DA 07-0674

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 16

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DAVID ISAAC ROVIN,

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District,

In and For the County of Pondera, Cause No. DC-02-12

Honorable Laurie McKinnon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nancy Schwartz, Attorney at Law, Billings, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,

Assistant Attorney General, Helena, Montana

Mary Ann Ries, Pondera County Attorney, Conrad, Montana

Submitted on Briefs: December 3, 2008

Decided: January 27, 2009

Filed:

__________________________________________

Clerk

January 27 2009
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Justice Brian Morris delivered the Opinion of the Court.

¶1 David Isaac Rovin (Rovin) appealsfroman order ofthe Ninth Judicial DistrictCourt,

Pondera County, revoking his suspended sentence. We affirm.

¶2 Rovin presents the following issues for review:

¶3 Whether the District Court abused its discretion by revoking Rovin’s suspended 

sentence and incarcerating Rovin despite the fact that Rovin suffers from mental illness.

¶4 Whether Rovin’s trial counsel rendered ineffective assistance of counsel during the

revocation proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶5 The State charged Rovin with felony sexual assault. The State alleged thatRovin, age

20 at the time, had put his arm around a 12-year old girl’s shoulders and touched her breasts

and her buttocks.

¶6 Rovin entered a plea of not guilty in city court and requested a preliminary

examination. The court appointed William Hunt, Jr. (Hunt), on June 25, 2002, to represent

Rovin. The city court held a preliminary examination on July 26, 2002, and found sufficient

probable cause for Rovin to be charged with felony sexual assault on a minor. The city court

transferred the matter to the District Court on July 31, 2002. The State charged Rovin by

information on August 19, 2002, with felony sexual assault.

¶7 The District Court arraigned Rovin on September 9, 2002. Hunt appeared onRovin’s

behalf. The court advised Rovin of the nature of the charge against him and the maximum
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sentence after a plea or verdict of guilty. The court also advised Rovin of his rights. Rovin

entered a plea of “not guilty.”

¶8 The State and Rovin eventually reached an agreement that required Rovin to obtain a

psychosexual evaluation. Rovin moved the court to order Dr. Donna Zook (Zook), sex

offender therapist and member of the Montana Sex Offender Treatment Association, to

conduct his psychosexual evaluation. Rovin informed the court that he had signed the plea

agreement and that he would enter a change of plea. Zook evaluated Rovin. Zook

designated Rovin a level 2 sexual offender and recommended community-based treatment

with specific stipulations.

¶9 Rovin, accompanied by counsel, appeared for his change of plea hearing on January

20, 2004. Rovin informed the court that he had discussed the plea agreement with his

attorney. Rovin understood that he had waived his rights when he agreed to a plea

agreement. Rovin further informed the court that he was not under the influence of alcohol

or drugs and that he had not been coerced to sign the agreement or to enter his guilty plea.

Rovin also stated that it was in his best interest to plead guilty and that he had been satisfied

with the services of his counsel. The court advised Rovin of hisrights a second time. Rovin

entered a plea of guilty to felony sexual assault. The court determined that a factual basis

existed and accepted his guilty plea. The court convicted Rovin of felony sexual assault.

¶10 The court conducted a sentencing hearing on February 9, 2004. The court

considered the plea agreement, the presentence investigation report (PSI), and counsel’s

recommendations. The court sentenced Rovin to the Montana State Prison (MSP) for a term
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of ten years for felony sexual assault. The court suspended all but 71 days of the ten-year

sentence. The court ordered the suspended sentence subject to certain terms and conditions.

One condition required Rovin to register as a level 2 sexual offender, consistent with Zook’s

psychosexual evaluation. Another condition required Rovin to file his community-based

treatment program with the court and his probation officer within 30 days ofsentencing. The

community-based treatment condition specifically called for revocation of Rovin’s

suspended sentence in the event of Rovin’s failure to abide by the condition.

¶11 The State petitioned to revoke Rovin’s suspended sentence less than a month later.

The State alleged that Rovin had violated a number of conditions. The alleged violations

included Rovin’s failure to maintain a residence and Rovin’s failure to remain law abiding.

The State also alleged that Rovin continued to have contact with people under the age of 18.

The State further alleged that Rovin failed to establish or comply with a community-based

sexual offender treatment plan.

¶12 Zook updated Rovin’s psychosexual evaluation before the revocation proceeding

based on new information provided byCanadian law enforcement. The Canadian authorities

provided Rovin’s extensive sexual offense history from the time that he was 14 years old.

Rovin’s sexual offense history includes multiple incidents of grabbing female’s breasts and

buttocks, kissing, and sexual remarks and gestures to females. Canadian law enforcement

had designated Rovin a sexual predator and institutionalized himdue to hisrisk to reoffend.

Rovin admitted that he wassupposed to reside in a group home until the age of 20, due to his

immaturity and need to learn personal hygiene and other essential life skills.
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¶13 Zook’s update recommended a complete psychiatric evaluation at the Montana State

Hospital (MSH). Zook believed that a psychiatric evaluation served both Rovin’s best

interests and the community’s best interests. Zook reported that Rovin needed to be

stabilized with medication before he could be returned to the community for outpatient case

management and sexual offender treatment services. Zook recommended that authorities

monitor Rovin’s compliance with any required medication. Zook deemed Rovin to be a

sexual predator who posed a risk to the community. She noted that Rovin suffers from an

untreated serious mental disorder with psychotic features in addition to his sexual assault

behaviors. Zook opined that Rovin’s mental disorder renders him indigent, jobless, and

delusional.

¶14 The court re-appointed Hunt as Rovin’s counsel on March 9, 2004. Rovin, through

Hunt, moved the court on March 22, 2004, to commit him to the MSH. Rovin informed

Hunt that his hallucinations had worsened since his incarceration. Rovin further reported to

Hunt that his suicidal ideation had intensified and that he could “no longer control the

voices” in his head that tell him to kill himself. The court committed Rovin on March 23,

2004, to MSH for not more than sixty days. The court reasoned that MSH needed to

evaluate Rovin to determine his fitness to proceed and stand trial in his pending criminal

matter.

¶15 Rovin appeared before the court on June 21, 2004, represented by Hunt. The court

advised Rovin of hisrights. Rovin acknowledged that he understood. The court questioned

Rovin. The court satisfied itselfthat Rovin was not currently on any medications, thatRovin
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did not have any disabilities, and that Rovin was not under the influence of any intoxicating

substances or drugs. Rovin admitted to violating the “change of residence” condition and

“community-based treatment plan” condition of his suspended sentence. The court

determined that a factual basis existed to support Rovin’s admissions to the probation

violations. Rovin advised the court that he had discussed the consequences of hisadmissions

with Hunt.

¶16 The court sentenced Rovin to a 10-year commitment to the Department ofCorrections

(DOC). The court suspended all but three years of the ten-year commitment. The court

allowed Rovin credit for the 117 days that he had been held in custody awaiting disposition

of the proceedings. The court refused Rovin credit, however, for time served on the

suspended sentence. The court imposed certain terms and conditions on Rovin’s suspended

sentence. The DOC released Rovin on February 24, 2007.

¶17 The State again petitioned to revoke Rovin’s suspended sentence on June 4, 2007.

The court held an evidentiary hearing regarding the State’s allegations. The State alleged

that Rovin had failed to follow all treatment conditions. Rovin’s ex-wife informed the State

that he had sent her several emails, including one that was threatening in nature. Rovin

reported that he had been going to a park in violation of the sexual offender treatment rules.

Rovin also had failed to complete sexual offender treatment.

¶18 The court advised Rovin of hisrights. Rovin acknowledged that he understood. The

court questioned Rovin to determine whether he was competent to proceed. Rovin admitted

to failing to follow all treatment conditions and failing to complete sexual offender
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treatment. The court again determined that a factual basis existed to support Rovin’s

admissions. Rovin advised the court that he had discussed the consequences of his

admissions with Hunt. The court determined that Rovin had violated the terms of his

probationary sentence and revoked his suspended sentence.

¶19 Rovin appeared at his dispositional hearing on September 17, 2007, represented by

Hunt. Rovin’s probation officer,John Boyd (Boyd), testified that Rovin would benefit from

a commitment to the Department of Health and Human Services(DHHS) in light ofRovin’s

serious mental illness. Boyd acknowledged, however, that the law allows a commitment to

DHHS only on an offender’s original sentence. Boyd thus recommended that Rovin serve

the remainder of his sentence in MSP in order to ensure Rovin’s safety and the community’s

safety. Boyd agreed that MSP had counselors available to address Rovin’s mental illness

and that Rovin also could receive sexual offender treatment at MSP.

¶20 Hunt inquired asto whether Boyd had considered alternatives in lieu ofincarceration.

Boyd testified that the pre-release centers administered by the DOC were not equipped to

handle the seriously mentally ill. Boyd also believed that Rovin’ssexual offense conviction

would prohibit his placement in a group home.

¶21 Hunt advised the court that Rovin expected incarceration without anytime suspended.

Hunt agreed that suspension was “going to jerk him out of a system he already knows.”

Hunt pointed out to the court, however, that MSP previously had provided Rovin with

insufficient mental health treatment. Hunt informed the court that Rovin’s mental health

evaluation had been updated. Hunt chose not to submit an updated mental health evaluation
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to the court, however, as he was not going to rely on it. Hunt acknowledged that Boyd,

Zook, and Rovin’s current sexual offender counselor believed community-based treatmentto

be insufficient. Rovin himselfraised no issues with the prospect ofincarceration during the

allocution. Rovin simply asked the court to consider placement in a treatment-based

program or group home once his sentence expired in the event that his mental health

deteriorates.

¶22 The court ordered Rovin to serve the remaining seven years of his sentence at MSP.

The court allowed Rovin credit for time served fromMay 23, 2007. The court cited various

facts to support its sentence. These facts included Rovin’s inability to be treated in a

community setting and his inability to care for himself. The court also pointed out that

incarceration would allow Rovin an opportunity to complete sexual offender treatment. The

court further cited concern for the community’s safety. Rovin appeals.

STANDARD OF REVIEW

¶23 We review a district court’s decision to revoke a suspended sentence to determine

whether the court abused its discretion and whether a preponderance of the evidence

supported the court’s decision. State v. Shockley, 2001 MT 180, ¶ 8, 306 Mont. 196, ¶ 8, 31

P.3d 350, ¶ 8. This Court will not intervene absent an abuse of discretion. State v. Burke,

2005 MT 250, ¶ 11, 329 Mont. 1, ¶ 11, 122 P.3d 427, ¶ 11. A district court abuses its

discretion when it acts arbitrarily without employment of conscientiousjudgment or exceeds

the bounds of reason, resulting in substantial injustice. Burke, ¶ 11.
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¶24 A claimof ineffective assistance of counsel involves a mixed question oflaw and fact

that we review de novo. State v. Herman, 2008 MT 187, ¶ 10, 343 Mont. 494, ¶ 10, 188

P.3d 978, ¶ 10. We review claims ofineffective assistance of counsel ifthe claims are based

solely on the record. State v. Lewis, 2007 MT 16, ¶ 8, 335 Mont. 331, ¶ 8, 151 P.3d 883, ¶ 8.

We apply the two-prong test adopted by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether

counsel’s performance was constitutionally deficient. State v. Russell, 2008 MT 417, ¶ 33,

347 Mont. 301, ¶ 33, ___ P.3d ___, ¶ 33. The two-part test in Strickland requires the

defendant to show that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90,

¶ 10, 183 P.3d 861, ¶ 10. The defendant bears the burden to show that his counsel’s

representation fell below an objective standard of reasonableness. Whitlow, ¶ 14.

DISCUSSION

¶25 Whether the District Court abused its discretion by revoking Rovin’s suspended 

sentence and incarcerating Rovin despite the fact that Rovin suffers from mental illness.

¶26 Rovin contendsthat incarceration fails to achieve rehabilitation and thus violates his

right to due process. Rovin points to Boyd’s violation report that indicates his actions were

not willful, but rather resulted from Rovin’s “inability to conform to societal norms and

public behavior, through no other reason than being mentally ill.” Rovin contends that his

mental illness required the court to consider alternative placements to incarceration.
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¶27 The State argues that Rovin failed to object when the court revoked his suspended

sentence and imposed incarceration. The State further arguesthat the record reflectsthatthe

court, in fact, considered various alternatives. The court rejected those alternatives for both

Rovin’s and the community’s safety. The State further contends that Rovin fails to satisfy

any of the statutory exceptions in § 46-20-701(2), MCA, that allow review.

¶28 Rovin concedesthat he raises these issues for the first time on appeal. Rovin argues,

however, that a manifest miscarriage of justice requires plain error review. We have stated

repeatedly that we will not consider an issue not timely raised in the district court, absent

plain error. State v. Torgerson, 2008 MT 303, ¶ 20, 345 Mont. 532, ¶ 20, 192 P.3d 695, ¶20.

The State arguesthat no manifest or miscarriage of justice occurred that would warrant plain

error review. The State points out that counsel represented Rovin at every stage of the

proceedings, that Rovin knowingly and voluntarily admitted to the probation violations, and

that Rovin waived his rights to appeal.

¶29 This Court will review claimed errors that implicate a criminal defendant’s

fundamental constitutional rights where failing to do so may result in a “manifest

miscarriage of justice, leave the question of fundamental fairness of the proceedings

unsettled, or compromise the integrity of the judicial process.” State v. Finley, 276 Mont.

126, 137, 915 P.2d 208, 215 (1996). We explained in State v. Mackrill, 2008 MT 297, ¶ 48,

345 Mont. 469, ¶ 48, 191 P.3d 451, ¶ 48, that “we use our inherent power of common-law

plain error review sparingly, on a case-by-case basis, and only in the aforementioned

circumstances.” A mere assertion that failure to review the claimed error may result in a
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manifest miscarriage of justice, however, is not sufficient to implicate the plain error

doctrine. Mackrill, ¶ 49 (citing M. R. App. P. 12(1)(f)).

¶30 Rovin has failed to demonstrate that his due process claim meetsthe elementsofplain

error review. Rovin simply argues that his claim satisfies the plain error review standard in

light ofBoyd’s opinion that Rovin’s actions were not willful and in light of his claimthatthe

court imposed incarceration without considering alternative sentencing options. The record

establishes that the District Court indeed considered sentencing alternatives. The court

rejected community-based treatment, however, due to its concerns over Rovin’s safety and

the community’s safety. Rovin’s mere assertion that our failure to engage in plain error

review may result in a manifest miscarriage of justice failsto satisfy M. R. App. P. 12(1)(f).

We decline to conduct plain error review of Rovin’s claim. Torgerson, ¶ 20.

¶31 Whether Rovin’s trial counsel rendered ineffective assistance of counsel during the

revocation proceedings.

¶32 Rovin alleges that Hunt advised him to admit to probation violations despite the

statements in Boyd’s violation report that Rovin had committed his actions unwillingly.

Rovin also claims that Hunt’s ineffective representation led him to admit to a probation

violation that was not included in his original sentence. Rovin admits that his sexual

offender treatment programcontained a restriction on internet use. Rovin claims, however,

that such a restriction itself was not a condition of his original sentence. Rovin cites State

v. Gillingham, 2008 MT 38, 341 Mont. 325, 176 P.3d 1075, to support his claimthat onlythe

sentencing court can impose a condition to a sentence. Rovin thus contendsthat hisinternet
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use did not violate any probation conditions. Rovin further claims that Hunt failed to

provide the court with reasonable alternatives to incarceration.

¶33 The State contends that Hunt’s representation reflected deliberate, informed, and

strategic decision-making that was nothing short of competent. The State further assertsthat

any ineffective assistance of counsel claim would be inappropriate for review on direct

appeal as it is non-record based.

¶34 We evaluate claims of counsel’s deficiency under the two-prong test in Strickland.

Whitlow, ¶ 10. We must first determine, however, whether the ineffective assistance of

counsel claim is record or non-record based. State v. St. Germain, 2007 MT 28, ¶ 34, 336

Mont. 17, ¶ 34, 153 P.3d 591, ¶ 34. We follow the underlying principle that a silent record

cannot rebut the strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. State v. Notti, 2003 MT 296, ¶ 7, 318 Mont. 146, ¶ 7, 79

P.3d 289, ¶ 7. Whether the record contains the answer as to why counsel took, or failed to

take, action in providing a defense constitutes the operative test. Notti, ¶ 8. Claims

involving “omissions of trial counsel frequently are ill-suited for direct appeal.” State v.

Meyers, 2007 MT 230, ¶ 10, 339 Mont. 160, ¶ 10, 168 P.3d 645, ¶ 10. Counsel’s failure to

object to testimony may be record-based and appropriate for direct appeal. The record

commonly lacks, however, counsel’s reasons for failing to object. St. Germain, ¶ 35. The

matter is best suited for post-conviction proceedings ifthe record does not explain fully why

counsel failed to object to the admission of evidence. St. Germain, ¶ 35. Post-conviction

proceedings permit the district court to inquire further asto whether counsel’srepresentation
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was ineffective. State v. Harris, 2001 MT 231, ¶ 21, 306 Mont. 525, ¶ 21, 36 P.3d 372, ¶ 21.

¶35 The record here is silent as to why Hunt took, or failed to take, action in respect to

Rovin’s allegations. Rovin’s allegations of ineffective assistance of counsel are best suited

for post-conviction proceedings. St. Germain, ¶ 35. Post-conviction proceedings would

permit Rovin the chance to develop a factual record asto why Hunt took a particular action,

or failed to take an action, that Rovin believes resulted in ineffective assistance of counsel.

Harris, ¶ 21.

¶36 Accordingly, we affirm the judgment of the District Court regarding Rovin’s due

process claim. We dismiss without prejudice Rovin’s ineffective assistance of counsel claim

to its being raised in a post-conviction relief proceeding.

/S/ BRIAN MORRIS

We Concur:

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

Justice James C. Nelson concurs.
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¶37 I concur fully in our Opinion. On the record before us, we could reach no other

resolution of this appeal. Indeed, the trial court’s decision to incarcerate Rovin was,

necessarily, dictated by the dearth of alternate options that might have facilitated Rovin’s

treatment and rehabilitation.

¶38 I write separately only to underscore the following. In all probability Rovin’s

criminal and probation violations were not willful. As Dr. Zook testified, Rovin suffersfrom

an untreated serious mental disorder with psychotic featuresin addition to hissexual assault

behaviors. This mental disorder renders him indigent, jobless and delusional. Opinion, ¶13.

Rovin cannot be treated in the community because of his mental health deficits and

predatory sexual behaviors. Opinion, ¶¶ 20, 22. It is also apparent that incarcerationwillnot

likely improve upon his situation—while previously imprisoned he did not receive adequate

mental health treatment; rather, his hallucinations and suicidal ideation intensified. Opinion,

¶¶ 14, 21.

¶39 This case is an unfortunate, but recurring, example of the failure of the criminal

justice systemto provide effective treatment optionsto trial judges when they must dealwith

persons suffering from serious mental illness coupled with criminal behavior. Isubmit that

warehousing these individuals at the Montana State Prison is not an appropriate answer.

While this approach may temporarily protect the public, it doeslittle to treat the underlying

cause ofthe individual’s mental health problems; it doeslittle to rehabilitate the individualso

as to give him or her a chance to be a productive citizen; and it does little to protect the

inviolable human dignity possessed by each of these individuals and guaranteed by Article
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II, Section 4 of the Montana Constitution. See Walker v. State, 2003 MT 134, 316 Mont.

103, 68 P.3d 872.

¶40 I join our Opinion, but I do so acknowledging that the judiciary’s hands are tied by

our State’s systemic failure to appropriately and humanely treat the mentally ill.

¶41 I concur.

/S/ JAMES C. NELSON