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State v. Ellison

Supreme Court of Montana

April 18, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JENNIFER ANN ELLISON, Defendant and Appellant.

          Submitted on Briefs: March 8, 2017

         APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Stillwater, Cause No. DC 15-11 Honorable Blair Jones, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana

          James Jeremiah Shea Justice

         ¶1 Defendant Jennifer Ann Ellison appeals the December 14, 2015 sentence and judgment by the Twenty-Second Judicial District Court, Stillwater County. We address:

Issue One: Whether the State breached the term of the plea agreement that it recommend a deferred sentence on the criminal endangerment charge.
Issue Two: Whether the District Court erred in imposing the court information technology user surcharge per count and not per user.

         ¶2 We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 On January 19, 2015, Ellison drove while intoxicated and crashed her vehicle into an embankment after running another vehicle with four passengers off the road. She drove while her license was suspended or revoked and did not have proof of insurance. On March 10, 2015, the State charged Ellison with felony criminal endangerment pursuant to § 45-5-207(1), MCA, misdemeanor DUI (second offense) pursuant to § 61-8-401, MCA, misdemeanor failure to carry insurance pursuant to § 61-6-302(2), MCA, and misdemeanor driving with a suspended or revoked license, which was later amended to misdemeanor driving without a valid license pursuant to § 61-5-212(1)(a), MCA. Ellison was released on her own recognizance. While on release, Ellison cared for her ailing father, traveling from Stillwater County to Billings.

         ¶4 On April 30, 2015, the District Court amended Ellison's conditions of release, prohibiting her from operating a motor vehicle while her case was pending. On June 10, 2015, the State moved to revoke Ellison's release, alleging she tested positive for drug use and failed to comply with drug testing. The District Court issued a warrant for Ellison's arrest and set a hearing on the matter for June 18, 2015. At the hearing, the District Court found that Ellison violated the conditions of her release, set bond at $5, 000, and conditioned release on her compliance with drug testing. Ellison posted bail and was again released.

         ¶5 On July 14, 2015, the State again moved to revoke Ellison's release because she again tested positive for drug use and failed to comply with drug testing. The District Court issued a warrant for Ellison's arrest, set bail at $25, 000, and scheduled a hearing. On September 17, 2015, after Ellison failed to appear for the hearing, the District Court quashed the pending arrest warrant and issued a new arrest warrant with bond set at $100, 000. Law enforcement arrested Ellison the same day. Ellison's father died a short time after her arrest.

         ¶6 On October 1, 2015, the State and Ellison negotiated a plea agreement. Ellison agreed to plead guilty to criminal endangerment, DUI, failure to carry proof of insurance, and driving without a valid driver's license. In exchange, the State agreed to recommend that Ellison receive a three-year deferred sentence for the criminal endangerment charge.[1]At the change-of-plea hearing held the same day, the District Court informed Ellison that it was not bound by the terms or conditions in the plea agreement, it was free to impose any lawful sentence that could be imposed for the offenses to which she was pleading guilty, and if it imposed a sentence greater than that recommended in the plea agreement, Ellison would not be allowed to withdraw her ...


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