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State v. Looman

Supreme Court of Montana

August 28, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
RONALD G. LOOMAN, Defendant and Appellant.

          ORDER

         Ronald G. Looman petitions this Court for an out-of-time appeal, contending that the oral pronouncement of his sentence does not match the written judgment entered in the Third Judicial District Court, Powell County. He also has filed a Supplement several weeks after his original petition. Looman seeks to appeal a January 25, 2016 Judgment, which imposed a prison sentence for three counts of burglary after receiving his guilty pleas.

         As grounds, Looman explains that he received a copy of the Judgment, as attached, about four months after his sentence. Upon receipt, he noticed that "[s]everal probation conditions were added that were not orally pronounced." He has indicated that he must pay restitution, obtain and pay for a chemical dependency evaluation, complete Cognitive Principles & Restructuring (CP& R), and inform the Probation and Parole Officer about any medical prescriptions prior to filling them. He explains that over the last three years he has tried to correct these errors through various people and pleadings in the District Court. Citing to several Montana cases, he points out that "the oral pronouncement of the sentence controls." State v. Harrison, 2016 MT 271, ¶ 9, 385 Mont. 227, 383 P.3d 202, (citing to State v. Classen, 2012 MT 313, ¶ 16, 365 Mont. 475, 291 P.3d 1176.). See also State v. Clark, 2008 MT 317, ¶ 10, 346 Mont. 80, 193 P.3d 934, and State v. Kroll, 2004 MT 203, ¶¶ 18-19, 322 Mont. 294, 95 P.3d 717.

         While Looman correctly points out Montana's law concerning sentencing, his reliance on these cases concerning his claim is misplaced. "The judgment must set forth the plea, the verdict or finding, and the adjudication." Section 46-18-116(1), MCA. While those cases stand for correcting a written judgment to reflect what was stated in court, oral pronouncement of a sentence does not necessarily include conditions on probation. Kroll, ¶¶ 18, 23. Conditions on a suspended sentence are governed by statute. Section 46-18-201(4), MCA. "[T]he sentencing judge may impose on the offender any reasonable restrictions or conditions during the period of the ... suspension of sentence." Section 46-18-201(4), MCA. If statutory authority exists for a probationary condition then it is not outside the court's authority to impose conditions on a sentence. Harrison, ¶ 10. This includes: restitution and garnishment of wages pursuant to § 46-18-201(5), and § 46-18-244(6)(b), MCA; chemical dependency evaluation and treatment pursuant to §§ 46-18-201(4)(f), (i), MCA; and any reasonable condition on probation pursuant to § 46-18-401(4)(c), MCA. The oral pronouncement of a sentence does not include reciting all probationary conditions. Looman received notice of conditions from a Probation and Parole Officer during the preparation of a pre-sentence interview report. See Kroll, ¶ 9.

         This Court cannot address his claims either because it is unclear whether he preserved them for an appeal, timely or not. The District Court would not have been able to change any condition unless Looman specifically objected at or during sentencing. Kroll, ¶ 19. "[W]e remind defendants that they must object to an improper condition at or before sentencing, and that failure to do so may result in waiver." State v. Ashby, 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164. Furthermore, "once a valid sentence has been pronounced, the court imposing that sentence has no authority to modify or change it, except as provided by statute." Clark, ¶ 16. The District Court, therefore, could not address Looman's letters or pleadings concerning his sentence.

         In his separate Supplement, Looman includes "evidence" as demonstrated by copies - of correspondence to his counsel and to the District Court. His Supplement contains issues concerning the sentence imposed, the Department of Corrections' calculation of his sentence, and the corresponding parole eligibility date as detailed in his letters. These additional issues are not subject to review on direct appeal of his underlying conviction and sentence. If Looman seeks to raise any issues concerning his sentence calculation, he may file a petition for a writ of habeas corpus.

         M. R. App. P. 4(6) reads that "[i]n the infrequent harsh case and under extraordinary circumstances, amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal." Looman has filed a verified petition as required under M. R. App. P. 4(6). Looman has not, however, established extraordinary circumstances to justify an appeal. We conclude that his petition's denial will not impart a gross injustice. Therefore, IT IS ORDERED that Looman's Petition for an Out-of-Time Appeal is DENIED.

         The Clerk of this Court is directed to provide a copy of this Order to counsel of record and to Ronald G. Looman along with a copy of this Court's form and ...


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