*1 MONTANA, OF STATE Appellee, Plaintiff CLARK, DALE KELLY Appellant. Defendant No. DA 07-0099. August Briefs Submitted on 20, 2008. Decided November
JUSTICE COTTER Opinion delivered the of the Court. (Clark) Appellant Kelly Dale Clark appeals the denial of his *2 trial, motion for a new as well as the sentence imposed on him for a part conviction of sexual assault. We affirm in and reverse and remand part. in
FACTUAL AND PROCEDURAL BACKGROUND
The factual background in this case was previously
described in
(Clark I).
Clark,
State v.
2005 MT
version of events. and had initiated the conversation breasts, testified that T.C. had only had touched her and that he up top, lifted her bikini herself verify of her in order fingers on the inside breasts breasts with two stated that unequal size. Clark also they whether were top, lifted her and reacted up shocked when T.C. bikini he was touching her He also denied surprise by reaching out breasts. her, simply but instead actually performed he had breast exercises could do and that she to her the breast exercises that she described *3 Clark Additionally, closing arguments in performed them on herself. her recanted not a witness based on maintained that T.C. was reliable lies, that admitted and that there was no evidence statements and in touching of T.C.’s was sexual nature. Clark’s breasts and he was jury ultimately A convicted Clark of sexual assault I, Clark twenty years prison suspended. in with sixteen sentenced to conviction, to live with a woman After Clark’s T.C. was sent 16. Bigfork. husband, pastor a Myers named Alana and her who was that T.C. had I, Myers and Christina warned Clark 14. Both Clark her that her, Myers told living lie. T.C. was tendency a to While Clark, to tell the she needed if had lied the incident with she about memorialized her testimony her subsequently T.C. recanted truth. oath. letter, she swore to under recantation in a which she, had initiated letter, stated that not In the T.C. if one of her breasts was by asking them Clark interaction between she, Clark, had lifted not the other. T.C. also claimed larger than Additionally, T.C. her to Clark. up top exposed her breasts bikini and that her nipples touch her actually stated that Clark did not Instead, a lie. T.C. stated previous testimony to that effect was Furthermore, T.C. stated merely touched the side ofher breasts. her, directly on exercises the breast perform Clark did instead demonstrated them on T.C himself. also stated that while the uncomfortable, interaction was a little only it was due to the fact that matters, the conversation involved sexual and not thought because she her, her, Clark was after coming on to or wanted to do more to her than initially what she asked. statement, At the end of this written T.C. reiterated nothing that she saw “perverted wrong” or in what happened, any and blamed contrary characterizations to the on the twisting of her words the prosecution during her testimony at trial. In March Clark moved for a new trial on the basis of T.C.’s I, letter. Clark 15. The District hearing motion, Court held a on this but ultimately denied it. Clark On appealed. appeal, we reversed District I, Court’s denial of Clark’s motion for a new trial. In Clark we revisited and then revised the analysis employed by to be a district court considering when I, defendant’s motion for a new trial. Clark prevail 27-38. We stated that in order to on ¶¶ a motion for a new trial in light newly-discovered evidence, satisfy the defendant must following five-factor test:
(1) The evidence must have been discovered since defendant’s trial;
(2) the failure to discover the evidence sooner must not be the diligence result of a lack of on the part; defendant's (3) the evidence trial; must be material to the issues at (4) the evidence must be neither merely cumulative nor impeaching;
(5) the must evidence indicate that a new trial has a reasonable probability of resulting a different outcome. I, 34. standard, Under this revised we reversed the district court’s
denial of Clark’s inability glean motion because of “our from the record denying motion,” the District Court’s reasons for because we could not determine whether the district court had correctly applied Thus, the law. Clark 42. we remanded the case “for the District Court to undertake anew Clark’s motion for trial.” Clark February 23, 2006, On hearing the District Court held a new
Clark’s motion. At hearing, parties presented counsel for oral *4 argument present testimony but did not new or evidence. After this hearing, Court once motion a again District denied Clark’s for new trial, explaining analysis. and issued an order its analysis, In its the District Court reviewed the evidence and trial, testimony presented hearing that had been at the first on a new (3) (1) Clark I test of the were through that factors concluded and (5) (4) hearing in At the first were not. and satisfied, that factors in the letter. as contained of events to the version 2003, T.C. testified and shocked that “she was asserted However, she nonetheless Clark also testified her breast.” defendant touched when the surprised at trial. events as related reiterating his version of hearing, the 2003 at that the (4), Court concluded the District to factor respect With (5), factor Under merely impeaching. and cumulative evidence was that probability not a reasonable there was District Court concluded in a different by jury letter would result of T.C.’s the consideration undisputed that that it was still Court noted outcome. The District Court further observed The District had touched T.C.’s breasts. letter was as set forth in the change factual in events only that the and she, Clark, initiated the interaction that not that T.C. now stated not of her touching that Clark’s breasts top, lifted her and up jury had However, Court noted that the District “perverted.” testimony at trial. of events in Clark’s already heard this version concerning T.C.’s already heard evidence jury had also recanting for her various versions lying and her motive reputation expressed in Clark I we District Court observed that of events. The and notoriously suspect. are unreliable that child recantations view and physically noted that T.C. been regard, this the District Court had allegations her her as a result of emotionally removed from mother separation specifically Clark and advised against allegations against make Clark. as she continued to long continue as encouragement previous to recant her Additionally, T.C. had received her authority figures, including testimony separate from at least four Moreover, still counselor, her wife. she mother, pastor’s stepfather, that his motion for a new hearing testified at the on Clark’s testimony was inconsistent surprised her.” This actions “shocked were touching her breasts her claim that Clark’s actions weakening further the figure, a father thus consistent with his role as Additionally, the District Court observed credibility of the letter. T.C. surprised” when he too “shocked testimony Clark’s actually did at the he was inconsistent with what pulled top down her fingers on her put T.C. and time, to reach toward “which was latest of both T.C.’s inherent contradictions light breast.” In of the Corut the District testimony at and Clark’s own recantation jury, believed that T.C.’s letter would concluded of a different probability not lead to a reasonable consideration would outcome. *5 again After the District Court denied
¶14 his motion for a new trial pursuant to our order in Clark Clark moved to amend the sentence originally him imposed on December 2003. The District Court twenty years had sentenced Clark to in prison suspended with sixteen and ordered Clark to I complete Phase and II of sexual offender treatment before becoming eligible parole. for As a component ofPhase II Prison, treatment offered at the Montana State Clark would be required guilt to admit his to the charge. sexual assault Phase II sex “deniers,” i.e., offender treatment for those are who unable or unwilling guilt, to admit their only was offered outside of prison. he steadfastly guilt, Because denied his Clark argued that he could not complete Phase II unless he relinquished constitutionally guaranteed right against self-incrimination under the Fifth Amendment to the United States Constitution. The District Court agreed 4, 2006, and in an August order dated vacated its original judgment re-sentencing and set a hearing on the matter. Court, The District and Clark’s attorney apparently ¶15 all agreed that mandatory minimum sentence for sexual assault n under (2001) 45-5-502(3), years. MCA four At re-sentencing § hearing, argued eligible that he exception for an to the mandatory 46-18-222(6), minimum for sexual assault under MCA § (2001). disagreed The District Court and re-sentenced Clark on twenty years December 2006 to in the Montana State Prison with suspended, giving sixteen him credit for time served since his initial declined sentencing on November 2003. The District Court to find that an exception mandatory to the minimum for sentence sexual applied assault in his case. The District Court also removed the sentencing eligible parole condition that Clark would be for after II completing Phase sex offender treatment. The net effect of this re- sentencing year was that Clark would have to serve out the four mandatory minimum, eligible and would not be for before that parole punishing time. District Court stated that it was not Clark for standing upon his it could not rights, simply constitutional but said obligation protect society meet its if it Clark before the released mandatory years successfully minimum of four without Clark completing Additionally, Phase II treatment. the District Court re- imposed thirty-three apply during a total of conditions to to Clark suspended portion of his sentence Clark was on probation. while timely Clark now the denial of his motion for a new appeals re-sentencing by as well as his Court on December District on appeal We restate issues as follows: by denying its discretion Court abuse Did the District Issue One: a new trial? motion Clark’s for its discretion Court abuse the District Two: Did Issue years term mandatory minimum Clark to serve requiring offour conviction? sexual assault its discretion Court abuse Did the District Three: Issue sentence? suspended on Clark’s conditions probation imposing OF REVIEW STANDARD for a new denial of a motion a district court’s review generally We prevail 18. To standard. Clark of discretion trial under the abuse *6 satisfy must the five-factor trial, the defendant for a new on a motion 9.) (See by the findings of fact made Opinion, from Clark I. ¶ test a supported by test must be court under this five-factor district clearly reviewed under the and will be of the evidence preponderance Clark 39. erroneous standard. ¶ legality, district of a sentence for imposition court’s We review the State statutory parameters. a sentence is within
to determine whether 129, 27, 130 P.3d 32, 27, Mont. Vernes, 2006 MT the reasonableness However, an abuse of discretion we review for 83, 9, Ashby, 2008 MT State v. imposed upon probation. conditions 187, 9, 179 P.3d 9.¶
DISCUSSION denying by its discretion the District Court abuse Issue One: Did a new trial? Clark’s motion for denying its discretion argues Clark the District Court abused the District Court a trial. Clark maintains
his motion for new letter-namely, of T.C.’s significant evidentiary aspect a overlooked she, not Clark that essentially agrees that now T.C. with size and that she about her breast the one who initiated discussion a argues Clark top. had down her bikini pulled was the one who of the the entire character change of T.C.’s letter would consideration that he the State’s evidence argues Clark against State’s case him. the State’s top was initiated down the bikini pulled the interaction and criminal T.C.’srecantation intent. alleged of his primary proof jury would evaluate under which change the circumstances in nature. With sexual or not the contact was intent and whether as bad may be seen his actions evidence, argues Clark new removed. is now sexual contact judgment, the evidence of Thus, merely impeaching. Therefore, cumulative or T.C.’sletter is not the District Court erred in analyzing this new evidence under factor (4) . (5), With respect to factor Clark asserts that the admission of the
letter would have a probability reasonable of changing the outcome of the case. Clark argues that T.C.’s testimony at the 2003 hearing on the explained motion her motivation complaining against Clark the first place-i.e., that she angry at Clark for being a disciplinarian harsh which why originally she accused him. However, she maintained she failed to appreciate consequences of lying incident, about the and was then later frightened about what might happen to her if altogether, she recanted leading to partial her Thus, recantation in the second interview. argues, while guarantee there is no the letter would jury be seen as credible, he avers that it beyond nonetheless is the District Court’s discretion to find that a jury would not believe T.C.’s recantation and conclude there is not a probability reasonable of a different outcome. (4), Under factor defendant must demonstrate that newly discovered evidence is “neither merely cumulative nor impeaching.” 34. The District Court concluded that the proffered evidence was “merely impeaching and cumulative.” Cumulative evidence is statutorily defined as “additional evidence ofthe same character to the point.” 26-1-102(4), same Section MCA. Evidence is “merely considered impeaching” when it is collateral in nature and does “not have a direct bearing on the merits of the trial under review.” Jackson v. (Md. 2005). A.2d Spec. App. agree We are inclined to Clark that question the evidence in is not collateral and therefore is potentially “merely However, impeaching.” dowe conclude the *7 cumulative, evidence is already before, as T.C. has recanted once and (4) evidence of this fact jury. Thus, was before the analysis the factor by the District Court was arguably partially incorrect; nonetheless, any regard error in this is not determinative. In order prevail I, on a motion for a new trial under Clark
defendant satisfy case, must all five In agree factors. this we with the District Court that Clark satisfy has failed to under factor burden (5) Thus, . we affirm its denial of Clark’s motion for a new trial. (5) I, In Clark likely we stated that factor the “crux” be of a I, district court’s evaluation of a motion for a new trial. Clark 36. We probability’ also stated that the “reasonable standard under this factor “properly judge leaves to the trial weight determinations of credibility evidence, of the impact, looking and to consider what prospectively jury, may at a new trial with a new have evidence court’s to a district respect 36. With jury.” that new stated as factor, specifically under this we recantations of evaluation follows: in our recantations, nothing example, for
In the context
v.
expressed
[State
the concerns we
today negates
decision
(1988)] that recantations are
P.2d 268
Perry, 232 Mont.
“demonstrate[]
they
suspicion” and
great
to be “viewed
witness,”
finality
of trial verdicts
unreliability of a
lest
Perry, 232
or unreliable witness.
mercy of the scofflaw
at the
addition,
In
it is understood
466,
order, the district found, court had law, as a matter of recanting testimony was Crosby, untrue. Applying test from I, Clark we particular, reversed. In we noted that in Clark “we explicitly overruled the statement in Perry that a judge ‘trial required grant a new trial only when he is satisfied the recantation ” 32). of the Crosby, witness is true.’ (quoting Instead of denying the motion based on whether or not the district court believed the recantation from a perspective fact-finder, of a we held that the district court only to consider factors, all five Clark I including “whether a new trial would have the reasonable probability of resulting in a different outcome.” Crosby, 21. In response to a concern raised the dissenting opinion that the
district court properly did consider the Clark I factors and that our reversal improper, explain we went on to in practical terms the difference “between the district properly court assessing ‘weight and credibility' of the recanting testimony, commands, which Clark versus the district court determining the ultimate ‘veracity’ of the recanting testimony, which prohibits.” Crosby, 23.
Under proper application test, of the Clark a possible scenario might be one in which the judge district recanting finds the highly credible, witness but nonetheless denies a new trial under light Clark test in strength testimony of five prosecution other presented witnesses at original trial. Alternatively, a judge might find a witness particularly not credible, grant but nonetheless a new trial under Clark because there is a probability-given reasonable the paucity of other evidence adduced at the jury first trial-that a on retrial would acquit the defendant presented when with the new evidence. sum, here, distinctions set forth in and reaffirmed are both appropriate and crucial to ensuring reviewing judge that the does not jury’s province intrude on the as fact finder.
Crosby, 24. bar, In the case at the District Court did not abuse its discretion
in concluding there was not a probability reasonable that T.C.’slatest recantation would result in a different outcome. The District Court did against succumb to the error we cautioned in Crosby, and base its decision on Instead, whether or not the recantation was true. it recantation would be entire context in which this examined the testimony presented jury, in ofthe and evidence light to the presented *9 12-13), it (Opinion, above during original explained ¶¶ trial. As the suspect,” and that the recantation was “unreliable correctly noted allegedly T.C. a victim of sexual abuse and had given the fact that Additionally, authority figures. T.C. was encouraged been to recant Christina, removed from her mother emotionally physically and both long the as as she that would continue separation advised The District allegations against to make Clark. Court continued recantation, further that this was T.C.’s second and that observed though initially in the second interview with law she recanted actually not recantation of enforcement, give she did factual events circumstances, until testified at trial. Under these the after Clark to jury District Court was within its discretion conclude that simply given would not believe T.C.’s letter her statements and prior leading up the events to the letter. considering newly-discovered whether evidence warrants
¶32 second-guess a new role of Court is the the District not to the I, a jury. apply Under Clark court is the simply district factors findings under the circumstances and make in accordance therewith. jury Court did so appropriately original District here. The in this case Clark’s did him. We testimony simply agree heard not believe District Court not a probability” with the that there is “reasonable that testimony any a consideration ofT.C.’s make letter would Clark’s more credible the second time around because the letter and T.C.’s why still not Clark out and testimony explain reached touched Thus, not T.C.’s in the first the District Court did place. breasts abuse it motion. discretion when denied Clark’s Issue Two: Did the District Court abuse its discretion in mandatory years serve requiring Clark to minimum term offour for the sexual assault conviction? maintains District Court abused its discretion Clark mandatory four-year him to serve the minimum sentence for
requiring Clark’s sentence upon re-sentencing. original required sexual assault counseling becoming eligible him Phase for complete II before innocence, parole. steadfastly Because maintained him would violate his agreed requiring District Court to do so Fifth Amendment But instead of rights and removed condition. incarceration, reducing the of his releasing probation him to term twenty-year re-imposed Court sentence did District give mandatory for sexual assault. exception Clark an minimum The dissents notwithstanding, the State did not seek to dismiss challenges Clark’s to his sentence in grounds District Court on the challenges such were scope outside the Instead, remand. it acquiesced in the re-sentencing proceedings. Because the State failed object in the District Court to re-sentencing Clark’s being motions as scope remand, outside the of our the District Court proceeded to issue so, those rulings. being This right now has the to appeal from his Thus, re-sentencing. proceed we to merits of Clark’s appeal. At the re-sentencing, time of Clark had been in for prison approximately years. three Clark argues the District Court’s action in him requiring mandatory to serve the years minimum of four sexual assault was vindictive and made no sense required because it him to serve prison additional time in receiving without treatment. urges While Clark us to conclude that the District Court abused its sentencing him, discretion in we conclude rather that Clark’s sentence illegal. Upon record, review of the it has come to the Court’s attention Court, that the District and Clark’s counsel all relied have *10 upon wrong the statute with respect sentencing to Clark’s for the sexual assault conviction. “It is axiomatic deciding that when a case involving the crime, commission of a crime or sentencing for a we use the criminal statutes in effect at the time of the commission.” Dexter Shields, 159, 13, 6, 13, 2004 MT 1208, 322 Mont. ¶ P.3d ¶ ¶ (citing Muhammad, 47, State v. 24, 1, 24, 2002 MT 24). 318, P.3d by Clark charged July 31, 2002, was information on violating (2001). 45-5-502, MCA pertinent
§ This statute reads in part as follows: (1)
Sexual assault. A person knowingly subjects who another person any sexual contact without consent commits the offense of sexual assault.
(2) A person convicted of sexual assault shall be fined not to exceed or in imprisoned county jail $500 the for a term not to months, exceed 6 or both.
(3) If the years victim is less than 16 old and the offender is 3 victim years or more older than the or if the offender inflicts injury bodily upon anyone committing in the course sexual assault, the punished by imprisonment by offender shall be life or imprisonment prison in the state for a term not less than 2 years years may or more than 100 be fined not more than $50,000. (2001) 45-5-502(1) added). through (3), (emphasis
Section MCA sentencing, counsel, Throughout Clark’s the Clark’s and the proceeded premise mandatory District Court under the years. patently minimum for his offense was four That is incorrect. The four-year mandatory minimum sexual assault not added for was Legislature until after crime was committed. See well (2003). 45-5-502(3), mandatory minimum Accordingly, MCA § years, years, by proceeding Clark’s conviction was two not four mandatory under the mistaken minimum four belief years, obviously the District Court sentenced Clark under a statute which was not in effect at the time the offense committed. statutory authority Because the District Court was without impose mandatory years a minimum of four on such sentence illegal Burch, constitutes an sentence. See State v. 2008 MT 499, 12, 182 (quotations omitted, Mont. P.3d 12¶ alterations (“Because original) authority district court’s to sentence a by statute, defendant is defined and constrained court has no power impose a sentence in of specific statutory the absence authority... [a] sentence not on statutory authority illegal based is an sentence.”) Although already years Clark has prison, served four we nonetheless re-sentencing vacate Clark’s sentence and remand for on grounds that it was an illegal sentence under the law in effect at the time Clark’s crime was committed. Issue Three: Did the District Court abuse its discretion in
imposing probation conditions suspended on Clark’s sentence? imposed District Court thirty-three probation total of upon conditions dining suspended the term of his sentence. Because we vacate Clark’s sentence and re-sentencing, remand for Clark will have the opportunity challenge probation conditions before the However, only District Court. those which are conditions objected to may challenged before District Court be later appeal. Ashby, ¶ 22.
CONCLUSION We affirm the District Court’s denial of Clark’s motion for a However, trial. we vacate Clark’s sentence and remand for re- sentencing consistent set in specific with the considerations forth this Opinion. LEAPHART,
JUSTICES WARNER and MORRIS concur. NELSON, specially concurring. JUSTICE I in Opinion except agree concur the Court’s that I do not with our Opinion. in 21 of See of the standard review State statement Stiles, 390, 19-50, 347 95, 19-50, 197 966, 2008 MT Mont. P.3d v. ¶¶ ¶¶ (Nelson, J., dissenting). 19-50 ¶¶ acquiescence As for the Dissent’s concern about the State’s in (see Dissent, scope of 63- exceeding
District Court’s our remand ¶¶ Indeed, 67), I have agree I tend to with the Chief Justice’s comments. response opinions in of this arguments made these same sorts a in the trial court’s holding “acquiesced” Court defendant illegal it an sentence. authority imposing exercise did not have 13-22, 291, Micklon, 45, 13- v. 2003 MT Mont. e.g. ¶¶ See State ¶¶ (Nelson JJ., 22, 559, Trieweiler, dissenting); 13-22 & 65 P.3d ¶¶ Micklon, J., Walker, 205, (Leaphart, dissenting); State 2007 MT (Nelson 30-40, 879, 529, 30-40, 167 P.3d 30-40 & 338 Mont. ¶¶ ¶¶ ¶¶ JJ., Walker, Warner, concurring part dissenting part); in in 25¶ (Cotter, Garrymore, 245, J., concurring); see also State v. 2006 MT 94-101, (Nelson, 94-101, 334 Mont. 145 P.3d 94-101 ¶¶ ¶¶ ¶¶ Yet, J., concurring). again, time and time Court has specially asserting may trial court exercise rejected arguments, these a to,” “affirmatively agrees authority if the defendant nonexistent for,” in, “desires,” in, “bargains “acquiesces” “actively participates” Micklon, “wants,” “willing” illegal is an sentence. “requests,” or to serve rationale, Walker, I 10; Accordingly, 16-18. cannot understand the ¶¶ Dissent, impose would a trial court to an by the allow suggested it, deny in illegal acquiesces sentence if the defendant acquiesces illegal to undo an sentence if State power trial court is that the mischief doing recognize in the so. What we fail to court’s our remand that it not the statutes and orders approaches in both is is authority; rather, litigant’s is trial court’s it a which define the gives authority the court the “acquiescence”-which conduct-his this it not have.1 While power exercise which otherwise would nonsensical, our as it what approach might be characterized essentially in Davis v. observation for the Court Justice Morris made same 300, 187 State, he stated: MT P.3d when prescription by urging § time set forth 46- this Court to construe the The subject jurisdiction, 21-102, MCA, asserts that courts’ matter as a limit on district may subject jurisdiction on the timeliness of petitioner a court’s matter a dictate jurisdiction, Supreme subject petition. has described matter Court parties’ however, authority expanded for the to account that “cannot be as identify provision either the a litigation . . .” The State fails conduct . hinge that allows this Court or the Montana Code Montana Constitution district of the “power” post-conviction petition on the timeliness court’s to entertain petition. omitted). Davis, Davis, (ellipsis in citation ¶ 21
127 jurisprudence permits. Finally, I previously raised the same sorts of concerns trial
¶46 about violating now, again, courts remand as are being by orders raised Bartsch, Marriage 136, See In re 36-48, Dissent. 2007 MT ¶¶ of 386, 36-48, 72, (Nelson, J., C.J., Mont. Gray, P.3d 36-48 & ¶¶ ¶¶ Rice, J., dissenting). Bartsch, court, we remanded directing specific findings that court to make of fact on three issues. court, however, The trial failed to specific findings required. make the 37, Bartsch, Yet, See 40-46. we affirmed ¶¶ the trial court’s remand Bartsch, decision. We 30. determined trial court’s nonspecific findings of “sufficiently purposes fact were clear” for of appellate Bartsch, review. The Court
¶47 here is simply being consistent in following the Micklon of line cases and Although Bartsch. these precedents are with which I strenuously disagree, I am constrained to follow both. And that will continue be the case until we overrule the Micklon line of cases and glossing cease over trial courts’ failure to comply with remand orders as in we did Bartsch. It that, case, would seem as unfortunately, to this around, goes “What comes around.” caveats, With these I otherwise concur in the Opinion. Court’s RICE,
JUSTICE concurring part in dissenting in part. I concur with the Court’s resolution of Issue 1 but believe the by Court has allowing erred the District Court to reopen and reconsider Clark’s sentence after remand. argues The State the sentencing issues Clark raised on
remand, and before us present now in the appeal, are not properly before this Court because Clark did not raise them in his first appeal. According State, to the the limited purpose our remand was for the District Court to reconsider Clark’s motion for a light new trial in our holding Thus, in Clark I. argues, the State Clark was not entitled to challenge originally imposed sentence because we did not send that issue back to the District Court for review. argues, briefly 36), and this Court (Opinion, observes acquiesced State to the District Court’s reopening of Clark’s
sentence, objection. and therefore the State According waived its original remand, sentence was also reviewable without it, ever formally appealing simply “illegal.” because it was I adopt arguments the State’s re-impose original District Court’s sentence, as I do not believe a waiver occurred here. law the case provides deciding doctrine that “in a case on
appeal, Supreme when the Court or opinion principle states its decision, necessary pronouncement to the such becomes the rule oflaw case, throughout subsequent and must adhered to law of the upon subsequent appeal.” court and proceedings, both the trial Constr., 289, P.2d at 637 (citing 265 Mont. at Pipeline Haines 124, 779 492); Sanders v. Zavarelli, 239 Mont. at P.2d at see also 1356, 12. MT 955 P.2d While the any open matters left may generally trial court consider *13 proceedings, remanded for further appellate court when a case is 493, Zavarelli, 125-26, 779 P.2d at that rule does not 239 Mont. at instructions, limited apply specific, when the case is remanded with language. employs proceedings” if the Court its oft-used “further even Pipeline and Zavarelli demonstrates A closer look at Haines Constr. trial and a case remanded for a new a case the difference between limiting remanded with instructions. Constr., previously affirmed the Pipeline In we had Haines respects except in all as to findings
District Court’s
conclusions
damages, remanding
“singular
the
punitive
compensatory
prove, argue
and defend
allowing
plead,
“the
purpose”
parties
of
litigation
the
between
change
a
in the law which had occurred
against”
then-existing record
had rendered the
appeal
and the
and which
damages
punitive
award.
support
the district court’s
insufficient
291, 876
Despite our
Constr., Mont. at
P.2d at 638.
Pipeline
Haines
265
however,
novo,
de
remand,
the District Court retried the case
limited
“directly contrary
the
findings and conclusions
ultimately making
were affirmed
findings
conclusions oflaw in Haines which
offact and
287,
Constr.,
at
876
at
Pipeline
265 Mont.
P.2d
by this Court.” Haines
further
trial
is free to conduct
observed that
the
court
636. We
court,
appellate
“not inconsistent with the decision
proceedings
by such decision.” Haines
any
or settled
question
presented
as to
(second
290,
emphasis
Constr.,
at
P.2d at 637
876
Pipeline
230-31,
Bozeman, 259 Mont.
added);
Story City
see also
(“A
(1993)
ordering a new
court
supreme
ofthe
202, 216
judgment
P.2d
case.”)
conducting
However,
by
questions
anew
opens
all
scope
novo,
Pipeline exceeded
the district court in Haines
trial de
reopened.
had not been
and entertained an issue which
of remand
contrast,
remanded the case
previously
in Zavarelli we had
by finding a
erred
concluding it had
the District Court after
Might, 230
Zavarelli v.
property. See
easement on certain
prescriptive
(1988).
stated: “Since
288, 292-93,
We
749 P.2d
Mont.
must be
judgment
supported,
cannot be
easement
prescriptive
necessary
as are
proceedings
for such further
reversed. We remand
light
of this opinion
by
and the facts found
the District Court.”
added).
Zavarelli,
292-93,
Mont. at
P.2d at 527 (emphasis
Thus,
subsequent
the District Court’s
conclusion “that the descriptions
in the
deeds
of a
mutual
were
result
mutual mistake” was not
holding
existed,
our
prescriptive
inconsistent with
that no
easement
Zavarelli,
precluded
and was not
the law of the case.
239 Mont. at
reaching
779 P.2d at
Upon
again
this Court once
after
remand, we observed that when the case returned to the District
Court,
posture
it had “the
of not
having
judgment.
final
In that
situation,
nothing
when there is
prevent
in the terms
the mandate to
it,
reconsideration,
the trial
power,
court has the
to find the same
change
facts and
its
or
holding,
to find different facts consistent with
original holding.”
Zavarelli,
CHIEF part. one, in the Court’s on issue which affirms the opinion I concur I from denial of Clark’s motion for a new trial. dissent
District Court’s issue. I decision to address and resolve the second the Court’s sponte of and conclude that the scope question the remand sua address remand-and, therefore, scope the of District Court exceeded our sentencing matter as power-by entertaining resolving part the result, I would hold the second issue proceeding on remand. As join regard, not In that I Justice Rice’s dissent properly is before us. I analysis separately his of Zavarelli and Haines. write address issue in more detail. scope of remand MCA, affirm, 3-2-204, may this Court provides Section modify any judgment appeal or or order from which an reverse statute, course, had.” The proceedings taken or direct “further authority. See Mont. merely appellate restates our constitutional Const, 2(1). VII, art. § an assertion of instructional Two issues were raised in Clark I: error in denial of defendant’s motion for
error and an assertion of ultimately judgment We affirmed the conviction. a new trial. aspect relating of the law I, 3, 4 and 43. also clarified one We ¶¶ or not the but we could determine whether motions correctly denying law in the motion for new applied court had I, reversed that order and Consequently, 34-42. we trial. Clark ¶¶ motion for “for Court to undertake anew Clark’s remanded the District outcome, summarizing In we stated we new trial.” Clark 42. opinion.” remanding proceedings for “further consistent with this were only Obviously, proceedings further consistent could of the expressly-stated reconsideration previously-and include the for new motion trial. District Court denied remand, nearly months after the On two years after nearly two and one-half for new trial and
motion case, Commitment moved amend in his defendant Judgment and in the an abuse of discretion thejudgment. He asserted that there was issue, entertained the The District Court originally imposed. sentence view, given carefully my it in the State’s favor. and resolved *15 remand, that court District Court on returned the power limited we sentencing issue at authority or to consider power have the did not all. long Our cases have in Montana law. concept not a new This is comply duty court’s is that, the trial appeal, on remand after
held
131
therein;
of
obey
the mandate
this Court and to
directions
e.g.
it
directions. See
trial court commits error if
fails to follow those
Court,
346, 349, n602
1002,
rel.
v. District
184 Mont.
P.2d
State ex Olson
(citations omitted).
(1979)
Indeed,
logical
this conclusion is “both
clearly
Marriage
[in
statute].”
re
expressed
Montana
See In
of
(1985).
473,
Sarsfield,
123, 125,
215 Mont.
495 P.2d
We also have
ignore
held that a trial court cannot
an
court’s mandate in
appellate
disposing
remand;
doing
Marriage
of case on
so constitutes error.
of
125,
at
Sarsfield,
Finally,
remand, my view, mandatory put constraints on the trial court’s power authority to act on remand. The District Court in the present did case follow our directive regarding the motion for new join and I affirming Court in that decision in issue one. Long remand, after the District obligation Court had met its Clark moved years’ Judgment to amend the old and Commitment. The District entertaining resolving Court’s action in that motion constituted error in that the court scope view, exceeded the of our my remand. In a trial court which empowered does more than it was to do on remand ignores our directives and is inconsistent with our every instructions as bit much as a trial court which does less or which otherwise acts
differently from our remand instructions. The Court concludes that this matter of whether the District
Court scope exceeded the of our remand be cannot addressed here and, indeed, because the State did not object “acquiesced.” on remand It is my party view that vest power cannot or divest a court or authority Indeed, to entertain and resolve an is particularly issue. true where court already constrained this Court’s remand. may argue always Some do not provide precise we remand, not, however, instructions on It may and that so. was case in Clark might as Court admits in 10. Some also contend scope of remand important question is neither an nor one which sponte. strongly disagree. this Court should notice I sua Leaving authority the determination a trial act court’s on remand party to a I simply injudicious. to raise seems believe this Court must be much more authority, watchful than that and of the power *16 Furthermore, approach such an would leave
authority of trial courts. timely eye. of to counsel’s watchful Given our finality cases finality of importance longstanding jurisprudence about Skjelset, cases, e.g. Tipp most See this strikes me as unwise. (citation 288, 787, 263, 28, 28, 967 P.2d MT 291 Mont. ¶ ¶ ¶ omitted). might being concerned about Finally, recognize I that some I illegal sentence. would purportedly and correct
able to review challenging variety statutory methods of respond that there are a necessarily sentences, including-but limited allegedly illegal (via relief a claim of ineffective postconviction to-direct appeal counsel). addition, corpus habeas relief is available assistance of the wishing challenge legality person an incarcerated Brown, of confinement. See ¶ duration judgment is not a 2½-year-old motion to amend a Importantly, a Here, challenging allegedly illegal an sentence. cognizable means of or, indeed, illegal original sentence was Clark does not assert that being appeal illegal. is He he now is allowed the sentence discretion in sentencing court abused its merely asserts that to a challenge if the is sentence resentencing regard, him. In that imagine I cannot the basis objectionable, illegal, but not asserted to be consider it at this court or this Court could on which either trial 241, 12, Hameline, MT 344 Mont. very late date. See State v. 8, 107, MT 12; Kirkland, 2008 State v. 188 P.3d omitted). (citation To 365, 8, avoid 181 P.3d illegal, the sentence is simply the Court concludes problem, additional Clark. analysis never advanced and constructs stray allowing into line that we should not me, For the bottom they simply do not have. power exercise cotuts on remand to one, strenuously on Therefore, opinion issue join I the Court’s that the two. I would hold opinion on issue dissent from the Court’s considering the authority remand Court exceeded District readily options has available sentencing claim and that Clark believe or his seasoned counsel in the event he challenge the sentence illegal. it is