State v. Lehrkamp

388 Mont. 295

400 P.3d 697

2017 MT 203

STATE of Montana, Plaintiff and Appellee,

v.Scott Alan LEHRKAMP, Defendant and Appellant.

DA 15-0631

Supreme Court of Montana.

Submitted on Briefs: June 28, 2017

Decided: August 22, 2017

For Appellant: Chad Wright, Chief Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis & Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 A Lewis and Clark County jury convicted Scott Alan Lehrkamp of felony possession of dangerous drugs. At sentencing, the State introduced recordings of telephone conversations in which Lehrkamp threatened physical violence against his public defender and the prosecutor. The prosecutor recommended a sentence of twenty years in prison with ten years suspended, stating that such a sentence would give him and his family "solace." The District Court sentenced Lehrkamp to ten years in prison and included a number of conditions in the written judgment. Lehrkamp appeals.

¶2 We restate the issues as follows:

1. Whether Lehrkamp is entitled to a new sentencing hearing because the prosecutor's remarks amount to plain error;

2. Whether Lehrkamp received ineffective assistance of counsel at the sentencing hearing;

3. Whether the District Court imposed an unlawful sentence by misapplying the persistent felony offender statute;

4. Whether certain terms of the District Court's written judgment should be stricken for conflicting with the oral pronouncement of sentence.

¶3 We affirm on Issues 1, 2, and 3, and affirm in part and reverse in part on Issue 4.

PROCEDURAL AND FACTUAL BACKGROUND

¶4 Lehrkamp was arrested in October 2014 for a probation violation. A subsequent jail search uncovered two hydrocodone pills in his pocket. The State charged Lehrkamp with felony criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. The State filed a notice of intent to seek persistent felony offender (PFO) status under § 46-18-502(2), MCA, based on Lehrkamp's previous convictions in 2008 for felony criminal endangerment and in 2014 for felony assault with a weapon. A Lewis and Clark County jury found Lehrkamp guilty in June 2015. Lehrkamp does not appeal the verdict.

¶5 At Lehrkamp's August 2015 sentencing hearing, the State introduced excerpts of recorded telephone conversations Lehrkamp had with his family while he was in jail. The conversations had occurred in the two days leading up to trial and on the day of trial. In the recordings, Lehrkamp discussed his thoughts about attacking his then-counsel, Mariah Eastman, and the prosecutor, Jeff Sealey, when they all were in the courtroom together. He stated:

That's what I figure, punch the fuck'n bitch right in the throat. Won't let me fire her in two different courts. Won't let me fuck'n get rid of her through her boss or nobody else. Just look at her, smile, and punch her right in the throat, watch her drop. There you go, guilty. Then go after the prosecutor. After a year in here Pa I really don't give a fuck what happens.

...

He's a fuck'n cheap piece of shit, he's a vindictive little cock sucker. Yah, I'm gonna fuck'n jump his ass in the goddam court room. Yah, I'm gonna fuck'n beat his ass until he doesn't fuck'n breath, right there ... I don't care if they hear me. They better have a fuck'n cop in between us the whole goddam time because I'm gonna break his fuck'n neck. I spent a fuck'n year in this dump. Best thing they can do is shoot my ass.

...

I said, "Well I hope he's listening to the conversations because he better be fuck'n on edge tomorrow and there better be a cop between me and him." And she's like, "Well why then?" And I said, "Because I'm gonna fuck'n break his neck." I said, "Win or lose I don't give a shit. I'm goddam gonna fuck'n smash the piss out of that little fuck'n weasel." And she's like, "Oh, I can't believe you said that." And I said, "Well you know when you're being fuck'n accused of shit I didn't do, I gonna fuck'n, I'm gonna drain his life out of him in the court room and look at the judge and you and say guilty, there, now I'm guilty."

¶6 The State recommended a sentence of twenty years in prison with ten years suspended. In explaining the State's recommendation, the prosecutor told the court:

I've actually been thinking about this for a while. Short of you letting me dispatch Mr. Lehrkamp in a permanent sort of way, which is my natural inclination after listening to that audio, and I know we can't do that, I think he does need to be on supervision after a minimum of 10 years in prison.

So I would ask that you impose a sentence of 20 years to the Montana State Prison and suspend 10 of those years. I would ask you to run that consecutive to the sentence in [Lehrkamp's 2014 assault case]. That's basically the minimum prison time with a 10-year period of supervision afterwards.

That will give myself and my family some solace that someone will be watching Mr. Lehrkamp for a very long time after he gets out of prison. So that's my recommendation.

Lehrkamp's counsel did not object to the introduction of the recorded conversations or to the prosecutor's remarks.

¶7 Lehrkamp presented no witnesses at the sentencing hearing. His mother and sister had been present at the hearing, ostensibly to testify in support of Lehrkamp. They left the hearing early, however, and did not testify.

¶8 Both parties agreed that Lehrkamp should be sentenced as a PFO due to his previous felony convictions. They disagreed, however, on which subsection of the PFO statute should apply. Lehrkamp argued that he should be sentenced under § 46-18-502(1), MCA, which applies to first-time PFOs and requires a minimum sentence of five years in prison. The State urged the court to sentence Lehrkamp under § 46-18-502(2), MCA, which applies to repeat PFOs and provides a minimum sentence of ten years in prison.

¶9 The court designated Lehrkamp as a PFO and sentenced him to ten years in prison with no time suspended, to run consecutively to his separate sentence for felony assault. The court stated that it read the PFO statute "more in line with what the state has presented," indicating that it was sentencing him under § 46-18-502(2), MCA. The court stated, however, that its sentence would be the same under either application of the PFO statute.

¶10 In its subsequent written judgment, the court listed twenty-three conditions that should apply "[a]t any time the defendant is placed in a community setting." The judgment also included a handwritten note, stating in part, "Defendant is not currently appropriate for community supervision. He is a repeat felony offender, and his actions and statements demand consequences." The court had not mentioned any parole restrictions or conditions on community placement in its oral pronouncement of sentence. Lehrkamp appeals.

STANDARDS OF REVIEW

¶11 We generally do not address issues of prosecutorial misconduct pertaining to a prosecutor's statements not objected to at trial. State v. Walton , 2014 MT 41, ¶ 10, 374 Mont. 38, 318 P.3d 1024. We may review such issues, however, under the plain error doctrine. Walton , ¶ 10. We invoke plain error review only in situations that implicate a defendant's fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.

Walton , ¶ 10 ; State v. McDonald , 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799. The decision to invoke plain error review is a discretionary one that is to be used sparingly, on a case-by-case basis. State v. Rosling , 2008 MT 62, ¶ 77, 342 Mont. 1, 180 P.3d 1102.

¶12 Ineffective assistance of counsel claims present mixed issues of law and fact that we review de novo. State v. Cheetham , 2016 MT 151, ¶ 14, 384 Mont. 1, 373 P.3d 45. We review for legality a criminal sentence that includes at least one year of actual incarceration. Rosling , ¶ 59. Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. Rosling , ¶ 59. This determination is a question of law; as such, our review is de novo. Rosling , ¶ 59.

DISCUSSION

¶13 1. Whether Lehrkamp is entitled to a new sentencing hearing because the prosecutor's remarks amount to plain error.

¶14 Lehrkamp argues that the prosecutor committed misconduct when he said during the sentencing hearing that he wished to "dispatch Mr. Lehrkamp in a permanent sort of way" and that a twenty-year sentence with ten years suspended would "give [him] and [his] family some solace that someone will be watching Mr. Lehrkamp for a very long time after he gets out of prison." Lehrkamp contends that the statements were improper and prejudiced the defense. Even though his attorney did not object to the prosecutor's statements during the hearing, Lehrkamp urges this Court to review them under the plain error doctrine as a violation of his due process rights.

¶15 Prosecutorial misconduct constitutes reversible error only when it prejudices a defendant's "substantial rights." State v. Otto , 2014 MT 20, ¶ 15, 373 Mont. 385, 317 P.3d 810 ; State v. Whitlow , 285 Mont. 430, 445, 949 P.2d 239, 249 (1997). We measure prosecutorial misconduct "by reference to established norms of professional conduct." State v. Ugalde , 2013 MT 308, ¶ 43, 372 Mont. 234, 311 P.3d 772 (citation and internal quotations omitted). We do not infer prejudice from a prosecutor's improper comments; "rather, the defendant must demonstrate, from the record, that the prosecutor's misstatements prejudiced...