DA 06 - 0626 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 314N ST ATE OF MONTANA, Plaintiff and Appellee, v. JAMES MICHAEL STEWART, Defendant and Appellant.
APPEAL FROM: District C ourt of the Thirteenth Judicial District,

In and For the County

of Yellowstone, Cause No. DC - 20 05 - 0247 Honorable G. Todd Baugh, Presiding Judge COUNSEL OF RECORD:

For Appellant: Nancy G. Schwartz , Attorney at Law, Billings, Montana For Appellee : Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney

General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Georgette Hogan, Deputy Count y Attorney, Billings, Montana

Submitted on Briefs: September 12, 2007

Decided: December 4, 2007 Filed:

__________________________________________ Clerk December 4 20072

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this C ourt ’ s quarterly list o f noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 James Stewart (Stewart) entered a guiltypleato felony partner and family member assault of his g irlfriend , A.W. The Thirteenth Judicial District Court in Yellowstone County imposed a judgment and sentence that required that he have no contact with the victim. H e appeals this restriction on the ground that the condition ismore restrictive than is necessary to achieve the goal sof rehabilitation and protection of A .W. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND ¶3 In March 2005 Stewart and his then- girlfriend of fourteen months , A.W., had an argument resulting in a physical altercation . The Billings Police Department(BPD) responded to a reported domestic assault inprogress. Upon arrival at the scene, the officers found A.W. with a black eye and a bloody nose. Stewart had fled the scene. A.W. told officers that Stewart had hit her and when she attempted to get away from him, he threw her to the ground and continued to hit her. Witnesses testified that they saw Stewart kick and punch A.W. while she was on the ground. When he was located and arrested, Stewart

reported to the officer that he was very drunk at the time and did not remember much about the incident.3

¶4 Stewart initially entered a not guilty plea and the State filed notice of its intent to seek persistent felony offender (PFO) status. Stewart ultimately entered into a plea agreement under which the State withdrew its request for PFO status and Stewart ple d guilty to felony partner or family member assault. Follow his change of plea, the District Court ordered a pre - sentence investigation (PSI). The PSI outline d Stewart’s adult criminal history dating from 1995 which includes, among other things, several alcohol related offenses and multiple misdemeanor partner or family me mb er assaults. For these types of charges alone, he hadb een sentenced to pay over $2,000 in fines and spend numerous days in jail. While the PSI does not contain a victim impact state ment by A.W., the probation officer nonetheless recommended that Stewart should not be allowed to have contact with her due to his history of violent behavior. ¶5 At Stewart’s sentencing in July 2006 , he objected to the condition that prohibited him from having any form of contact with A.W. H e told the court that A.W. was incarcerated in a federal prisonand would likely be released in November 2006. He also informed the court that A.W. had been writing letters to him and had even contacted his attorney trying to reach him . S tewart’s counsel expressed concern that the prohibition from contact might set him up for revocation of his probation. The prosecutor adamantly argued that the “no contact” condition remain in Stewart’s sentence conditions. The court refused to remove the challenged condition and instructed Stewart to refrain from returning A.W.’s callsand that he could have no other contact with her . The District Court sentenced Stewart to five years with the Department of Corrections with four years suspended. Stewart appealed.4 STANDARD OF REVIEW ¶6 We review a criminal sentencef or legality; that is, we determine whether the sentence is within statutory parameters . Such a determination of legality is a question of law. We reiterate that questions of l aw are reviewed de novo . State v. Seals , 2007 MT 71, ¶ 7, 336 Mont. 416, ¶ 7, 156 P.3d 15 , ¶ 7(citations omitted). DISCUSSION ¶7 The District Court ’ s authority to impose restrictions on the suspended portion of Stewart’s sentence is governed by §§ 46 - 18 - 2 01 - 202, MCA (2005 ) 1

. Pursuant to these statutes, the District Court had the authority to impose reasonable conditions necessary for rehabilitation and for the protection of the victim and society . Section 46 - 18 - 201(4)( o ), MCA (2005). The District Court also had the authority to restrict Stewart’ s freedom of association. S ection 46 - 18 - 202(1)(c), MCA (2005) . H owever, adistrict court ’ s authority to impose restrictions necessary for the rehabilitation of the defendant or the protection of society is not without limit. We have previously stated that in order to be “reasonably related to the objectives of rehabilitation and protection of the victim and society . . . a sentencing limitation or condition must have . . . some correlation or connection to the underlying offense for which the defendant is being sentenced. ” State v. Ommundson , 1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11. Stewart does not argue that visitations between him and A.W. arenot “reasonably related” ; rather,

1 The law in effect atthe time of S tewart’s crime controls his sentence. State v. Muhammad, 2002 MT 47, ¶ 24, 309 Mo nt. 1, ¶ 24, 43 P.3d 318, ¶ 24.5

he argues that the condition is more restrictive than necessary to accomplish the goalo f protecting her. ¶8 We disagree. The record reveals that the District Court took into consideration the arguments presented at sentencing by both Stewart’s attorney and the prosecutor . We conclude that based on Stewart’s past criminal behavior and numerous previous assault charges, the imposition of the “no contact” condition satisfied the goals of victim protection authorized in the applicable statute. ¶9 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for me morandum opinions . It is manifest on the record before us that District Courtdid not err in its disposition of this matter. Therefore, we affirm.
/S/ PATRICIA COTTER We Concur: /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ JIM RICE /S/ BRIAN MORRIS