40 years suspended license or 5 years in prison?

When the judge changed the terms of the sentence, he may have been trying to impress Ms. Herd with the fact that the four victims and the two survivors in the Good family had no choices; no possibility of appeal.

Ms. Herd chose to drive on two hours of sleep. At the time her reasons seemed compelling to her, but her impaired driving killed two people and destroyed the lives of at least two others.

The Supreme Court was concerned about her ability to make a living and to pay restitution without a driver's license. If my math is correct, her take home pay reduced from $23,000 to $13,000 when she found a job that did not require driving. Of that $13,000, $10,400 was to go to pay restitution to the Good family.

Obviously the judge felt Ms. Herd had earned considerable inconvenience, professional, financial and social. The Supreme Court found the inconvenience excessive. The judge disagreed with the Supreme Court.

Montana v. Herd
State of Montana v. Michelle Lee Herd

[The trial court imposed a suspended sentence on each of the four counts totaling 40 years. The trial court placed many conditions upon Herd. She only appealed the condition that suspended her driving privileges for 40 years.]

The Montana Supreme Court stated the following:

When deferring imposition of sentence or suspending all or a portion of a sentence, district courts may impose reasonable restrictions or conditions on the offender . . . . However, these restrictions and conditions must be reasonably related to the objectives of rehabilitation and the protection of the victim and society. . . .

[A] condition of sentence must have a nexus with the conviction in order for it to be a legal condition of sentence. Herd concedes that there is a nexus between her sentencing condition and the underlying offense of negligent homicide which resulted from her lack of care while driving. She asks this Court to determine whether a condition of sentence can bear a relationship to the underlying offense, yet exceed reasonableness in its harshness or duration. . . .

[W]e examine whether the District Court abused its discretion in imposing a forty-year driving ban upon Herd, under the facts of the case and in light of the District Court’s findings as set forth in ¶14. We conclude that it did. The District Court’s findings concerning the tragic circumstances under which this accident occurred, Herd’s good prospects for rehabilitation, and her law-abiding life, are simply irreconcilable with the imposition of a forty-year driving prohibition. This prohibition drastically inhibits Herd’s ability to make a living, serve the needs of her family, and pay court-ordered restitution, thus impairing the very prospects for rehabilitation that the court noted as a factor in Herd’s favor. Moreover, there is simply nothing in the record or the District Court’s sentencing Order to suggest that such a prohibition was necessary for the protection of a victim or society as a whole. We therefore conclude that the District Court abused the discretion afforded it under § 46-18-202(1), MCA, when it imposed this lengthy restriction on Herd’s ability to lawfully drive a motor vehicle.

The dissent suggests that, given the gravity of the consequences resulting from Herd’s negligence, lack of incarceration alone is enough to make her sentencing conditions equitable, if not, in fact, a gift. Dissent, ¶ 36. To read the dissent, one would think that Herd had been given but one significant sentencing condition. In reality, the District Court imposed an extensive and onerous list of sentencing conditions, see Supra, ¶ 9, which will have a tremendous impact upon Herd’s freedom and quality of life for the next forty years. Moreover, she faces the risk of a lengthy prison sentence should she violate any of these conditions. Notably, Herd does not challenge the imposition of any of these other sentencing conditions. . . .

Herd argues, and we agree, that taking away her driving privileges for forty years is counter-productive to her rehabilitation. Herd will have precious little opportunity to improve her station, or for that matter to pay restitution, when she is precluded from driving from her remote home to any prospective place of employment, or to any of the events in which her children are involved as they grow up.

For the foregoing reasons, we reverse the condition of Herd’s sentence which prohibits her from legally driving a motor vehicle for the next forty years and remand to the District Court for resentencing.

********

How does the reversal of an unreasonable condition placed upon a suspended sentence justify the imposition of a jail sentence? On resentencing, the trial court not only imposed a jail sentence of 5 years that it did not originally impose, the trial court revised the unreasonable condition as follows:

"On the driving question, [Judge] Larson continued the 40-year prohibition on driving in Montana. Outside the state, he allowed her to get a provisional driver's license allowing her to drive to work and some family functions in the presence of another licensed driver, and only in vehicles under 3,000 pounds - the weight of the Volkswagen she hit. But that provisional license would only be available after she had served the first 20 years of her sentence, Larson ruled."

http://www.missoulian.com/articles/2004/07/16/news/local/znews03.txt

How can the new condition of a suspended license for 20 years (with a provisional license for the last 20 years) be reconciled with the MT Supreme Court's rationalization for reversing the condition as it was originally imposed for 40 years? The reversing court specifically stated:

"Herd argues, and we agree, that taking away her driving privileges for forty years is counter-productive to her rehabilitation. Herd will have precious little opportunity to improve her station, or for that matter to pay restitution, when she is precluded from driving from her remote home to any prospective place of employment, or to any of the events in which her children are involved as they grow up."

Has the situation been improved? Will Herd now be able to improve or station or her ability to make restitution (ordered to be paid at the rate of $200 per month for the first 20 years of her suspended sentence?)

In my opinion, the sentencing judge is vindictive and unreasonable and acting in an unconstitutional manner.

Imposing a more severe sentence may only occur in cases wherein newly acquired objective information that was not presented during the previous proceeding justifies an increased sentence. North Carolina v. Pearce, 395 U.S. 711, 725 (1969); United States v. Goodwin, 457 U.S. 368, 374 (1982). Isn't the imposition of 5 years in prison when no prison sentence was previously imposed an increased sentence? What new, objective information did the trial court have at the resentencing that justified the increased sentence?

Here's what the judge said:

"The harm here is much deeper and continues beyond the expectations of the family, and frankly, the court," Larson said in pronouncing the new sentence. "In the span of my life, I do not recall accidents as serious as this that take away four members of a family. It appears in this instance to require more punishment."

The judge knew that four people were killed by the defendant's negligence and that their loss was substantial to their friends and family the first time he sentenced the defendant. That same fact is suddenly worse the second time he sentences her? What new, objective information justifies an increased punishment?

Putting aside any moral condemnations you may have against the defendant, do you think the judge is acting in a constitutional manner by giving the defendant more punishment upon resentencing?

Very astute observation, Noddy.

Should the defendant be penalized for exercising her due process right to appeal an unreasonable condition placed upon her suspended sentence even if the appeal upsets the victims' families?

The answer is clearly NO. The United States Supreme Court ruled many years ago that the due process clause prohibits vindictiveness.

See NORTH CAROLINA v. PEARCE, 395 U.S. 711 (1969)

Applying the holding in Pearce, due process of law requires that vindictiveness against a defendant for having successfully appealed an unreasonable condition on a suspended sentence must play no part in the sentence he receives upon resentencing. Due process of law requires that a defendant be freed of any apprehension of retaliatory motivation on the part of the sentencing judge. Accordingly, the reasons for imposition of a more severe sentence upon resentencing must affirmatively appear in the record and must be based on new and objective information concerning the defendant's identifiable conduct that was not available at the original sentencing proceeding.

Debra--

Obviously the judge--no matter how elevated his motives--broke the law and this sentence will also be overturned or sent back for revision.

I have known several families who have been ravaged by impaired drivers and my sympathies with the bereaved far outweigh my knowlege of Montana law--although I did live in Montana for a time.