State v. Robertson, 2015 MT 266 (Sept. 8, 2015) (McGrath, C.J.) (5-0, aff’d)
Issue: Whether the probationary condition prohibiting Robertson from having contact with his son and daughter violates his statutory and constitutional rights.
Short Answer: No.
Facts: Dustin Robertson was charged with kidnapping the mother of his young children, Chalsea Cady, by restraining her at their apartment in July 2011; misdemeanor endangering the welfare of children; and two counts of felony partner/family member assault. He pled guilty to one offense of criminal endangerment of Cady for physically assaulting her, and the state dropped the remaining charges.
The presentence investigation reported a history of physical and mental abuse of Cady by Robertson, and proposed a probationary condition prohibiting Robertson from having any contact with Cady unless she initiated it through the DOC. Cady testified that the children were traumatized by seeing their father hit and choke and threaten their mother, and a probation and parole officer testified that the children met the definition of victim under § 46-24-106(5)(a), MCA.
Procedural Posture & Holding: Robertson was sentenced to the DOC for five years with two suspended. The district court imposed several conditions of probation, including one that prohibited Robertson from having contact with Cady, his two children, and Cady’s mother unless they initiated contact through the DOC and it was approved by a probation and parole officer. Robertson appeals this condition as it applies to his children, and the Supreme Court affirms.
Reasoning: Although Robertson objected to the condition at his sentencing hearing, he made no reference to any constitutional issues. He argues on his appeal that the probationary condition deprives him of his constitutional right to parent his children and that he was denied procedural safeguards of his parental right. He further contends there is an exceedingly tenuous nexus between his offense and the probationary condition. The Court declines to exercise plain error review of his constitutional argument, as Robertson has not established a manifest miscarriage of justice.
The nexus was established by Cady’s testimony at the sentencing hearing. Moreover, Robertson admitted grabbing his son while assaulting Cady, and the probation and parole officer testified an order of protection was already in place between Robertson and his children. Robertson can seek modification of the condition upon the recommendation of his probation officer if he has grounds on which to do so.