DA 11-0388

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 157

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

CHRISTOPHER ROBIN LEWIS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DC 10-34

Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robin A. Meguire, Attorney at Law, Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant 

Attorney General, Helena, Montana

William Fulbright, Ravalli County Attorney, Hamilton, Montana

Submitted on Briefs: June 6, 2012

 Decided: July 24, 2012

Filed:

__________________________________________

Clerk

July 24 2012
2

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Christopher Robin Lewis (Lewis) appeals from a judgment and commitment entered 

by the Twenty-First Judicial District, Ravalli County, finding him ineligible for parole 

during his ten year prison term for aggravated assault. We affirm.

BACKGROUND

¶2 In March 2010, Lewis was charged with one count of aggravated assault for the abuse 

of his son L.L. and one count of assault on a minor for the abuse of his other son A.L. Lewis 

initially pled not guilty to the charges against him. On January 18, 2011, the parties entered 

an “appropriate plea” agreement, pursuant to § 46-12-211(1)(b), MCA, wherein Lewis 

agreed to plead either guilty or no contest to the aggravated assault charge in exchange for 

the State’s dismissal of the charge of assault on a minor. The parties further agreed that their 

separate recommendations for an appropriate sentence would fall within the following range:

The State: The State will recommend a twenty (20) year commitment to 

Montana State Prison, with ten (10) years suspended.

Defendant: The Defendant may recommend a sentence no less restrictive than 

a ten (10) year commitment to the Department of Corrections, with five (5) 

years suspended.

Nothing in the plea agreement addressed the District Court’s authority to restrict Lewis’ 

eligibility for parole, and it contained no commitment from the State regarding such a 

restriction. Section 3 of the plea agreement also provided that the parties were “otherwise 

free to recommend and argue for any other lawful term of sentence and/or conditions thereto, 

subject to a final decision by the court.”
3

¶3 The District Court held a change of plea hearing on January 19, 2011. During the 

hearing, the parties confirmed the terms of and their individual obligations under the plea 

agreement. The State also stated it would not be seeking a parole restriction. The court then 

explained to Lewis that, due to the nature of the plea agreement, Lewis could withdraw his 

plea if the court did not follow the plea agreement. Lewis stated he understood the 

consequences of the agreement and pled no contest to the charge of aggravated assault.

¶4 The District Court deferred sentencing until after a presentence investigation report 

(PSI) could be completed. The probation officer who completed the PSI recommended that 

the court impose a twenty-year commitment to the Department of Corrections (DOC) with 

fifteen years suspended. The PSI also recommended that Lewis “not be considered eligible 

for release into the community until he has completed in-patient chemical dependency 

treatment, anger management, all phases of Cognitive Principles and Restructuring and be 

assessed for any mental health concerns.” 

¶5 Lewis took issue with this recommendation, and filed a written sentencing 

memorandum. In his memorandum, Lewis argued that the court, pursuant to State v. Burch,

2008 MT 118, 342 Mont. 499, 182 P.3d 66, had no authority to impose restrictions on his 

early release, and that the determination of whether to grant the privilege of early release 

belonged solely to the DOC. This was Lewis’ only argument against imposing a parole 

restriction; he did not argue that the plea agreement prohibited a parole restriction, that the 

State agreed such a restriction would not be imposed, or that the court would be required to 

reject the agreement in order to impose such a restriction. 
4

¶6 On March 23, 2011, the District Court held a sentencing hearing. At the hearing, the 

State, in accordance with the plea agreement, recommended a sentence of twenty years at the 

Montana State Prison (MSP) with ten years suspended. The prosecutor also responded to 

Lewis’ sentencing memorandum and stated that § 46-18-202(2), MCA, authorizes a district 

court to reasonably restrict a defendant’s parole eligibility, but made no recommendation to 

the court regarding Lewis’ parole eligibility. Instead, the prosecutor explicitly stated that he 

would leave the decision of whether to impose a parole restriction to the discretion of the 

court. Defense counsel once again argued that the court should impose a DOC sentence, and 

that the court was not authorized to impose any restrictions on the DOC’s ability to release 

Lewis early under such a commitment. 

¶7 The District Court accepted the plea agreement, and imposed a twenty-year 

commitment to MSP with ten years suspended, but ordered that Lewis serve the MSP 

commitment “without benefit of parole.” The court’s conclusion was “based on the severity 

of what occurred and the utter helpless nature of the victim,” and it believed that Lewis 

“should be given the most severe sanction” within the limits of the plea agreement. Beyond 

this, the court did not discuss its specific reasons for imposing the parole ineligibility 

restriction.1 Although a District Court is required to set forth its reasons for imposing a 

parole restriction pursuant to § 46-18-202(2), MCA, Lewis never objected to his sentence for 

this reason. 

 

1

 The written sentencing order, issued April 5, 2011, similarly did not contain a specific rationale for the court’s 

imposition of the parole restriction.
5

¶8 Lewis did, however, make one objection to his sentence. He objected on the grounds 

that the District Court had exceeded the bounds of the plea agreement by declaring Lewis 

ineligible for parole. In response, the sentencing judge stated that the plea agreement “didn’t 

address parole eligibility,” which permitted the court “to impose parole restrictions up to and 

including the entire sentence.” Defense Counsel then admitted that the plea agreement was 

silent regarding the issue of parole ineligibility, but maintained his objection.

¶9 On April 19, 2011, Lewis filed a motion for specific performance of the plea 

agreement, or in the alternative, a motion for reconsideration of the sentencing order. In the 

State’s response brief, it argued that the District Court was free to impose a parole 

restriction. Notably, in Lewis’ reply brief he asserted that “[i]f the State is advocating that 

the Court should rule in a manner that results in retention of the parole restriction, that 

position could arguably constitute a breach of the plea agreement.” The District Court 

denied the motion on May 10, 2011. Lewis timely appealed, and raised the following issues:

¶10 Issue One: Whether the District Court’s imposition of the parole restriction violated 

the plea agreement?

¶11 Issue Two: Whether the prosecutor breached the plea agreement?

¶12 Issue Three: Whether the District Court erred when it failed to specifically state its 

reasons for imposing a parole restriction?

STANDARD OF REVIEW

¶13 A plea agreement is essentially a contract and is subject to contract law standards. 

State v. McDowell, 2011 MT 75, ¶ 14, 360 Mont. 83, 253 P.3d 812. We review the district 
6

court’s interpretation of a contract for correctness. Brothers v. Home Value Stores, Inc., 

2012 MT 121, ¶ 6, 365 Mont. 196, __ P.3d __. Whether the State has breached a plea 

agreement is a question of law, which we review de novo. McDowell, ¶ 12 (citing State v. 

Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114). When a defendant is 

sentenced to more than one year of actual incarceration, we review the sentence for legality 

only. McDowell, ¶ 11 (citing Bullplume, ¶ 10).

DISCUSSION

¶14 Issue One: Whether the District Court’s imposition of parole restriction violated the

plea agreement?

¶15 Lewis argues that the State, through the prosecutor’s representations that he would not 

seek a parole restriction and that he would leave that decision to the court, agreed that the 

plea agreement encompassed a condition that Lewis’ parole eligibility would not be 

restricted. Therefore, Lewis argues, the District Court erred when it simultaneously accepted 

the parties’ agreed disposition, but still imposed a no-parole eligibility restriction on Lewis’ 

sentence without affording Lewis the opportunity to withdraw his no contest plea. The State 

argues that the prosecutor’s verbal representations did not alter the plea agreement.

¶16 A plea agreement is a contract subject to contract law standards. McDowell, ¶ 14. 

Contract law principles mandate that “ ‘[w]here the contractual language is clear and 

unambiguous on its face, it is this Court’s duty to enforce the contract as drafted and 

executed by the parties.’ ” State v. Shepard, 2010 MT 20, ¶ 14, 355 Mont. 114, 225 P.3d 

1217 (citing Felska v. Goulding, 238 Mont. 224, 230, 776 P.2d 530, 534 (1989)). 
7

¶17 The written plea agreement between Lewis and the State clearly demonstrates that the 

parties did not come to an agreement as to whether Lewis’ sentence would include a 

restriction on his eligibility for parole. The plea agreement is silent, as defense counsel 

agrees, regarding parole ineligibility. Additionally, Section 3 of the plea agreement 

unambiguously permitted either party “to recommend and argue for any other lawful term of 

sentence and/or conditions thereto.” Thus, the plain language of the plea agreement 

demonstrates that the District Court could impose any lawful conditions on the sentence, as 

long as the sentence fell within the agreed upon disposition.

¶18 Nevertheless, Lewis argues that the prosecutor’s representations either clarified the 

plea agreement or amended it to include a provision that Lewis would be eligible for parole. 

Lewis cites to Shepard, ¶¶ 11-12, for the proposition that a party’s statements prior to 

sentencing can amend a written plea agreement. This Court in Shepard, however, did not 

reach that conclusion. Instead, we concluded that the State could not assert that a parole 

restriction was not part of the plea agreement on appeal because it constituted a change in 

theory from the trial court, which we would not consider on appeal. Shepard, ¶ 12.

¶19 Moreover, Lewis’ reliance on the prosecutor’s statements is misplaced. The 

prosecutor, pursuant to Section 3 of the plea agreement, was free to either seek a parole 

restriction, or not. The prosecutor opted for the latter and promised he would not seek a 

parole restriction; a restriction he never sought, and never represented was part of the plea 

agreement. In addition, the prosecutor made it clear to the court that it was within the court’s 

discretion to impose a parole restriction if it saw fit. The prosecutor’s comments did not 
8

modify the plea agreement in any way, thus the unambiguous language of the contract is 

controlling. Accordingly, the court was within its authority to accept the plea agreement and 

impose a parole restriction without offering Lewis the opportunity to withdraw his plea.

¶20 Issue Two: Did the prosecutor breach the plea agreement?

¶21 Lewis maintains that the prosecutor breached the plea agreement at the sentencing 

hearing and again when he opposed the State’s motion for specific performance of the plea 

agreement. The State argues that we cannot review this portion of Lewis’ appeal due to the 

fact that Lewis’ position is opposite of the argument he advanced at the District Court. After 

the District Court sentenced Lewis, he filed a motion for specific performance of the plea 

agreement, and in his reply brief, Lewis stated that he “does not contend that the State 

breached the plea agreement at sentencing.” He now asserts that the prosecutor breached the 

plea agreement at sentencing. 

¶22 “It is well settled that ‘[a] party may not change its theory on appeal from that 

advanced in the trial court; nor may a party raise an argument for the first time on appeal.’ ” 

Shepard, ¶ 12 (quoting State v. Anderson, 1999 MT 60, ¶ 25, 293 Mont. 490, 977 P.2d 983).

 We will not fault a district court for an action in which the appealing party acquiesced or 

actively participated. State v. Holt, 2011 MT 42, ¶ 17, 359 Mont. 308, 249 P.3d 470 (citing 

State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291, 65 P.3d 559). We may, however, 

review claimed errors that implicate fundamental constitutional rights, when failing to do so 

may leave unsettled the question of the fundamental fairness of the trial or proceeding. State 

v. Rardon, 2002 MT 345, ¶ 16, 313 Mont. 321, 61 P.3d 132. Given that the claimed error in 
9

this case does not raise a question concerning the fundamental fairness of the trial court 

proceeding and that Lewis purposefully acquiesced to the prosecutor’s actions, we will not 

further consider the matter of whether the prosecutor’s comments at sentencing constituted a 

breach of the plea agreement.

¶23 Lewis additionally argues that the prosecutor breached the plea agreement when he 

advocated, in his response brief, that the District Court deny Lewis’ motion for specific 

performance. In order to retain the benefit derived from a defendant’s plea, the State must 

fulfill its contractual obligations strictly and meticulously. McDowell, ¶ 14. Upon agreeing 

to recommend a specific sentence, a prosecutor becomes obligated to approach sentencing in 

a manner that will not undermine the agreement. McDowell, ¶ 14. Prosecutorial violation of 

the agreement is unacceptable, even if done inadvertently, in a good faith pursuit of justice. 

McDowell, ¶ 14. Each case turns on its own unique facts, thus there are no “hard and fast 

criteria for determining when a plea agreement has been breached.” McDowell, ¶ 14.

¶24 The facts of this case demonstrate that the prosecutor did not breach or undermine the 

plea agreement by defending the District Court’s decision to impose a parole restriction. In 

responding to Lewis’ motion for specific performance of the plea agreement, the prosecutor 

was not urging the court to impose a parole restriction, but rather, rebutting Lewis’ 

contention that the parole restriction violated the plea agreement. In an analogous situation, 

this Court has held that “[i]f a defendant chooses to present information in support of a 

sentence he argues for, the State may counter with testimony to the effect that such 

information is misleading or untrue, without breaching the plea agreement.” State v. 
10

Bartosh, 2007 MT 59, ¶ 22, 336 Mont. 212, 154 P.3d 58. Though Bartosh concerned 

dueling testimony, the analysis is equally applicable to this matter: when a defendant 

presents a legal argument in favor of his recommended sentence, the prosecutor may point 

out the flaws in that legal argument without breaching the plea agreement. To find otherwise 

would lead to an absurd result. A defendant would merely have to allege that the court 

misinterpreted the plea agreement, and if the prosecutor responded, the prosecutor would be 

in breach of the plea agreement. Accordingly, we conclude that the prosecutor did not 

breach the plea agreement by responding to Lewis’ motion for specific performance. 

¶25 Issue Three: Did the District Court err when it failed to specifically state its reasons 

for imposing a parole restriction?

¶26 Lewis argues that the District Court failed to provide specific reasons, as required by 

§ 46-18-202(2), MCA, for imposing the parole restriction, and therefore his sentence is 

illegal. The District Court is imbued with exclusive authority to impose criminal sentences, 

including the power to impose a restriction that the offender is ineligible for parole. Sections 

46-18-103, -202(2), MCA. If, however, the District Court imposes a parole restriction, the 

sentencing judge “shall state the reasons for it in writing,” or if the restriction is “necessary 

for the protection of society[,] . . . the judgment must contain a statement of the reasons for 

the restriction.” Section 46-18-202(2), MCA. As noted above, Lewis raises this issue for the 

first time on appeal.

¶27 As a general rule, we will not review an issue on appeal if the party raising the issue 

did not object at the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 
11

P.3d 892. An exception to this general rule was enunciated in State v. Lenihan, 184 Mont. 

338, 343, 602 P.2d 997, 1000 (1979), where we held that an appellate court may review any 

sentence, even if not objected to at the trial court, if it is alleged that such sentence is illegal 

or exceeds statutory mandates. A sentence is not illegal if it falls within statutory 

parameters. Kotwicki, ¶ 13. A sentencing court’s failure to abide by statutory requirements is 

an objectionable sentence, not necessarily an illegal one. Kotwicki, ¶ 13; See also State v. 

Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v. Nelson, 274 Mont. 11, 20, 

906 P.2d 663, 668 (1995).

¶28 This court declined to apply the Lenihan rule in Kotwicki, ¶ 22, because the 

defendant’s sentence was merely objectionable, and not illegal. Kotwicki was convicted of 

numerous drug charges, and as part of his sentence he was required to pay a $25,000 fine, 

which fell within the court’s authority to impose up to a $50,000 fine. At the trial court, 

Kotwicki did not object to the fine on the grounds that the district court failed to inquire 

whether he had the ability to pay. Kotwicki, ¶¶ 3-4. On appeal, Kotwicki argued that his 

sentence was illegal because the court failed to make specific findings, as required by § 46-

18-231(3), MCA, on Kotwicki’s resources before imposing the fine. This Court declined to 

review the sentence, however, because the district court’s failure to make specific findings 

rendered the sentence objectionable, but not illegal. Kotwicki, ¶ 21. In so concluding, this 

Court noted that Kotwicki, “although alleging an illegal sentence, fail[ed] to present a 

colorable claim that his sentence fell outside the statutory parameters as to warrant our 

review under the Lenihan rule.” Kotwicki, ¶ 22.
12

¶29 Similarly, in Swoboda and Nelson, the trial court failed to explicitly consider 

alternatives to prison, as required by § 46-18-225, MCA, before imposing a prison sentence 

on a nonviolent offender. Swoboda, 276 Mont. at 480-81, 918 P.2d at 297; Nelson, 274 

Mont. at 17, 906 P.2d at 665. The defendant in each case failed to object to this error at the 

sentencing hearing, and then challenged the legality of the sentence on appeal due to the 

court’s failure to consider sentences alternative to prison. Swoboda, 276 Mont. at 482, 918 

P.2d at 298; Nelson, 274 Mont. at 17-18, 906 P.2d at 668. This court concluded in both 

cases that the sentencing court could have legally sentenced Swoboda and Nelson to prison, 

even after considering sentencing alternatives to prison, thus the Lenihan rule was 

inapplicable. Swoboda, 276 Mont. at 482, 918 P.2d at 298; Nelson, 274 Mont. at 20, 906 

P.2d at 668.

¶30 In spite of these cases, Lewis notes that we have considered parole eligibility 

restrictions even absent an objection from a defendant. The cases Lewis relies upon are 

clearly distinguishable from the present matter. State v. Garrymore, 2006 MT 245, 334 

Mont. 1, 145 P.3d 946, is inapposite because the issue was not whether the proper statutory 

requirements were followed – as it is here – but whether the parole eligibility restriction in 

and of itself violated Garrymore’s federal and state constitutional and statutory rights. 

Similarly, in State v. Olivares-Coster, 2011 MT 196, 361 Mont. 380, 259 P.3d 760, we 

reviewed, with the State’s acquiescence, whether an offender under the age of eighteen is 

subject to the mandatory parole eligibility restrictions in § 46-23-201(4), MCA, in 

contravention of § 46-18-222(1), MCA. Unlike both Garrymore and Olivares-Coster, 
13

Lewis’ failure to object in this case is not based on the statute or the sentence being illegal 

or exceeding statutory mandates, but merely that the District Court did not follow the 

statutory requirements of § 46-18-202(2), MCA.

¶31 Based on our reasoning in Kotwicki, Swoboda and Nelson, we decline to apply the 

Lenihan rule in the present matter. The District Court, had it made the findings required by 

§ 46-18-202(2), MCA, legally could have imposed a parole eligibility restriction. Section 

46-18-202(2), MCA, authorizes a district court to impose a restriction limiting an offender’s 

eligibility for parole during the offender’s term of imprisonment. Lewis’ parole ineligibility 

falls within the parameters of that statute, thus Lewis’ sentence is not an illegal sentence for 

purpose of invoking the Lenihan rule and we will not consider this issue on appeal.

CONCLUSION

¶32 For the reasons stated above, we affirm Lewis’ sentence and judgment.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ BRIAN MORRIS

/S/ JIM RICE
14

Justice James C. Nelson specially concurs.

¶33 I concur in the Court’s decision on Issues one and two and specially concur on Issue 

three. As to Issue three, § 46-18-115, MCA, in pertinent part, requires:

Before imposing sentence or making any other disposition upon 

acceptance of a plea or upon a verdict or finding of guilty, the court shall 

conduct a sentencing hearing, without unreasonable delay, as follows:

. . .

(6) In felony cases, the court shall specifically state all reasons for the 

sentence, including restrictions, conditions, or enhancements imposed, in open 

court on the record and in the written judgment.

¶34 In State v. Osterloth, 2000 MT 129, 299 Mont. 517, 1 P.3d 946, we interpreted this 

statute, and held that since the sentencing court did not set forth the reasons for the sentence 

imposed in its written judgment, to that extent, the court erred. We did not, however, require 

that the court re-sentence the defendant, but we did remand with instructions that the court 

enter a modified written judgment setting forth the reasons for the sentence as stated in the 

District Court’s oral judgment. Osterloth, ¶¶ 39-41; see also State v. Christianson, 1999 MT 

156, 295 Mont. 100, 983 P.2d 909 (holding that when the Sentence Review Division, acting 

as an arm of this Court, remanded the matter to the District Court, “the District Court had 

authority to issue an order amending the written judgment to list its reasons for imposing the 

parole eligibility restriction, in compliance with § 46-18-115(6) and § 46-18-202(2), MCA”).
15

¶35 I would require the same thing in this case. Section 46-18-202(2), MCA, like § 46-

18-115(6), MCA, is a mandatory direction to the sentencing court to provide, in the written 

judgment, the reasons for any parole restriction imposed. I continue to believe that judges 

must comply with the mandatory requirements of sentencing laws. Where the black-letter 

law mandates that the judge do some particular thing, it is no excuse for his or her failure to 

do so that the defendant, the prosecutor, or the defense attorney failed to “tell” the judge to 

do what the law plainly requires.

¶36 Indeed, we presume that laypeople “know the law.”1 Should we, then, presume less 

of judges—i.e., that they don’t know the law? Presuming that the trial judge here knew the 

law and his obligation to sentence according to the law, the court should have specified in 

the written judgment his reasons for imposing the parole restriction.

 

1

 Indeed we went on at length about that presumption in State v. Payne, 2011 MT 35, 

¶ 22, 359 Mont. 270, 248 P.3d 842: 

We are persuaded by the State’s argument that Payne is presumed to 

know the law of Montana. For at least a century, it has been the law in 

Montana that “ignorance of the law is no defense.” State ex rel. Rowe v. 

District Court, 44 Mont. 318, 324, 119 P. 1103, 1106 (1911), superseded by 

statute on other grounds in State ex rel. Shea v. Judicial Standards Comm.,

198 Mont. 15, 643 P.2d 210 (1982) (“If a person accused of a crime could 

shield himself behind the defense that he was ignorant of the law which he 

violated, immunity from punishment would in most cases result. No system of 

criminal justice could be sustained with such an element in it to obstruct the 

course of its administration.”). We reiterated this rule in State v. Trujillo, 2008 

MT 101, ¶ 15, 342 Mont. 319, 180 P.3d 1153, when we held that Trujillo 

unlawfully trespassed onto another’s land despite his assertions that he had not 

passed through any gates or barriers intended to bar access. Similarly, in State 

v. G’Stohl, 2010 MT 7, ¶ 14, 355 Mont. 43, 223 P.3d 926, we noted that 

“people are presumed to know the law” and will not be relieved of criminal 
16

¶37 For that reason, I would, as we did in Osterloth, remand this cause to the sentencing 

court for entry of a modified written judgment setting forth the reasons for imposing the 

parole restriction.

¶38 I concur in Issues one and two, and, for the above reasons, specially concur in the 

result of Issue three subject to our remanding to the District Court for entry of a modified 

written judgment.

/S/ JAMES C. NELSON

 

liability for their failure to comply with it.