September 8 2015
DA 14-0186
Case Number: DA 14-0186
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 270N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TIMOTHY SCOTT PARRISH,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC-13-178
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General; Helena, Montana
John W. Parker, Cascade County Attorney, Joshua A. Racki, Deputy
County Attorney; Great Falls, Montana
Submitted on Briefs: August 19, 2015
Decided: September 8, 2015
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Timothy Scott Parrish appeals the January 13, 2014 order of the Eighth Judicial
District Court, Cascade County, which, upon revocation of his suspended sentence,
reimposed as a condition of his suspended sentence the requirement that Parrish complete
the Eighth Judicial District Treatment Court Program.1 We remand this case to the
District Court with instructions to strike the condition of Treatment Court from Parrish’s
suspended sentence.
¶3 On November 5, 2013, Parrish was sentenced to five years at Montana State
Prison (MSP), with all time suspended, after he pled guilty to one count of felony
burglary. Among other conditions, the sentence required Parrish to complete Treatment
Court. At sentencing, the District Court instructed the State to file for revocation
of Parrish’s suspended sentence if he was not admitted to Treatment Court. On
December 6, 2013, the State filed a petition to revoke because it was determined that
Parrish did not qualify for Treatment Court. At the hearing on the petition, both Parrish’s
1
Parrish does not appeal the revocation of his sentence based on his failure to complete
Treatment Court because he agreed to the Treatment Court condition in his plea agreement, and
he did not appeal his original sentence or withdraw his guilty plea. Parrish appeals only the
reimposition of the Treatment Court condition after revocation.
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counsel and the State acknowledged that Parrish’s failure to complete Treatment Court
was not Parrish’s fault. The State recommended a five-year suspended sentence with a
requirement of outpatient treatment—which Parrish was already completing—rather than
Treatment Court. However, the District Court revoked Parrish’s suspended sentence,
sentenced him to five years at MSP with two years suspended, and reimposed the same
conditions as the original sentence, including the Treatment Court requirement.
¶4 “Where a defendant was sentenced to more than one year of actual incarceration,
and therefore is eligible for sentence review, we review the sentence for legality only.”
State v. Cook, 2012 MT 34, ¶ 13,
364 Mont. 161,
272 P.3d 50. This Court has held that if
a condition of a suspended sentence is impossible to complete, it is therefore illegal and
should be struck from the defendant’s sentence. Cook, ¶ 36 (ordering the condition of
GPS monitoring to be struck from a defendant’s sentence because the monitoring service
was unavailable, making the condition impossible and therefore illegal); see also State v.
Muhammad,
2002 MT 47, ¶¶ 28-29,
309 Mont. 1,
43 P.3d 318 (ordering the condition of
banishment to be struck from a defendant’s sentence because the condition was “not
reasonably related to the goals of rehabilitation” or protection of the victim and was
therefore illegal).
¶5 Parrish was ordered to complete a condition of his suspended sentence that the
State agreed was impossible for him to complete. Although the record does not state why
Parrish does not qualify for Treatment Court, both the State and Parrish’s counsel agreed
that this was the case, and at revocation the State recommended an alternative treatment
plan. Nevertheless, the District Court reimposed the Treatment Court condition at
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revocation. Because Parrish does not qualify for Treatment Court, the condition is
impossible for him to complete and constitutes an illegal condition. Cook, ¶ 36. The
Treatment Court condition therefore must be struck from Parrish’s sentence.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were incorrect. This matter is remanded to the District Court with
instructions to strike the condition of Parrish’s suspended sentence that requires him to
complete the Eighth Judicial District Treatment Court Program. Remanded.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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