State v. James Piller , 2014 MT 342 ( 2015 )

February 10 2015
DA 12-0742
Case Number: DA 12-0742
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 342A
STATE OF MONTANA,
v.
Plaintiff and Appellee,
FILED
JAMES PILLER,
FEB 10 2015
Defendant and Appellant. EISMith
CLERK OF THE SUPREME COURT
STATE OF MONTANA
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 88-145
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Kristen L. Larson (argued),
Assistant Appellate Defender; Helena, Montana
For Appellee:
Timothy C.Fox, Montana Attorney General,Tammy A. Hinderman(argued),
Assistant Attorney General; Helena, Montana
Scott Twito,Yellowstone County Attorney; Ingrid Rosenquist,Deputy County
Attorney; Billings, Montana
Argued: June 25, 2014
Submitted: July 2, 2014
Decided: December 30, 2014
Amended: February 10, 2015
Filed:
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 James Piller appeals from the order of the Thirteenth Judicial District Court,
Yellowstone County, which upon revoking Piller's suspended sentence for his 1988
conviction for sexual intercourse without consent, resentenced Piller to ten years at Montana
State Prison (MSP) with five years suspended, and imposed 14 new conditions on his
suspended sentence. We affirm.
¶2 The sole issue on appeal is whether the District Court's imposition of 14 new
conditions on Piller's suspended sentence violates ex post facto principles.'
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In 1988,James Piller was charged by information for sodomizing a three-year-old girl
whom he was babysitting. Piller pled guilty to sexual intercourse without consent, a felony.
The District Court sentenced Piller to 30 years at MSP with ten years suspended.
¶4 Piller escaped from MSP on June 11, 1992, and was apprehended the same day. He
was charged with escape, intimidation, and possession ofa weapon by a prisoner. The Third
Judicial District Court, Powell County, sentenced Piller to ten years for each count, to run
concurrent with each other.
¶5 Piller did not complete sex offender treatment while incarcerated at MSP. In April
and June of2007, probation officer John Boyd made several requests to the county attorney
to amend Piller's conditions of probation because he considered Piller an "untreated sex
Piller also raised the issue that his written revocation order did not give him credit for 486 days
served. The State conceded this issue in their brief; therefore, we do not address this argument in
this opinion.
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offender." On April 21, 2007, Piller was discharged to serve the suspended portion of his
sentence. The conditions for his suspended sentence were based on the original 1988
sentencing as follows:
1. The defendant shall not frequent any place where intoxicating liquor or
beer is the chief item of sale nor shall he use intoxicants or beer; nor
shall he purchase, use, possess, give, sell or administer any narcotic or
dangerous drugs or have in his possession same without proper
prescription by a doctor.
2. The defendant shall not enter into any game of chance nor shall
defendant frequent any place where gambling may be taking place.
3. The defendant shall conduct himselfin a law abiding manner and shall
not violate any law of the United States or of the State of Montana or
any other State, or the ordinance of any city or town of this State or
other State during the said term.
4. The defendant shall maintain as steady employment as possible [during]
said term, and he shall to the best of his ability fully and completely
contribute to the support of his family.
5. The defendant is placed under the supervision and control ofthe Adult
Probation and Parole Field Services and is to abide by their rules and
regulations.
6. The defendant shall enroll in and successfully complete the sex
offenders program at the Montana State Prison prior to parole.
¶6 The first report of violation ofprobation conditions was filed against Piller on January
18, 2011, for failing to give his probation officer a current address, calling his probation
officer a "bitch," using threatening language in a meeting, and for living with another
convicted felon. Piller's probation officer recommended that Piller's sentence be revoked,
that he be resentenced to the Department of Corrections for six years with three years
suspended,and that Piller have 14 additional conditions added to his suspended sentence. At
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a hearing on June 29, 2011, the District Court orally found that Piller had substantially
violated the conditions of his probation.
¶7 Piller later filed a disposition memorandum objecting to the probation officer's
recommendation that new conditions be placed on his suspended sentence. On November
10, 2011,the District Court filed an order imposing a new sentence often years with all time
suspended, and imposing the 14 new conditions to Piller's suspended sentence, as
recommended by the probation officer.
¶8 Piller appealed the November 10, 2011 order to this Court. However, the parties
stipulated that Piller's matter was not ripe for appeal because Piller's sentence had not been
orally pronounced from the bench in Piller's presence. In an order dated May 31, 2012, we
remanded Piller's case back to the District Court for oral pronouncement ofthe sentence and
a written judgment including credit for time served, as well as a specific provision
considering and granting or denying credit for Piller's street time.
¶9 On March 22, 2012, Piller was again cited for probation violations, including a
privacy in communications charge. The State petitioned to revoke Piller's suspended
sentence, and the District Court held a revocation hearing on August 13, 2012. On
September 6, 2012, the District Court held a disposition hearing. On October 18, 2012,the
District Court entered an order of revocation and sentenced Piller to ten years at MSP with
five years suspended, and reimposed the following 14 new conditions on his suspended
sentence:
1. The Defendant will enter and successfully complete sex offender
treatment with a MSOTA clinical member or associate member with
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supervision, or equivalent, who is approved by the State and the
Probation Officer and at his own expense. The Defendant shall abide by
all treatment rules and recommendations of his treatment provider.
2. The Defendant shall not frequent places where children congregate.
This includes but is not limited to: schools, parks, playgrounds, malls,
movies, fairs, parades, swimming pools, carnivals, arcades, parties,
family functions, holiday festivities, or any other place or function
where children are present or reasonably expected to be present unless
accompanied by an approved and appropriately trained, responsible
adult who is aware ofthe Defendant's sexual conviction and approved
by his Probation Officer and sex offender treatment provider. The
Defendant shall obtain permission from his Probation Officer prior to
going to any of the above places.
3. The Defendant will not access or have in his possession or under his
control any material that describes or depicts human nudity, the
exploitation of children, consensual sex acts, non-consensual sex acts,
sexual acts involving force or violence, including but not limited to;
computer programs, computer links, photographs, drawings, video
tapes, audio tapes, magazines, books literature, writings, etc. without
prior written approval of his Probation Officer and therapist. The
Defendant will not frequent adult book[]stores, topless bars, massage
parlors or use the services of prostitutes.
4. The Defendant will not view television shows or motion pictures,
which are geared towards his sex offending cycle, or as a stimulus to
arouse deviant thoughts or fantasies.(i.e., shows based on sexualization
of underage girls or boys, etc.)
5. The Defendant shall not have access to the Internet without prior
permission from his Probation Officer and sex offender therapist. Ifthe
Internet access is allowed,the Defendant must allow the Department of
Corrections to install rating control software and conduct random
searches of the hard drive for pornography or other inappropriate
material nor shall he have on any computer he may own, any software
that is intended for data elimination, encryption or hiding data.
6. The Defendant shall not involve himself in any type of employment,
service or recreational pursuit that involves the supervision ofchildren.
Under no circumstances should the Defendant be in a position ofpower
and authority over children.
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7. Pursuant to MCA 46-18-255 (1), the Defendant shall be subject to
reasonable employment or occupational . . . prohibitions and
restrictions designed to protect the class or classes of persons
containing the likely victims of further offenses.
8. The Defendant's residence, changes and any co-habitants must have
prior approval of his Probation Officer. The Defendant will not reside
in a residence where there are any children under the age of 18 without
the written approval of his therapist and Probation Officer.
9. The Defendant shall not access "900" number telephone sex lines and
shall have a "900" number block on his telephone.
10.The Defendant will not have a cell phone, or such other
technology/device, with photo, video, or Internet capabilities allowed.
If a cell phone is used, all bills and records will be made available to
the Probation Officer.
11. The Defendant shall remain in Aftercare or Relapse Prevention Class
for the entirety of his supervision unless released at the discretion ofthe
Probation Officer and therapist.
12.The Defendant shall reenter treatment at any time ifdeemed appropriate
by the Probation Officer and therapist.
13. The Defendant shall submit to annual polygraph testing.
14. The Defendant will not date, live with, or otherwise align himself with
any person with children under the age of 18 without the express prior
approval of his therapist and Probation Officer. If this approval is
granted,they shall both be involved with his treatment to the extent that
his treatment provider recommends.
¶10 Piller appeals the imposition of the 14 new conditions placed on his suspended
sentence.
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STANDARD OF REVIEW
¶11 We review a criminal sentence only for legality—that is, whether the sentence falls
within the statutory parameters. State v. Tirey, 2010 MT 283,¶ 19, 358 Mont. 510,247 P.3d
701.
DISCUSSION
¶12 Whether the imposition of14 new conditions on Piller's suspended sentencefor a
1988 crime violates ex postfacto principles.
¶13 Piller argues that the 14 new conditions imposed on his suspended sentence upon the
revocation of his original sentence violate ex post facto principles because they were not
authorized by the revocation statute in effect at the time of his offense in 1988,§ 46-18-203,
MCA(1987). The statute at that time allowed ajudge or magistrate to revoke the suspension
and order the person to serve the remainder of his prison term or continue the suspended
sentence under the original terms. State v. Leistiko, 256 Mont. 32, 35-36, 844 P.2d 97, 99
(1992).
1114 The revocation statute was later amended to allow district courts greater discretion at a
revocation hearing. Under the amended statute, a district court could "continue the
suspended sentence with modified or additional terms and conditions," or order "the
defendant to serve either the sentence imposed or any lesser sentence." Section
46-18-203(7)(b)-(c), MCA (1991). In 2001, the statute was made expressly retroactive,
allowing district courts to impose additional or different conditions on the suspended
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sentences at revocation of all offenders under the jurisdiction of the Department of
Corrections. 2001 Mont. Laws, ch. 493, § 10.
¶15 Piller bases his ex post facto argument on the simple premise that the law in effect at
the time of the crime controls as to the possible sentence, as well as the revocation of that
sentence. State v. Goff, 2011 MT 6,¶ 18,359 Mont. 107,247 P.3d 715(citing State v. Tracy,
2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297). Piller further argues that "[d]istrict
courts cannot apply a sentencing statute enacted after the commission ofan offense because
to do so violates the prohibition on ex post facto laws." State v. Southwick, 2007 MT 257,
¶ 25,339 Mont.281, 169 P.3d 698(citing State v. Gone, 179 Mont.271,280,587 P.2d 1291,
1297 (1978)). As it would pertain to the facts of this case, Piller's argument is misplaced.
¶16 Both the United States Constitution and the Montana Constitution prohibit the
imposition ofex post facto laws. Article I, Section 9 ofthe United States Constitution states:
"No Bill of Attainder or ex post facto Law shall be passed." Article II, Section 31 of the
Montana Constitution states: "No ex post facto law . . . shall be passed by the legislature."
¶17 Montana adopted federal ex post factojurisprudence and applied it to the ex post facto
clause of the Montana Constitution2 in State ex rel. Nelson v. Ellsworth, 142 Mont. 14,
380 P.2d 886 (1963). The defendant in Ellsworth argued that a law passed after the
commission of his offense which delayed his parole eligibility was ex post facto as applied to
2The 1889 Montana Constitution, as interpreted in Ellsworth in 1963, contained substantially the
same prohibition on ex post facto laws as our current Montana Constitution: "No expost facto
law ... shall be passed by the legislative assembly." Mont. Const.(1889)art. III, § 11.
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him. We adopted the definition of ex post facto laws as set forth in the 1798 United States
Supreme Court case, Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648 (1798):
Laws under the following circumstances are to be considered ex post facto
laws within the words and intent ofthe prohibition: 1st. Every law that makes
an action done before the passing of the law, and which was innocent when
done, criminal; and punishes such action. 2d. Every law that aggravates a
crime, or makes it greater than it was when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime when committed.
Ellsworth, 142 Mont. at 19, 380 P.2d at 888(quoting Calder v. Bull, 3 U.S. at 390, 1 L. Ed.
at 650)(emphasis added). We held that the new law delaying parole eligibility increased the
defendant's punishment and was therefore ex post facto as applied to him. Ellsworth, 142
Mont. at 20, 380 P.2d at 889.
¶18 Piller argues that his October 15,2012 sentence must be governed by the 1987 version
of§ 46-18-203, MCA,because that was the revocation statute that was in effect at the time of
his original offense in 1988. Essentially, Piller contends our analysis should go no further
than applying the law in effect at the time ofthe crime to control the possible sentence, citing
Goff ¶ 18. The State argues that because the 2001 amendments to § 46-18-203, MCA,were
expressly made to apply retroactively3 to all "offenders who are under the custody or
supervision ofthe department ofcorrections," 2001 Mont. Laws,ch. 493,§ 10,Piller should
be subject to the 14 new conditions added to his suspended sentence at revocation under
traditional ex post facto jurisprudence. The State points out that Piller's sentence as a whole
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"No law contained in any of the statutes of Montana is retroactive unless expressly so declared."
Section 1-2-109, MCA.
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was not made more punitive because he was always subject to his original 30 year prison
term, and his current sentence allows him to serve the remaining five years on probation
rather than incarcerated.
¶19 In State v. Griffin, 2007 MT 289, 339 Mont. 465, 172 P.3d 1223, we upheld a
modification to the defendant's suspended sentence under a subsequent version of
§ 46-23-1011(4), MCA, because the modification, which required participation in the
Intensive Supervision Program, was "not punitive in nature." Griffin,¶ 19. Griffin is similar
to the instant case in that a sex offender was challenging the imposition of different
conditions on his suspended sentence. Griffin, ¶ 12.
¶20 Similarly, in State v. Tirey, 2010 MT 283, 358 Mont. 510, 247 P.3d 701, we upheld
changes to probation conditions at a revocation, holding: "[T]he mere fact that the original
sentence imposed had only conditions A, B, and C while the sentence at revocation has
conditions A, B, C, D, and E does not necessarily mean that the sentence at revocation is
greater." Tirey, ¶ 27. While reiterating that "[t]he law in effect at the time an offense is
committed controls as to the possible sentence for the offense, as well as the revocation of
that sentence," Tirey, ¶ 26, we nevertheless held that under the 1995 version of our
revocation statute, § 46-18-203(7)(c), MCA (1995), the district court could impose new
conditions, provided it did not increase the defendant's punishment. We noted:
A proper analysis requires that we look at the substance of the conditions to
determine whether they are punitive in nature. . . . Secondly, the new
conditions must be reviewed in the context of the entire sentence. That is,
whether the defendant's overall sentence is the same or whether the defendant
is being sentenced to more or less punishment than the sentence originally
imposed.
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Tirey, ¶ 28.
¶21 In State v. Claassen, 2012 MT 313, 367 Mont. 478, 291 P.3d 1176, we applied the
retroactive provision ofour revocation statute, § 46-18-203(9), MCA (2011), in upholding a
change in a sex offender's tier-level designation made at a revocation proceeding. We
addressed application of the 2011 version of the law as follows:
The State argues that because Claassen committed the underlying offense
between December 2002 and September 2003, the 2001 version of the MCA
governs his original sentence and his revocation. However, § 46-18-203,
MCA (2011), contains an express retroactivity provision. Therefore, all
references to § 46-18-203, MCA, are to the 2011 version. Because we
generally apply the law in effect at the time a crime was committed, State v.
Stoner, 2012 MT 162, ¶ 12, 365 Mont. 465, 285 P.3d 402, all other statutory
references in this Opinion are to the 2001 MCA.
Claassen, ¶ 24, n.2.
¶22 We reinforce that a sentence must fall within the parameters provided by the
applicable statute at the time of the offense. State v. Montoya, 1999 MT 180, ¶ 15,
295 Mont. 288,983 P.2d 937. However,a law with a retroactive applicability date does not
per se violate ex post facto principles as Piller suggests. "[S]imply because a statute operates
on events antecedent to its effective date does not make the statute ex postfacto." State v.
Mount, 2003 MT 275,1167, 317 Mont. 481, 78 P.3d 829 (citations omitted). Rather, as we
first articulated in Ellsworth,"Every law that changes the punishment, and inflicts a greater
punishment,than the law annexed to the crime when committed," is ex post facto. Ellsworth,
142 Mont. at 19, 380 P.2d at 888 (emphasis in original). Relevant to the issue presently
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before us, "A proper analysis requires that we look at the substance of the conditions to
determine whether they are punitive in nature." Tirey, ¶ 28.
¶23 In analyzing whether the 14 new conditions imposed on Piller's sentence are ex post
facto, we must determine whether or not the conditions themselves inflict a greater
punishment. The 14 additional conditions placed on Piller's suspended sentence are standard
conditions for sex offenders placed on probation. We have previously held that standard
conditions placed on a sex offender's suspended sentence "are not punitive in nature." Tirey,
¶ 29. Furthermore, Piller conceded at oral argument that the new conditions are
non-punitive. Looking at the sentence as a whole, Piller's ten year sentence with five years
suspended received at revocation—including the 14 new probation conditions—is no greater
than the 30 years ofincarceration to which he was sentenced in 1988(of which Piller served
approximately 20 years). Tirey, ¶ 28; § 46-18-203(7), MCA (if a defendant has violated
terms of probation, at revocation a district court may impose any sentence that could have
been originally imposed that does not include a longer imprisonment or commitment term
than the original sentence).
CONCLUSION
¶24 The 14 additional conditions imposed on Piller's sentence at revocation were
authorized pursuant to the 2011 version of our revocation statute, § 46-18-203, MCA.
Because the conditions are not punitive in nature,they are not ex post facto. Accordingly, we
affirm the District Court's imposition of the 14 additional conditions placed on Piller's
suspended sentence at revocation.
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¶25 This matter is remanded to the District Court for modification of the written
revocation order to reflect that Piller is granted credit for time served in the amount of486
days.
We Concur:
Chief Justice
Justices
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