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State v. Orsborn

Supreme Court of Montana

December 24, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
CRICKET ANN ORSBORN, Defendant and Appellant.

          Submitted on Briefs: October 2, 2019

          APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 17-128 Honorable Matthew J. Cuffe, Presiding Judge

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Marcia Boris, Fergus County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

          OPINION

          JIM RICE 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 Appellant Cricket Ann Orsborn (Orsborn) appeals the imposition of sentencing conditions by the Nineteenth Judicial District Court, Lincoln County, preventing her from possessing a medical marijuana card, pursuant to the Montana Medical Marijuana Act (MMA), § 50-46-307(5), MCA.

         ¶3 In October of 2017, the State charged Orsborn with one count of criminal possession of dangerous drugs with intent to distribute, a felony, and one count of criminal possession of dangerous drugs, a felony. On November 6, 2017, the District Court granted Orsborn's motion for release on her own recognizance, subject to six conditions, including that Orsborn submit to a drug patch monitoring program. A month later, the District Court revoked Orsborn's release because her drug patch results were positive for drug use on three occasions.

         ¶4 Orsborn subsequently pled guilty, pursuant to a plea agreement, to the charge of criminal possession of dangerous drugs, and the other charge was dismissed. The plea agreement recommended Orsborn be sentenced to the Department of Corrections for four years, all suspended, upon conditions that would be imposed at sentencing.

         ¶5 Orsborn's Pre-Sentence Investigation (PSI) revealed she had an extensive criminal history, including a prior drug-related charge, and that she had been using methamphetamines on a regular basis since the age of 12. The PSI explained that Orsborn had a history of anxiety and depression, for which she took Hydroxyzine, Clonodine, and Zoloft; and that she had been diagnosed with Post Traumatic Stress Disorder (PTSD), for which she took Prazosin. Orsborn did not disclose to the officer who wrote the PSI that she took medical marijuana to address any condition. The PSI concluded that, although Orsborn was currently in drug treatment, she had a higher than average risk of reoffending. Therefore, the PSI recommended various conditions for Orsborn's suspended sentence. Proposed condition 16, "imposed pursuant to statute," provided "[t]he Defendant will surrender to the court any registry identification card issued under the Medical Marijuana Act." Condition 25, a "special condition" that the PSI indicated "must have a nexus to the offense and/or the domains contained in the risk assessment between the condition and the Defendant or the Defendant's crime," provided that Orsborn "may not be a registered card holder and may not obtain or possess a registry identification card under the Medical Marijuana Act while in the custody or under the supervision of the Department of Corrections[.]"

         ¶6 At Orsborn's sentencing hearing, her counsel raised the following objection to the PSI recommendations:

The other issue is the Defendant is currently a holder of a medical marijuana card due to some ailments that her physician believes that medical marijuana helps her with. We would ask the court to refrain from imposing what the PSI recommends, which is basically a blanket ...

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