Lead Opinion
delivered the Opinion of the Court.
¶1 K.M.G. appeals from the Youth Court’s disposition adjudging him a Delinquent Youth and sentencing him to the Department of Corrections for placement at the Pine Hills Youth Correctional Facility (Pine Hills). We affirm.
¶2 We state the issues as follows:
¶3 1. Did the Youth Court err by committing K.M.G. to the Department of Corrections for placement at Pine Hills pursuant to § 41-5-1513, MCA (2007)?
¶4 2. Did the Youth Court err by failing to specify how long K.M.G. could be placed at Pine Hills?
¶5 3. Did the Youth Court err by finding that K.M.G. admitted to failing to attend school in violation of his probation?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Appellant K.M.G. is a fourteen-year-old boy currently placed at Pine Hills for committing a string of misdemeanor crimes, including assault, disorderly conduct, resisting arrest and two counts of theft. K.M.G. also admitted to violations of probation previously imposed by the Youth Court.
¶7 On January 8, 2008, 12-year-old K.M.G. approached a fellow student at Meadow Hill School from behind and punched him in the back. The victim suffered discomfort and redness in his middle spine area and could not walk for some time without pain. When the responding officer called KM.G.’s mother to set up a meeting regarding the assault, she yelled at the officer and eventually hung up on him. When the principal called K.M.G. into his office, K.M.G. was rude and refused to sit down as requested. KM.G.’s mother displayed similar verbally-assaultive behavior to the principal as K.M.G.
¶8 On January 21,2008, KM.G.’s mother contacted law enforcement to report that K.M.G. had called her demeaning names and had left the residence without her permission, a problem she described as ongoing. On January 28, 2008, security officers caught K.M.G. stealing two laser pointers from a store in Southgate Mall.
¶9 Citing these incidents, the State filed a Petition to declare K.M.G. a Delinquent Youth. Before the Petition was served, K.M.G. committed additional crimes. The State subsequently amended the petition to allege another assault, sexual intercourse without consent, misdemeanor sexual assault, criminal mischief, and disorderly conduct.
¶10 On April 9, 2008, K.M.G. admitted to the theft and assault charges alleged in the original petition. On July 16, 2008, K.M.G. admitted to the disorderly conduct charge as part of a deferred prosecution agreement under which the State agreed to dismiss, without prejudice, the remaining counts of the amended petition, which were then dismissed by the Youth Court.
¶11 The Youth Court held a dispositional hearing on November 12, 2008. The court assumed jurisdiction over K.M.G. until his eighteenth birthday, and ordered out-of-home placement for K.M.G. at the Dennis Radtke Home for Boys (Radtke Home) for treatment, followed by six months of formal probation. The court imposed probation conditions, including that K.M.G. obey all laws, attend school regularly, reside at the Radtke Home and keep the Home advised of his whereabouts at all times. After K.M.G. was taken to the Radtke Home, he immediately ran from the home without permission, violating his probation.
¶12 The next day, November 18, 2008, law enforcement responded to a report of a shoplifting in progress at a Shopko store. K.M.G. and another individual had been temporarily detained by Shopko store security for theft of a backpack, but had fled. Law enforcement officers located the juveniles behind a shed, and detained them. Missoula Police Officer Erbacher instructed K.M.G. to sit on the ground while he gathered information. He learned that K.M.G. had run from the group home, and that the Youth Court had ordered that K.M.G. be detained. Officer Erbacher became concerned with KM.G.’s behavior, believing that K.M.G. intended to
¶13 In response to this criminal activity, the State filed a second petition to declare K.M.G. a Delinquent Youth. The Youth Court set a bond for detaining K.M.G., which KM.G.’s mother posted. The release conditions required K.M.G. to abide by the previously imposed conditions, which he failed to do. Between his release on December 1, 2008, and December 11, 2008, K.M.G. failed to attend school, was allowed to remain unsupervised at home for several days, and tested positive for prescription narcotic benzodiazepines after a mandatory probationary urinalysis. School officials observed minor injuries on K.M.G., which they surmised were caused from a fight. The State also filed a petition to revoke K.M.G.’s probation.
¶14 On January 9, 2009, K.M.G. admitted the second theft and resisting arrest charges and admitted leaving the Radtke Home without permission in violation of his probation. The Youth Court entered KM.G.’s admissions, and scheduled a dispositional hearing. In the interim, K.M.G. continued to violate his probationary conditions. Instead of residing with his aunt in Helena, as ordered by the Youth Court, K.M.G. returned to his mother’s home in Missoula. KM.G.’s juvenile probation officer learned of his whereabouts when KM.G.’s mother called three days before the disposition hearing to advise that K.M.G. was “out in the alley ... intoxicated.” The next day, after the juvenile probation officer told K.M.G. that he must remain with his mother at all times until the court hearing, K.M.G. told his mother he “didn’t like those rules,” and left home.
¶15 K.M.G. was subsequently evaluated by Eileen C. Robbins, an Advanced Practice Registered Nurse with the Western Montana Mental Health Center, Child and Family Service Network. Robbins recommended that K.M.G. “attend treatment at a facility where he can receive long-term intensive treatment ....” However, due to funding limitations, it became clear that out-of-home community placement for K.M.G. was not an option, and that he would either be placed at Pine Hills or returned to his mother’s home. In light of this development, Robbins filed an addendum to her report, stating “[if] treatment could be provided to [K.M.G.] while at Pine Hills Correctional Facility, that would be an option which could be helpful to [K.M.G.], certainly more helpful than returning him to his mother’s home.”
¶16 On April 8,2009, the Youth Court held a dispositional hearing on KM.G.’s probation violations and the new theft and resisting arrest charges. The State recommended the Youth Court commit K.M.G. to the Department of Corrections for placement at Pine Hills. Defense counsel recommended that the court place K.M.G. on probation, and return him to his mother’s care on the condition that he “complete counseling with Eileen Robbins.” Defense counsel stated that he understood Robbins’s recommendation was to “send [K.M.G.] straight to Pine Hills” but, noting Robbins’s willingness to treat K.M.G. if he was in Missoula, argued for probation, given that K.M.G. “would be under the understanding that if he is given probation, he is on a no-tolerance release. Any violation is going to send him to Pine Hills.” ¶17 The Youth Court adjudicated K.M.G. a Delinquent Youth. Concluding that the commitment requirements of § 41-5-1513(l)(b), MCA, had been satisfied, the court ordered K.M.G. “committed to the custody of the Department of Corrections until he reaches the age of 18 years or sooner released by the Department of Corrections.” Addressing K.M.G., the court stated that the
reason for the judgment is that you have demonstrated, from your prior behavior, that you cannot reside in the community while on a probationary status. You refuse to abide by the conditions of probation. Your mother refuses to make you abide by the rules of probation. We’ve tried you with your aunt in Helena. She cannot be relied upon to have you under her control. There, virtually, is no further placement for you in the Missoula community. It’s necessary that you be removedfrom the community, and placed at a secure facility for treatment. And, in that way, it’s hopeful that you’ll acquire some of the means necessary for your rehabilitation.
¶18 K.M.G. appeals.
STANDARDS OF REVIEW
¶19 We conduct de novo review of the youth court’s conclusions of law to determine whether those conclusions are correct. In re C.D.H.,
DISCUSSION
¶20 1. Did the Youth Court err by committing K.M.G. to the Department of Corrections forplacement at Pine Hills pursuant to § 41-5-1513, MCA?
¶21 K.M.G. contends that the Youth Court did not have statutory authority to commit him to the Department of Corrections, for placement at Pine Hills, because none of the three statutory criteria for such placements were satisfied in his case. Section 41-5-1513(l)(b)(i)-(iii), MCA, provides:
The court may not place a youth adjudicated to be a delinquent youth in a state youth correctional facility for an act that would be a misdemeanor if committed by an adult unless:
(i) the youth committed four or more misdemeanors in the prior 12 months;
(ii) a psychiatrist or a psychologist licensed by the state or a licensed clinical professional counselor or a licensed clinical social worker has evaluated the youth and recommends placement in a state youth correctional facility; and
(iii) the court finds that the youth will present a danger to the public if the youth is not placed in a state youth correctional facility.
¶22 We address KM.G.’s arguments under each of the three criteria in turn.
¶23 a. Did K.M.G. commit “four or more misdemeanors in the prior 12 months” under subsection 1513(1)(b)(i)?
¶24 K.M.G. contends that he did not commit the requisite four misdemeanors “in the prior 12 months.” He argues that, under the language of the statute, the 12-month period “runs from the date of the disposition hearing or the time at which the youth court commits the youth to the Department of Corrections.” The Youth Court’s disposition was not made until April 8, 2009, and K.M.G. thus argues that he cannot be placed at Pine Hills because he did not commit four misdemeanors during the 12 months preceding that date.
¶25 The State responds that KM.G.’s interpretation of the statute is “patently absurd” because “[i]t would allow a youth to
¶26 When interpreting a statute, we seek to implement the intention of the legislature. Section 1-2-102, MCA; Mont. Vending, Inc. v. Coca-Cola Bottling Co.,
¶27 Section 41-5-1513(l)(b)(i), MCA, provides that the youth court “may not place a youth adjudicated to be a delinquent youth in a state youth correctional facility for an act that would be a misdemeanor ... unless: (i) the youth committed four or more misdemeanors in the prior 12 months.” K.M.G. reads this provision as requiring “four or more misdemeanors in the prior 12 months preceding the final disposition.” The State reads it as requiring “four or more misdemeanors in the prior 12 months preceding the filing of the delinquency petition.” Both suggestions, however, raise the specter of adding language to the statute. The provision raises further ambiguity: did the legislature intend to authorize facility placement of delinquent youth who commit at least four misdemeanors in a 12 month period, or only when youth commit at least four misdemeanors in the 12-month period “prior to” the current misdemeanor for which he is being disposed-in other words, requiring at least five misdemeanors?
¶28 Because the provision is “reasonably susceptible” to more than one interpretation, Gannett Satellite Info. Network, Inc. v. State,
¶29 However, Representative Bob Clark inquired about what options would be available “for youths who commit many misdemeanors.” Steve Gibson, the Juvenile Probation Officer Division Administrator, suggested an amendment be made to the bill “for multiple misdemeanor offenders.”
¶30 There was lively discussion about the multiple misdemeanor provision of the bill during the sessions of the Senate Judiciary Committee. Senator Jerry O’Neil questioned the propriety of incarcerating juvenile offenders who had committed “multiple shoplifting offenses.” Representative Matthews responded that such minor offenders should not be placed in a facility, and suggested that Pine Hills be limited to juveniles such as “sex offenders, gang members,” and youths that had committed “many felonies.” He further explained that “placement dollars are available for shoplifters” and juveniles committing minor offenses. Dick Meeker, of the Montana Juvenile Probation Officers Association, wrote that the “Association originally opposed this legislation because it left the youth court with no discretion in dealing with multiple misdemeanor offenders.” He commended the multiple misdemeanor amendment, noting that “Youth Courts go to great lengths to keep juveniles from ever reaching a correctional facility but there are times when it is necessary because the community needs to be protected and the youth has not responded to other options.”
¶31 About the number of misdemeanors necessary to authorize facility placement, Committee Chairman Duane Grimes observed that “[i]f a youth committed four misdemeanors, it may be necessary to have the youth sent to Pine Hills.” Senator Dan McGee inquired whether “a fifth misdemeanor in a 12 month period” would “result in the youth being sent to Pine Hills.” To this inquiry, Senator Mike Wheat stated his belief that “this could take place with the fourth misdemeanor” in a 12 month period. Sen. McGee then noted that there are youth who offend routinely and regularly and it is necessary the state have a hammer to address this situation. The Committee subsequently approved the language. Mont. Sen. Jud. Comm., Hearing on HB 156,58th Leg., Reg. Sess. 6-14 (Mar. 10, 2003).
¶32 K.M.G. is correct that the legislative history reveals an intention by the Legislature to limit the number of juvenile offenders committed to Pine Hills for petty offenses.[However, the history also clearly reveals that an exception to this general goal was intended for juveniles who were multiple offenders — allowing facility placement, in the words of Senator Wheat, “with the fourth misdemeanor.” This history reveals an intent to authorize, within the youth court’s dispositional discretion, a facility placement of a juvenile brought before the court having committed four or more misdemeanors within a 12 month period of time. K.M.G. was brought before the Youth Court for disposition having committed his fourth and fifth misdemeanors within 12 months. As such, the Youth Court correctly determined that it was authorized, assuming the other criteria were met, to place K.M.G. within a youth facility for these offenses under subsection 1513(l)(b)(i).
¶33 6. Was K.M.G. evaluated by an appropriate professional under subsection 1513(l)(b)(ii)?
¶34 K.M.G. asserts that the second prong of the statute has not been met because he was not evaluated by the proper mental health professional. The statute states that a youth is to be evaluated by “a psychiatrist or a psychologist licensed by the state or a licensed clinical professional counselor or a licensed clinical social worker” who must “recommend[] placement in a state youth correctional facility.” Section 41-5-1513(l)(b)(ii), MCA. K.M.G. was evaluated by Eileen C. Robbins, an Advanced Practice Registered Nurse, who provided the following recommendations:
Specifically, the likely placement options for [K.M.G.] include Pine Hills Correctional Facility or return to his mother’s home. I feel strongly that [K.M.G.] needs treatment rather than simply correctional intervention. If treatment could be provided to [K.M.G.] while at Pine Hills Correctional Facility, that would be an option which could be helpful to [K.M.G.], certainly more helpful than returning him to his mother’s home.
¶35 The State responds that K.M.G. waived these arguments by failing to object before the Youth Court, and in fact specifically acquiesced to the violations he now challenges. The State further argues that KM.G.’s objections do not satisfy the Lenihan exception for raising issues on appeal without objection.
¶36 We generally will not review an issue to which a party has failed to object or otherwise preserve for appeal in the district court. The rationale is that the objecting party must give the trial court the opportunity to address and correct any perceived errors. We recognized an exception to this general rule in Lenihan, allowing appellate review of a criminal sentence that is alleged to be illegal or in excess of statutory mandates, even if the defendant raised no objection in the district court at the time of sentencing. Lenihan,
¶37 K.M.G. asserts that his claim that the Youth Court failed to have him evaluated by a proper mental health professional under § 41-5-1513(l)(b)(ii), MCA, is a statutory violation which renders his disposition illegal and appealable despite having failed to object, pursuant to the Lenihan exception. However, KM.G.’s argument runs counter to the parameters of the Lenihan exception explained above, because his disposition fell within statutory parameters, as we have held in several similar cases. In Nelson, the defendant claimed that the district court failed to follow the mandates of §§ 46-18-201(10), -225, MCA, before sentencing him to prison, and that his sentence was thus illegal and appealable under Lenihan. Nelson,
¶38 In Kotwicki, we relied upon Nelson and Swoboda to reject a broader application of the Lenihan rule we had approved, without analysis, in State v. McLeod,
¶39 KM.G.’s argument that the Youth Court could not place him in Pine Hills because
¶40 Beyond KM.G.’s failure to object is his active acquiescence in the error during the sentencing hearing. K.M.G. understood Robbins’s credentials, as well as her ultimate recommendation of placement and treatment at Pine Hills. Not only did he fail to object to Robbins’s involvement, he embraced it, arguing that the Youth Court should grant him probation and order him to undergo treatment with Robbins. K.M.G.’s counsel stated “I, also, note in Ms. Robbins’ report, that she’s willing to treat [K.M.G.] if he is out, and here in Missoula” and argued for the probationary treatment approach Robbins had initially recommended, prior to her learning that the approach would not be possible. “We will not put a district court in error for an action in which the appealing party acquiesced or actively participated.” State v. Micklon,
¶41 c. Was K.M.G. properly found to be a danger to the public under subsection 1513(1)(b)(Hi)?
¶42 K.M.G. acknowledges that the Youth Court found that he would present a danger to society in its written order, but contends that it did not discuss the evidence which supports this finding and, in fact, insufficient evidence existed to support the finding. The State again argues that K.M.G. waived this argument by failing to object and that, even assuming arguendo the issue is properly before this Court, that substantial evidence supports the Youth Court’s determination that K.M.G. was a danger to the public.
¶43 Even assuming no objection was necessary to preserve K.M.G.’s arguments, we believe the Youth Court’s order was supported by sufficient evidence and adequately demonstrated K.M.G.’s dangerousness for purposes of the statute. When sentencing K.M.G., the Youth Court stated it was “necessary that [K.M.G.] be removed from the community, and placed at a secure facility for treatment.” The Youth Court’s amended dispositional order stated that the court had heard and considered the “recommendations for disposition from the Youth Court’s Report to the Court, the Deputy County Attorney, the Youth’s attorney and the Youth” and that it had “specifically reviewed the Report to the Court and attached Psychiatric Evaluation and Addendum to Psychiatric Evaluation” as the bases for its determination to place K.M.G. in a secure facility. This evidence revealed that K.M.G. had a history of non-compliance with parental, school, law enforcement and probationary rules and authority and had exhibited criminal and violent behaviors. The Youth Court’s finding that K.M.G was “a danger to the public if not placed in a state youth correctional facility” was supported by substantial evidence and adequately discussed.
¶44 2. Did the Youth Court err by failing to specify how long K.M.G. could be held at Pine Hills?
¶45 The Youth Court committed K.M.G. “to the custody of the Department of
¶46 KM.G.’s placement to the Department of Corrections is indeed subject to the limitation that he “may not be held... for a period of time in excess of the maximum period of imprisonment that could be imposed on an adult convicted of the offense or offenses that brought the youth under the jurisdiction of the youth court.” Section 41-5-1522(1), MCA. Procedurally, pursuant to § 41-5-1522, MCA, “[w]hen a youth is committed to the department [of corrections], the department shall determine the appropriate placement and rehabilitation program for the youth after considering the recommendations made by the youth placement committee.” The Department of Corrections’s Length of Stay Committee establishes a youth’s “length of stay within 30 days of a youth’s arrival at the facility.” Admin. R. M. 20.9.703(l)(a) (2007). The committee determines the length of stay based upon several criteria, including the “delinquency history of the youthful offender; the severity and chronicity of the offenses committed by the youthful offender within the past 12 months; and mitigating or aggravating circumstances surrounding the act for which the youth has been adjudicated.” Admin. R. M. 20.9.704(l)(a)-(c). Then, a youth must be discharged from a facility when:
(a) the youth [has] attained age 18;
(b) the court order committing the youth to the department has expired;
(c) the youth is being prosecuted in criminal court as an adult; or
(d) the youth has served the maximum period of confinement pursuant to 41-5-1522. MCA.
Admin. R. M. 20.9.707(2)(a)-(d) (underlining in original, emphasis added).
¶47 As evident from these provisions, the Department of Corrections may not detain a youth beyond the maximum period of confinement of the offenses he has committed. The Department of Corrections may not hold K.M.G. at Pine Hills Correctional Facility beyond the period of time an adult could serve for committing the same misdemeanor offenses for which he was disposed.
¶48 The Youth Court’s disposition order was consistent with both § 41-5-1522, MCA, and Admin. R. M. 20.9.703, 704, 707, and did not err by leaving the specific calculation of KM.G.’s placement time to the Department of Corrections under these provisions.
¶49 3. Did the Youth Court err by finding that K.M.G. admitted to not attending school in violation of his probation?
¶50 The Youth Court’s disposition order states that K.M.G. admitted the allegations in the State’s Amended Petition to Revoke, including that he violated the condition that he attend school on a regular basis. K.M.G. argues that he only admitted to running away from the Radtke Home, not that he failed to attend school regularly. K.M.G. directs our attention to the January 9, 2009 hearing, where he orally admitted running from the Radtke Home, in violation of his probation, and notes the Youth Court did not address the school attendance violation. The State contends that K.M.G. admitted to the truancy violation by way of the Juvenile Admission and Waiver of Rights form filed with the Youth Court.
¶51 KM.G.’s signed Juvenile Admission and Waiver Form indicates that K.M.G. admitted to violating the condition that he attend school. K.M.G. initialed every line of the document, indicating he understood his rights and making his admissions to the alleged probation violations. In open court,
¶52 Affirmed.
Notes
Again, KM.G.’s misdemeanors were committed on January 8,2008; January 26, 2008; March 5, 2008; and two on November 18, 2008.
Dissenting Opinion
dissenting.
¶53 I dissent.
¶54 As noted, § 41-5-1513(l)(b), MCA (2007), provides that:
The court may not place a youth adjudicated to be a delinquent youth in a state youth correctional facility for an act that would be a misdemeanor if committed by an adult unless:
(ii) a psychiatrist or a psychologist licensed by the state or a licensed clinical professional counselor or a licensed clinical social worker has evaluated the youth and recommends placement in a state youth correctional facility .... [Emphases added.]
In this case, the use of the phrase may not is mandatory. Van Der Hule v. Mukasey,
¶55 It is undisputed here that Eileen C. Robbins was not “a psychiatrist or a psychologist licensed by the state or a licensed clinical professional counselor or a licensed clinical social worker.”
¶56 The court’s sentence being an illegal sentence, the Lenihan exception applies and we may review the sentence even in the absence of an objection by the defendant-or, in this case, the youth. State v. Lenihan,
¶57 As for the Court’s reliance on State v. Micklon,
¶59 Ignoring this, however, our decision here takes our Lenihan jurisprudence from the sublime to the ridiculous. Now, if the defendant “embraces” (Opinion, ¶ 40) the trial court’s refusal to follow the law-i.e., the illegality-then we pass the sentencing court’s dereliction with a wink and a nod. Our rationale is that we prevent the defendant from “gaming” the system.
¶60 The point missed in this silliness, though, is that if the District Court-which, theoretically, is in the business of making sure the law is followed
¶61 Indeed, when confronted with a situation in which not only the defendant, but also the prosecutor and the trial court, decided to “game” the system-where the prosecutor actually stated on the record, “We don’t hold firm to the technicalities of the statute or the Supreme Court rulings”-this Court responded:
The laws of the State of Montana are written to ensure that justice is served and the well-being of society and individuals is safe-guarded. Contrary to the County Attorney’s pronouncement to the District Court that “we don’t hold firm to the technicalities of the statute or the Supreme Court rulings,” adherence to the legislative enactments and the decisions of this Court is not a matter of convenience or prosecutorial preference [or, for that matter, the preference of the defendant or the trial court]. No court or officer of the court has the prerogative of circumventing or modifying the procedures established by law.
State v. Evert,
¶63 I dissent.
It is also undisputed that she did not make an unqualified recommendation that K.M.G. be placed at Pine Hills.
There was a time when this Court recognized this principle. See State ex rel. Bennett v. Bonner,
And prosecutor.