as an IAC claim because his attorneys did not seek to modify

the judgment pursuant to § 46-18-116(2), MCA. However, under the authority set forth

in Kroll, and other cases addressed below, we will directly review the allegedly

nonconforming judgment and, consequently, need not find Andress’s counsel ineffective

to resolve Andress’s claim.

¶33     It is well-established that the oral sentence pronounced from the bench in

defendant’s presence is the “legally effective sentence and valid, final judgment.” State

v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. As we explained in Lane, ¶ 30,

after reviewing numerous Montana cases, “holding the oral pronouncement of sentence to

be the legally effective sentence is more consistent with our constitutional and statutory

provisions.” We observed that “[a] defendant is present only when being sentenced from


                                        11
the bench. Thus, a defendant is sentenced in absentia when the [written] judgment and

commitment order is allowed to control when there is a conflict.” Lane, ¶ 38.

¶34     Subsequently, in State v. Johnson, 2000 MT 290, 302 Mont. 265, 14 P.3d 480,

Johnson faced a nonconforming written judgment with new conditions. He argued that

“our holding in Lane logically implies that, in a strict sense, any portion of a subsequent

written judgment that fails to conform, or in some manner conflicts, with an oral sentence

is unlawful.” Johnson, ¶ 17. After substantial analysis, we determined that our Lane rule

was somewhat “vague” and served to cloud the true issue, which was: “whether a written

judgment has, without notice, substantively increased a defendant’s criminal sentence

that was previously imposed in open court in the defendant’s presence.” Johnson, ¶ 24

(emphasis in original). We further stated:

       In determining whether any portion of a judge’s subsequent written
       judgment is unlawful . . . we need only determine first, whether the
       defendant was afforded the opportunity to respond to its inclusion upon
       sufficient notice at sentencing, and second, whether that portion of the
       written judgment substantively increases one of two things: (1) the
       defendant’s loss of liberty; and (2) the defendant’s sacrifice of property.

Johnson, ¶ 24.

¶35     Later, in Kroll, Kroll challenged several sentencing conditions in his written

judgment that were not presented during his oral sentence. Kroll, ¶ 14. The State

responded that Kroll had waived his right to complain about the imposition of such

conditions because he had failed to seek modification of the written judgment in

accordance with § 46-18-116, MCA. Prior to reviewing Kroll’s sentence claims, we

addressed the proper interpretation of § 46-18-116(2), MCA. We observed that both



                                        12
parties were assuming that “after the expiration of the 120-day period, the written

judgment is presumed correct.” Kroll, ¶ 16. We concluded this was an erroneous

presumption and that “[s]ection 46-18-116, MCA, simply provides the parties an avenue

for conforming the written judgment to the oral pronouncement of sentence,” but it does

not supersede or modify our holding in Lane, i.e., the orally-pronounced sentence is the

legally effective and valid final sentence. Kroll, ¶ 18.

¶36      We further explained that “even when a criminal defendant fails to

contemporaneously object at sentencing, this Court will accept jurisdiction of a timely

filed appeal which alleges that a sentence is illegal or exceeds statutory authority.” Kroll,

¶ 19. Applying our rule and rationale from Johnson, we determined the district court did

not err in imposing certain “stock requirements for probationers and individuals subject

to a suspended sentence” into Kroll’s written judgment. We stated that the inclusion of

these stock conditions did not “substantively increase[] the defendant’s loss of liberty or

sacrifice of property.” Kroll, ¶ 22.

¶37      We also evaluated non-stock conditions in Kroll to determine if they had “a

correlation to the crime for which he was convicted,” i.e., issuing bad checks as part of a

common scheme. Kroll, ¶¶ 5, 26. We noted that §§ 46-18-201 and -202, MCA, allowed

the court to impose sentencing restrictions or conditions that are “reasonable” and that the

court considers necessary “to obtain the objectives of rehabilitation and the protection of

the victim and society.” Kroll, ¶ 28. Under this analysis, we affirmed several “civil

restriction” conditions in Kroll’s sentence. Kroll, ¶ 33.




                                          13
¶38      In State v. Lucero, 2004 MT 248, ¶¶ 23-24, 323 Mont. 42, 97 P.3d 1106, we

again rejected the argument that the failure to seek modification of a nonconforming

written judgment in accordance with § 46-18-116(2), MCA, rendered the written

judgment the “valid final judgment.” We held in Lucero, as we did in Kroll, that the

stock conditions subsequently added to his written judgment were not unlawful as they

did not impose significant restrictions that resulted in loss of liberty. Lucero, ¶ 28.

However, we determined that specific conditions pertaining to being in bars and casinos

or submitting to chemical substance tests did result in a loss of his liberty, did not bear a

sufficient correlation to the underlying offense, and were not reasonably related to the

objectives of rehabilitation and protection of the victim and society.        We therefore

ordered those conditions stricken. Lucero, ¶¶ 30-31.

¶39      Having established that: (1) failure to seek modification is accordance with

§ 46-18-116(2), MCA, does not bar this Court from reviewing Andress’s written

judgment on appeal; and (2) inclusion of stock sentencing conditions does not deprive a

criminal defendant of liberty or property and need not be stricken, we turn to the

challenged provisions in Andress’s written judgment.

¶40      It is undisputed that the first prong of the Johnson test has been met. As noted

above, because the District Court during sentencing did not orally impose the 26 terms

and conditions later contained in his written sentence, Andress did not have the

opportunity to respond to the correctness or appropriateness of these sentence provisions.

We next determine whether the objected-to provisions must be stricken based upon the

criteria set forth above.


                                         14
¶41    As conceded by Andress, conditions 1-9, 17, 20-22, and 24-25 are affirmed under

our precedent in Johnson, Lucero, and Kroll. These are stock conditions imposed upon

probationers and defendants subject to suspended sentences.

¶42    Conditions 12-16 and 26 prohibit Andress from possessing or consuming

intoxicants/alcohol, and entering bars or other establishments where intoxicants are the

chief item of sale. Some also require him to submit to routine or random drug and

alcohol testing, obtain a mental health evaluation, participate in counseling, and obtain a

chemical dependency evaluation.        Andress objects to these conditions but at his

sentencing hearing he testified:

       I need some counseling, and maybe some additional counseling on the
       alcohol.

                                          .   .   .

       And, I would just hope that the Court would look at the facts of me needing
       some help in my alcoholism and relationship issues.

Additionally, Andress’s counsel further stated:

               [T]he Court would note that in the Defendant’s criminal history,
       there is indication that he may have a substance abuse problem with regard
       to alcohol, and, certainly, that’s not helping the situation with regard to him
       being able to make good decisions, and that’s contributed to some of his
       decision-making in the past.

             He does – as his mother indicated – have a condition which, also,
       impairs, to a certain extent, his decision-making process, and, probably,
       alcohol is something that should not be involved, whatsoever.

             Mr. Andress has not received any substantial inpatient treatment for
       alcohol, to my knowledge, and we feel that a five-year Department of
       Corrections sentence is appropriate in this matter, so that Mr. Andress
       could be afforded the opportunity to correct his problems with counseling,
       and with some inpatient treatment for the alcohol issue.


                                         15
This testimony supports the District Court’s inclusion of the challenged conditions.

Andress    specifically   requested   alcohol    treatment,   counseling    and    mental

health/relationship counseling. As we stated in State v. Holt, 2011 MT 42, ¶ 17, 359

Mont. 308, 249 P.3d 470, we will not put a district court in error for an action in which

the appealing party acquiesced.

¶43   The remaining conditions 10, 11, 18, 19 and 23 are also non-stock conditions.

They require Andress to pay certain fines and fees, refrain from gambling and entering

casinos, and abide by a curfew. These conditions are not sufficiently related to Andress’s

charges nor are they reasonably related to the objectives of rehabilitation and protection

of the victim and society; therefore, we remand with instructions that these conditions be

stricken from the written judgment.

                                      CONCLUSION

¶44   For the foregoing reasons, we conclude Andress’s trial counsel did not provide

ineffective assistance to Andress with respect to proposed jury instructions. We reverse

the District Court’s inclusion of conditions 10, 11, 18, 19 and 23 in Andress’s written

judgment and order that these conditions be stricken upon remand.



                                                       /S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE


                                        16
