Submitted on Briefs: June 19, 2019
FROM: District Court of the Tenth Judicial District, In and
For the County of Fergus, Cause No. DC-2016-66 Honorable Jon
A. Oldenburg, Presiding Judge.
Appellant: Chad Wright, Appellate Defender, Moses Okeyo,
Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, J. Stuart
Segrest, Assistant Attorney General, Helena, Montana. Kent M.
Sipe, Fergus County Attorney, Jean A. Adams, Deputy County
Attorney, Lewistown, Montana
Jeremiah Shea, Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Defendant David Allen Pein appeals from the judgment of the
Tenth Judicial District Court, Fergus County, convicting him
of criminal possession of dangerous drugs with intent to
distribute, a felony in violation of § 45-9-103, MCA. We
In the fall of 2016, following reports that Pein was selling
marijuana from his residence, Lewistown police set up an
undercover operation and seized cash, scales, other drug
paraphernalia, and 439 grams of marijuana from Pein's
house. The State arrested Pein and charged him with: (1)
criminal distribution of dangerous drugs on or near school
property by accountability; (2) two counts of criminal
distribution of dangerous drugs on or near school property;
or, in the alternative, (3) criminal distribution of
dangerous drugs; (4) criminal possession of dangerous drugs;
(5) criminal possession of dangerous drug with intent to
distribute; (6) criminal possession of drug paraphernalia;
and (7) two counts of use or possession of property subject
to criminal forfeiture.
On July 6, 2017, Pein pled guilty to criminal possession of
dangerous drug with intent to distribute, and the State
dismissed or otherwise resolved the other charges against
him. As part of the plea agreement, Pein admitted he
possessed 439 grams of marijuana and admitted the marijuana
was not just for personal use. The plea agreement also
reserved Pein's right to "argue at sentencing that
he be allowed to possess a medical marijuana card while on
probation." Pein testified at the change of plea hearing
that prior to the undercover operation, earlier in 2016 and
in years past, he was a registered cardholder under the
Medical Marijuana Act (MMA). Finally, the District Court
ordered a Presentence Investigation (PSI) Report be completed
prior to sentencing.
On March 22, 2018, the District Court held a sentencing
hearing. The District Court considered arguments made in the
parties' sentencing briefs and received oral testimony.
Pein alleged that he suffers from chronic back, neck, arm,
and leg pain resulting from a severe rollover accident, a
slip-and-fall incident, and a work-related accident. Pein
alleged that marijuana use has helped to alleviate his
debilitating medical symptoms without the side effects and
addiction potential of traditional prescription opioids. Pein
alleged he was initially prescribed prescription medication
and has tried various homeopathic remedies as well, but only
marijuana provides successful pain management. Pein alleged
that his marijuana use to help with pain management has
enabled Pein to perform most of his regular day-to-day
activities and has allowed him to return to work. Pein
acknowledged that when he was arrested in 2016, he did not
have a valid medical marijuana card.
Pein argued that the District Court should "permit [him]
access to medical marijuana" and should
"strike" certain standard conditions from the PSI
Report that would prohibit him from having or maintaining a
medical marijuana card. Specifically, Pein requested that the
District Court reject the Department of Corrections'
(DOC) proposed probation conditions 9, 10, 17, and 34,
allow Pein to keep his marijuana registry card, and allow him
to use medical marijuana as part of his treatment plan while
under DOC supervision. Pein argued the restrictions of §
50-46-307(4), MCA,  were unconstitutional, as applied to him.
Pein did not attach any medical records or other evidence to
his brief and did not provide testimony besides his own.
The District Court concluded it did not have the ability to
allow Pein to have a medical marijuana card, stating:
Frankly, you have some legitimate constitutional arguments, I
just don't think this is the place that you need to make
those. I feel bound by the condition of [§ 50-46-307(4),
MCA]. I feel it leaves me really no discretion in this matter
and therefore I [sic] given that statute I cannot allow you
to have a medical marijuana card under the laws as they exist
and as they exist for your sentencing[, ] Mr. Pein. . . . The
[District] Court will impose the standard conditions 1-12. I
know that counsel has challenged those conditions, at least 9
and 10, that deal with medical marijuana. But as stated I
think the state of the law in Montana right now as enacted by
the [L]egislature with which I'm charged to enforce does
not allow me to allow you to have a medical marijuana card.
And I would state as well that the [District] Court really
has been provided no medical records, no medical testimony
other than Mr. Pein's statements regarding this.
After concluding that § 50-46-307(4), MCA, limited its
discretion in this matter, the District Court sentenced Pein
to a five-year deferred sentence for the charge of criminal
possession of dangerous drugs with intent to distribute,
fined him $1, 430-thirty-five percent of the street value of
the marijuana seized during the search of Pein's
house-and imposed other surcharges, restitution, and a public
defender fee. The District Court pronounced the conditions ...