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State v. Lehrkamp

Supreme Court of Montana

August 22, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
SCOTT ALAN LEHRKAMP, Defendant and Appellant.

          Submitted on Briefs: June 28, 2017

         APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. CDC 14-393 Honorable Kathy Seeley, Presiding Judge

         COUNSEL OF RECORD:

          For Appellant:

          Chad Wright, Chief Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

          For Appellee:

          Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Leo J. Gallagher, Lewis & Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana

          Justice Beth Baker delivered the Opinion of the Court.

         ¶1 A Lewis and Clark County jury convicted Scott Alan Lehrkamp of felony possession of dangerous drugs. At sentencing, the State introduced recordings of telephone conversations in which Lehrkamp threatened physical violence against his public defender and the prosecutor. The prosecutor recommended a sentence of twenty years in prison with ten years suspended, stating that such a sentence would give him and his family "solace." The District Court sentenced Lehrkamp to ten years in prison and included a number of conditions in the written judgment. Lehrkamp appeals.

         ¶2 We restate the issues as follows:

         1. Whether Lehrkamp is entitled to a new sentencing hearing because the prosecutor's remarks amount to plain error;

         2. Whether Lehrkamp received ineffective assistance of counsel at the sentencing hearing;

         3. Whether the District Court imposed an unlawful sentence by misapplying the persistent felony offender statute;

         4. Whether certain terms of the District Court's written judgment should be stricken for conflicting with the oral pronouncement of sentence.

         ¶3 We affirm on Issues 1, 2, and 3, and affirm in part and reverse in part on Issue 4.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶4 Lehrkamp was arrested in October 2014 for a probation violation. A subsequent jail search uncovered two hydrocodone pills in his pocket. The State charged Lehrkamp with felony criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. The State filed a notice of intent to seek persistent felony offender (PFO) status under § 46-18-502(2), MCA, based on Lehrkamp's previous convictions in 2008 for felony criminal endangerment and in 2014 for felony assault with a weapon. A Lewis and Clark County jury found Lehrkamp guilty in June 2015. Lehrkamp does not appeal the verdict.

         ¶5 At Lehrkamp's August 2015 sentencing hearing, the State introduced excerpts of recorded telephone conversations Lehrkamp had with his family while he was in jail. The conversations had occurred in the two days leading up to trial and on the day of trial. In the recordings, Lehrkamp discussed his thoughts about attacking his then-counsel, Mariah Eastman, and the prosecutor, Jeff Sealey, when they all were in the courtroom together. He stated:

That's what I figure, punch the fuck'n bitch right in the throat. Won't let me fire her in two different courts. Won't let me fuck'n get rid of her through her boss or nobody else. Just look at her, smile, and punch her right in the throat, watch her drop. There you go, guilty. Then go after the ...

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