Justice LAURIE McKINNON delivered the Opinion of the Court.
¶ 1 Christopher Nels Bullplume was convicted of failing to provide notice of his change of residence when required to do so as a sexual offender. The Eighth Judicial District Court, Cascade County, imposed a four-year suspended sentence. Bullplume appeals several conditions of that sentence. We affirm.
¶ 2 We restate the issues on appeal as follows:
¶ 3 In 1993, Bullplume was convicted of first-degree rape in the State of Washington. As a result of that conviction, he is required to register as a sexual offender. Bullplume has discharged the Washington sentence that was imposed.
¶ 4 On August 1, 2011, Bullplume was arrested in Great Falls for misdemeanor offenses of driving under the influence (DUI), disorderly conduct, driving without insurance, and driving while license suspended. Law enforcement officers ascertained that Bullplume was a registered sexual offender from Washington and that a warrant had been issued for his arrest in Washington because he had absconded from his last known address in June 2011. Officers further determined that Bullplume had not registered as a sexual offender in Great Falls. A detective spoke with Bullplume, who admitted that he had left Washington approximately two months earlier and that he had been living in Great Falls for about two weeks.
¶ 5 On August 11, 2011, the State charged Bullplume with failing to register, a felony, in violation of §§ 46-23-505 and -507, MCA (2009). The State and Bullplume ultimately entered into a binding plea agreement under § 46-12-211(1)(b), MCA. In exchange for Bullplume's guilty plea, the State agreed to recommend a four-year commitment to the Montana State Prison, with all time suspended. On November 1, 2011, Bullplume appeared in court and changed his plea to guilty. A presentence investigation report (PSI) was ordered. As required by § 46-18-111(1)(b), MCA, a psychosexual evaluation was prepared in conjunction with the PSI.
¶ 6 The PSI was filed with the District Court on February 22, 2012. It reflected that Bullplume, age 34 at the time, was unemployed and relied on family as a means of support. In addition to his 1993 conviction for rape, Bullplume had convictions for felony possession of heroin (1995) and felony unlawful possession of a firearm (2006). He also had two convictions for DUI (2001 and
¶ 7 Dr. Donna M. Zook conducted the psychosexual evaluation and prepared a report for the District Court. Dr. Zook determined that "[t]he veracity and trustworthiness of Mr. Bullplume's self-report is questionable" in that "[h]is account of events do not coincide with records." Dr. Zook found that "[t]he most salient factor regarding Mr. Bullplume's character is his lack of shame, guilt, or remorse regarding antisocial behaviors that he committed and the effects on others." Dr. Zook provided the following summary of Bullplume:
Dr. Zook concluded that Bullplume was a moderate risk to repeat a sexual offense and designated him a Level 2 offender. See § 46-23-509(2), MCA.
¶ 8 The District Court conducted a sentencing hearing on February 28, 2012. The State recommended that the court impose the four-year suspended sentence called for in the plea agreement. In addition, the State requested that the court impose all 41 of the probation conditions recommended in the PSI. Bullplume objected to conditions 26 through 40, which the PSI describes as "standard sexual offender conditions." He argued (1) that failure to register is not a sexual offense which would necessitate conditions relating to sexual offenders and (2) that there was an insufficient nexus to impose the conditions because the underlying rape conviction had occurred nearly 20 years earlier. Bullplume did not object to any of the other recommended conditions.
¶ 9 The District Court orally imposed a four-year suspended sentence and allowed the parties an opportunity to brief the applicability of conditions 26 through 40. In the subsequent written Sentence, issued March 8, 2012, the District Court affirmed the imposition of conditions 26 through 40 under the authority of State v. Malloy, 2004 MT 377, 325 Mont. 86, 103 P.3d 1064.
¶ 10 In his opening brief on appeal, Bullplume challenges the District Court's imposition of not only conditions 26 through 40, but also conditions 11, 21, and 22, which prohibit him from gambling, entering bars, and entering casinos, respectively. Additionally, Bullplume argues, for the first time on appeal, that the District Court lacked authority to require him to pay the costs of his court-ordered evaluations and treatment. In his reply brief, however, Bullplume concedes the validity of the State's argument that he may not obtain appellate review of conditions 11, 21, and 22 due to his failure to object to these conditions in the District Court. Bullplume maintains only his challenge to conditions 26 through 40, as well as his claim that the District Court lacked authority to impose the costs of court-ordered evaluations and treatment. With respect to the latter, the State notes that State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), provides a basis for this Court to review whether the District Court had authority to require Bullplume to pay for his evaluations and treatment.
¶ 11 Conditions 26 through 40 may be summarized as follows:
¶ 12 The requirements that Bullplume pay the costs of evaluations and treatment are contained in conditions 17, 18, and 26, which provide as follows:
¶ 13 With regard to conditions 26 through 40, Bullplume argues that, given "more than (19) nineteen years of living without committing a crime of violence or a sex crime, and a lifetime of never committing a crime involving children," there is an insufficient nexus between the offense/offender and the conditions. With regard to conditions 17, 18, and
¶ 14 We review restrictions or conditions on a criminal sentence for both legality and abuse of discretion. State v. Melton, 2012 MT 84, ¶ 16, 364 Mont. 482, 276 P.3d 900.
¶ 16 As noted, Bullplume did not object to the District Court's requirement that he pay the costs of his court-ordered evaluations and treatment as conditions of his probation. Generally, this Court will not review a claim where the defendant failed to object to the alleged error in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892; State v. Micklon, 2003 MT 45, ¶ 8, 314 Mont. 291, 65 P.3d 559. As the parties correctly point out, however, we have created an exception to this general rule where a defendant alleges that a sentence exceeds statutory parameters and is, therefore, illegal. Lenihan, 184 Mont. at 343, 602 P.2d at 1000; State v. Muhammad, 2002 MT 47, ¶ 23, 309 Mont. 1, 43 P.3d 318. Part of the rationale behind this exception "is that, as a practical matter, `a defendant often times must remain silent even in the face of invalid conditions' to guard against the possibility that the sentencing court may forego a more lenient sentence if the defendant objects to one of the conditions." Micklon, ¶ 9 (quoting Lenihan, 184 Mont. at 343, 602 P.2d at 1000). We have declined to apply the Lenihan exception, therefore, in a situation where the defendant "affirmatively agreed" at sentencing to the condition he now asserts as error on appeal. Micklon, ¶ 10.
¶ 17 For purposes of applying Lenihan, we have held that a sentence which may be objectionable is, nevertheless, legal if it falls within statutory parameters. Kotwicki, ¶ 16. We explained that "a sentencing court's failure to abide by a statutory requirement [such as consideration of the defendant's ability to pay] rises to an objectionable sentence, not necessarily an illegal one that would invoke the Lenihan exception." Kotwicki, ¶ 13 (citing State v. Nelson, 274 Mont. 11, 906 P.2d 663 (1995), and State v. Swoboda, 276 Mont. 479, 918 P.2d 296 (1996)). In Nelson and Swoboda, we held the Lenihan exception inapplicable despite allegations that the sentencing court had failed to abide by statutory requirements. Both cases involved situations where the trial court had failed to consider sentencing alternatives as required by § 46-18-225, MCA, before imposing a prison sentence upon a nonviolent offender. The defendants in each case had failed to object to the court's error at the sentencing hearing and attempted to invoke the Lenihan exception on appeal. We observed, however, that the trial court, after considering the requirements of § 46-18-225, MCA, legally could have sentenced Nelson and Swoboda to prison, and thus their sentences failed to meet the illegality requirement for applying the Lenihan exception. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918 P.2d at 298. Accordingly, where the sentencing court, if provided the opportunity to consider the error now asserted on appeal, could nevertheless have imposed the same sentence, the illegality requirement of the Lenihan exception has not been met. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918 P.2d at 298; Kotwicki, ¶ 16.
¶ 18 In considering the District Court's requirement that Bullplume pay the costs of his evaluations and treatment as conditions of his probation, we note preliminarily that it is well established a court does not have the power to impose a sentence
¶ 19 It is pursuant to the foregoing statutory authority that the State argues the District Court could impose the requirement that Bullplume pay for his own evaluations and treatment. Bullplume maintains that the court exceeded its statutory authority by imposing such a requirement; however, because he did not object to this requirement, our review is limited under Lenihan, as clarified in Kotwicki, Nelson, and Swoboda, to determining whether, had the District Court been presented with the challenge Bullplume now makes, the court still could have imposed the requirement. In so doing, we consider whether a condition requiring Bullplume to pay for his evaluations and treatment might be reasonably related to the objective of rehabilitation, thus providing the statutory authority for imposing the condition and correspondingly requiring that any objections to the condition be made at sentencing. This consideration is different from, for example, the unauthorized imposition of a fine, which relates to the imposition of a penalty and is thus punitive, rather than rehabilitative, in nature. If a condition of probation is reasonably related to the objective of rehabilitation, and not prohibited by some other provision of law, then the sentencing court has acted within statutory parameters and there is no further review under Lenihan.
¶ 20 The District Court required Bullplume to obtain a chemical dependency evaluation, a mental health evaluation, and sexual offender treatment with a MSOTA qualified therapist. The court also required Bullplume to pay for these services. Had Bullplume made an objection at the time of sentencing, testimony may have been presented that, for example, payment for services by the offender has therapeutic value and is related to the offender's rehabilitation.
¶ 21 In sum, the State has pointed to plausible authority for the imposition of a condition requiring Bullplume to pay for the costs of his evaluations and treatment — namely, § 46-18-201(4)(o), MCA (2009), and § 46-18-202(1)(g), MCA (2011). Due to Bullplume's failure to raise the issue in the District Court, however, the record before us contains no discussion, evidence, or consideration by the court regarding his paying for these services. On the basis of this silent record, and given the broad discretionary authority of the sentencing court to tailor sentences designed to rehabilitate the offender, we decline to address this issue any further. We conclude Bullplume is precluded from raising it based upon his failure to object to the condition at sentencing. Kotwicki, ¶ 21.
¶ 23 Bullplume objected in the District Court to conditions 26 through 40, and his challenge has, therefore, been properly raised on appeal. Bullplume argues that there is an insufficient nexus between the sexual offender conditions and either himself or his underlying offense. He argues that his rape conviction occurred when he was 15 years old and involved a 25-year-old woman, that he has not committed a "crime of violence" or a "sex crime" for nearly 20 years, and that he has not committed any crimes involving children. Bullplume argues that, given the totality of these facts, any nexus to conditions 26 through 40 is too isolated or stale to serve as justification for their imposition.
¶ 24 We declined to adopt as a categorical rule the position that a sufficient nexus could be established to the original sexual offense when imposing conditions of sentence for the offense of failing to register. Melton, ¶ 20. We stated that "a passing, isolated, or stale instance of behavior or conduct is insufficient to support a restrictive probation condition imposed in the name of offender rehabilitation." Melton, ¶ 20 (citing Ashby, ¶ 15, State v. Stiles, 2008 MT 390, ¶ 16, 347 Mont. 95, 197 P.3d 966, and State v. Jones, 2008 MT 440, ¶¶ 22-23, 347 Mont. 512, 199 P.3d 216). Thus, in some instances, the original offense underlying the registration requirement may have relevance, but in other cases, the original offense may be too isolated or stale to serve as justification for imposing the challenged condition. Melton, ¶ 20. We stated that "[e]ach case must turn on its specific facts." Melton, ¶ 20.
¶ 25 Upon review of Bullplume's PSI and psychosexual evaluation, we conclude that the District Court did not abuse its discretion in imposing the conditions related to sexual offenders. In fact, Bullplume presents a compelling case for needing treatment. His history demonstrates an inability to remain law abiding or to conform his conduct to the demands of sexual offender laws. This, combined with Bullplume's significant chemical dependency concerns, leaves the public and society in danger should Bullplume not reform his behavior through treatment. Referring to Dr. Zook's observations that Bullplume "tends to be non-conforming, resentful of authority[,] ... erratic and unpredictable," the PSI author noted that "[s]uch an assessment raises questions on how likely the Defendant will comply with any Court-ordered probation conditions." Given Bullplume's criminal history, moderate risk of reoffending, and excessive use of substances, Bullplume's only chance of succeeding in the community is
¶ 26 Based on the foregoing, we conclude that Bullplume has waived any objection to the requirement that he pay for the costs of his evaluations and treatment. We further conclude that imposition of the conditions relating to sexual offenders (conditions 26 through 40) was supported by a sufficient nexus to Bullplume himself. The District Court's sentencing order is affirmed.
We Concur: MIKE McGRATH, BETH BAKER, BRIAN MORRIS and JIM RICE.