No 

No. 97-449

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 310N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CARLA COLORES,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Kenneth R. Neill, Judge presiding.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (1 of 6)4/20/2007 2:08:24 PM
No 

COUNSEL OF RECORD:

For Appellant:

Scott Albers, Attorney at Law; Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General; Helena, Montana

Brant Light, Cascade County Attorney; Susan Weber,

Deputy County Attorney; Great Falls, Montana

Submitted on Briefs: October 1, 1998

Decided: December 15, 1998

Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (2 of 6)4/20/2007 2:08:24 PM
No 

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. Carla Colores appeals from her sentence entered by the District Court for the 

Eighth Judicial District, Cascade County, on May 8, 1997. After pleading guilty to 

mitigated deliberate homicide in a nonbinding plea agreement, Colores was 

sentenced to forty years in the Montana State Prison with an additional ten years to 

run consecutively for the use of a weapon. Colores claims the prosecution breached 

an oral agreement during the sentencing and in fairness she is entitled to a second 

hearing. We affirm.

¶3. The dispositive issue on appeal is whether Colores waived her complaints 

regarding the prosecutor's conduct at the hearing by failing to timely object in the 

District Court. 

FACTUAL BACKGROUND

¶4. Colores appeals her sentence on the grounds that the State breached its oral 

agreement and violated her constitutional rights. She alleges that her attorney and 

the prosecutor made an off-the-record oral agreement during a recess of the 

sentencing hearing wherein the State promised to present no further testimony or 

evidence and to rest its case. In return, Colores agreed to limit her evidence to her 

own testimony and that of her mother. 

¶5. Colores argues that the State breached the agreement. She contends that after she 

presented her limited evidence, the State, in its closing remarks at the sentencing, 

introduced new matters when one of the prosecutors presented a summary of 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (3 of 6)4/20/2007 2:08:24 PM
No 

statements made earlier by Colores regarding the crime. Defense counsel did not 

object to the presentation. The prosecutor then told the court that Colores gave 

inconsistent statements. Defense counsel objected to this on proper foundation. The 

State completed its summation, then rested. Defense counsel made no motion or 

objection but began his closing remarks. 

¶6. Colores now complains that the evidence was in direct violation of the oral 

agreement to her prejudice. She further asserts that the evidence was admitted 

without foundation, was hearsay, and left her in an untenable position where she 

could not rebut the evidence since she had dismissed her other witnesses pursuant to 

her agreement with the State. Colores argues she was forced to make a difficult 

tactical decision: (1) raise an objection and thus shift the focus of the hearing from a 

determination of her sentence to a legal dispute over the oral agreement, or (2) 

simply ignore the breach and go forward with the hearing and hope to minimize the 

potential damage to her position. Colores argues that she chose the second option by 

objecting to the State's evidence only on an evidentiary basis. Colores now asserts in 

this Court that the State's breach of the agreement not only caused her a longer 

sentence, it violated her constitutional rights to confront witnesses, effective 

assistance of counsel, and due process. She requests a second hearing.

DISCUSSION

¶7. Did Colores waive her complaints regarding the prosecutor's conduct at the 

hearing by failing to timely object in the District Court? 

¶8. There is no question that Colores failed to raise these matters in the District 

Court. The record discloses that Colores failed to object when the State made its 

argument and sentencing recommendation. There was never an objection or 

argument raised in the District Court that the proceeding violated Colores's right of 

confrontation or denied her due process or effective assistance of counsel. Moreover, 

after both sides completed their presentations at sentencing, the District Court 

specifically inquired whether there was any legal reason why the court could not 

proceed with sentencing. The defense replied that there was none. 

¶9. This Court will not consider issues raised for the first time on appeal when a 

party had the opportunity to make an objection at the trial level. See § 46-20-104(2), 

MCA; State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491; State v. Webb

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (4 of 6)4/20/2007 2:08:24 PM
No 

(1992), 252 Mont. 248, 251, 828 P.2d 1351, 1353. Colores nonetheless refers our 

attention to State v. Allen (1981), 197 Mont. 64, 645 P.2d 380, as support for her 

position that we should consider the issue of whether an enforceable agreement 

existed between her and the State, and whether the State breached the agreement. In 

Allen, we held that an unresolved factual dispute concerning the terms of a written 

plea bargain agreement and the issue of whether the prosecutor violated the 

agreement should be remanded to the District Court. Unlike Colores's claim, 

however, the defendant in Allen properly preserved this issue for appeal. The 

defendant petitioned the district court to set aside the sentence or, alternatively, to be 

allowed to withdraw his plea of guilty on the ground that the prosecuting attorney 

failed to fulfill his promises made in a plea bargain. See Allen, 197 Mont. at 66, 645 

P.2d at 381. Colores failed to do this.

¶10. Colores next resorts to the doctrines of equitable and judicial estoppel to relieve 

her of the responsibility to register a timely objection in the District Court. Neither 

apply under the facts of this case. In essence, she argues that the State should be 

equitably or judicially estopped from claiming that the error was not properly 

preserved because the State breached the agreement and caused her to change her 

position to her detriment. She cites no authority, however, to support her position 

that either equitable or judicial estoppel can excuse a party's responsibility to 

properly raise objections in a district court criminal proceeding in order to preserve 

the issue on appeal.

¶11. Colores also argues that the plain error doctrine should be applied here. We 

invoke the plain error doctrine sparingly where a defendant's fundamental 

constitutional rights are implicated and our failure to review may result in a manifest 

miscarriage of justice, leave unsettled questions of fundamental fairness, compromise 

the judicial process, or where the error falls within the ambit of § 46-20-701(2), 

MCA. See State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215. This case 

does not present the type of extraordinary circumstances that persuade us to invoke 

the plain error doctrine, nor does § 46-20-701(2), MCA, apply. 

¶12. Lastly, we will not remand this matter for a new sentencing hearing on the 

grounds that the District Court incorrectly overruled Colores's objection on 

evidentiary grounds. We review a district court's sentencing decision for legality only 

and will not disturb the decision unless the district court abused its discretion. See 

State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d 202, 204. We conclude that the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (5 of 6)4/20/2007 2:08:24 PM
No 

District Court did not abuse its discretion in admitting the evidence and further note 

that the rules of evidence are not applicable or controlling in sentencing hearings. See 

DeSalvo, 273 Mont. at 349-50, 903 P.2d at 206.

¶13. Affirmed.

/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-449%20Opinion.htm (6 of 6)4/20/2007 2:08:24 PM