                                                                                          September 16 2014


                                           DA 13-0157

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 248



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRIAN NAUMAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 11-403B
                        Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Lisa Korchinski, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant
                        Attorney General; Helena, Montana

                        Ed Corrigan, Flathead County Attorney; Alison Howard, Deputy County
                        Attorney; Kalispell, Montana



                                                    Submitted on Briefs: August 20, 2014
                                                               Decided: September 16, 2014

Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Brian Virgil Nauman (Nauman) appeals from the judgment and sentence of the

Montana Eleventh Judicial District Court, Flathead County, committing him to the Montana

State Prison for three years, all suspended with conditions of probation. We affirm in part,

reverse the judgment, and remand for proceedings consistent with this Opinion.

                                         ISSUES

¶2     We review the following issues:

       1. Did the District Court err by departing from the plea agreement without giving

Nauman the opportunity to withdraw his guilty plea?

       2. Did the District Court err by imposing conditions 23, 25, 26, and 28-32 on

Nauman’s sentence?

       3. Does the use of the term “pornography” render condition 31 unconstitutionally

vague?


                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In January 2001, Nauman was convicted of sexual assault, a felony, for molesting a

12-year-old girl. Nauman was sentenced to 20 years in Montana State Prison (MSP), with

10 years suspended upon conditions. As a result of the conviction, Nauman was required to

register as a sexual offender pursuant to § 46-23-504, MCA.

¶4     Upon his release in 2010, Nauman registered with the Kalispell Police Department as

a sexual offender. He reported his address as an apartment building in Kalispell. In August

2011, Nauman’s probation officer was informed that Nauman was no longer residing at that


                                             2
address. As Nauman failed to notify law enforcement about his changed address, he was

charged on December 7, 2011 with Failure to Register as a Sexual or Violent Offender.

¶5     On November 21, 2012, Nauman entered into a plea agreement with the State. In

exchange for a plea of guilty by Alford1 from Nauman, the State agreed to recommend that

the District Court impose a suspended sentence of three years to the Department of

Corrections (DOC). The plea agreement stated that:

       Defendant understands that pursuant to Section 46-12-211(1)(b), MCA, the
       parties agree that the specific sentence set forth herein is the appropriate
       disposition of the case. Further, pursuant to 46-12-211(3), MCA, if the Court
       accepts the plea agreement, the court shall inform the Defendant that it will
       embody in the judgment and sentence the disposition provided for in the plea
       agreement. If the Court rejects the plea agreement, Defendant understands that
       pursuant to Section 46-12-211(4) the Court shall, on the record, inform the
       parties of that fact, advise him that the Court is not bound by the plea
       agreement, and afford him the opportunity to withdraw the plea.

In the plea agreement, the parties also agreed to waive an updated Pre-sentence Investigation

Report (PSI) and any further sex offender evaluation and to instead rely on the PSI prepared

in 2001. The State agreed to recommend that the District Court impose the probation

conditions recommended by the PSI and also agreed that the Defendant was free to argue

against them.

¶6     On November 21, 2012, Nauman objected to eight probation conditions

recommended by the PSI prepared in 2001. In particular, he objected to the conditions that

became conditions 23, 25, 26, and 28-32 of the District Court’s judgment and sentence. As

stated in the judgment and sentence, these conditions read:




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       23. The Defendant will participate in any counseling deemed necessary by his
       Probation Officer.
                                          . . .

       25. The Defendant will have no contact with the victim of this crime . . . or her
       family.
       26. The Defendant will have no contact with minors without prior permission
       from his therapist and Probation Officer.

                                             .   .   .

       28. The Defendant will enter in and successfully complete all phases of an
       MSOTA certified outpatient sex offender counseling program and follow all
       rules and requirements of said program. He will also complete an Abel
       Assessment of Deviant Arousal for program purposes.
       29. The Defendant shall submit to polygraph examination upon the reasonable
       request of his supervising officer or therapist for purposes of case
       management.
       30. The Defendant will not involve himself in any type of employment,
       service, or recreational pursuits, which involves the supervision of children.
       Under no circumstances should the Defendant be in a position of authority
       over children.
       31. The Defendant will not have possession of any pornography, nor will he
       frequent adult bookstores, or patronize establishments where nude dancing is
       promoted.
       32. The Defendant will not own a computer or have possession of and/or
       utilize access to Internet services without prior permission from his
       supervising officer and therapist.

¶7     Following hearings on November 21, 2012 and December 6, 2012, the District Court

sentenced Nauman to MSP – not to the DOC, as agreed – for three years, all suspended, and

imposed all eight probation conditions listed above. Nauman appeals.




1
 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). An Alford plea allows a defendant to
plead guilty to an offense without acknowledging his guilt. State v. Peterson, 2013 MT 329, ¶ 8, 372
Mont. 382, 314 P.3d 227; see also § 46-12-212, MCA.
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                                STANDARDS OF REVIEW

¶8     We review criminal sentences longer than one year for legality only. State v. Holt,

2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470. We review the reasonableness of conditions

or restrictions imposed on a sentence for abuse of discretion. State v. Ashby, 2008 MT 83,

¶ 8, 342 Mont. 187, 179 P.3d 1164.

                                         DISCUSSION

¶9     1. Did the District Court err by departing from the plea agreement without giving

Nauman the opportunity to withdraw his guilty plea?

¶10    The State concedes and we agree that the parties reached a plea agreement of the type

described in § 46-12-211(1)(b), MCA, and that the District Court, when it sentenced Nauman

to MSP rather than the DOC, erred by departing from the plea agreement without giving

Nauman the opportunity to withdraw his guilty plea.

¶11    Section 46-12-211, MCA, provides for three types of plea agreements. A (1)(b)

agreement is formed when the parties agree that “upon the entering of a plea of guilty or nolo

contendere to a charged offense . . . the prosecutor will . . . agree that a specific sentence is

the appropriate disposition of the case.” Section 46-12-211(1)(b), MCA. Here, a (1)(b)

agreement was formed when Nauman entered a guilty plea by Alford, and the State agreed

that commitment to the DOC for three years, all suspended, was the appropriate disposition

of the case.

¶12    If the court rejects a (1)(b) plea agreement, § 46-12-211(4), MCA requires “the

court . . . [to] afford the defendant an opportunity to withdraw the plea . . . .” State v. Zunick,

2014 MT 239, ¶¶ 12, 16-19,         Mont.      ,       P.3d   . Here, it seems the District Court
                                                  5
judge intended to accept the plea agreement, stating “I have no problem . . . as to the basis

for this agreement, which would be that the Court would commit you to Department of

Corrections for a term of three years . . . . I would concur with that recommendation.”

However, the court ultimately rejected the (1)(b) plea agreement by sentencing Nauman to

MSP for three years, all suspended. We have previously held that commitment to MSP is a

more severe sentence than commitment to the DOC. State v. Strong, 2009 MT 65, ¶ 20, 349

Mont. 417, 203 P.3d 848. Thus, the District Court here sentenced Nauman to a more severe

sentence than contemplated by the plea agreement and rejected the plea agreement by doing

so. It did not, however, give Nauman the opportunity to withdraw his guilty plea, in

violation of § 46-12-211(4), MCA.

¶13    For this reason, we reverse and remand with the instruction that the District Court

either enter a sentence consistent with the plea agreement or allow Nauman to withdraw his

guilty plea.

¶14    2. Did the District Court err by imposing conditions 23, 25, 26, and 28-32 on

Nauman’s sentence?

¶15    Nauman argues that the District Court violated § 46-18-202(1), MCA, by imposing

conditions 23, 25, 26, and 28-32 on his sentence. That statute and our case law require

sentence conditions to have some nexus to the underlying offense or to the offender. State v.

Melton, 2012 MT 84, ¶¶ 17-18, 364 Mont. 482, 276 P.3d 900. Nauman claims that there was

not enough evidence for the District Court to properly find a nexus in this case. We

disagree.



                                             6
¶16    District courts are afforded broad discretion in criminal sentencing, and our review of

sentencing conditions is correspondingly deferential. We will generally affirm a restriction

or condition imposed pursuant to § 46-18-202(1), MCA, as long as the restriction or

condition has some nexus to the underlying offense or to the offender. Melton, ¶ 18.

¶17    A nexus to the offense or offender exists when the restriction or condition is

“reasonably related to the objectives of rehabilitation and protection of the victim and

society.” State v. Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, 974 P.2d 620, overruled

on other grounds by State v. Herman, 2008 MT 187, ¶ 12 n.1, 343 Mont. 494, 188 P.3d 978;

State v. Malloy, 2004 MT 377, ¶ 8, 325 Mont. 86, 103 P.3d 1064. A nexus to the offender is

only sufficient to support the condition or restriction when a history or pattern of conduct to

be restricted is recent, and significant or chronic. Ashby, ¶ 15.

¶18    The District Court in this case properly based the conditions on such a history or

pattern of conduct. It considered evidence that while on probation from his 2001 sexual

assault sentence, Nauman concealed his true residence from his probation officer, had

contact with children, kept photographs of underaged girls on his phone, resided with

children in violation of his probation conditions, fled from his probation officer, and failed to

register as a sexual offender. Additionally, the 2001 PSI, upon which the parties agreed to

rely, portrayed Nauman as emotionally immature, inconsistent in his portrayal of certain

events, and lacking remorse. Given this evidence, the District Court did not abuse its

discretion by imposing conditions reasonably related to rehabilitating Nauman or to

protecting society from this conduct.



                                               7
¶19    Nauman argues, however, that his 2001 conviction should not have been considered

in sentencing for the Failure to Register conviction. Yet, given similar evidence in Melton,

we found that Melton’s 1999 rape conviction was relevant to sentencing his 2010 Failure to

Register conviction. Although Melton had a “low risk” to reoffend, he had failed to

“address[] his underlying issues which led him to engage in the unlawful sexual behavior in

1999.” Melton, ¶ 21. We, therefore, considered the 1999 rape conviction and held that the

condition limiting Melton’s contact with minors had an offender nexus. Melton, ¶¶ 21-22.

Similarly, Nauman’s behavior while on probation – keeping photographs of underage girls

on his phone and contacting children – indicates that he has a continuing propensity to

engage in the kind of behavior that led to his 2001 conviction. For this reason, as in Melton,

Nauman’s 2001 conviction was relevant to sentencing for his Failure to Register conviction.

¶20    Nauman further argues that the crime he pled guilty to, Failure to Register, is not a

sexual offense and, consequently, that there is no nexus to the conditions imposed, which

include stock conditions imposed on sexual offenders. See § 46-18-207(5), MCA; State v.

Brotherton, 2008 MT 119, ¶ 16, 342 Mont. 511, 182 P.3d 88 (stating that stock conditions

“are those which have been legislatively authorized”). We have, however, declined to adopt

such a categorical rule, stating that “[e]ach case must turn on its specific facts.” State v.

Bullplume, 2013 MT 169, ¶ 24, 370 Mont. 453, 305 P.3d 753 (citing Melton, ¶ 20).

¶21    Furthermore, we have already found this argument to be unpersuasive in more than

one instance. See Melton, ¶¶ 20, 26. In Malloy, the defendant was also charged with Failure

to Register. Similarly to the present case, Malloy argued that conditions limiting his contact

with minors and his access to pornography were inappropriate because failure to register is
                                              8
not a sexual offense. Malloy, ¶¶ 10, 12. We determined, however, that the Sexual or Violent

Offender Registration Act was adopted “to protect the public from the recidivism of sex

offenders; to prevent victimization of vulnerable children; and to assist law enforcement in

keeping track of the whereabouts of sex offenders.” Malloy, ¶ 13. Accordingly, we upheld

the conditions on Malloy’s Failure to Register sentence. Malloy, ¶ 14. Similarly, conditions

23, 25, 26, and 28-32 in this case were not improperly imposed merely because they were

imposed on Nauman’s Failure to Register sentence.

¶22    Thus, we hold that the District Court did not abuse its discretion by imposing

conditions 23, 25, 26, and 28-32, which were supported by evidence sufficient to

demonstrate a nexus between the conditions and Nauman.

¶23    3. Does the use of the term “pornography” render condition 31 unconstitutionally

vague?

¶24    In his November 21, 2012 sentencing memorandum, Nauman argued that, in addition

to lacking a nexus to the offense, condition 31 was unconstitutionally vague and a violation

of his right to due process. He cited a case from the United States Court of Appeals for the

Third Circuit and one from the Ninth Circuit to support his argument, but otherwise Nauman

limited his arguments to conclusory statements. The State’s memorandum in response was

limited to the nexus issue and did not address Nauman’s constitutional vagueness argument.

Similarly, the District Court did not address Nauman’s constitutional challenge in any

hearing or judgment.

¶25    We decline to review the issue here.        Especially for those of constitutional

importance, we will not review issues that the District Court has not ruled on and that have
                                             9
not been adequately briefed by the parties. If, on remand, the parties believe this issue needs

to be decided, it should be briefed and ruled on by the District Court.

                                      CONCLUSION

¶26    We hold that the District Court erred by rejecting the plea agreement without allowing

Nauman the opportunity to withdraw his guilty plea. We also hold that the District Court did

not err by imposing conditions 23, 25, 26, and 28-32 on Nauman’s sentence. We decline to

address Nauman’s argument that the use of the term “pornography” in condition 31 renders

the condition unconstitutionally vague.

¶27    We affirm in part, reverse the judgment, and remand to the District Court with the

instruction that the District Court either enter a sentence consistent with the plea agreement

or allow Nauman to withdraw his guilty plea.

                                                   /S/ MICHAEL E WHEAT

We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON




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