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State v. Larsen

Supreme Court of Montana

September 4, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
JEREMY C. LARSEN, Defendant and Appellant.

          Submitted on Briefs: July 25, 2018

          APPEAL 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

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Karen Alley, Hill County Attorney, Havre, Montana

          BETH BAKER JUSTICE.

         ¶1 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?

         We affirm Larsen's conviction, but reverse Larsen's sentence and remand for a new sentencing hearing.

         PROCEDURAL AND FACTUAL BACKGROUND

         On the 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."[1]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."

         ¶2 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 ...


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