02/02/2021
DA 19-0364
Case Number: DA 19-0364
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 23N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSEPH WAYNE MARSH,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DC 17-06
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Penelope S. Strong, Attorney at Law, Billings, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana
Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana
Submitted on Briefs: January 6, 2021
Decided: February 2, 2021
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath 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 Joseph Wayne Marsh appeals from his April 5, 2018 judgment and sentence to serve
a forty-year prison term, with no time suspended. We affirm.
¶3 On December 21, 2017, Joseph Wayne Marsh (Marsh) pleaded guilty to felony
sexual abuse of children under § 45-5-625(1)(d), MCA, based on the download and
possession of, as well as use of peer-to-peer file-sharing software for, an extremely large
amount of child pornography. As part of the plea, the State agreed not to argue at
sentencing that Marsh’s prior court martial based on a similar offense triggered a
mandatory life without release sentence under § 46-18-205, MCA, though it reserved the
right to raise it as a sentencing consideration.
¶4 The District Court held a sentencing hearing on March 12, 2018, prior to which
Marsh’s counsel filed a sentencing memorandum containing dozens of letters of support
from members of Marsh’s community. Dee Woolston, a licensed psychologist, testified as
to his evaluation of Marsh, describing Marsh’s autism spectrum disorder as potentially
contributing to Marsh’s compulsive collection of pornography. Marsh’s pastors and his
adoptive mother testified on Marsh’s behalf, describing the lasting impacts of his biological
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mother’s drug abuse and his life-long learning and social disabilities. Licensed clinical
social worker Michael Sullivan (Sullivan) testified as to his psychosexual evaluation of
Marsh, assessing Marsh’s risk to reoffend as a moderate Level II for registration and a
moderate risk to touch a child. Sullivan described a high level of structured supervision
and accountability as the most appropriate outcome for Marsh. Bradley Pinnick (Pinnick),
a state probation officer, testified regarding his presentence investigation report (PSI),
which used a diagnostic tool—not specific to sex offenders—that categorized Marsh as
having a low risk of reoffending. Despite this diagnostic categorization, Pinnick
recommended a long period of supervision for Marsh.
¶5 Marsh’s counsel recommended a 20-year Montana Department of Corrections
(DOC) commitment with 15 years suspended, which would allow the DOC to select an
appropriate facility for Marsh’s placement, such as a prerelease center as had been
recommended by Sullivan. See § 46-18-201(3)(a)(iii-iv), MCA (providing that a
sentencing court may impose a sentence of either a term of prison incarceration or a
commitment to the DOC for placement in an appropriate facility or program).
¶6 However, the District Court expressed concern regarding three sentencing statutes
that the court felt would undermine the effectiveness of a DOC commitment sentence,
rather than a sentence of prison incarceration. The District Court heard testimony that,
because of Marsh’s low risk designation under the PSI, a probationary sentence would
trigger a recently-amended statutory provision requiring the DOC to seek Marsh’s release
from supervision within nine months. See § 46-23-1011(6), MCA (2017) (providing that
probation and parole officer shall recommend conditional discharge for a low-risk
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compliant probationer having served nine months). The District Court responded that it
was “not too interested in” having the DOC “come in under the new statutes and request
early termination.”
¶7 The District Court also expressed concern regarding a second statutory provision
requiring that a sentence of a DOC commitment be suspended for all but five years, thus
preventing the court from mandating long-term custody under a DOC commitment
sentence. See § 46-18-201(3)(a)(iv)(A), MCA (2017). Finally, the District Court found it
“very worrisome” that, under another statutory amendment, such a suspended sentence
could result in a petition for termination of the remaining sentence being automatically
granted if the court did not act upon it within 30 days. See § 46-18-208, MCA (2017)
(providing that a parole officer may file a petition to terminate remaining time on sentence
for a qualifying defendant serving a suspended sentence and that the remaining sentence is
terminated 30 days after the petition is filed if the court does not require a hearing).
¶8 The District Court indicated concern that its goal of ensuring long-term supervision
might be “short-circuited” by these statutory provisions unless the court imposed a
sentence mandating prison time. The sentencing judge expressed frustration with
amendments that he felt “kind of vitiates what I tried to do from the beginning,” noting that
while he did not “know what the legislature intended, frankly,” the result was that “now
the only way to get [long-term supervision] is a prison sentence.” Defense counsel did not
disagree with or object to this understanding of the law. The District Court described the
outpouring of community support for Marsh as laudable, but found that “[u]nfortunately,
because of the state of the sentencing requirements that we now have and the Court’s
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intention that there be a long period of supervision, I think all I am left with at this point is
a significant prison term.” The court sentenced Marsh to a 40-year prison sentence with
no time suspended.
¶9 On June 6, 2018, Marsh filed a pro se request for sentence review but, upon
subsequently consulting with counsel, moved to dismiss the application without prejudice
in order to pursue an out-of-time appeal. On July 16, 2019, this Court granted Marsh’s
petition for an out-of-time appeal.
¶10 On appeal, Marsh argues that the District Court’s sentence rested on an improper
understanding of the effect of statutory changes, implicating Marsh’s due process rights.
Furthermore, Marsh contends that he suffered ineffective assistance of counsel as his
attorney did not request that the sentencing court explicitly consider the nonviolent
offender criteria described in § 46-18-225, MCA.
¶11 We generally do not address issues not raised below. State v. George, 2020 MT 56,
¶ 4,
399 Mont. 173,
459 P.3d 854 (citation omitted). However, we will review criminal
sentences for legality, determining whether the sentence is within statutory parameters.
State v. Whalen,
2013 MT 26, ¶ 19,
368 Mont. 354,
295 P.3d 1055 (citation omitted). We
may also exercise our discretion to engage in review for plain error of unpreserved issues
when an appellant “firmly convinc[es]” us that the “claimed error implicates a fundamental
right and that such review is necessary to prevent a manifest miscarriage of justice or that
failure to review the claim may leave unsettled the question of fundamental fairness of the
proceedings or may compromise the integrity of the judicial process.” George, ¶ 5
(citations omitted). We will review record-based ineffective assistance of counsel claims
5
as mixed questions of law and fact. State v. Flowers, 2018 MT 96, ¶ 13,
391 Mont. 237,
416 P.3d 180 (citation omitted).
¶12 Marsh’s 40-year sentence was within the 100-year statutory maximum for felony
sexual abuse of children under § 45-5-625(1)(d), MCA. Therefore, the sentence was not
illegal. Marsh asks us to instead exercise plain error review of what he believes was the
sentencing court’s reliance on an erroneous interpretation of sentencing laws in effect at
the time. See § 46-18-208, MCA (2017); § 46-18-201(3)(a)(iv)(A), MCA;
§ 46-23-1011(6), MCA. In essence, Marsh disputes the District Court’s efforts to
reverse-engineer a sentence ensuring the desired level of long-term supervision, thereby
abandoning an otherwise suitable DOC commitment sentence in order to avoid
encountering statutory trap-doors to an early discharge from supervision.
¶13 However, before we exercise discretionary review of the District Court’s reliance
on the relevant statutory provisions, Marsh must “firmly convinc[e]” us that review is
necessary to prevent a manifest miscarriage of justice, unsettled questions of fundamental
fairness, or the undermining of the integrity of the judicial process. George, ¶ 5 (citations
omitted). Marsh’s extensive collection of child pornography, admitted use of peer-to-peer
file sharing, prior court martial for a similar offense, compulsive behavior, and moderate
risk Level II designation under the psychosexual evaluation all support the District Court’s
conclusion that community safety required long-term supervision over Marsh. The
sentencing court determined that, under the current statuary scheme, such a result was best
achieved by a lengthy prison sentence, a decision within the court’s discretion. The
resulting sentence—well-below the statutory maximum—does not represent a manifest
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miscarriage of justice, an unsettled question of fundamental fairness, or an undermining of
judicial integrity. Therefore, we decline to exercise discretionary review for plain error in
the District Court’s sentencing process here.
¶14 Marsh also argues that the sentencing court failed to take into account the criteria
for non-violent offenders found in § 46-18-225, MCA. However, an absence of an explicit
statement of consideration on the record does not render a sentence illegal. State v. Nelson,
274 Mont. 11, 20,
906 P.2d 663, 668 (1995). Marsh does not state how such an alleged
error implicates his fundamental rights. As noted above, the resulting sentence in this case
did not constitute a manifest miscarriage of justice, an unsettled question of fundamental
fairness, or an undermining of judicial integrity. Therefore, plain error review is
inappropriate for this issue.
¶15 Marsh also contends that his defense counsel’s failure to raise and argue the various
non-violent offender considerations from § 46-18-225, MCA, constituted an instance of
ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim,
“a defendant must demonstrate his counsel’s performance was deficient or fell below an
objective standard of reasonableness and establish prejudice by demonstrating a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different.” State v. Williams,
2015 MT 247, ¶ 20,
380 Mont. 445,
358 P.3d 127 (citation
omitted). A trial counsel’s performance is deficient if it falls “below an objective standard
of reasonableness measured under prevailing professional norms and in light of the
surrounding circumstances.” Whitlow v. State,
2008 MT 140, ¶ 20,
343 Mont. 90,
183 P.3d
861. The defendant must overcome a strong presumption that counsel’s actions were
7
within the broad range of reasonable professional assistance. Baca v. State, 2008 MT 371,
¶ 17,
346 Mont. 474,
197 P.3d 948.
¶16 Section 46-18-225, MCA, requires a sentencing judge to first consider alternatives
to imprisonment for nonviolent felony offenders, while examining a list of statutory
considerations such as public safety, hardship upon the offender or the offender’s family,
and various mitigating factors. While defense counsel did not specifically cite to this
statute, Marsh’s attorney repeatedly pushed for an alternative to a prison sentence and
presented numerous letters and witnesses from Marsh’s community testifying on Marsh’s
behalf in a manner relevant to many of these factors. The fact that Marsh’s counsel did not
specifically cite to § 46-18-225, MCA, and list these factors, or demand that the District
Court do so in its pronouncement, does not constitute a deviation from the broad range of
reasonable professional assistance.
¶17 Additionally, there is no indication of prejudice—that the outcome would have been
different if counsel had chosen to reference § 46-18-225, MCA, and explicitly address each
factor. The District Court was quite clear that, despite the testimony on Marsh’s behalf,
the court’s primary concern was the element of public safety, which the District Court
deemed sufficiently protected only by a prison sentence. Marsh has not demonstrated that
his counsel’s performance was deficient or resulted in prejudice and therefore cannot
succeed on his ineffective assistance of counsel claim.1
1
We note that Marsh appears eligible to apply for sentence review under § 46-18-903, MCA.
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¶18 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.
¶19 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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