State v. Malloy, 2004 MT 377

Summary

The Supreme Court of Montana reviewed conditions imposed on Roger Malloy's suspended sentence following his conviction for failure to register as a sexual offender. The court held that certain drug, alcohol, and gambling conditions were unrelated to the offense and ordered them deleted, while upholding conditions restricting contact with minors and access to pornographic materials. It also ordered deletion of written conditions concerning employment, contact with victims, and other terms that were not orally imposed and would substantively increase Malloy's loss of liberty or property.

Holdings

1. A condition of a suspended sentence is lawful only if it is reasonably related to rehabilitation or protection of the victim and society and has some correlation or connection to the underlying offense. Conditions 3, 5, 6, and 33, concerning drug, alcohol, and gambling restrictions, were not related to Malloy's failure-to-register offense and must be deleted.
2. The conditions prohibiting contact with persons under eighteen and access to or possession of pornographic or sexually stimulating materials were reasonably related to protecting society from Malloy as a repeat sexual offender and were lawful.
3. Malloy could not change his legal theory on appeal after leading the sentencing court to believe that he agreed with the challenged conditions.
4. When the written judgment conflicts with the oral pronouncement, the oral sentence generally controls, but a written condition is lawful if the defendant had sufficient notice and an opportunity to respond at sentencing and the condition did not substantively increase the defendant's loss of liberty or sacrifice of property. Conditions 10, 12, and 23 failed that test and must be deleted.

Questions Presented

1. Whether the District Court lawfully imposed conditions restricting Malloy's use of drugs and alcohol and prohibiting gambling.
2. Whether conditions prohibiting association with felons or probationers, contact with persons under eighteen, and access to pornographic or sexually stimulating materials were reasonably related to rehabilitation or protection of the victim and society.
3. Whether conditions included in the written judgment but not orally pronounced at sentencing were lawful under the applicable two-part test.

Disposition

reversed_and_remanded