Submitted on Briefs: July 25, 2018
FROM: District Court of the Twelfth Judicial District, In and
For the County of Hill, Cause No. DC 14-116 Honorable Daniel
A. Boucher, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Alexander H.
Pyle, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Alley, Hill County Attorney, Havre, Montana
The State charged Jeremy Larsen with felony possession of
methamphetamine and with misdemeanor possession of marijuana
after officers found the drugs during a search incident to
arrest. A Hill County jury found Larsen guilty on both
counts. The Twelfth Judicial District Court sentenced Larsen
as a Persistent Felony Offender (PFO) to ten years in Montana
State Prison, with none suspended, for the felony conviction.
Larsen raises three issues on appeal:
1.Did trial counsel provide ineffective assistance by
failing to file a motion to suppress evidence found during
the search incident to arrest because Larsen's initial
arrest was illegal?
2. Did trial counsel provide ineffective assistance by
incorrectly advising the District Court that Larsen's
sentence could not be deferred or suspended?
3. Does the sentence illegally include multiple court
information technology ("I.T.") fees?
affirm Larsen's conviction, but reverse Larsen's
sentence and remand for a new sentencing hearing.
AND FACTUAL BACKGROUND
morning of October 5, 2014, Officer Jesse Eller of the Havre
Police Department saw Larsen and Robert Sunchild walking down
an alley. He recognized both men from prior contacts and knew
that Larsen was out on bond for pending charges. The
conditions of Larsen's release order prohibited him from
having contact with victims or witnesses related to his
pending charges. The order stated that Larsen was
"subject to immediate arrest upon violation of these
conditions, and a hearing will thereafter be
set."Officer Eller confirmed through dispatch
that Larsen was not allowed to have contact with Sunchild as
a condition of his bond. Officer Eller approached Larsen and
asked Larsen directly whether he was permitted to have
contact with Sunchild. Larsen confirmed that his bond
conditions prohibited him from having contact with Sunchild.
Officer Eller directed Sunchild to leave the area and told
Larsen that he was under arrest "for violation of
conditions of release."
After arresting Larsen, Officer Eller conducted a search
incident to arrest. Knowing that Larsen was diabetic, he
asked if Larsen had any needles on him. Larsen stated that
there was a needle in his right sock, which Officer Eller
found. Officer Eller testified that he observed a plastic bag
protruding from the front pocket of the hooded sweatshirt
Larsen was wearing. As Officer Eller reached into the pocket
to retrieve the plastic bag, Larsen stated that it was not
his sweatshirt. Officer Eller found what was later confirmed
as marijuana buds in ...