                                                                                       November 25 2008


                                         DA 07-0224

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2008 MT 395



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CLAYTON JAMES HUNTER,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and For the County of Flathead, Cause No. DC 06-437A
                      Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Gregory Hood, Assistant Public Defender, Kalispell, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Mark W. Mattioli,
                      Assistant Attorney General, Helena, Montana

                      Ed Corrigan, Flathead County Attorney; Lori Adams, Deputy County
                      Attorney, Kalispell, Montana


                                                  Submitted on Briefs: March 5, 2008

                                                             Decided: November 25, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice John Warner delivered the Opinion of the Court.
¶1     In a plea agreement with the State of Montana, Clayton James Hunter agreed to plead

guilty to fraudulently obtaining dangerous drugs, a felony, and the State agreed to

recommend a two-year deferred sentence. The Eleventh Judicial District Court, Flathead

County, accepted the plea agreement and imposed the recommended sentence, subject to

several probation conditions. Hunter appeals two of his probation conditions.

¶2     The sole issue on appeal is whether the District Court abused its discretion when it

imposed the alcohol-related conditions.

                                     BACKGROUND

¶3     In October 2006, Hunter altered a Percocet prescription so he could “get more for the

pain [he] was in at the time.” He attempted to fill the prescription at the Costco pharmacy in

Kalispell. Suspecting the prescription was a fake, the pharmacist called the doctor’s office

and verified the prescription was a forgery. After the police were called, Hunter admitted he

forged the prescription.

¶4     Hunter entered into a plea agreement with the State in which he agreed to plead guilty

in exchange for a recommended deferred sentence of two years. At the sentencing hearing,

the presentence investigation report (PSI) showed Hunter was cited in 2005 in Colorado for

driving with a .06 blood alcohol content and in 1997 in Washington for a “public

disturbance.” It recommended Hunter not possess or consume intoxicants--that is, drugs and

alcohol--and that he submit to chemical testing for drugs and alcohol. Hunter admits to

occasional past marijuana use, but states he has no history of alcohol abuse.




                                              2
¶5     Hunter’s counsel objected to the imposition of alcohol-related conditions. The

District Court imposed the PSI’s recommended conditions and entered judgment. Hunter

appeals.

                                       DISCUSSION

¶6     We review probation conditions for both legality and reasonableness. State v. Ashby,

2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9. Generally, a probation condition

is legal if it falls within statutory parameters. State v. Herd, 2004 MT 85, ¶ 24, 320 Mont.

490, ¶ 24, 87 P.3d 1017, ¶ 24. If a condition is illegal, or exceeds statutory parameters, this

Court will review the sentence even if the defendant failed to object to the sentence in the

trial court. State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979).

¶7     In addition to explicit statutory sentencing parameters, a district court is authorized to

impose on deferred or suspended sentences any reasonable condition necessary for

rehabilitation or the protection of the victim or society. Ashby, ¶ 9; § 46-18-201(4), MCA.

For a condition to be reasonable, it must have “a nexus to either the offense for which the

offender is being sentenced, or to the offender himself or herself.” Ashby, ¶ 15. If the

defendant contends that the nexus between the offender or offense and the condition is

inadequate, the challenge is that the condition is “objectionable” rather than illegal. State v.

Hameline, 2008 MT 241, ¶ 12, 344 Mont. 461, ¶ 12, 188 P.3d 1052, ¶ 12. Objectionable

conditions must be objected to in the trial court to qualify for appellate review. State v.

Kotwicki, 2007 MT 17, ¶ 21, 335 Mont. 344, ¶ 21, 151 P.3d 892, ¶ 21.

¶8     Here, as noted above, Hunter’s counsel objected to the alcohol-related conditions.

Thus, notwithstanding Hunter’s assertions that the conditions are illegal, the challenge is to
                                            3
objectionable conditions. We review the reasonableness of the probation conditions for an

abuse of discretion. Ashby, ¶ 9.

¶9     A sufficient offense-related nexus can exist when the offense is indirectly connected

to the condition. For example, in State v. Greensweight, 2008 MT 185, ¶¶ 19-21, 343 Mont.

474, ¶¶ 19-21, 187 P.3d 613, ¶¶ 19-21, a connection existed between the offense of theft and

chemical testing conditions because the defendant used the money he stole for rent and bills-

-money he lacked because of his drug habit. We also have held a sufficient nexus existed

between the offense of sexual assault and intoxicant-based conditions because the defendant

had been immersed in a drug environment during the time of the assault and his stated reason

for the assault was being excluded from doing drugs with his family. In re D.A.S., 2008 MT

168, ¶ 12, 343 Mont. 360, ¶ 12, 184 P.3d 349, ¶ 12.

¶10    Further, a nexus exists between drug-related offenses and conditions related to

alcohol, including chemical testing. We held the purposes of rehabilitating the defendant

and protecting society were served by the imposition of alcohol-related conditions on

defendants’ sentences for possessing methamphetamine and marijuana--both dangerous

drugs. State v. Winkel, 2008 MT 89, ¶¶ 14-16, 342 Mont. 267, ¶¶ 14-16, 182 P.3d 54, ¶¶ 14-

16; State v. DeSchazo, 2008 MT 131, ¶ 12, 343 Mont. 77, ¶ 12, 183 P.3d 47, ¶ 12. “The

drug-related nature of [the defendant]’s offense alone suffices as a sufficient nexus to this

condition.” Winkel, ¶ 14.

¶11    In the present case, Hunter’s offense was fraudulently obtaining dangerous drugs.

Forging a prescription to obtain a dangerous drug, rather than renewing a prescription

through legal channels, is indicative of dependency. Prohibiting and monitoring Hunter’s
                                             4
consumption of both alcohol and drugs will help prevent him from “‘repeat[ing] the same

criminal conduct that gave rise to the sentence.’” Ashby, ¶ 14 (quoting State v. Ommundson,

1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11). Consequently, we conclude a

sufficient nexus exists between Hunter’s offense and the alcohol-related conditions.

                                     CONCLUSION

¶12    We hold the District Court did not abuse its discretion in imposing the alcohol-related

conditions.

¶13   Affirmed.

                                          /S/ JOHN WARNER



We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




                                             5
