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State v. Pein

Supreme Court of Montana

July 23, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID ALLEN PEIN, Defendant and Appellant.

          Submitted on Briefs: June 19, 2019

          APPEAL 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.

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana.

          For 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

          OPINION

          James Jeremiah Shea, Justice.

         ¶1 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 Montana Reports.

         ¶2 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 affirm.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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, [1] 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, [2] 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.

         ¶7 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.

         ¶8 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 ...


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