State v. Hotchkiss

402 Mont. 1

474 P.3d 1273

2020 MT 269

STATE of Montana, Plaintiff and Appellee,

v.Matthew Glen HOTCHKISS, Defendant and Appellant.

DA 19-0518

Supreme Court of Montana.

Submitted on Briefs: September 16, 2020

Decided: October 27, 2020

For Appellant: Kelly M. Driscoll, Driscoll Hathaway Law Group, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Bill Fulbright, Ravalli County Attorney, Hamilton, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 This is a consolidated appeal in which defendant Matthew Glen Hotchkiss appeals from the July 15, 2019 judgments of the Twenty-First Judicial District Court, Ravalli County, following his convictions of Sexual Assault, a Felony, in violation of § 45-5-502(1), (3), MCA, and Tampering with or Fabricating Physical Evidence, a Felony, in violation of § 45-7-207, MCA. We restate and address the following issues on appeal:

Issue One: Did the District Court err when it imposed sentencing conditions limiting the defendant's ability to possess a phone, a computer, or access to the internet?

Issue Two: Did the District Court err when it ordered the defendant to pay the cost of his public defender without conducting a meaningful inquiry into his ability to pay such expense?

¶2 We reverse and remand to the District Court to amend the conditions consistent with this Opinion and for a determination regarding Hotchkiss's ability to pay.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On November 16, 2018, Hotchkiss was charged with sexually assaulting his girlfriend's 13-year-old daughter. As a condition of his release on bail, Hotchkiss was ordered not to consume any alcohol or take any drugs. Hotchkiss was also ordered to participate in a pretrial supervision program and complete urine testing twice a week to screen for the presence of alcohol or drugs.

¶4 On March 18, 2019, while reporting to his pretrial supervision urine test, Hotchkiss was observed emptying a small amount of urine from a plastic container concealed in his waistband in the specimen cup. The plastic container was confiscated and Hotchkiss provided an actual sample of his own urine, which tested positive for methamphetamine and amphetamine. Based on these events, Hotchkiss was charged with evidence tampering.

¶5 On May 2, 2019, Hotchkiss pled guilty to both the sexual assault charge and the tampering charge. Following Hotchkiss's guilty plea, the District Court ordered him to undergo a presentence investigation (PSI) and a psychosexual evaluation.

¶6 The psychosexual evaluation, filed May 17, 2019, recommended Hotchkiss be designated a low risk sexual offender based on him having "a low-moderate need for intense supervision in terms of sexual re-offense." The psychosexual evaluation also recommended Hotchkiss "enter into and complete sex offender treatment," and that "a rather aggressive approach to his treatment should initially be implemented ...." The psychosexual evaluation also recommended Hotchkiss "have no unsupervised contact with anyone under the age of consent until his treating professional and supervising officer agree that this restriction is no longer necessary." The psychosexual evaluation further noted that Hotchkiss denied participation in sexual behaviors such as obscene phone calls, phone sex, child pornography, or internet pornography.

¶7 The PSI, filed by the DOC's Adult Probation & Parole Bureau (P&P) on June 20, 2019, contained 48 recommended probation conditions, including conditions prohibiting Hotchkiss from having contact with "any individual under the age of 18 unless accompanied by an appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and is approved by the [P&P] Officer and sexual offender treatment provider," and requiring Hotchkiss to "seek and maintain employment ...." The PSI also included the following conditions regarding technology use:

36. The Defendant shall not have access to the internet without prior permission from the [P&P] Officer and sexual offender therapist, nor can the Defendant have on any computer he/she owns any software that is intended for data elimination, encryption or hiding data. If [i]nternet access is allowed, the Defendant must allow the Department to install rating control software and conduct random searches of the hard drive for pornography or other inappropriate material.

37. The Defendant shall not possess or use any computer or other device with access to any on-line computer service including, but not limited to ‘Cloud’ data storage, without the prior written approval of the [P&P] Officer. The Defendant shall allow the [P&P] Officer to make unannounced examinations of his/her computer, hardware, and software, which may include the retrieval and copying of all data from his/her computer and computing and data storage devices. The Defendant shall allow the [P&P] Officer to install software to restrict the Defendant's computer access or to monitor the Defendant's computer access. The Defendant shall not possess encryption or steganography software. The Defendant shall not utilize software designed to eliminate traces of internet activity. The Defendant shall provide records of all passwords, internet service, and user identifications (both past and present) to the [P&P] Officer and immediately report changes. The [D]efendant shall sign releases to allow the [P&P] Officer to access phone, wireless, internet, and utility records.

...

44. The Defendant shall not have a cell phone, or such other technology/device with photo, video, or [i]nternet capabilities, without prior permission of [P&P] Officer. If cell phone use is allowed, all bills and records shall be made available to the [P&P] Officer.

The PSI noted Hotchkiss's criminal history which, while extensive, did not involve sexual offenses or the use of technology in the commission of an offense.

¶8 On June 20, 2019, the District Court conducted a sentencing hearing on both charges. Prior to imposition of sentence, defense counsel requested the District Court strike conditions 36, 37, and 44, arguing they had no nexus to Hotchkiss or his offenses and were unreasonably burdensome in that they limited Hotchkiss's ability to apply for jobs or attend online school. Defense counsel also requested the District Court waive imposition of all fees, including the public defender fee. Defense counsel argued that "any money [Hotchkiss] is capable of earning upon being released would be better suited to getting the treatment that he's going to need, specifically follow-up treatment and potentially sex offender treatment."

¶9 The District Court questioned Hotchkiss about his employment, asking what he did for work prior to his incarceration, and whether it was work to which he planned to return. Hotchkiss responded he was previously employed locally as a roofer and would "[m]ost likely" return to that type of work upon release.

¶10 On the sexual assault charge, the District Court sentenced Hotchkiss to the Montana Department of Corrections (DOC) for a 15-year commitment with 10 years suspended; imposed a $5,000 fine, all suspended; and imposed all statutory surcharges and fees, including repayment of public defender fees. On the evidence tampering charge, the District Court sentenced Hotchkiss to a 10-year DOC commitment, all suspended, to run concurrent with his term imposed for the sexual assault offense. The District Court waived payment of the fine for the tampering charge, but imposed all statutory surcharges. The District Court also imposed PSI-recommended conditions 36, 37, and 44 regarding technology use.

STANDARDS OF REVIEW

¶11 A condition imposed in a criminal sentence of incarceration for longer than one year is reviewed first for its legality. State v. Nauman , 2014 MT 248, ¶ 8, 376 Mont. 326, 334 P.3d 368 (citing State v. Holt , 2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470 ); City of Billings v. Barth , 2017 MT 56, ¶ 8, 387 Mont. 32, 390 P.3d 951. "A condition is illegal when there exists no statutory authority to impose it, where the condition exceeds the limits of the relevant sentencing statute, or where the court fails to ‘adhere to the affirmative mandates of the applicable sentencing statutes.’ " City of Billings , ¶ 8.

¶12 If we determine the sentence condition is legal, we next review the reasonableness of conditions or restrictions imposed on the sentence for an abuse of discretion. Nauman , ¶ 8 (citing State v. Ashby , 2008 MT 83, ¶ 8, 342 Mont. 187, 179 P.3d 1164 ). An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. State v. Hernandez , 2009 MT 341, ¶ 7, 353 Mont. 111, 220 P.3d 25.

¶13 A district court's determination of a defendant's ability to pay an imposed fine, fee, cost, or other charge is "essentially a finding of fact that this Court will reverse only if it is clearly erroneous." State v. Reynolds , 2017 MT 317, ¶ 16, 390 Mont. 58, 408 P.3d 503 (quoting State v. Holt , 2006 MT 151, ¶ 23, 332 Mont. 426, 139 P.3d 819 ). A finding of fact is clearly erroneous if it is not supported by substantial credible evidence, if the lower court misapprehended the effect of the evidence, or if a review of the record leaves us with the definite and firm conviction that a mistake has been made. Reynolds , ¶ 16.

DISCUSSION

¶14 Issue One: Did the District Court err when it imposed sentencing conditions limiting the defendant's ability to possess a phone, a computer, or access to the internet?

¶15 Under § 46-18-201(4), MCA, a district court may impose "any reasonable restrictions or conditions" on a suspended sentence. A district court may also impose other restrictions or conditions considered "necessary to obtain the objectives of rehabilitation and the protection of the victim and society ...." Section 46-18-202(1), MCA.

Before a sentencing court imposes a condition on a defendant's suspended...