                                                                                           July 24 2012


                                           DA 11-0388

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 157



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHRISTOPHER ROBIN LEWIS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 10-34
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robin A. Meguire, Attorney at Law, Great Falls, Montana


                For Appellee:

                        Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant
                        Attorney General, Helena, Montana

                        William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: June 6, 2012
                                                               Decided: July 24, 2012


Filed:

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

¶1     Christopher Robin Lewis (Lewis) appeals from a judgment and commitment entered

by the Twenty-First Judicial District, Ravalli County, finding him ineligible for parole

during his ten year prison term for aggravated assault. We affirm.

                                      BACKGROUND

¶2     In March 2010, Lewis was charged with one count of aggravated assault for the abuse

of his son L.L. and one count of assault on a minor for the abuse of his other son A.L. Lewis

initially pled not guilty to the charges against him. On January 18, 2011, the parties entered

an “appropriate plea” agreement, pursuant to § 46-12-211(1)(b), MCA, wherein Lewis

agreed to plead either guilty or no contest to the aggravated assault charge in exchange for

the State’s dismissal of the charge of assault on a minor. The parties further agreed that their

separate recommendations for an appropriate sentence would fall within the following range:

       The State: The State will recommend a twenty (20) year commitment to
       Montana State Prison, with ten (10) years suspended.

       Defendant: The Defendant may recommend a sentence no less restrictive than
       a ten (10) year commitment to the Department of Corrections, with five (5)
       years suspended.

Nothing in the plea agreement addressed the District Court’s authority to restrict Lewis’

eligibility for parole, and it contained no commitment from the State regarding such a

restriction. Section 3 of the plea agreement also provided that the parties were “otherwise

free to recommend and argue for any other lawful term of sentence and/or conditions thereto,

subject to a final decision by the court.”


                                               2
¶3     The District Court held a change of plea hearing on January 19, 2011. During the

hearing, the parties confirmed the terms of and their individual obligations under the plea

agreement. The State also stated it would not be seeking a parole restriction. The court then

explained to Lewis that, due to the nature of the plea agreement, Lewis could withdraw his

plea if the court did not follow the plea agreement. Lewis stated he understood the

consequences of the agreement and pled no contest to the charge of aggravated assault.

¶4     The District Court deferred sentencing until after a presentence investigation report

(PSI) could be completed. The probation officer who completed the PSI recommended that

the court impose a twenty-year commitment to the Department of Corrections (DOC) with

fifteen years suspended. The PSI also recommended that Lewis “not be considered eligible

for release into the community until he has completed in-patient chemical dependency

treatment, anger management, all phases of Cognitive Principles and Restructuring and be

assessed for any mental health concerns.”

¶5     Lewis took issue with this recommendation, and filed a written sentencing

memorandum. In his memorandum, Lewis argued that the court, pursuant to State v. Burch,

2008 MT 118, 342 Mont. 499, 182 P.3d 66, had no authority to impose restrictions on his

early release, and that the determination of whether to grant the privilege of early release

belonged solely to the DOC. This was Lewis’ only argument against imposing a parole

restriction; he did not argue that the plea agreement prohibited a parole restriction, that the

State agreed such a restriction would not be imposed, or that the court would be required to

reject the agreement in order to impose such a restriction.
                                              3
¶6      On March 23, 2011, the District Court held a sentencing hearing. At the hearing, the

State, in accordance with the plea agreement, recommended a sentence of twenty years at the

Montana State Prison (MSP) with ten years suspended. The prosecutor also responded to

Lewis’ sentencing memorandum and stated that § 46-18-202(2), MCA, authorizes a district

court to reasonably restrict a defendant’s parole eligibility, but made no recommendation to

the court regarding Lewis’ parole eligibility. Instead, the prosecutor explicitly stated that he

would leave the decision of whether to impose a parole restriction to the discretion of the

court. Defense counsel once again argued that the court should impose a DOC sentence, and

that the court was not authorized to impose any restrictions on the DOC’s ability to release

Lewis early under such a commitment.

¶7      The District Court accepted the plea agreement, and imposed a twenty-year

commitment to MSP with ten years suspended, but ordered that Lewis serve the MSP

commitment “without benefit of parole.” The court’s conclusion was “based on the severity

of what occurred and the utter helpless nature of the victim,” and it believed that Lewis

“should be given the most severe sanction” within the limits of the plea agreement. Beyond

this, the court did not discuss its specific reasons for imposing the parole ineligibility

restriction.1 Although a District Court is required to set forth its reasons for imposing a

parole restriction pursuant to § 46-18-202(2), MCA, Lewis never objected to his sentence for

this reason.



1
  The written sentencing order, issued April 5, 2011, similarly did not contain a specific rationale for the court’s
imposition of the parole restriction.
                                                         4
¶8     Lewis did, however, make one objection to his sentence. He objected on the grounds

that the District Court had exceeded the bounds of the plea agreement by declaring Lewis

ineligible for parole. In response, the sentencing judge stated that the plea agreement “didn’t

address parole eligibility,” which permitted the court “to impose parole restrictions up to and

including the entire sentence.” Defense Counsel then admitted that the plea agreement was

silent regarding the issue of parole ineligibility, but maintained his objection.

¶9     On April 19, 2011, Lewis filed a motion for specific performance of the plea

agreement, or in the alternative, a motion for reconsideration of the sentencing order. In the

State’s response brief, it argued that the District Court was free to impose a parole

restriction. Notably, in Lewis’ reply brief he asserted that “[i]f the State is advocating that

the Court should rule in a manner that results in retention of the parole restriction, that

position could arguably constitute a breach of the plea agreement.” The District Court

denied the motion on May 10, 2011. Lewis timely appealed, and raised the following issues:

¶10    Issue One: Whether the District Court’s imposition of the parole restriction violated

the plea agreement?

¶11    Issue Two: Whether the prosecutor breached the plea agreement?

¶12    Issue Three: Whether the District Court erred when it failed to specifically state its

reasons for imposing a parole restriction?

                                STANDARD OF REVIEW

¶13    A plea agreement is essentially a contract and is subject to contract law standards.

State v. McDowell, 2011 MT 75, ¶ 14, 360 Mont. 83, 253 P.3d 812. We review the district
                                              5
court’s interpretation of a contract for correctness. Brothers v. Home Value Stores, Inc.,

2012 MT 121, ¶ 6, 365 Mont. 196, __ P.3d __. Whether the State has breached a plea

agreement is a question of law, which we review de novo. McDowell, ¶ 12 (citing State v.

Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114). When a defendant is

sentenced to more than one year of actual incarceration, we review the sentence for legality

only. McDowell, ¶ 11 (citing Bullplume, ¶ 10).

                                       DISCUSSION

¶14    Issue One: Whether the District Court’s imposition of parole restriction violated the

plea agreement?

¶15    Lewis argues that the State, through the prosecutor’s representations that he would not

seek a parole restriction and that he would leave that decision to the court, agreed that the

plea agreement encompassed a condition that Lewis’ parole eligibility would not be

restricted. Therefore, Lewis argues, the District Court erred when it simultaneously accepted

the parties’ agreed disposition, but still imposed a no-parole eligibility restriction on Lewis’

sentence without affording Lewis the opportunity to withdraw his no contest plea. The State

argues that the prosecutor’s verbal representations did not alter the plea agreement.

¶16    A plea agreement is a contract subject to contract law standards. McDowell, ¶ 14.

Contract law principles mandate that “ ‘[w]here the contractual language is clear and

unambiguous on its face, it is this Court’s duty to enforce the contract as drafted and

executed by the parties.’ ” State v. Shepard, 2010 MT 20, ¶ 14, 355 Mont. 114, 225 P.3d

1217 (citing Felska v. Goulding, 238 Mont. 224, 230, 776 P.2d 530, 534 (1989)).
                                               6
¶17    The written plea agreement between Lewis and the State clearly demonstrates that the

parties did not come to an agreement as to whether Lewis’ sentence would include a

restriction on his eligibility for parole. The plea agreement is silent, as defense counsel

agrees, regarding parole ineligibility. Additionally, Section 3 of the plea agreement

unambiguously permitted either party “to recommend and argue for any other lawful term of

sentence and/or conditions thereto.” Thus, the plain language of the plea agreement

demonstrates that the District Court could impose any lawful conditions on the sentence, as

long as the sentence fell within the agreed upon disposition.

¶18    Nevertheless, Lewis argues that the prosecutor’s representations either clarified the

plea agreement or amended it to include a provision that Lewis would be eligible for parole.

Lewis cites to Shepard, ¶¶ 11-12, for the proposition that a party’s statements prior to

sentencing can amend a written plea agreement. This Court in Shepard, however, did not

reach that conclusion. Instead, we concluded that the State could not assert that a parole

restriction was not part of the plea agreement on appeal because it constituted a change in

theory from the trial court, which we would not consider on appeal. Shepard, ¶ 12.

¶19    Moreover, Lewis’ reliance on the prosecutor’s statements is misplaced.              The

prosecutor, pursuant to Section 3 of the plea agreement, was free to either seek a parole

restriction, or not. The prosecutor opted for the latter and promised he would not seek a

parole restriction; a restriction he never sought, and never represented was part of the plea

agreement. In addition, the prosecutor made it clear to the court that it was within the court’s

discretion to impose a parole restriction if it saw fit. The prosecutor’s comments did not
                                               7
modify the plea agreement in any way, thus the unambiguous language of the contract is

controlling. Accordingly, the court was within its authority to accept the plea agreement and

impose a parole restriction without offering Lewis the opportunity to withdraw his plea.

¶20    Issue Two: Did the prosecutor breach the plea agreement?

¶21    Lewis maintains that the prosecutor breached the plea agreement at the sentencing

hearing and again when he opposed the State’s motion for specific performance of the plea

agreement. The State argues that we cannot review this portion of Lewis’ appeal due to the

fact that Lewis’ position is opposite of the argument he advanced at the District Court. After

the District Court sentenced Lewis, he filed a motion for specific performance of the plea

agreement, and in his reply brief, Lewis stated that he “does not contend that the State

breached the plea agreement at sentencing.” He now asserts that the prosecutor breached the

plea agreement at sentencing.

¶22    “It is well settled that ‘[a] party may not change its theory on appeal from that

advanced in the trial court; nor may a party raise an argument for the first time on appeal.’ ”

Shepard, ¶ 12 (quoting State v. Anderson, 1999 MT 60, ¶ 25, 293 Mont. 490, 977 P.2d 983).

We will not fault a district court for an action in which the appealing party acquiesced or

actively participated. State v. Holt, 2011 MT 42, ¶ 17, 359 Mont. 308, 249 P.3d 470 (citing

State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291, 65 P.3d 559). We may, however,

review claimed errors that implicate fundamental constitutional rights, when failing to do so

may leave unsettled the question of the fundamental fairness of the trial or proceeding. State

v. Rardon, 2002 MT 345, ¶ 16, 313 Mont. 321, 61 P.3d 132. Given that the claimed error in
                                              8
this case does not raise a question concerning the fundamental fairness of the trial court

proceeding and that Lewis purposefully acquiesced to the prosecutor’s actions, we will not

further consider the matter of whether the prosecutor’s comments at sentencing constituted a

breach of the plea agreement.

¶23    Lewis additionally argues that the prosecutor breached the plea agreement when he

advocated, in his response brief, that the District Court deny Lewis’ motion for specific

performance. In order to retain the benefit derived from a defendant’s plea, the State must

fulfill its contractual obligations strictly and meticulously. McDowell, ¶ 14. Upon agreeing

to recommend a specific sentence, a prosecutor becomes obligated to approach sentencing in

a manner that will not undermine the agreement. McDowell, ¶ 14. Prosecutorial violation of

the agreement is unacceptable, even if done inadvertently, in a good faith pursuit of justice.

McDowell, ¶ 14. Each case turns on its own unique facts, thus there are no “hard and fast

criteria for determining when a plea agreement has been breached.” McDowell, ¶ 14.

¶24    The facts of this case demonstrate that the prosecutor did not breach or undermine the

plea agreement by defending the District Court’s decision to impose a parole restriction. In

responding to Lewis’ motion for specific performance of the plea agreement, the prosecutor

was not urging the court to impose a parole restriction, but rather, rebutting Lewis’

contention that the parole restriction violated the plea agreement. In an analogous situation,

this Court has held that “[i]f a defendant chooses to present information in support of a

sentence he argues for, the State may counter with testimony to the effect that such

information is misleading or untrue, without breaching the plea agreement.” State v.
                                              9
Bartosh, 2007 MT 59, ¶ 22, 336 Mont. 212, 154 P.3d 58. Though Bartosh concerned

dueling testimony, the analysis is equally applicable to this matter: when a defendant

presents a legal argument in favor of his recommended sentence, the prosecutor may point

out the flaws in that legal argument without breaching the plea agreement. To find otherwise

would lead to an absurd result. A defendant would merely have to allege that the court

misinterpreted the plea agreement, and if the prosecutor responded, the prosecutor would be

in breach of the plea agreement. Accordingly, we conclude that the prosecutor did not

breach the plea agreement by responding to Lewis’ motion for specific performance.

¶25    Issue Three: Did the District Court err when it failed to specifically state its reasons

for imposing a parole restriction?

¶26    Lewis argues that the District Court failed to provide specific reasons, as required by

§ 46-18-202(2), MCA, for imposing the parole restriction, and therefore his sentence is

illegal. The District Court is imbued with exclusive authority to impose criminal sentences,

including the power to impose a restriction that the offender is ineligible for parole. Sections

46-18-103, -202(2), MCA. If, however, the District Court imposes a parole restriction, the

sentencing judge “shall state the reasons for it in writing,” or if the restriction is “necessary

for the protection of society[,] . . . the judgment must contain a statement of the reasons for

the restriction.” Section 46-18-202(2), MCA. As noted above, Lewis raises this issue for the

first time on appeal.

¶27    As a general rule, we will not review an issue on appeal if the party raising the issue

did not object at the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151
                                               10
P.3d 892. An exception to this general rule was enunciated in State v. Lenihan, 184 Mont.

338, 343, 602 P.2d 997, 1000 (1979), where we held that an appellate court may review any

sentence, even if not objected to at the trial court, if it is alleged that such sentence is illegal

or exceeds statutory mandates.        A sentence is not illegal if it falls within statutory

parameters. Kotwicki, ¶ 13. A sentencing court’s failure to abide by statutory requirements is

an objectionable sentence, not necessarily an illegal one. Kotwicki, ¶ 13; See also State v.

Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v. Nelson, 274 Mont. 11, 20,

906 P.2d 663, 668 (1995).

¶28    This court declined to apply the Lenihan rule in Kotwicki, ¶ 22, because the

defendant’s sentence was merely objectionable, and not illegal. Kotwicki was convicted of

numerous drug charges, and as part of his sentence he was required to pay a $25,000 fine,

which fell within the court’s authority to impose up to a $50,000 fine. At the trial court,

Kotwicki did not object to the fine on the grounds that the district court failed to inquire

whether he had the ability to pay. Kotwicki, ¶¶ 3-4. On appeal, Kotwicki argued that his

sentence was illegal because the court failed to make specific findings, as required by § 46-

18-231(3), MCA, on Kotwicki’s resources before imposing the fine. This Court declined to

review the sentence, however, because the district court’s failure to make specific findings

rendered the sentence objectionable, but not illegal. Kotwicki, ¶ 21. In so concluding, this

Court noted that Kotwicki, “although alleging an illegal sentence, fail[ed] to present a

colorable claim that his sentence fell outside the statutory parameters as to warrant our

review under the Lenihan rule.” Kotwicki, ¶ 22.
                                                11
¶29    Similarly, in Swoboda and Nelson, the trial court failed to explicitly consider

alternatives to prison, as required by § 46-18-225, MCA, before imposing a prison sentence

on a nonviolent offender. Swoboda, 276 Mont. at 480-81, 918 P.2d at 297; Nelson, 274

Mont. at 17, 906 P.2d at 665. The defendant in each case failed to object to this error at the

sentencing hearing, and then challenged the legality of the sentence on appeal due to the

court’s failure to consider sentences alternative to prison. Swoboda, 276 Mont. at 482, 918

P.2d at 298; Nelson, 274 Mont. at 17-18, 906 P.2d at 668. This court concluded in both

cases that the sentencing court could have legally sentenced Swoboda and Nelson to prison,

even after considering sentencing alternatives to prison, thus the Lenihan rule was

inapplicable. Swoboda, 276 Mont. at 482, 918 P.2d at 298; Nelson, 274 Mont. at 20, 906

P.2d at 668.

¶30    In spite of these cases, Lewis notes that we have considered parole eligibility

restrictions even absent an objection from a defendant. The cases Lewis relies upon are

clearly distinguishable from the present matter. State v. Garrymore, 2006 MT 245, 334

Mont. 1, 145 P.3d 946, is inapposite because the issue was not whether the proper statutory

requirements were followed – as it is here – but whether the parole eligibility restriction in

and of itself violated Garrymore’s federal and state constitutional and statutory rights.

Similarly, in State v. Olivares-Coster, 2011 MT 196, 361 Mont. 380, 259 P.3d 760, we

reviewed, with the State’s acquiescence, whether an offender under the age of eighteen is

subject to the mandatory parole eligibility restrictions in § 46-23-201(4), MCA, in

contravention of § 46-18-222(1), MCA. Unlike both Garrymore and Olivares-Coster,
                                             12
Lewis’ failure to object in this case is not based on the statute or the sentence being illegal

or exceeding statutory mandates, but merely that the District Court did not follow the

statutory requirements of § 46-18-202(2), MCA.

¶31    Based on our reasoning in Kotwicki, Swoboda and Nelson, we decline to apply the

Lenihan rule in the present matter. The District Court, had it made the findings required by

§ 46-18-202(2), MCA, legally could have imposed a parole eligibility restriction. Section

46-18-202(2), MCA, authorizes a district court to impose a restriction limiting an offender’s

eligibility for parole during the offender’s term of imprisonment. Lewis’ parole ineligibility

falls within the parameters of that statute, thus Lewis’ sentence is not an illegal sentence for

purpose of invoking the Lenihan rule and we will not consider this issue on appeal.

                                      CONCLUSION

¶32    For the reasons stated above, we affirm Lewis’ sentence and judgment.



                                                   /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ JIM RICE




                                              13
Justice James C. Nelson specially concurs.

¶33    I concur in the Court’s decision on Issues one and two and specially concur on Issue

three. As to Issue three, § 46-18-115, MCA, in pertinent part, requires:

             Before imposing sentence or making any other disposition upon
       acceptance of a plea or upon a verdict or finding of guilty, the court shall
       conduct a sentencing hearing, without unreasonable delay, as follows:

                                          .    .    .

              (6) In felony cases, the court shall specifically state all reasons for the
       sentence, including restrictions, conditions, or enhancements imposed, in open
       court on the record and in the written judgment.

¶34    In State v. Osterloth, 2000 MT 129, 299 Mont. 517, 1 P.3d 946, we interpreted this

statute, and held that since the sentencing court did not set forth the reasons for the sentence

imposed in its written judgment, to that extent, the court erred. We did not, however, require

that the court re-sentence the defendant, but we did remand with instructions that the court

enter a modified written judgment setting forth the reasons for the sentence as stated in the

District Court’s oral judgment. Osterloth, ¶¶ 39-41; see also State v. Christianson, 1999 MT

156, 295 Mont. 100, 983 P.2d 909 (holding that when the Sentence Review Division, acting

as an arm of this Court, remanded the matter to the District Court, “the District Court had

authority to issue an order amending the written judgment to list its reasons for imposing the

parole eligibility restriction, in compliance with § 46-18-115(6) and § 46-18-202(2), MCA”).



                                              14
¶35    I would require the same thing in this case. Section 46-18-202(2), MCA, like § 46-

18-115(6), MCA, is a mandatory direction to the sentencing court to provide, in the written

judgment, the reasons for any parole restriction imposed. I continue to believe that judges

must comply with the mandatory requirements of sentencing laws. Where the black-letter

law mandates that the judge do some particular thing, it is no excuse for his or her failure to

do so that the defendant, the prosecutor, or the defense attorney failed to “tell” the judge to

do what the law plainly requires.

¶36    Indeed, we presume that laypeople “know the law.”1 Should we, then, presume less

of judges—i.e., that they don’t know the law? Presuming that the trial judge here knew the

law and his obligation to sentence according to the law, the court should have specified in

the written judgment his reasons for imposing the parole restriction.

       1
         Indeed we went on at length about that presumption in State v. Payne, 2011 MT 35,
¶ 22, 359 Mont. 270, 248 P.3d 842:

              We are persuaded by the State’s argument that Payne is presumed to
       know the law of Montana. For at least a century, it has been the law in
       Montana that “ignorance of the law is no defense.” State ex rel. Rowe v.
       District Court, 44 Mont. 318, 324, 119 P. 1103, 1106 (1911), superseded by
       statute on other grounds in State ex rel. Shea v. Judicial Standards Comm.,
       198 Mont. 15, 643 P.2d 210 (1982) (“If a person accused of a crime could
       shield himself behind the defense that he was ignorant of the law which he
       violated, immunity from punishment would in most cases result. No system of
       criminal justice could be sustained with such an element in it to obstruct the
       course of its administration.”). We reiterated this rule in State v. Trujillo, 2008
       MT 101, ¶ 15, 342 Mont. 319, 180 P.3d 1153, when we held that Trujillo
       unlawfully trespassed onto another’s land despite his assertions that he had not
       passed through any gates or barriers intended to bar access. Similarly, in State
       v. G’Stohl, 2010 MT 7, ¶ 14, 355 Mont. 43, 223 P.3d 926, we noted that
       “people are presumed to know the law” and will not be relieved of criminal

                                               15
¶37    For that reason, I would, as we did in Osterloth, remand this cause to the sentencing

court for entry of a modified written judgment setting forth the reasons for imposing the

parole restriction.

¶38    I concur in Issues one and two, and, for the above reasons, specially concur in the

result of Issue three subject to our remanding to the District Court for entry of a modified

written judgment.


                                                    /S/ JAMES C. NELSON




       liability for their failure to comply with it.
                                              16
