Nos. 05-278 and 05-279 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 100

STATE OF MONTANA, Plaintiff and Respondent,

v. JOHNNIE S HULTS, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighteenth Judicial District, In and For the County Gallatin, Cause Nos. DC-04-78 and DC-2004-132, Honorable Mike Salvag ni, Presiding Judge

COUNSEL OF RE CORD: For Appella nt: R. Stan Peeler, Peeler Law Firm , Bozem a n, Montana For Respondent: Honorable Mike McGrath, Attorn ey General; C. Mark Fowler, Assistan t Attorney Ge neral, Helena, Montana Marty Lam b ert, County Attorney; Todd W h ipple, Deputy County Attorney, Bozeman, Montana

Subm itted o n Briefs: February 14, 2 006 Decided: May 9, 2006 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 This decision stems from two separate appeals consolidated for this Court’s review. In unrelated proceedings, the State charged Johnnie Albert Shults by information with escape (from Gallatin County Detention Center), a felony in violation of § 45-7-306, MCA, and theft, a felony in vi olation of § 45-6-301, MCA. During the theft proceeding, the State provided Shults notice of its intenti on to have him designat ed a persistent felony offender (PFO). Shults pled guilty to both charges at se parate hearings before the Eighteenth Judicial District Court, Gallatin County. The court sentenced Shults as a PFO, imposing a fifty-year sentence in Mont ana State Prison (MSP) to run concurrently with his sentence for escape. Shults subseque ntly filed a notice of appeal. We affirm. ¶2 We restate the issues as follows: ¶3 1. Did the District Court err in de nying Shults’s motion to suppress evidence? ¶4 2. Did the District Court correctly dete rmine that the State provided adequate notice of its intention to seek treatment of Shults as a PFO pur suant to § 46-13-108, MCA? ¶5 3. Are Montana’s PFO statut es unconstitutional on their f ace and/or as applied to Shults? ¶6 4. Did the District Court err by sentencing Shults to prison for ten years, rather than imposing an alternative sentence?3 BACKGROUND ¶7 On December 10, 2003, law enforcement received a report that a white minivan had been driving around the rental units at Abba Dabba Storage in Bozeman, Montana, before business hours. The caller stated th at he noticed severa l storage units missing locks after the driver and his female passenge r drove from the premises. Deputy Sheriff Ryan Stratman ran the license plate number th rough dispatch and le arned that the white minivan belonged to Shults, w ho was on probation at the time. ¶8 Deputy Stratman drove to Shults’s reside nce two days later to question Shults as to why his vehicle had been at the storage unit on the morning of December 10, 2003. After Deputy Stratman knocked on the front door and receiv ed no answer, he left the premises. The next day, Deputy Stratman returned to Shults’s home with Deputy Tom Madsen. As the officers approached Shults’s trailer house, a gated property located within a trailer park, Deputy Madsen observed property in the yard that resembled items stolen from storage unit break-ins under inves tigation. Although Sh ults maintains that the entry gate had a “No Trespa ssing” sign, Deputy Stratman te stified that he did not see such a notice. The officers knocked on the front door, but received no answer even though Shults was inside the house. The offi cers then walked to the rear of the house where they observed a pitched tent. Still receivin g no answer, Officer Madsen left the premises, while Deputy Stratm an stayed, sitting in his vehicle in front of Shults’s residence. After a few moments, Shults a ppeared from his home and approached Deputy Stratman, who told Shults that he was inves tigating a criminal trespass complaint. Upon4 request, Shults granted Deputy Stratman perm ission to search the tent, at which time the officer observed what he believed to be stolen property. Deputy Stratman arrested Shults and read him his Miranda rights. Shults cons ented to a search of his home, waiving his rights verbally and in writing; the search resulted in law enforcement seizing stolen property. ¶9 Following Shults’s arrest for theft, but before the State filed the information, Shults was held in the Galla tin County Detention Center on a petition to revoke in a separate case unrelated to this appeal. With the help of his girlfrie nd, Shults managed to escape jail, only to be cap tured by law enforcement several hours later. ¶10 The State first charged Shults with felony escape and then with theft. The court held an omnibus hearing wher e the attorneys for both sides signed an order in which the State checked a box indicating its intention to se ek treatment of Shults as a PFO. At the change of plea hearing on th e escape charge, the State file d a notice to seek increased punishment under the PFO stat utes, specifying that the alle ged prior conviction consisted of issuing a bad check. Shu lts nonetheless pled guilty, evid ently with the court having fully informed Shults that he could be sentenced as a PFO. 1 Before the change of plea, Shults filed a motion to suppress physical evidence, as well as statements he had made to law enforcement. The court denied the motion and entered oral findings.

1 The transcript from the change of plea hear ing is not included in the record before this Court.5 ¶11 Shults was sentenced to fifty years in MS P on the escape char ge. The court also sentenced Shults as a PFO on the theft charge, imposing a fifty-year sentence to run concurrently with the escape charge. Shults appeals both sentences. DISCUSSION ¶12 1. Did the District Court err in de nying Shults’s motion to suppress evidence? ¶13 A district court’s denial of a criminal defendant’s motion to suppress is reviewed on appeal to determine whether the court’s findings of fact are clearly erroneous, and whether those findings were correc tly applied as a matter of law. State v. Kintli , 2004 MT 373, ¶ 8, 325 Mont. 53, ¶ 8, 103 P.3d 1056, ¶ 8. ¶14 Law enforcement drove to Shults’s pr operty on December 13, 2003, to question Shults as to why his vehicle was at Abba Da bba Storage three days earlier. In an attempt to communicate with Shults, De puties Stratman and Madsen knocked on Shults’s front door, necessarily reaching th e door by entering th rough the run-down wire fence lining the periphery of the property. At this time, Deputy Madsen observed in plain view items on the lawn that resembled reported stolen prop erty. Shults argues th at he had an actual expectation of privacy with re gard to the items identified by Deputy Madsen because he had posted a “no trespassi ng” sign on the fence surrounding his home. ¶15 In State v. Bullock (1995), 272 Mont. 361, 384, 901 P. 2d 61, 75-76, we held that “in Montana a person may have an expectati on of privacy in an area of land that is beyond the curtilage which the so ciety of this State is willing to recognize as reasonable,6 and that where that expectation is evidenced by fencing, ‘No Trespassing,’ or similar signs, or by some other means which indicates unmistakably that entry is not permitted, entry by law enforcement officers requires perm ission or a warrant.” (Emphasis added; citations omitted.) Our statutory law additionally states that the “[p]rivilege to enter or remain upon [another’s] land . . . is extended . . . by the failure of the landowner or other authorized person to post notice denying en try onto private land.” Section 45-6-201(1), MCA. “This Court’s recognition of a legitima te expectation of pr ivacy has been based on various factors, such as the place of the investigation and the co ntrol exercised by the person over the property investigated.” State v. Scheetz (1997), 286 M ont. 41, 48, 950 P.2d 722, 726. ¶16 “A criminal defendant who seeks to suppress ev idence has the burden of proving that the search was illegal.” State v. New (1996), 276 Mont. 529, 5 37, 917 P.2d 919, 924.
In Bullock , we concluded that the defendant ha d a reasonable expect ation of privacy because he took numerous pre cautions to ensure that others would not enter the property without permission. Bullock , 272 Mont. at 385, 901 P.2d at 76. The same cannot be said regarding the case at hand. While Shults maintains that his property had a “No Trespassing” sign on the wire fence surrounding it, Deputy Stratman testified that he never saw such a sign. In addition, the St ate offered photographs indicating that no sign existed. Although the photographs do not clearly show th e entirety of the fence, as it is partially obstructed by Shults’s van in the im age, Shults did not meet his burden in that he failed to offer other photographs showin g the alleged “No Trespassing” sign; nor did7 he offer witness testimony other than his ow n stating that such a sign existed. We conclude that the District Court correctly determined th at Shults had no reasonable expectation of privacy with regard to items in plain view in his yard. ¶17 Shults also argues that the District Cour t erred in denying his motion to suppress because his consent to the search of his prop erty was not voluntary or freely given. “In order to determine whether consent to a se arch was given voluntarily, this Court has adopted the same test used by the Suprem e Court, which is the ‘totality of the circumstances’ test.” State v. Wetzel , 2005 MT 154, ¶ 16, 327 Mont. 413, ¶ 16, 114 P.3d 269, ¶ 16, citing State v. Rushton (1994), 264 Mont. 248, 870 P. 2d 1361. Shults insists that he was intoxicated at the time he co nsented to the search, as well as under the misguided impression that, as a probationer, he had to consent. This Court has previously held that a subject’s knowledge of a right to refuse consent is only one of the factors to be taken into account and is not determinative of th e questions of voluntariness. Wetzel , ¶ 19. Here, no evidence sup ports Shults’s assertion that he was intoxicated at the time Deputy Stratman requested his consent to the search. Moreover, the transcription of Deputy Stratman’s taped interview with Shu lts prior to the search shows that Deputy Stratman specifically stated: “[W]hat I’m going to do is as k you for consent to search your trailer, okay? What that means is I’m goi ng to read you this fo rm right here and if you’d like to give us consent to search, that’d be great. If you don’t, that’s up to you also.” Once the people in Shults’s home were safely removed, Shults provided oral and8 written consent to the search. In light of the above, we conclude that the District Court correctly denied Shults’s motion to suppress evidence. ¶18 2. Did the District Court correctly determine that the State provided adequate notice of its intention to seek tr eatment of Shults as a PFO pursuant to § 46-13-108, MCA? ¶19 Shults argues that the State failed to provide adequate notice of its intention to seek PFO treatment pursuant to § 46-13-108, MCA, which states in pertinent part: (1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110. (2) The notice must specify the alle ged prior convictions . . . .

. . . . (5) The notice must be filed and s ealed until the time of trial or until a plea of guilty or nolo contende re is given by the defendant. (Emphasis added.) ¶20 The State maintains that it pr ovided Shults adequate no tice of its intentions on three separate occasions. First, the State in dicated in the March 2 004 information that PFO status could apply. Se cond, the State checked a box in the September 2004 omnibus order indicating its intention “to seek treatmen t of [Shults] as a persistent felony offender pursuant to § 46-13-108, MCA.” And finally, at the change of plea hearing, the State presented a written notice that included the e xplanatory language specifying the alleged prior conviction (issuing a bad check).9 ¶21 In response, Shults argues that the information merely indicated that the State might seek PFO treatment. As for the omnibus order, while Shults ac knowledges that the State specified that it would seek PFO status, he argues th at this notification failed to satisfy subsection (2) of § 46- 13-108, MCA, because it did no t “specify the alleged prior convictions.” Shults concedes that the Stat e specified the alleged prior conviction at the change of plea hearing, but in sists that this notification wa s too late under subsection (1) of § 46-13-108, MCA, because it was not provided at or before the omnibus hearing. ¶22 “The purpose for providing such notice is to give the de fendant an opportunity to file an objection to the criminal record reli ed upon in th e notice and to hold a hearing should there be any such objection.” State v. McQuiston (1996), 277 Mont. 397, 408, 922 P.2d 519, 526. In McQuiston , we concluded that if a defendant received notice of the State’s intention to seek PFO status and was not prejudiced by the St ate’s failure to file the notice, we would not overturn the di strict court’s decision to impose a PFO designation. McQuiston , 277 Mont. at 409, 922 P. 2d at 527. Similarly, we now hold that if a defendant had ample opportunity to object to PFO treatment, including the underlying charge on which the statute is based, and th at defendant was not prejudiced by the timing of the filing, we will not overt urn a district court’s decisi on to impose a sentence with a PFO designation. ¶23 In this case, Shults learned of the pr edicate offense when he pled guilty in November 2004 and the court sentenced him in March 2005. This me ans that Shults had four months to file an objection to the allege d prior offense of issu ing a bad check before10 the court imposed sentence. The record indica tes that Shults did not file an objection, despite having adequate time to do so. We hold that the District Court correctly determined that the State provided adequate no tice of its intention to seek treatment of Shults as a PFO pursuant to § 46-13-108, MCA. ¶24 3. Are Montana’s PFO statutes unconstitutional on their face and/or as applied to Shults? ¶25 Shults argues that Montana’s PFO statut es, § 46-18-501, MC A, and § 46-18-502, MCA, unconstitutionally violate the double jeopardy, equal protection and cruel and unusual punishment clauses of the United States and Montan a Constitutions. In reviewing constitutional challenges to legisl ative enactments, the constitutionality of a legislative enactment is prima facie presumed, and every intend ment in its favor will be made unless its unconstitutionality appears beyo nd a reasonable doubt. Shults, as the party raising the consti tutional challenge, bears the weight y burden of proving the alleged infirmity of Montana’s PFO statutes. Because resolution of this issu e involves a question of constitutional law, we must determine whether the District Court’s interpretation of the law is correct. State v. Renee , 1999 MT 135, ¶ 21, 294 Mont. 527, ¶ 21, 983 P.2d 893, ¶ 21. ¶26 Double Jeopardy . Shults’s double jeopardy argumen t is without merit, as this Court has previously held that the PFO st atutes (authorizing enhanced sentences for recidivists) do not constitute double jeopar dy because “[a] senten ce as an habitual criminal is not to be vi ewed as a new jeopardy.” State v. Wardell , 2005 MT 252, ¶ 19,11 329 Mont. 9, ¶ 19, 122 P.3d 443, ¶ 19 (citing State v. Farnsworth (1989), 240 Mont. 328, 334, 783 P.2d 1365, 1369; State v. Maldonado (1978), 176 Mont. 32 2, 328, 578 P.2d 296, 300; Gryger v. Burke (1948), 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687). ¶27 Equal Protection . Shults also argues that Mont ana’s PFO statutes violate equal protection requirements of the Fourteenth Amendment to the United States Constitution and Article II, Section 4, of the Montana Cons titution. “[T]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or mo re similarly situated groups in an unequal
manner.” Renee , ¶ 27. Therefore, “when addressing an equal protection challenge, this Court must first identify the classes involve d and determine whether they are similarly situated. If the classes at issue are not simila rly situated, then the fi rst criteria for proving an equal protection viola tion is not met and we need look no further.” Powell v. State Compensation Ins. Fund , 2000 MT 321, ¶ 22, 302 Mont. 518, ¶ 22, 15 P.3d 877, ¶ 22 (citation omitted). ¶28 In this case, Shults asserts that § 46-18-5 02, MCA, creates “a cl ass of individuals” consisting of “[d]efendants with less than five years between the current crime and a prior conviction.” He then argues that “two individuals char ged with precisely the same crimes, qualifying as persistent felony offenders, may well receive disparate sentences” within the PFO guide line range. In other words, Shults argues that individuals prosecuted pursuant to the PFO statutes may be treated differently in sentencing. Shults12 has not shown, however, that the PFO statutes classify two or more similarly situated groups in an unequal manner. Thus, we ne ed not further address Shults’s equal protection argument. ¶29 Cruel and Unusual Punishment . The third and final constitutional argument presented by Shults is that the sentence he received under the PFO statutes amounts to cruel and unusual punishment in violation of the Eighth Ame ndment of the United States Constitution and Article II, Section 22, of the Montana Constitution. Specifically, Shults contends that the court imposed a sentence ex cessive and disproportionate to the crime of theft, which alone, carries a maximum sentence of ten year s. The State responds that Shults’s sentence is within th e statutory parameters and his equity argument is a matter for the Sentence Review Division. ¶30 “The general rule in Mont ana is that a sentence w ithin the statutory maximum guidelines does not viol ate the prohibition against cruel and unusual punishment. We have recognized an exception to this general rule when a sentence is so disproportionate to the crime that it shocks th e conscience and outrages the moral sense of the community or of justice.” Wardell , ¶ 28 (citation omitted). ¶31 In this case, the senten ce does not shock the consci ence, nor outrage the moral sense of the community or of justice. Shults has an eighteen-year cr iminal record and has repeatedly failed to conform his behavior to societal norms, despite having been provided numerous opportunities by the cr iminal justice system. We therefore conclude that Shults’s designation as a PFO does not amount to cruel and unusual punishment.13 ¶32 Finally, since Shults’s sentence is within statutory parameters, his equity argument is not properly before this Court. Wardell , ¶ 29. Although we w ill not review the equity of Shults’s sentence, he is not precluded fro m petitioning for sentence review. See Sentence Rev. Div. R. 7; Wardell , ¶ 29. ¶33 4. Did the District Court err by senten cing Shults to prison for ten years, rather than imposing an alternative sentence? ¶34 In Montana, criminal sentencing alternativ es are strictly a matter of statute. Our standard of review, therefore, includes the qu estion of whether the district court correctly applied the applicable statutes. We review the district court’s findings on which its sentence is based to determine whet her they are clearly erroneous. State v. Alden (1997), 282 Mont. 45, 49, 9 34 P.2d 210, 213. ¶35 Shults argues that the District Cour t violated § 46-18-225(1), MCA, which provides that when “sentencing a non-violent felony offender, the sentencing judge shall first consider alternatives to imprisonment of the offender in a state prison, including placement of the offender in a community corrections facility or program, a prerelease center, or a prerelease program.” Among othe r factors, the sentencing court “shall take into account . . . the interests of justice and th e needs of public safety ,” as well as whether “the needs of the offender can be better serv ed in the community or in a facility or program other than a state prison.” Section 46-18-225(2)(a) and (b), MCA. “If the judge sentences the offender to a state prison, th e judge shall state the reasons why the judge14 did not select an alternative to imprison ment, based on the criteria contained in subsection (2).” Section 46-18-225(3), MCA. ¶36 We note at the outset that Shults does no t argue that the District Court failed to comply with § 46-18-225, MCA; rather, Shults insists that this Court should remand for “further consideration” of alternative punish ment because he is a non-violent offender. In support of this statement, Sh ults asserts that the only physical violence reflected in his criminal history occurred so me eighteen years ago when he allegedly committed a sexual assault. Shults also asserts that his eighteen- year criminal history does not indicate that society is in need of protec tion from physical harm due to his actions because he is clearly a menace to himself more than a threat to society. ¶37 We have previously held that a distri ct court is granted broad discretion to determine the appropriate punishment, as it is in the best position to weigh the evidence, judge the credibility of wi tnesses, and resolve conf licts in the evidence. Alden , 282 Mont. at 51, 934 P.2d at 214. In this case, the Distri ct Court provided a ten-page statement explaining its reasons for imposing a sentence of lengthy incarceration in MSP. The judge initially noted that Shults is thirty-five years old with a criminal history spanning eighteen years, during which time he was “given very many opportunities to do something about his life.” The court opined that although escape is not statutorily defined as violent, many individuals can be seriously injure d and/or killed as a direct consequence. The court went on to state th at many victims have suffered from Shults’s crimes, including an Anaconda man that Shults tied up after his escape in order to steal15 the man’s car. In the in terest of justice, the judge dete rmined that in order to ensure public safety, Shults must be incarcerated in the state pris on to thwart any recurrence of his criminal behavior. As for Shults’s need s, the court concluded that Shults is an intelligent man who has continually used his skills to try to subv ert the system. ¶38 In light of the above, it is clear that the court considered alternatives to imprisonment, as mandated by § 46-18-225, MCA, and explai ned why it chose to impose incarceration rather than alternative punishme nt. We therefore hold that the findings on which the court based its sent ence were not clearly erroneou s and that the court did not err when it sentenced Shults to a term of imprisonment. ¶39 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur: /S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ BRIAN MORRIS