State v. Wolfblack

417 Mont. 376

STATE OF MONTANA, Plaintiff and Appellee,

v.JOSHUA DUANE WOLFBLACK, Defendant and Appellant.

No. DA 22-0660.

Submitted on Briefs June 19, 2024.

Decided August 6, 2024.

2024 MT 166.

417 Mont. 376.

__P.3d__.

Appeal from the District Court of Flathead County.

Eleventh Judicial District Court, Cause No. DC-03-313(B).

Honorable Robert B. Allison, Judge.

The court did not have statutory authority to impose a consecutive sentence upon revocation of defendant’s community supervision because the court imposed a longer commitment term than the original sentence, in violation of Mont. Code Ann. § 46-18-203(7)(a)(iii).

Reversed and vacated.

JUSTICE RICE dissented, joined by JUSTICE BAKER.

For Appellant: Pete Wood, Attorney at Law, Boise, Idaho.

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena; Travis Ahner, Flathead County Attorney, Ashley Frechette, Deputy County Attorney, Kalispell.

JUSTICE McKINNON delivered the Opinion of the Court.

¶1 Joshua Duane Wolfblack appeals a September 29, 2022 Order of Revocation and Disposition entered in the Eleventh Judicial District Court, Flathead County. Wolfblack argues the court did not have statutory authority to impose a consecutive sentence upon revocation. We agree. We reverse and vacate the District Court’s judgment.

¶2 We restate the issue as:

Whether Wolfblack’s sentence imposed upon revocation is within statutory parameters as set forth by § 46-18-203, MCA?

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In 2003, the State charged Wolfblack with two felonies—burglary and theft—in Flathead County. Wolfblack entered a guilty plea to felony theft, and the State dismissed the burglary offense pursuant to a plea agreement. He was sentenced on December 4, 2003, to the Department of Corrections (DOC) for a ten-year term, with five years suspended (2003 Theft Sentence). Wolfblack did not appeal. Wolfblack discharged the custodial portion of his sentence on July 18, 2008, and he was released to community supervision.

¶4 On May 14, 2010, the State charged Wolfblack with felony sexual intercourse without consent in Lewis and Clark County. Wolfblack pled guilty and was sentenced on October 13, 2010, to a ten-year DOC sentence, with five years suspended. (2010 SIWOC Sentence).

¶5 On June 29, 2010, the Flathead County Attorney’s Office filed a revocation petition for Wolfblack’s 2003 Theft Sentence. Wolfblack admitted to the allegations on November 10, 2010, and the District Court imposed a five-year, suspended sentence to the DOC (2010 Theft Revocation Sentence). The District Court ordered the 2010 Theft Revocation Sentence to run consecutively to the 2010 SIWOC Sentence.

¶6 On June 26, 2021, Wolfblack’s SIWOC Sentence expired and, according to the State, Wolfblack began serving his 2010 Theft Revocation Sentence. On March 3, 2022, the Flathead County Attorney’s Office filed a petition to revoke Wolfblack’s 2010 Theft Revocation Sentence. Wolfblack denied the probationary violations and subsequently filed a motion to dismiss, contending the petition was untimely. The District Court orally denied Wolfblack’s motion to dismiss, reasoning that pursuant to § 46-18-401(4), MCA, there was a statutory presumption that Wolfblack’s 2010 Theft Revocation Sentence ran consecutively to his 2010 SIWOC Sentence. The court revoked Wolfblack’s 2010 Theft Revocation Sentence and imposed a five-year term to the DOC. Wolfblack appeals.

STANDARD OF REVIEW

¶7 [1] This Court reviews a criminal sentence for legality to determine whether the sentence is within statutory parameters. State v. Seals, 2007 MT 71, ¶ 7, 336 Mont. 416, 156 P.3d 15. A determination of legality is a question of law, which is reviewed de novo. Seals, ¶ 7.

DISCUSSION

¶8 Wolfblack argues on appeal that under § 46-18-203(7)(a)(iii), MCA, the statute specifying sentences that can be imposed upon revocation, the District Court had no authority to impose a sentence that was greater than the sentence he originally received. Wolfblack argues that imposing a consecutive sentence upon revocation increased the term of his sentence. The State argues that under § 46-18-401, MCA, Wolfblack’s 2003 Theft Sentence and 2010 SIWOC Sentence are presumed to run consecutively and, therefore, the judgment imposed in the 2010 Theft Revocation Sentence "did not impact the manner in which the sentences were running."

¶9 [2] While it is undisputed that a judge, under certain circumstances, has the discretion to order sentences to run either concurrently or consecutively pursuant to § 46-18-401, MCA, we have clearly held that § 46-18-401, MCA, is not applicable when a sentence is revoked because the revocation of a suspended or deferred sentence is expressly governed by § 46-18-203, MCA.

¶10 [3, 4] In Seals, Seals received five sentences on five counts related to drug possession. When the suspended portion of Seal’s sentence was revoked, the court, expressing that it wanted to make sure Seals spent a total of fifteen years incarcerated, ran one of the revoked sentences for a count consecutive to another sentence for a different count, despite the sentences for all counts having originally been imposed concurrently. Seals argued that the court had no authority under § 46-18-203, MCA, to impose a sentence that was greater than the original sentence. The State argued that the court had discretion whether to run the sentences consecutively or concurrently pursuant to § 46-18-401, MCA. We held that "sentencing upon the revocation of a suspended or deferred sentence is particularly and expressly governed by § 46-18-203, MCA, and not § 46-18-401, MCA, which is a general provision governing sentencing." Seals, ¶ 15. Relying upon § 1-2-102, MCA, we explained that as it was a statute designated for sentences that could be imposed upon revocation, § 46-18-203, MCA, was a particular sentencing statute that was "paramount" to the general statutory provision of § 46-18-401, MCA. Seals, ¶ 15. While § 46-18-401, MCA, "governs the designation of a sentence as consecutive or concurrent," State v. Adams, 2013 MT 189, ¶ 19, 371 Mont. 28, 305 P.3d 808, this "general authority to designate a sentence to run concurrently" or consecutively "is not within ‘the particulars’ of the revocation statutes and is not an issue that can be addressed during [a] revocation proceeding." Adams, ¶ 19; Seals, ¶ 15. We explained:

Given our statutory scheme, it is apparent that a sentencing court’s authority to re-sentence a criminal defendant based upon an illegal sentence depends upon when the illegal sentence is discovered and challenged. If the illegal sentence is challenged while the defendant is serving the sentence, the court has the authority to correct the sentence by imposing a sentence that wasstatutorily authorized … at the time the defendant committed his or her offense and giving credit for time served. If, however, the illegal sentence is challenged during a revocation proceeding held while the defendant is serving the suspended portion of the illegal sentence, the court, upon sentencing in the revocation proceeding, is constrained by the particulars of § 46-18-203(7), MCA.

Seals, ¶ 15 (emphasis in original) (internal citation omitted) (footnote omitted).

¶11 We have continued to follow our clear precedent established in Seals and Adams in several orders. In Boggs v. McTighe, No. OP 19-0313, 2019 Mont. LEXIS 278, *2-*3 (Jul. 23, 2019), we held that although Boggs’s 2006 sentence was in existence during the pendency of a filed petition to revoke, this Court explained that "we concluded incorrectly that Boggs’s sentences had to run consecutively[,] [because] we have previously determined that § 46-18-401, MCA, applies to original sentences and not to sentences upon revocations." In State v. White, No. DA 15-0475, 2016 Mont. LEXIS 542, Order, at 1 (Aug. 2, 2016), we held the district court "did not have statutory authority to order White’s five-year suspended [DOC] sentence to run consecutively to this 3-year DOC sentence …." And in Osborn v. Kirkegard, No. OP 16-0365, 2016 Mont. LEXIS 1116, Order (Sept. 20, 2016), Osborn contended the court made his sentence upon revocation consecutive when the original sentence ran concurrently. The State, citing § 46-18-203(7)(a)(iii), MCA, and Seals and Adams, "agree[d] that the District Court was without authority to run the Revoked 2007 sentence consecutively." Osborn, at *4.

¶12 [5] Accordingly, our precedent and the clear language of the statute establishes that § 46-18-203, MCA, governs the sentence that may be imposed upon revocation. The provision applicable here is § 46-18-203(7)(a)(iii), MCA, which provides:

If the judge finds that the offender has violated the terms and conditions of the suspended or deferred sentence … the judge may … revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence …"

(Emphasis added.) Section 46-18-203(7)(a)(iii), MCA, statutorily limits the sentence that may be imposed upon revocation to the parameters of the initial sentence.¹ During revocation proceedings, "the court’s authority encompasses the power to reimpose the original sentence … totaling no greater than the length of the original sentence." State v. Frazier, 2001 MT 210, ¶ 15, 306 Mont. 358, 34 P.3d 96 (citations omitted).

¶13 [6] Here, Wolfblack’s initial sentence in 2003 was for ten years, with five years suspended. When the District Court reimposed a consecutive suspended sentence on November 10, 2010—which would not begin until June of 2021 when the ten-year custodial sentence for SIWOC had expired—the court imposed a "longer… commitment term than the original sentence," in violation of § 46-18-203(7)(a)(iii), MCA. As the District Court explained in its 2010 Revocation Order, the "net effect" of running Wolfblack’s 2010 Theft...