State v. Bullplume, 2013 MT 169 (June 25, 2013) (5-0) (McKinnon, J.)
Issue: (1) Whether Bullplume waived appellate review of the requirement that he pay for his court-ordered evaluations and treatment, and (2) whether the district court abused its discretion in imposing certain conditions on Bullplume’s sentence, related specifically to sexual offenders.
Short Answer: (1) Yes, and (2) no.
AffirmedFacts: Christopher Bullplume was convicted of rape in Washington in 1993. He served his sentence, but is required to register as a sex offender. In August 2011, when arrested for DUI and other misdemeanors, police learned a warrant was issued for his arrest in Washington because he absconded from his last known address. Bullplumealso had not registered as a sex offender in Great Falls, where he had been living for about two weeks.
The state charged Bullplume with failing to register, a felony, and entered into a binding plea agreement with him. The state agreed to recommend a four-year prison sentence with all time suspended. Bullplume pled guilty, and a presentence investigation report was ordered, which included a psychosexual evaluation.
The PSI revealed five prior felonies, two of which were for failing to register in Washington, and one of which led to a four-year prison sentence in Washington. The psychosexual evaluation concluded Bullplume was a moderate risk to repeat a sexual offense and designated him a Level 2 offender.
Procedural Posture & Holding: At the sentencing hearing, the state requested the court impose all 41 probation conditions recommended in the PSI. Bullplume objected to conditions 26-40, which the PSI called “standard sexual offender conditions,” arguing that a rape conviction 20 years ago provided an insufficient nexus to the conditions, and that failing to register is not a sexual offense. The district court asked for briefs, and then imposed conditions 26-40 under Malloy, 2004 MT 377. Bullplume appeals, and the Supreme Court affirms.
Reasoning: (1) Although the Court will usually not review a claim where the issue was not raised below, it will allow an exception under Lenihan when a criminal defendant alleges that a sentence exceeds statutory authority and is therefore illegal. The Court will not apply the Lenihan exception when the defendant affirmatively agreed at sentencing to the condition he is appealing, or where the district court could have imposed the same sentence even if given the opportunity to consider the error now asserted on appeal. Thus, the Court determines whether the district court could have required Bullplume to pay for his own evaluations and treatment had Bullplume objected.
If a probationary condition is reasonably related to the objective of rehabilitation, and not otherwise prohibited, the sentencing court acted within statutory parameters and there is no further review under Lenihan. Here, the district court had broad discretion to tailor Bullplume’s sentence, and no further review is warranted.
(2) Bullplume argues that his rape conviction occurred when he was 15, and involved a 25-year-old woman, and that he has not committed a violent crime or a sex crime for nearly 20 years, nor any crime involving children. He argues that these facts provide an insufficient nexus to probationary conditions 26-40. In Melton, the Court held that the original offense sometimes has relevance to sentencing conditions, but in other cases it does not. Here, “Bullplume presents a compelling case for needing treatment.” ¶ 25. The district court did not abuse its discretion.