05/02/2023
DA 21-0186
Case Number: DA 21-0186
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 75N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DONALD R. SAGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Anaconda-Deer Lodge, Cause No. DC-18-126
Honorable Jennifer B. Lint, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, James Reavis, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Ben Krakowka, Anaconda-Deer Lodge County Attorney, Michelle Sievers,
Deputy County Attorney, Anaconda, Montana
Submitted on Briefs: March 1, 2023
Decided: May 2, 2023
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It 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 Donald Sage appeals his sentence from the Third Judicial District Court. Sage
argues that his trial counsel rendered ineffective assistance when he failed to recognize that
Sage would be unable to withdraw his plea if the court imposed a parole restriction. Sage
contends also that the State undercut the plea agreement at the sentencing hearing, resulting
in the parole restriction, when it emphasized Sage’s past criminal conduct and urged the
court to consider dismissed charges against Sage. We affirm without prejudice to Sage’s
ability to bring his ineffective assistance of counsel claim in a postconviction proceeding.
¶3 In November 2018, Anaconda-Deer Lodge Law Enforcement investigated Sage for
alleged sexual abuse. The investigation started after Sage physically assaulted S.K., a
sixteen-year-old boy, for confronting Sage about abusing his younger sister L.K. and her
friends.
¶4 L.K. knew Sage through her friend L.M., who was related to Sage. In interviews
with law enforcement and the Butte Child Evaluation Center, L.K. reported that she visited
Sage’s house—where he lived with his wife Marion—approximately twenty times. L.K.
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reported that Sage would offer her and several other minor girls marijuana if they “did
stuff” with him.
¶5 On one occasion, L.K. and L.M.—both fourteen at the time—spent the night at
Sage’s house. During the night, L.K. woke up to Sage naked on a nearby couch
masturbating in front of the girls. Sage told the girls that he wanted to have sex with them.
L.K. and L.M. ran into the bathroom, locking the door behind them. When they ventured
out, Sage pointed a gun at the girls, threatening to shoot them if they moved. L.K. and
L.M. escaped when Sage left the room to check on his wife.
¶6 L.K. had a follow-up interview with the Butte Child Evaluation Center. During the
second interview, she revealed that on two separate occasions Sage gave her alcohol. Both
times after consuming the alcohol, L.K. fell asleep. The first time this occurred, L.K. woke
up to Sage’s finger in her vagina. The second time, L.K. woke up with her clothes off and
Sage’s penis touching her vagina.
¶7 In total, five minor girls alleged crimes committed by Sage. The State initially
charged Sage with three counts. On March 5, 2019, the State amended the charges to the
following: Count I: Indecent Exposure (to a Minor), in violation of § 45-5-504, MCA;
Count II: Indecent Exposure (to a Minor), in violation of § 45-5-504, MCA; Count III:
Assault with a Weapon, in violation of § 45-5-213, MCA; Count IV: Sexual Intercourse
without Consent, in violation of § 45-5-503, MCA; Count V: Sexual Intercourse without
Consent, in violation of § 45-5-503, MCA; Alternate Count V: Sexual Assault, in violation
of § 45-5-502, MCA; Count VI: Unlawful Transaction with Children, in violation of
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§ 45-5-623, MCA; and Count VII: Unlawful Transaction with Children, in violation of
§ 45-5-623, MCA. The State later added Count VIII: Sexual Abuse of Children, in
violation of § 45-5-625(1)(c), MCA; and Count IX: Intimidation, in violation of
§ 45-5-203, MCA.
¶8 On October 8, 2019, Sage entered a plea agreement with the State. In exchange for
the State’s dismissal of the eight other charges, Sage would plead guilty to one count of
indecent exposure (to a minor). That charge was connected to Sage’s actions against L.K.
Sage admitted that he was “in the nude with [his] intimate parts exposed, while L.K. was
at [his] home” and that he knew this conduct would cause L.K. to be alarmed and feel
abused, harassed, humiliated, or degraded.
¶9 At the sentencing hearing, the State informed the District Court that three of the five
minor girls did not want to proceed to trial, and the plea agreement limited additional
trauma the girls might experience at a trial. Specific to L.K., the State explained to the
court that she experiences “mental deficits” and a speech impediment. Neither the State
nor L.K.’s family felt comfortable putting L.K. through trial. The State urged the court to
follow the recommended sentence in the plea agreement: twenty years to the Montana State
Prison with ten suspended. The State argued that the court should reject Sage’s anticipated
request for a probationary sentence, calling Sage “a sexual predator and a career criminal.”
It recounted Sage’s criminal history, maintaining that his past conduct demonstrated an
inability to conform his behavior. The State hoped “that by the time [Sage] complete[d]
this sentence . . . he will not be in a condition to prey upon anyone else.”
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¶10 As predicted by the State, Sage’s counsel asked that the District Court impose a
probationary sentence, a lesser sentence than what the parties agreed to in the plea
agreement. Sage asked for probation so he could be with his wife and address his various
medical issues.
¶11 The court considered Sage’s “extensive criminal history with no apparent
recognition of any need . . . to change his criminal behavior.” It found him to be
“opportunistic” and “unrepentant.” Further, the District Court noted that Sage’s testimony
at sentencing did not address L.K. as a victim or take accountability for his admitted
actions. Noting the entire record, including Sage’s psychosexual offender evaluation and
the presentence investigation report, the court sentenced Sage to twenty years of
incarceration with ten suspended as recommended by the plea agreement. The court found
that Sage’s willingness to victimize the “most vulnerable” justified removing him from
society. The District Court imposed a ten-year parole restriction on the
then-seventy-year-old Sage. The parole restriction was not requested by the State, nor did
it appear in the plea agreement.
¶12 Sage’s counsel urged the court to reconsider the parole restriction. Counsel
referenced the binding nature of Sage’s plea agreement, made pursuant to
§ 46-12-211(1)(b), MCA, emphasizing that the restriction of parole was not recommended
in the agreement. Counsel suggested that the parole restriction gave Sage grounds to
withdraw his plea. The District Court declined to rescind the parole restriction, noting that
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the plea agreement was silent on the matter of parole. The court did not give Sage the
opportunity to seek withdrawal of his plea.
¶13 “Ineffective assistance of counsel claims raise mixed questions of fact and law
which we review de novo.” State v. Heavygun, 2011 MT 111, ¶ 8,
360 Mont. 413,
253
P.3d 897 (citing Whitlow v. State,
2008 MT 140, ¶ 9,
343 Mont. 90,
183 P.3d 861) (other
citation omitted). We also review de novo whether the State breached a plea agreement.
State v. Lewis,
2012 MT 157, ¶ 13,
365 Mont. 431,
282 P.3d 679.
¶14 Sage maintains that he experienced “two forces working against his intention to
reserve his rights if the plea deal fell through.” Sage contends first that his trial attorney
provided ineffective assistance by not understanding that the plea agreement’s silence on
the matter of parole prevented Sage from withdrawing his plea in the event the court
imposed a parole restriction. Sage argues next that the prosecutor undercut the plea
agreement by using inflammatory descriptions of Sage, “only giving lip service to the
bargained-for sentence.”
¶15 The State counters that Sage’s ineffective assistance of counsel claim is not
appropriate for review because it is not a record-based claim. It urges this Court to deny
Sage’s claim without prejudice so that he may initiate postconviction proceedings. Further,
the State contends that the prosecutor did not breach the plea agreement “by simply
highlighting evidence already before the court[.]” It maintains that Sage has not
demonstrated that the prosecutor’s statements at sentencing either undermined the plea
agreement or “constituted the State trying to avoid its obligations[.]”
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Claim for Ineffective Assistance of Counsel
¶16 Criminal defendants are guaranteed the right to effective assistance of counsel. See
U.S. Const. amend. VI; Mont. Const. art. II, § 24. To prove ineffective assistance of
counsel, a defendant must demonstrate first that counsel performed deficiently, and second
that the deficient performance prejudiced the defense. Whitlow, ¶ 10 (citing Strickland v.
Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984).
¶17 When a defendant enters a plea of guilty or nolo contendere, pursuant to
§ 46-12-211(1)(b), MCA, a prosecutor “agrees that a specific sentence is the appropriate
disposition of the case[.]” If a sentencing court rejects a “(1)(b)” plea agreement, the court
must afford the defendant the opportunity to withdraw the plea, advising that if the
defendant persists with the plea, “the disposition of the case may be less favorable to the
defendant than that contemplated by the plea agreement.” Section 46-12-211(4), MCA.
¶18 In Lewis, this Court held that, absent a specific plea agreement on the point,
sentencing courts may impose a parole restriction without offering defendants the
opportunity to withdraw their pleas; we reasoned that if the plea agreement is silent on the
issue of parole, imposing a parole restriction does not constitute a court’s rejection of a
(1)(b) plea agreement. Lewis, ¶¶ 17-19. Sage maintains that his counsel performed
deficiently by negotiating a (1)(b) plea agreement that contained no provision on parole,
without understanding that Sage could receive a parole restriction without the opportunity
to withdraw his plea.
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¶19 We will consider ineffective assistance of counsel claims on direct review only if
the claim is “based solely on the record.” Heavygun, ¶ 8. “[I]f the record does not
demonstrate ‘why’ counsel did or did not take an action which is the basis of the claim, the
claim is more suitable for a petition for postconviction relief where a record can be more
fully developed.” Heavygun, ¶ 11 (citing State v. Sartain, 2010 MT 213, ¶ 30,
357 Mont.
483,
241 P.3d 1032).
¶20 Sage argues the record reveals that his counsel did not understand Lewis and that
his claim is appropriate for direct review. Sage notes that his counsel advocated for a lesser
sentence than the one adopted by the plea agreement, arguing that his counsel would not
do this if he understood the nature of a (1)(b) plea agreement. Sage also points to the
reaction from his counsel when the District Court added the parole restriction. Sage
contends that his counsel would not have been “taken by surprise,” asking the court to
reconsider the parole restriction if counsel understood Lewis. Sage argues also that the
record demonstrates prejudice because Sage received a parole restriction that he was
unaware could be imposed.
¶21 Contrary to Sage’s arguments, the record does not demonstrate “why” Sage’s
counsel negotiated a (1)(b) plea agreement that was silent regarding the issue of parole.
The State offered to dismiss eight charges in exchange for one admission of guilt. It is
plausible that the State would not agree to such a favorable deal if Sage’s counsel insisted
that Sage should also be recommended for parole. Though counsel asked the court to
reconsider the parole restriction, even going so far as to say that Sage should be allowed to
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withdraw his plea, the record does not reflect whether counsel considered Lewis. The court
did not ask counsel about Lewis, nor did anyone mention Lewis at the sentencing hearing.
In response to counsel asking the court to reconsider the issue of parole, the court stated
that it takes “the position when a plea agreement is silent on a parole issue that’s one of the
things that’s left open to the court.” Without more information in the record reflecting why
defense counsel entered a (1)(b) plea agreement or why counsel advocated for a lesser
sentence at the sentencing hearing, we cannot determine whether counsel acted deficiently.
See Heavygun, ¶ 22 (“[A] record which is silent about the reasons for counsel’s actions or
omissions seldom provides sufficient evidence to rebut [the] presumption” that counsel
acted within the wide range of reasonable professional assistance.).
¶22 Even if the record did reflect why counsel made certain decisions regarding the
alleged deficiency, the record does not contain evidence that Sage was prejudiced. The
State offered Sage a favorable plea, dismissing eight of the charges brought against him.
The record does not contain evidence that Sage would have chosen to decline the favorable
plea if he knew that he would be subject to a parole restriction. We decline to review the
merits of Sage’s ineffective assistance of counsel claim on direct appeal because it is not
based in the record. Sage has an opportunity to pursue this claim in a postconviction
proceeding, where a record may be fully developed.
Claim for Breach of Plea Agreement
¶23 Sage next argues he is entitled either to withdraw his plea or to obtain a sentence
without the imposition of the parole restriction because the prosecutor “actively undercut”
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the State’s recommended sentence. Sage’s trial counsel did not object to the prosecutor’s
presentation of the State’s case at the sentencing hearing, nor did Sage’s trial counsel move
the District Court to withdraw the plea on this basis. We will review this issue for plain
error because, though he did not preserve it for appeal, a breach of the plea agreement
implicates Sage’s constitutional rights. See State v. Rardon, 2002 MT 345, ¶ 16,
313 Mont.
321,
61 P.3d 132. To constitute plain error, the prosecutor must have breached the plea
agreement and in turn tainted or affected the fairness of the sentencing proceeding. Rardon,
¶ 17.
¶24 We consider first whether the prosecutor breached the plea agreement. Plea
agreements “must be attended by safeguards” to ensure defendants receive “what is
reasonably due in the circumstances.” State v. Allen,
199 Mont. 204, 208-09,
645 P.2d
380, 382 (1981) (quoting Santobello v. New York,
404 U.S. 257, 262,
92 S. Ct. 495, 498-99
(1971)). Plea agreements are treated like contracts, obligating the State to strictly fulfill
the terms of the agreement. State v. McDowell,
2011 MT 75, ¶ 14,
360 Mont. 83,
253 P.3d
812. Prosecutors are expected to meet “strict and meticulous standards” when plea
bargaining, “as a plea of guilty resting in any significant degree on an unfulfilled plea
bargain is involuntary and subject to vacation.” Allen,
199 Mont. at 209, 645 P.2d at 382.
Prosecutors are not permitted to undermine the State’s sentencing recommendation. State
v. Rardon,
2005 MT 129, ¶ 19,
327 Mont. 228,
115 P.3d 182.
¶25 At sentencing, the State emphasized Sage’s inability to conform his criminal
behavior, calling him “a sexual predator and a career criminal.” The State noted Sage’s
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advanced age, telling the court it hoped “he will not be in a condition to prey upon anyone
else” by the time he completed his sentence. Sage argues that these statements were made
to convince the District Court to keep Sage “behind bars for as long as possible.” Because
the plea agreement was silent on parole, Sage contends that the State “did not have the
legal authority to then argue for a parole restriction in all but name.” Sage maintains that
the State failed to adhere to its requisite standard of performance in a plea agreement; it
should have remained silent on the issue of parole.
¶26 Though prosecutors are expected to provide more than “lip service” in support of
plea agreements at sentencing, we do not adhere to specific “criteria defining when a
prosecutor has merely paid lip service . . . as opposed to when she has fairly, but strongly,
presented the State’s case.” State v. Hill, 2009 MT 134, ¶ 29,
350 Mont. 296,
207 P.3d
307.
¶27 In McDowell, we held that a prosecutor did not undermine the plea agreement when
the prosecutor was forced to both advocate for the State’s recommended sentence and argue
against the defendant’s proposed lesser sentence. McDowell, ¶ 21. The prosecutor in
McDowell “emphasized that the crimes were premeditated, serious and that [the defendant]
had a prior criminal history” in response to the defendant requesting a lesser sentence than
the plea agreement proposed. McDowell, ¶ 9. Here, the prosecutor recommended that
Sage receive a total sentence of twenty years, with ten suspended, after drawing the District
Court’s attention to the nature of the crimes and the dismissed charges. Despite the agreed
recommendation in the plea agreement, Sage’s counsel requested that Sage’s sentence be
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served through probation rather than incarceration. The State was not obligated to let
Sage’s counsel present an uncontested argument for a probationary sentence without
advocating strongly for the court to adopt the recommended sentence in the plea agreement.
¶28 The explicit terms of the plea agreement establish that Sage received what the State
promised to recommend: a twenty-year commitment to the Montana State Prison with ten
years suspended. The State did not undermine this recommendation when it strongly
advocated for the court to adopt the plea agreement rather than Sage’s request for a
probationary sentence. See McDowell, ¶ 21.
¶29 A sentencing court “may consider any relevant evidence relating to the character of
the defendant, his history, his mental and physical condition, and the broad spectrum of
incidents making up his background.” Hill, ¶ 31. The court may consider “other acts, even
those which are dismissed pursuant to a plea bargain agreement.” Hill, ¶ 31 (citation
omitted). We have held that a prosecutor does not breach a plea agreement when reminding
the sentencing court to consider evidence of which the court was already aware, including
dismissed charges or an extensive criminal history. Hill, ¶ 31. Here, the prosecutor did
not raise evidence that the court otherwise did not have in Sage’s psychosexual evaluation
or presentencing investigation report.
¶30 We conclude that the State did not breach the plea agreement when it advocated for
the District Court to adopt the recommended sentence and argued that Sage’s request for a
probationary sentence would be inappropriate. We therefore need not reach the second
part of plain error review, whether the breach tainted the sentencing proceedings.
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¶31 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. We affirm the District Court’s sentence without
prejudicing Sage’s ability to petition for postconviction relief regarding his ineffective
assistance of counsel claim.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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