*1
MONTANA,
OF
STATE
Rеspondent,
Plaintiff and
GARRYMORE,
LUCAS
JASON
Appellant.
Defendant
No. 04-644.
Heard November
2005.
June
Submitted
Decided October 2006.
For Honorable Attorney Mike (argued), General, Helena; Mark E.Mattioli Attorney Assistant Fred Valkenburg, County Attorney; Van Suzy Boylan-Moore Paul, Deputy County Attorneys, Andrew Missoula. Opinion
JUSTICE RICE delivered the of the Court. Garrymore of deliberate Jason Lucas jury Appellant A convicted ¶1 Thereafter, February the Fourth Judicial on 2004. homicide without imprisonment him to life District Court sentenced restriction and Garrymore challenges possibility parole. to his sentence. We affirm. urges us vacate following appeal: issues on We consider ¶2 (1) to District Court’s object Does failure to ¶3 preclude appeal? our on imposition review (2) parole eligibility Did District imposition Court’s 46-18-202(2), (2001), to MCA violate pursuant restriction rights Garrymore’s federal and state constitutional jury process? trial and due
BACKGROUND January 2, nearly two-year-old After left an incident on dead, father, Garrymore Appellant her Jason Tylin charged the State Garrymore (Garrymore), Lucas with deliberate homicide violation (2001). 45-5-102, charge Garrymore pleaded guilty MCA February 4, 2003, by jury. jury proceeded on and the case trial The February 27, on convicted deliberate homicide report, Garrymore’s After of a case completion pre-sentence proceeded May hearing, 2004. At both *3 Garrymore presented past and the State evidence of character, argued and and each for a different sentence. conduct side Mr. the adopted Sonju, The State the recommendation of probation/parole report. had prepared pre-sentence officer who evidence, Garrymore Relying Sonju on considerable Mr. concluded rehabilitated, Garrymore given could not be and recommended that Conversely, Garrymore possibility parole. life sentence without to given opportunity properly was argued that he never considered, rehabilitate, when his mental health issues were especially eligibility not restriction. urged and the court to contrary, Notwithstanding Garrymore’s arguments offender and sentenced adjudged Court a violent District The court parole. imprisonment possibility him to life without following for its decision: provided basis for domestic abuse Now, this defendant has three convictions type the same He was arrested on and unlawful restraint. jurisdiction their charges and California moved out of in Utah but addition, probation he was on charges were dismissed. so this offense was committed. when
Now, throughout proceedings, the trial these contrary testimony, I not have seen remorse from this defendant. going adopt Sonju’s And I’m some my of Mr. reasons reasons. Sonju, candidly, said, Mr. I quite looking have been for all mitigating factors in this case. disturbing What most is that I any. have been find unable to
Further, agree I Sonju, especially Mr. after viewing the do photographs, Tylin’s that I not dеath caused by believe was tragic culmination of accidents.
Though actively he planned death, have this behavior, otherwise, certainly sadistic or caused it. He has a being record of mean abusive to women. violent, delay, slow,
As a result painful of his the child died a death. She could been to the hospital possibly have taken that, He saved. talked the mother out and it appears that he would rather save his own charges neck from child abuse than two-year-old save his adopted daughter.
Finally, it, think society, our and I we all realize even total strangers rush you, adoptive to assist child in distress. But her father, and, pictures, chose to abuse from the torture little girl and let her die. it’s judgment you
So now the of this Court that be sentenced imprisonment State Prison Montana without life eligibility parole. added.) object (Emphasis Garrymore did not pronouncement by time of its the District Court. Garrymore appeals, asserting that the District Court
parole eligibility restriction violation of his federal and state statutory rights. constitutional
STANDARD OF REVIEW year We review criminal sentences that include at least one State v. they legal. actual incarceration to determine whether are Herd, 2004 MT 22. “[A] ¶ ¶ illegal parameters provided by sentence is not it is when within 288, 11,983 Montoya, statute.” State *4 Gunderson, 183, 937, 187, 11 (quoting P.2d 282 Mont. 936 ¶ (1997) (overruled 806, 804, grounds)). P.2d We review on other State, Wadsworth v. 287, 298, novo. questions of law de 275 Mont. 911 (1996). 1165, P.2d
DISCUSSION to to the District object Issue 1: Does failure preclude our review sentence imposition Court’s appeal? a state or federal “the did not assert Noting that defense court’s objection to the
constitutional argument that the merits parole,” the State offers a brief to restrict The State appeal. not be reviewed on Garrymore’s claim should contemporaneous objection rule acknowledges exception to Lenihan, 338, v. in State 184 Mont. adopted purposes why jurisdiction (1979), “three reasons Lenihan but offers not invoked.”1 should is Initially, argument we observe that the State’s “three reason” our any not reference to case from
very supported by brief and is Lenihan but, rather, citations, analysis, to jurisprudence, without plain addressing a state civil case and federal case the exercise of Therefore, review, separate herein.2 error doctrine not issue to the State’s Lenihan comprehensive response arguments is necessary. The rule as follows: states appellate It to court to appears be the better rule allow an case, alleged review in a criminal if it is sentence mandates, illegal or even such sentence is exceeds sentencing. if no is at the objection made time Lenihan, 343, 1000. 184 Mont. 602 P.2d at First, the State offers that Lenihan does not apply because party “neither a deferred or this suspended recommended the Lenihan case Although imposition case.” of a deferred involved sentence, adopted probationary the rule we therein was not limited to Lenihan, sentences, undertaken, pursuant appellate and we have frequent jurisdiction” The echoes our State’s use the term “Lenihan own matter, jurisdiction. its misuse of the “Jurisdiction as As a technical a court cannot create own term. power capacity applied given is the or law to a court to courts State, entertain, case or matter.” Peña MT hear and determine jurisdiction granted 293, 21, This ¶ ¶ 323 Mont. P.3d Court’s ¶ judicial VII, by whereby is a creation Montana Constitution. The Lenihan rule Article Section appellate accepts review. The rule is not certain sentences for Court “jurisdictional” power to hear such claims. in the sense that the Court is with without commonly jurisdiction” recognize to refer terms such as “Lenihan are used We practice body jurisprudence, generally to a of law or the better avoid such uses but clarity “jurisdiction” meaning promoted. actual can be so Brister, 13, 17, MT See State v. distinguished these doctrines. two *5 review of which portions. sentences had no deferred or suspended v. Honey, State 107, 35, 49, 35, 983, 2005 MT 327 Mont. 112 P.3d ¶ ¶ Stone, 35, 151, 45, 45, 489, 2004 MT Mont. ¶ ¶ ¶ 1178, P.3d 45. ¶ noting Secondly, parole that the ineligibility Garrymore condition
challenges during sentencing on was appeal hearing by raised the the Lenihan rule is inapplicable prosecution, State contends that an objection Garrymore provoked judicial because “would not have vindictiveness which Lenihan fears,” Garrymore’s and that appellate challenge nothing impermissible is more change than an of theories on appeal. Though judicial vindictiveness was a concern addressed Lenihan, holding circumstances, our not therein was limited to such we explained judicial have since that the risk of vindictiveness only “part” of rationale underpinning the Lenihan rule. See State Micklon, 45, 9, 9, MT Further, general governing rule a change of theories on appeal necessarily presupposes “theory” argument or first was court, advanced in the district inherently a circumstance inconsistent Lenihan, applies, context, in the sentencing which when court, defendant remains silent no argument and offers district and, thus, general exception importantly, is an rule. More however, ultimately efficacy would undermine the of the process reject appellate of review sentences where the defendant objected changed theory yet in the district court and on appeal, made, appellate objection allow review of sentences where no thereby creating an institutional incentive for defendants to remain during sentencing. silent not, Thirdly, Garrymore’s the State contends that sentence “was contends, presume now unconstitutional.” We from that,
statement
the State means
because of the State’s confidence in
constitutionality
sentence,
of the
sentence cannot be
Lenihan
“illegal”
However,
rule.
purposes
applying
sentences,
Lenihan rule allows
“an
certain
appellate
to review”
Lenihan,
merits,
illegal,
their
are
“alleged”
on
substantive
appeals
Mont. at
P.2d at
and is not limited to those
Rather,
the Lenihan
prevails
in which the defendant
merits.
whereby
certain
procedural
appellate
rule is a
mechanism
review of
sentences,
barred for lack
allegedly illegal
procedurally
which would be
objection,
undertaking
After
appellate
nonetheless be obtained.
the Lenihan
rule,
by way
the Court
then
review
Vernes,
the merits. See State v.
up
takes
¶¶
26-30, 130
26-30.
¶¶
that,
Garrymore’s sentence is
suggests
because
Lastly,
State
invoking
from
we “should refrain
statutory parameters,
within
46-18-202(2),” citing
challenge to §
Lenihan to address a constitutional
(2002),
Cotton,
U.S.
Issue
Did
*6
46-18-202(2), MCA
eligibility
restriction
to
pursuant
§
(2001),
Garrymore’s
violate
and state constitutional
federal
rights
process?
trial
due
jury
and
to
and
pursuant
45-5-102(l)(a),
Convicted
deliberate homicide
to
¶16
of
MCA,
a
the
possibility
received
life sentence without
of
parole
appeal, Garrymore argues
from the District Court. On
that the
imposition
parole eligibility
District Court’s
of the
restriction was
argues
parole eligibility
the
Specifically,
unconstitutional.
he
that
a
on
restriction constitutes
sentence enhancement
was based
by
jury. Accordingly, Garrymore
found
a
the
argues
facts not
the
eligibility
by
of the
restriction
District Court
imposition
by
guaranteed by
due
both
rights
jury
process
violated his
to trial
and
Constitutions,
Montana
and United States
as well as
the
46-1-401,
by
MCA.
statutory rights provided
commensurate state
Federal
Claim
Constitutional
on
predicated
federal
claim is
the
¶17
constitutional
Jersey,
v.
Supreme
Apprendi
United States
Court’s decision in
New
466,
(2000), a
on the
530 U.S.
S. Ct. at The following Court formulated the rule: conviction, than prior
Other the fact fact increases beyond for a penalty crime maximum prescribed *7 jury, beyond must be submitted to a a proved and reasonable doubt.
Apprendi, 530 U.S. at
S.
the
Applying
Ct. at 2362-63.
rule to
the
Apprendi,
Jersey’s
facts in
the Court determined
that New
unconstitutional,
factfinding by
scheme
sentencing
was
because
the
judge,
jury,
the
statute
sentencing
not the
under
hate crime
had
the
punishment
increased
maximum
to which the defendant was
497,
Therefore,
at
S.
exposed. Apprendi, 530 U.S.
120 Ct. at 2366-67.
statutory
jury
the
“departure
scheme constituted a
from the
tradition
system”
indispensable
part
justice
that
is an
of our
criminal
497,
Apprendi,
violated the Sixth Amendment.
application “statutory for the remained; namely, maximum” mean what did the “any fact that increases requirement purposes Apprendi’s statutory maximum must be beyond for a crime the penalty prescribed Apprendi, a a doubt”? jury, proved beyond reasonable submitted critical question at 120 S. Ct. 2362-63. This was U.S. at “the any sentence which exceeded judicially imposed because rights maximum” was violative of a defendant’s prescribed Apprendi. under Supreme provided the Court further clarification Accordingly, Blakely v. Arizona, (2002),
Ring v.
U.S.
Apprendi. Specifically, parole eligibility characterizes enhancement, and asserts that restriction a sentence penalty beyond eligibility restriction increased Accordingly, up we take jury maximum authorized verdict. at issue. Montana statutes *8 Conviction homicide, of the offense of 45-5-102(l)(a), deliberate §
MCA, punishable is as follows:
(2) A person convicted of the offense of deliberate homicide shall punished by death provided as in 46-18-301 through 46- 18-310, unless the person is less than of age at the time of the offense, commission of the by life imprisonment, by imprisonment in the state prison for a term of not less than 10 years or years, more than 100 except provided in 46-18-219 and 46-18-222. 45-5-102(2),
Section MCA. Because the State did not seek the death penalty, 46-18-219, and since MCA, neither 46-18-222, MCA, § nor § applicable Garrymore’s case, the maximum sentence which could imposed have been upon Garrymore pursuant to the language of the statute was imprisonment.” However, “life Garrymore argues that the parole eligibility restriction, although plainly by authorized another (§ 46-18-202(2), statute MCA), operates to imposition allow the aof sentence which improperly range exceeds the by authorized 45-5- 102(2), MCA. He argues that the “life sentences” 45-5- 102(2), MCA, contain a presumption parole eligibility which can be only by overcome additional factfinding pursuant 46-18-202(2), to § MCA, and that because such factfinding was not jury’s reflected verdict, but was conducted the sentencing judge, the parole eligibility restriction violates the Sixth Amendment. 46-18-202(2), Section MCA, which authorizes restrictions on
parole eligibility, provides as follows:
Whenever judge imposes a sentence of imprisonment prison a state for a term exceeding year, sentencing judge may impose also the restriction that the offender ineligible for parole participation in the supervised release program serving while If term. the restriction is to be imposed, the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary protection for the of society, judge impose shall part restriction as of the sentence judgment and the must contain a statement of the reasons for the restriction.
It is clear language from the sentencing judge, statute when imposing prison exceeding year, term one also parole eligibility rеstriction in the judge’s sole discretion. This provision authorize, a legislative evidences intent to not require, but sentencing judges parole they to restrict whenever impose prison exceeding year. terms one Accordingly, it is evident that the fell upon within eligibility restriction Cavanaugh Crist, Indeed, his offense. we held range (1980), 46-18-202(2), MCA] does 274, 278, 615 that “[§ beyond time judges district to add permit *9 offense,” establishing maximum thus the underlying for the statutory of for offenses range punishments falls within the restriction However, Cavanaugh did not exceeding year prison. one in the state Blakely, by Ring later the subtle distinction advanced address to Garrymore eligible imposition was receive discussed above: whether MCA, 46-18-202(2), based eligibility of restriction under parole § the upon jury’s facts in the verdict. the reflected 45-5-102(2), Garrymore’s this assertion that It is for reason ¶26 § MCA, parole eligibility” of is critical implicit “presumption contains argument. penalty to He seeks to demonstrate that under the statute, 46-18-202(2), standing operation alone and without the of § MCA, (subject he a to parole-eligible was entitled to the statute, 46-23-201, MCA), requirements parole of the which was then § However, away by sentencing judge. reject from we taken him a Garrymore’s argument that such presumption exists. sentencing legislative find We no indicia statutes of a a presumption parole eligibility
intent to create of which must favor a to a sentencing judge impose parole be overcome order grant discretionary The of authority-clearly restriction. broad by to “may impose”-given sentencing judges indicated the term also 46-18-202(2), MCA, parole eligibility under restrictions on one-year exceed a term the enormous class of sentences which of regard sentences, imprisonment bebes such an assertion. With to these grant has exercise placed no limitation been upon Thus, authority by legislature. parole-eligible a sentence was not not such away taken from because he was entitled to a begin implicit presumption sentence to with. There no eligibility. course, acknowledge parole eligibihty that a restriction Of accompanied by writing pursuant to §
must be reasons stated 46-18- 202(2), however, disagree, MCA. We contention that 46-18-202(2), MCA, fact-finding places embodied implicit within beyond purposes “statutory restriction maximum” for rejected the Apprendi. We initially Supreme note that Court has bearing a on must found argument “every fact with States, 526 U.S. 227, 248, 119 S. . . . .” Jones v. United Ct. jury a (1999). 1215, 1226 As the Supreme Court noted in Blakely and United States v.
Booker,
543 U.S.
(2005),
S.Ct. 738
though the exercise of a
judge’s discretion often necessitates
findings of fact
support
sentence, a defendant does not necessarily have a right to
have those facts found by jury
Booker,
in all
instances.
[T]he Sixth Amendment its terms is not a limitation judicial power, but a jury reservation of power. It judicial power limits only to the extent that the judicial claimed power infringes on the province of the jury. Indeterminate does not do so. It judicial discretion, increases sure, to be but not at expense jury’s traditional finding function of the facts essential imposition lawful penalty. Of course indeterminate schemes *10 (like board) judicial involve factfinding, judge in that a parole a may implicitly rule on those important facts he deems to the sentencing exercise of his discretion. But the pertain facts do not to whether the defendant right has a legal to a lesser sentence-and that makes all the judicial difference insofar as impingement upon the traditional role of jury the is concerned. In system says a the judge may punish burglary with 10 to 40 years, every burglar risking knows he is jail. In a system punishes burglary sentence, with a 10-year with another 30 added for gun, burglar use of a the who enters a home unarmed is entitled to no more than a 10-year sentence-and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found aby jury.
Blakely, at U.S. 124 S. Ct. at Applying reasoning this Garrymore’s ¶30 to sentence demonstrates his argument First, above, is without merit. as noted plain reading a of the legislature’s statutes evidences the imprisonment intent to make life possibility without the parole of an authorized sentence for deliberate 45-5-102(2) 46-18-202(2), homicide. Second, although §§ MCA. 46-18-202(2), MCA, requires support § written reasons to imposition restriction, of parole eligibility go beyond those reasons need not those Indeed, factfinding requirement the embodied jury. the facts found 46-18-202(2), MCA, judge support a to simply requires in reasons, eligibility tie the parole with but does not discretion Instead, any particular findings facts or whatsoever. restriction to statute, entirely the it is language possible the plain under solely jury. facts found the parole upon to restrict based judge Further, imposition parole necessarily of a restriction is not facts, finds merely sentencing judge the to aid the improper because discretion, Here, jury. sentencing of his not found the the exercise and his of remorse judge prior noted convictions lack course, among pronouncing the factors he considered sentence. Of above, prior specific exception noted conviction is a rule, but, discussion, this lack Apprendi critical of remorse “important sentencing of a fact to the exercise” of the example has “pertain to whether defendant discretion does U.S. S. legal right Blakely, to a lesser sentence ....” Ct. words, finding trigger remorse” 2540. In other “lack of does not imposition restriction under the statutes nor endue the statutory District Court with additional Imposition
restriction. of the restriction remains within the Thus, sentencing. judge’s part discretion and a indeterminate sentencing judge finding merely “lack of remorse” was one which discretion, guiding along found useful of his exercise others. Blakely, Under sort of indeterminate
scheme-i.e.,
discretion
leaving parole eligibility restrictions
sentencing judges-is
Accordingly,
constitutional.
and because
46-18-
MCA,
determination
202(2),
jury
does
of facts
not remove from the
necessary
we conclude that
maximum
parole,
restrict
punishment
for the crime of
homicide
the death
deliberate
when
penalty
sought,
is not
life
purposes
Apprendi,
possibility
parole.
without
imprisonment
issue,
Supreme
Faced with an
identical
the Arizona
Court
almost
Fell,
the same
8-19
came to
conclusion.
State
(Ariz. 2005),
argued,
Apprendi,
that a
defendant
based
*11
created
surrounding
scheme
deliberate homicide statute
part
life
presumptive
possibility
parole,
sentence of
with the
authorizing parole
findings
the statute
restrictions called for
because
court, however,
Fell,
rejected
The
the defendant’s
fact.
18.
¶¶
(a)
argument,
no
presumption
and held that
there was
(b)
homicide,
legislature had
for
because the
eligibility
deliberate
not required a sentencing court to find specific
before restricting
facts
parole,
factfinding
requirement did not increase the maximum
Apprendi
Fell,
purposes.
14-18;
Booker,
see
also
U.S. at
State Claim Mirroring his federal claim above, constitutional argues that the District Court’s restriction on parole eligibility his pursuant 46-18-202(2), MCA, violated statutory rights under 46-1-401, (2001), MCA a statute response enacted in to Apprendi. Again, disagree. we must 46-1-401, (2001), Section provides MCA in pertinent part:
(1) A may impose an incarceration penalty enhancement specified in Title Title provision or other of law unless:
(a) act, enhancing omission, charged or fact was in the information, indictment, complaint, or with a reference to the act, statute or statutes containing enhancing omission, or fact penalty act, omission, fact; for the enhancing or (b) if the case jury, jury was tried before a unanimously separate found in a finding enhancing act, omission, that the or beyond doubt; fact occurred a reasonable (2) The enhancement may jury issue be submitted to a on a separate form separately from the verdict form or stated jury on the verdict form. The must be instructed that it is to reach charged information, verdict on the offense complaint, jury indictment before the can consider whether the enhancing act, omission, or fact occurred. *12 omission, act, or
(3) omission, is an act, or fact enhancing An offense or defining charged in the statute fact, whether stated statute, not included in another stated allows and that charged offense the elements of definition of statute, an to, by provided add as sentencing court to requires or charged offense for the statute period provided incarceration statutory incarceration instead of a penalty the death impose or to charged offense. for the provided statute period jury MCA, essentially requires 46-1-401, Codifying Apprendi, § an additional sentence necessary impose of the facts determination we see no statute. Because enhancement to a sentence pursuant Apprendi enunciated principles between distinction substantive thereof, rendering disposition our and this progeny and its as our is also the same under the statute claim claims. constitutional of his federal disposition application above, Garrymore argues § As he did ¶37 District Court to MCA, “require[ed]” the 46-18-202(2), “allowe[ed]” or However, 45-5-102(2), as MCA. § on to the sentence add 45-5-102(2), MCA, authorizes a district previously, mentioned § imprisonment and life without imprisonment life both MCA, not, 46-18-202(2), does vis-á-vis an Thus, parole. possibility sentencing court to increase “act, omission, fact,” require or allow conclude that charged Accordingly, offense. we for a punishment 46-1-401, MCA. sentence did not violate § District Court’s Claim State Constitutional the District Court violated Finally, Garrymore argues that ¶38 26, of the Montana II, Sections 24 and rights under Article to 46- eligibility pursuant it restricted his Constitution when Garrymore argues that because 18-202(2), Specifically, MCA. jury trial than right protective is more Montana Constitution on state Constitution, prevail he should United States of his case under disposition our grounds regardless of constitutional Unfortunately, find this Apprendi. federal constitution application a distinctive to undertake undeveloped too argument principles. state constitutional II, Article interpreted have correctly notes that we
¶39
affording
greater
Montana Constitution
24 and 26 of the
Sections
United States
the Sixth Amendment
right than does
jury trial
Court, Dist.
Judicial
Woirhaye v. Fourth
Constitution. However, Garrymore fails to offer
185,
CHIEF WARNER, JUSTICE JUSTICES LEAPHART and MORRIS concur.
CHIEF JUSTICE specially concurring. GRAY I concur in opinion the Court’s on both I issues. write separately to caution criminal defense attomeys-public defenders, appellate public defenders and privately I, least, retained counsel-that will expect more from them in future cases asserting Lenihan. apparent As is from the Court’s discussion of the State’s *13 Lenihan’s
arguments about applicability, the application of that case every is far from automatic. objection Not sentence to which no is made sentencing may successfully the time of under Lenihan. appealed be Thus, the party asserting the “Lenihan exception” my it is view that bears the burden of establishing her or his entitlement to that A exception. mere reference and citation to Lenihan will not in suffice future, at least for me. Here, in the standard Garrymore’s ¶43 of review section of opening brief, cited to Lenihan merely counsel progeny its for the proposition that a “criminal sentence appeal reviewed on if it alleged illegal is to be or in excess of mandates.” Counsel stated, then without analysis, “[a] that failure to raise contemporaneous objection illegal to an sentence at the hearing time of does not result in a waiver of the objection!,]” defendant’s and cited to four of our cases for that The proposition. problem with this approach is that Lenihan refusing we have other cases apply exception. It my present way view counsel must more in the of discussion analysis regarding exception. entitlement to the appellate so, When counsel fails ¶44 to do the result is a discussion such as that in opinion establishing contained our here: the burden of to the Lenihan exception improperly shifts. appellant’s an entitlement shift, Under responsible establishing why this the State becomes Lenihan does not-or should in a not-apply given case. While this has approach past, approach unwilling been our in the it is I am Therefore, continue to I encourage follow. criminal defense counsel to clearly brief, exception opening establish entitlement to the their or they so-they risk a determination that-because have not done have not appeal. met their burden on NELSON,
JUSTICE specially concurring. Introduction
I. however, I not do Opinion; of the Court’s in the result I concur ¶45 reasoning. I therefore write detail in the Court’s the lack of agree with issues analysis important independent forth an to set separately appeal. in this raised that, 1,1 the Court agree with respect to Issue In with particular, sentencing claims failure to raise his
notwithstanding may reach the Court, District we nevertheless the first instance timely Lenihan exception by way of the of those claims merits Lenihan, 338, 343, 602 P.2d rule. See State objection (1979). conclusion, agree I also at this arriving Lenihan why reasons” the State’s “three of each of rejection Court’s Garrymore. should not be available and not however, the discussion there insufficient, to end I find it has, fact, requisites satisfied the why Garrymore
explain analysis Indeed, truncated the Lenihan the Comb’s exception. invoking case that given in a unless the State demonstrates implies that available, may, by defendant is appealing Lenihan exception below, case, though the default, explained it. This is not invoke lead one to believe otherwise. treatment of Issue could Court’s to be the Furthermore, appears “[i]t we stated to review appellate allow an better rule to or illegal sentence is case, alleged if it is such in a criminаl made at the time mandates, objection if no even exceeds Mont, Yet, in Lenihan, at 1000. sentencing.” “illegal never defined exception, we have adopting since Rather, simply have allowed statutory mandates.” exceeds *14 so—and right it seemed to do when exception defendants to invoke cases, insight little or no provided we And in most of these vice versa. in this proceeding result of our reasoning. The unfortunate into our that our is, Opinion, in footnote 3 of its implies manner as the Court conceivable respect to one consistent with cases have not been Because these statutory mandates.” “illegal or exceeds definition of increasingly rapid only at proliferate-and will inconsistencies the Lenihan the contours of explicitly articulate pace1 we —until that a in the Court’s conclusion agree ¶ I do not with exception, (and Lenihan Garrymore’s) to the State’s response comprehensive thirty objection exception rule in cases the time as an to has been cited Lenihan eight 21, cases have been All of those but decided on November since was years. dining the last seven handed down arguments is “not necessary” here. To contrary, it is necessary only not that we articulate the Lenihan, that,
contours of but also for at reasons, least three exception narrowly be crafted as possible. First, as in basic fairness to defendants, the practicing prosecution bars, and defense and the our Lenihan courts, clear, unambiguous, rule must be predictable Second, in Lenihan is an exception application. above, its as mentioned 46-20-104(2) timely objection rule, which is set forth in §§ -701(2), MCA. While this Court has the inherent power protect to see, statutory and e.g., rights defendants, constitutional of criminal Finley, State v. 126, 132-38, 276 Mont. (1996), 915 P.2d 212-15 part grounds, overruled in on other Gallagher, State v. privileged we are not
simply ignore lawful mandates in order to achieve a particular result for the sake of either palatability expediency. Third, by and narrow articulating rule, not a clear are, we implicitly, maintaining an approach careful, relies less on comprehensive, legal analysis record-based and more on ad hoc decision-making, litigants courts, which serves neither the nor the to mention the law. In assuming ultimately that we will develop narrow and focused
definition of the Lenihan exception
basis,
case-by-case
on a
prompted
by and
consequence
as a
Opinion
Court’s
and this Special
Concurrence,
are,
truth,
quote
Holmes, Jr.,
we
Oliver Wendell
great
“spending]
shoveling
deal of.
. . time
Notably,
smoke.”
already
presented
arguments
have been
exception’s
limit the
availability. See,
e.g.,
Ironmaker,
6-9,
State v.
Respondent
Brief of
(Table) (No.
226N,
(Table),
MT
¶51 our case law up to clean responsibility our and it is clearly possible, I am the steam table. offerings off of the and, thereby, take some here to shoulder unwillingness the Court’s convinced Lenihan of the forthrightly complexities and to address obligation law will in our case state and unstructured present in its exception hoc, and constrain-muddled, ad than encourage-rather simply one. serves no approach such an decision-making. Again, unpredictable Court’s discussion reasons, beyond the proceeding I am For these analysis of the foundation comprehensive providing under Issue in our inconsistencies addressing the exception, for the Lenihan Lenihan narrow and concise articulating and jurisprudence, only by a defendant may invoked exception rule-specifically, lacked claim that alleges a colorable who explain, I then challenged sentence. to in this articulation, why Garrymore invoke on this based case. 2,1 agree with the Court respect application to Issue With statute) (2001) (the eligibility 46-18-202(2), parole MCA unconstitutional was not imprisonment of life
Garrymore’s sentence (2000), U.S. 120 S.Ct. Jersey, Apprendi under New (2001). agree 46-1-401, And I further MCA and did not contravene § II, Article his claim under develop Garrymore adequately did However, these the Montana Constitution. 24 and Sections the Court’s discussion And while indisputably complex. are issues I reasoning, insight into our a measure of supplies under Issue detail, for in further explain necessary appropriate believe it is courts, bar, and the lower practicing parties, of the the benefit eligibility statute. parole to our Apprendi’s application intricacies Garrymore’s analysis independent Accordingly, providing I am statutory claims. Amendment Sixth object failure 1: Does
II. Issue eligibility parole imposition its District Court challenges thereto considering his our preclude restriction appeal? Background A. sentencing proceeding object during Garrymore did not did he raise Nor eligibility. restricting
District Court’s He did appeal. pursues on statutory issues he now constitutional suggest a lesser argued sentence of 40 against restricting his parole eligibility. Specifically, defense counsel recommended as follоws:
I appropriate believe it’s for the Court to sentence Mr. years, years, to a term of term specific and I would suggest *16 the number 40. urge upon you give
... And we would Garrymore Mr. possibility of after period whatever of time this Court thinks is appropriate as sentence in this case.
However, a defendant’s
at
request
sentencing hearing for a
particular
sentence
objection
does not constitute an
to the sentence
Nelson,
State v.
actually imposed.
11, 18,
274
663,
Mont.
906 P.2d
667
(1995). Thus,
determine,
matter,
we must
as a threshold
whether
object
failure to
in the District Court
imposition
to its
the parole eligibility
precludes
restriction on his life sentence
our
considering
challenges
his
appeal.
thereto on
Generally,
may
timely
this Court
not consider an issue to
which a
-
the district court. See §§
objection was not
in
46-20-104(2),
made
Brister,
State
701(2), MCA;
13,
15,
154,
15,
2002 MT
308 Mont.
¶
¶
314,
However,
41
longstanding
P.3d
exception
¶
to this rule exists
sentencing.
above,
context of
Specifically, as mentioned
we held
Lenihan,
State v.
338,
in
(1979),
184 Mont.
applied
Stone,
given
non-deferred,
who had been
non-suspended
Stone,
sentence. 45,47.
Thus, Lenihan is not
limited to deferred
suspended
sentences.
Likewise,
that Lenihan applies
analogous suggestion
State’s
only to cases in
judicial
which there was a risk of
vindictiveness
retaliation at
hearing
rejected
must be
as well. As we
Lenihan,
explained
this risk
is of
concern in the context
(and,
reasons,
of a deferred
for the same
a suspended)
sentence:
practical matter,
As a
[appellate
allegedly illegal
review of the
sentence]
be a
only hope
defendant’s
involving
cases
deferred imposition of sentence.
If a
objects
defendant
to one of
conditions,
the sentencing judge
very
could
well decide to
forego the deferred sentence and send him to prison.
guard
To
against
possibility,
a defendant often times must
remain
silent even in the face of invalid conditions.
*18
Mont,
Lenihan,
343,
184
at
The court in statutory grant cannot be exercised power therefore case, Where, in this specifically authorizedL]... not as manner alleged sentencing court has exceeded its sentence, objection specific in below not imposing alleged order challenging prerequisite to be void. Mont, original, in Lenihan, 184 at at 1000 (ellipsis P.2d omitted) Braughton, State quotation (quoting internal marks v. 1977)). 1040, 1041 (Or.App. P.2d n.2 Thus, incentive silent our discussion of a defendant’s to remain (or placed suspended)
the face of an invalid condition on his deferred simply sentence was an additional rationale for our decision allow particular sentencing challenges to raised for the first time on be Indeed, appeal.
objection. Yet, if an objection was in fact made to the sentencing condition, term or it would be unnecessary for the appellant Lenihan, to invoke claim would properly preserved. be only The question would be whether we must nevertheless refuse to consider it legal because the theory objection behind the changed. has long We have held party ¶62 that “a complaining of error must stand or fall upon ground relied on in the trial court.” Tebbs, Bower v. (1957). 146, 160, 314 731, 739 Mont. P.2d The rationale underlying this rule is that it is fundamentally unfair to fault the trial court for failing to correctly rule on an issue it given was never the opportunity to consider. See Day Payne, 273, 276-77, 929 P.2d (1996); Martinez, ¶ 17. But this is the same underlying rationale timely objection rule, to which Lenihan is an exception. Indeed, challenge if a to a
¶63 meaning comes within the “illegal Lenihan’s or exceeds statutory concept, mandates” then it would be counterintuitive for us to refuse to consider challenge on ground that the appellant objected in the district court under one (on legal theory but appeal) now legal advances a different theory. Such a rule would appellants reward objection who made no alleged whatsoever (and, thus, gave error error) court no opportunity remedy the alleged punish those who did object but then changed legal their theories. Moreover, as the Court aptly observes in approach ultimately this would create an institutional object incentive defendants not to during sentencing thereby undermine the efficacy of the sentencing process. Accordingly, the change-of-legal-theories State’s argument rejected. must be Argument iii. The State’s Third argues The State that “this Court invoking should refrain from 46-18-202(2)”
Lenihan to address a challenge constitutional to § Garrymore because “the sentence received was within parameters and it was not... Garrymore responds unconstitutional.” that “the Court cannot make this... determination considering without words, substantive merits of the issue begin with.” In other Garrymore contends that since this Court will not reach the merits a sentencing timely objection claim to which a was not made in the district court unless thе Lenihan exception applies, application of depend Lenihan cannot ultimately whether the defendant will prevail on his underlying claim. say is correct. To that the exception may or in excess illegal contested sentence is only when the
invoked fact By cart before the horse. proverbial puts mandates rule, not reach merits objection will timely we virtue deciding that the defendant determination without first make that Lenihan reason, more viewed properly For this may invoke Lenihan. pass must to have through a defendant order “gateway” as a sentencing claim considered on procedurally barred his otherwise Garrymore may above, question here is whether merits. As stated I through question. now turn to that pass gateway. Exception Definition of the Lenihan
C.
Lenihan,
that an
review
appellate
stated
*20
(1)
(2)
“alleged”
such
criminal
if
it is
imposed
sentence
in a
case
mandates.”Lenihan,
Mont.
“illegal
184
statutory
sentence is
or exceeds
343,
Thus,
pass
is
to
allegation
allegation-it specific. “illegal also exceeds mandates,” sentencing that the court simply imposed we did not mean Lenihan objectionable interpretation sentence. Such an timely nullity in objection practical would rule a exception render sentencing Rather, already, for our context. discussed the basis in timely sentencing this rule adopting exception objection that a court’s exercise principle sentencing purported context was granted appellate power subject of not to it law is to review.6 5 must, course, precedents requiring allegation The argument rules and of conform to our McMahon, 23(a)(4); App. Marriage proper R. In re citation. See M. P. of (“[W]e 6, 175, 6, 1266, 198, 53 6 consider to ¶ ¶ ¶ 2002 MT 311 Mont. P.3d will not Similarly, obligation unsupported arguments. no locate issues or Court is under appeal.” arguments party support positions for a taken on authorities or formulate (citation 819, 426, omitted)); Holt, 151, 70, 332 70, 139 MT 2006 Mont. P.3d ¶ ¶ State v. (“Holt (Nelson, J., persuasive argument appeal concurring) did not articulate a ¶ 70 rule sentence case falls within the seminal which would demonstrate that his in this Lenihan”). Furthermore, allegation the time must be filed within set forth 47, 5(b); Muhammad, App. MT appeals. M. R. State v. 2002 limitations for direct See P. Brister, 22-23, 22-23; ¶ Mont. 43 P.3d ¶¶ ¶¶ authority sentencing legion are court’s Our cases and our law well-settled that Thus, law; impose from a court’s to a criminal derives it is inherent. sentence authority only to sentence to the extent authorized statutes. exists (“A Hicks, 71, 41, 471, 41, 206, 41 district ¶ 331 Mont. 133 P.3d ¶ ¶ State v. criminal is defined constrained court’s statute, statutory defendant specific impose power and the has no a sentence absence 12, 327 109, 12, 112 authority.” Ruiz, (citing v. MT Mont. State (“We (1993) 1001, 12)); 340, 346, 846 1025, 1029 Hatfield, P.2d P.3d State v. power long in the absence that a court has no have held district 88, 105 (1909), Stone, statutory authority.” (citing specific State 40 Mont. P. 89 Specifically, we stated that
[t]he sentencing authority of a court solely by exists virtue of a statutory grant power аnd therefore cannot be exercised in manner not specifically Where, authorized[.]... case, as in this alleged that a sentencing court has exceeded its authority in imposing sentence, a specific an objection below is not a prerequisite challenging of the sentencing alleged order to be void.
Lenihan,
concern:
challenged
whether
sentence was statutorily authorized.
focus,
Given this precise
only a
alleges
defendant who
a colorable claim
that his
sentence was
in the absence of statutory authority
may pass through the
gateway
and have his otherwise
procedurally barred sentencing claim considered on the merits.
instance,
For
may allege
defendant
that the sentencing court
imposed a sentence that
range
is outside the
provided by the relevant
*21
See,
e.g.,
Stone,
State v.
sentencing
statute.
151,
44,
321
¶
489,
44,
1178,
Mont.
92
(alleging
P.3d
44
five-year
¶
that his
¶
two-year
sentence exceeds the
maximum sentence
by
authorized
statute).
applicable
Or,
may allege
the defendant
the court
See,
imposed a
e.g.,
sentence that
is not
any
authorized
statute.
Lenihan,
339-40,
184 Mont. at
(alleging
27 983, 327 Mont. Honey, MT impose to court was without the district (alleging that obligation). restitution (1995), Nelson, 11, 906 decision in Our Nelson, statutory authority. In on this narrow focus
illustrates
as a nonviolent
qualified
he
argued
appeal
that because
defendant
to consider
court
offender,
required
law
felony
Montana
However,
had
he
sentencing him.
to incarceration when
alternatives
therefore,
stated,
court;
we
in the district
raised this issue
he could
sentencing challenge unless
Court would not review
Mont,
Nelson, P.2d at 666-67.
Lenihan. See
at
invoke
emphasized
first
addressing
applicability,
Lenihan’s
in a criminal
sentence
appellate
“an
review
illegal
or exceeds
case,
alleged
if it is
that such sentence
mandates,
sentencing.”
time of
objection
if
is made at the
even
no
(citing Lenihan, Nelson,
Mont. at
P.2d at 667
Mont,
Hatfield,
846 P.2d at
and
Sections felony . . . prison. a nonviolent offender court from consideration of аlternatives Although require these statutes necessarily would not have imprisonment, such consideration final sentence for Nelson. Nelson’s changed the court’s statutorily in excess of the maximum years of ten is not 45-5-202(3), MCA. § 46-18-201(11) 46-18-225, MCA, an Sections certain matters into duty the court to take upon affirmative by this If the court fails to abide sentencing. consideration challenge objection. subject requirement, the sentence mean, however, objection, that in the absence That does not Court, thereby illegal. The District after the sentence is 46-18-225, MCA, stating its criteria in considering the were not selected why imprisonment alternatives reasons legally have could still MCA, 201(11), 46-18- required Thus, Nelson’s sentence prison. sentenced Nelson to ten in Lenihan found exception come within the does not Hatfield.
28
Mont,
Nelson,
added).7
274
at
906 P.2d at
(emphases
668
foregoing
As the
Nelson makes
reasoning
clear,
in
allegation
court did not impose that the
sentence within
authorized
range
applicable punishment
statutes is not the
kind of error for which the Lenihan exception may be invoked. Nelson
alleged
might
given
that he
have been
an alternative to imprisonment
had the
duty”;
district court abided
its
yet,
“affirmative
his sentence
years
45-5-202(3),
Thus,
ten
was authorized
MCA.
substance,
allegation,
was
the court erred in its determination
statutorily
within the
of which sentence
range
was
Nelson,
appropriate for
not that it
imposed
sentence for which there
statutory authority.
reason,
was no
For this
he could not invoke the
Swoboda,
Lenihan
See also
exception.
D. Further
Exception
Clarification
of the Lenihan
of the Lenihan
applications
Our
exception
over the
past
have,
part,
for the most
foregoing principles;
conformed with the
however, there have been a
of cases in
diverged
number
which we
from
original
meaning
“illegal
statutory
or exceeds
mandates.” As
earlier,
discussed
these inconsistencies
in our jurisprudence
have
precedents
rendered
our
irreconcilable with
one conceivable
the Thus,
exception.
definition
for the sake
clarity
uniformity
cases,
in this and future
necessary
to revisit some of
properly preserved
by making
timely objection
Had Nelson
his claim
court,
likely
resentencing.
district
most
we
would have remanded the case for
Mont,
(“In
Nelson,
at
Lenihan’s that, noted, diverged in a number of just failure due to the fact thereby statutory authority approach and original our cases from (which are jurisprudence in our Lenihan created inconsistencies below). Notably, uncertainty analyzed in detail identified and by seemingly arbitrary applications engendered confusion our this Court arguments made to Lenihan is evident from some criminal conflicting and has led to views over whether years over the it is broad “abusing” exception whether defendants have been or narrow.9 are arguments concerning scope Lenihan’s Tellingly, both narrowed the progressively
incorrect. The assertion that we have v. years is cases such as State exception Lenihan over the belied 126, McLeod, 348, 358, Legg, P.3d and State v. 2002 MT 313 Mont. 362, 648, for the 26, 84 P.3d which stand 2004 MT 319 Mont. reviewed on any alleged sentencing error proposition Lenihan) framed as a “due (by way simply if the error is appeal McLeod, 15-16; 58, Conversely, Legg, process” ¶¶ violation. See ¶¶ exception broad is suggestion that made the Lenihan we have 21, 287 276, 954 1998 MT Mont. Lafley, belied cases such as State v. any 1112, Nelson, proposition stand for the supra, P.2d of a falling parameters within (No. 05-178) (“Kotwicki 10, See, e.g., Respondent at v. Kotwicki Brief of State by changing appeal jurisdiction to obtain abusing theories this Court’s Lenihan illegal truly alleged sentencing irregularity unauthorized or rather than a of an review 6, Respondent sandbag____”); at Brief of State is not a license to sentence.... Lenihan v. (“Although 04-610) (Table) (No. 226N, (Table), Ironmaker, Mont. 522 120 P.3d 2005 MT exception, repeatedly emphasized is a narrow that Lenihan this Court has counsel.”); Support Brief of Karl Eric Gratzer it Petition for Writ not treated as such defense (No. 05-075) (“[TJbis 20, Mahoney Corpus v. of Habeas Gratzer already recently narrow Lenihan inclination to restrict has shown an Court exception.” (citing 358, 61 P.3d l26, McLeod, and State 2002 MT Mont. State v. State, 559)); 45, 291, Oral Micklon, Counsel for the 65 P.3d 2003 MT (“Lenihan (No. 05-075) (November 9, 2005) in itself is Mahoney Arguments, Gratzer v. says ‘narrow,’ sentencing. I think when it very applies calls it but The Court broad. It only sentencing”). ‘narrow,’ applies to it means it
statute-irrespective of the statute’s constitutionality-does not qualify Mont, Lafley, 26-27; Nelson, Lenihan for our review. under 906 P.2d at law, 668. Until we reconcile this case no one can the Lenihan reasonably predict exception whether will be available to given object defendant who failed to aspect some of his or her sentence in the lower court. The Court states that “neither of the parties has cited to Thus,
these cases or offered such argument.”
the Court “deem[s] it
inappropriate
they
undertake
such issues until
properly
have been
raised and
sure,
briefed.”
15 n.3. To be
neither
the State nor
briefs,
in their
asserts
“This Court’s applications
Lenihan over the
have
confusing
unpredictable.
been
Please
clarify
exception!
Here’s
request
certainly
how...
.”-a
would
However,
do,
fact,
have been warranted.
they
array
cite an
of cases
from our Hatfield,
State v.
jurisprudence,
Lenihan;
including
Brewer,
State v.
(1993);
256 Mont.
been to clear the inconsistencies in our if the even parties conflicting corresponding did not cite the cases and offer Montoya, State v. argument. instance, 180, For MT 295 Mont. 288, 937, P.2d we observed follows:
Although put parties, not at issue the we note at the outset prevalent inconsistency that there is a rather in this Court’s case regarding appropriate law the standard of review of criminal sentences.
Montoya, opportunity clarify “[took] [that] therefore We ¶ Montoya, through 13. After our case proper tracing standard.” back ¶ Montoya, see confusion, 13-14, we held that law to the source of ¶¶ To only legality [t]his Court reviews a criminal sentence for .... White, Gunderson, any other Davison, the extent criminal we also review suggest that from this Court decisions discretion, they are overruled. for an abuse of sentences Montoya, 15.10 ¶ cases. See In of other in a number approach taken this We have 13-16, 178, 92, 13-16, 305 Mont. Bradshaw, ¶¶ 2001 MT ¶¶
re Estate of applications in our 211, (identifying discrepancies 13-16 24 P.3d ¶¶ overruling nine undue influence and assessing the five criteria had although parties approach, for the “erroneous” cases that stood State precedents); “muddled” nature of our argued not raised and 29-47, 29-47, 215, 32 P.3d Kirk, 184, ¶¶ 2001 MT ¶¶ v. Van over the “inconsistency and confusion” (resolving 29-47 ¶¶ although the analysis, error applied in a harmless proper test to be and confusion and inconsistency had not identified parties 15-24, Permann, MT clarification); ¶¶ Gliko requested that we (concluding 15-24 ¶¶ Mont. authority pertaining lines of two inconsistent “must” resolve fiduciary giving rise to a special relationship of a whether the existence law, though parties even question of fact or a duty question is a specifically cases and not merely cited of the inconsistent had some Brister, 13, 21, 308 issue); inconsistency argued (overruling precedents- three cases or had cited to of these although parties neither of the raise a they extent held that failure to argument-to such offered hearing time of illegal contemporaneous objection to objection). of the defendant’s results a waiver Court, seems, refusal in the case given its Notwithstanding, jurisprudence, inconsistencies our at hand to confront the dichotomy continuation of passively permit the would henceforth argues for specifically cases and until a cites to the party our case law earlier, there is an incentive (Paradoxically, as noted a resolution. resolution, since the existence request such parties *25 10 question abundantly Montoya Incidentally, although “[a] in that made clear we 12, and, review,” Montoya, process, legality... implies in the overruled ¶ de of prior novo disapproved otherwise, the standard have since reinstated decisions that held we 13, 464, 13, Leitheiser, 70, legality Montoya. 133 P.3d ¶ 2006 MT 331 Mont. ¶ in See State v. (“The 185, a sentence is whether of review of the 13 standard ¶ added)); Setters, MT (emphasis v. 2001 State court abused its discretion.” (same). result, eventually 893, 101, 16, 305 253, 16, 25 will 16 As a we ¶ Mont. P.3d ¶ ¶ (and (and Montoya progeny) its their or and Setters need to overrule either Leitheiser clarify years ago once and notwithstanding the standard progeny), our effort seven all.
conflicting parallel gives standards each side that hope employ we will case.) the standard favorable to their in position given I do not believe that should adopt ability we such a limitation on our to clean up sure, our own messes. To be I dispute do not principle presented do not address issues not properly to us or not briefed. However, When, this principle is not absolute.11 in the course of resolving case, a particular we become aware of inconsistent case law parallel or authority standing standards, lines of for two irreconcilable duty remedy we have the conflict if for no other reason than to similarly litigants are, ensure that situated in case and thereafter, equally-which treated fundamental rationale on guarantee which the constitutional of equal protection of the law is based. Accordingly, while it might perfect be ideal to wait for the
case-complete briefing with model and an all-inclusive list of the cases which cite Lenihan and its progeny-in which to address and resolve of the our inconsistent applications exception, vastly (see increased reliance on Lenihan in recent suрra) years n.l, 48¶ part necessitates action on our forthwith. And I cannot accept refraining from undertaking ground this issue now on the Garrymore’s briefing State’s and is inadequate, as such condition is of Lenihan created largely parties’ due to the misconceptions our confusing applications. own regard, In this Special Chief Justice’s Concurrence criticizes to Lenihan and “merely cit[ing] progeny” its for the
proposition that a criminal may appeal be reviewed on if it is alleged to in illegal be excess of mandates and then “stat[ing], analysis,” that failure contemporaneous without to raise a #75, Klyap, 79, 318 See Arrowhead Sch. Dist. Park 294, Co. v. MT ¶ Mont. (“I 103, 79, 250, C.J., (Gray, concurring part dissenting part) 79 P.3d ¶ and fully support ‘square away parallel this Court’s efforts in recent inconsistent or authority ongoing by analyzing why practitioners lines of generally, which cause difficulties for and trial courts. We properly, preferable do so one line of See, e.g., cases, overruling part, other or in are therewith. whole inconsistent Elec., Schaeffer, 1026; Inc. v. State v. Quantum 2003 MT 314 Mont. 64 P.3d Bradshaw, Hardaway, 900; In re Estate 2001 MT 307 Mont. Montoya, 92, 305 211; 180, 295 288, 983 MT P.3d Mont. case.”); my view, approach present P.2d 937. In we should continue that Dabney, n.8, n.8,122 MT Leichtfuss ultimately (observing n.8 “a court antecedent to... and ¶ 37 consider issue it, brief,” dispositive dispute parties identify before even an issue the fail to arguments reasoning “[i]f and that the court limited to the of counsel in its were observations, cases, many decisions of to the exclusion of its own cases would lead us object (ellipsis original, far from what we understand true the court” omitted)). quotation internal marks *26 time does not objection illegal to an sentence at the Yet, objection. 43. in a waiver of the defendant’s while ¶ result Lenihan discussion in his indeed leaves opening brief (he his Lenihan in arguments desired later develops much to be brief), analysis, of his greater reply superficiality detail instance, the full notably, mirrors our own in a number of cases. For Vernes, extent of our Lenihan discussion in State v. 32, 2006 MT 129, 169, Mont. 130 P.3d is as follows: appeals portion imposing
Vernes also
from the
of her sentence
objection
restitution costs. Vernes failed to raise an
at the time of
sentencing,
alleged
but this Court
consider an
from an
appeal
will
case,
illegal sentence in a criminal
even when the defendant did
in the district court. See State v.
timely objection
not raise a
Lenihan
(1979),
338,
184 Mont.
Vernes, proceeded 26. We then to set forth the relevant standard of ¶ Vernes, review and address the merits of Vemes’s claim. 27-30. Gallagher, Similarly, 336, 330 Mont. P.3d 1141, we provided following explanation why brief Gallagher could the exception: invoke
Gallagher challenges and, now appeal, his sentence on consistent State v. Lenihan (1979), with our rule in 338, sentence, we will review his challenge illegality to the Mont, Lenihan, despite objection no in the trial court. Brister, see also State v. 1000;
602 P.2d at MT ¶ ¶ Gallagher, hand, matter, 30. And in the case at for that Court explains why Garrymore’s never satisfy claims for invoking Lenihan. requisites Thus, admonition while the Chief Justice’s that “counsel must
present way analysis regarding more of discussion well-taken, exception” why entitlement precisely it is also we articulate the contours of the must exception resolve our case law now. Otherwise, inconsistencies on counsel hopeless deciphering-in task of the face of our superficial conflicting applications ofLenihan-why requisites invoking others, exception though were satisfied in some cases and not in materially indistinguishable. facts of the cases are presented variety arguments by We have been with a the State previous in this case as well as in cases.12 criminal defendants view, sufficiently of the issue and the my apprised we have been Therefore, might agree I otherwise with the competing interests. while they until to undertake such issues inappropriate [is] Court that “it briefed,” n.3,1 conclude that this properly raised and have been must undertake review of of those rare instances in which we is one therein, notwithstanding the our case law to resolve inconsistencies fully, parties’ failure to brief this issue Lafley ii. The Line with our In the first line of cases that is inconsistent *27 Lenihan, appellant’s that the
authority under we determined approach satisfy invoking exception allegation requisites did not 21, 287 276, 954 when, fact, In 1998 MT Mont. Lafley, it did. State v. sentenced felony had convicted of assault and Lafley been plus years Prison two use years to ten in the Montana State claimed, On he inter Lafley, appeal, 17. dangerous weapon. a cruel jeopardy and alia, two-year that the sentence constituted double claim Lafley had not raised this Lafley, 27. punishment. ¶ and unusual thus, appeal it on unless he court; pursue he could not in the district Lenihan. could invoke legality ofthe Lafley challenging “not determined that was We added). conclusion, reaching Lafley, (emphasis 27
sentence.”
¶
it is within the
illegal
is not
when
first observed that “a sentence
(internal quotation
26
by
Lafley,
statute.”
parameters provided
omitted).
46-18-221, MCA,
that because
explained
marks
We then
weapon
dangerous
who uses a
person
a court to sentence a
authorizes
“
imprisonment
term of
of an offense ‘to a
in the commission
Ironmaker,
226N,
6-9,
See,
MT
e.g.,
Respondent
at
State
Brief of
04-610)
(Table) (No.
(arguing
(Table),
that “Lenihan should be
it is within saying legislature may that a not authorize incomplete. goes It without sentencing to contravene state or federal constitutional Thus, sentencing authority a court exists provisions. “[t]he while Mont, Lenihan, solely grant power,” virtue of (internal omitted), quotation granted P.2d at 1000 marks words, power may infringe rights. constitutional In other court’s sentence derives from valid solely statutes.13 Accordingly, the fact that an sentence falls appellant’s within the relevant statute does not make
parameters provided
himto
allegation
unavailable
where his
is that
the statute itself is
“illegal”
invalid. A sentence is no less
it conforms
because
*28
13
implicated
sentencing
principle
allegedly conflicting
This
is also
where two
See, e.g.,
Osborne,
264, 4,
apply
statutes both
to the defendant.
State v.
2005 MT
¶
95, 4, 124
1085, 4,
61-8-731,
appellant
Mont.
the
claimed that
MCA
¶
¶
§
P.3d
which
(2003) (the
statute)
(2003) (the
46-18-502,
felony
sentencing
DUI
§
conflicted with
MCA
statute)
persistent felony
sentencing
sentencing
offender
the district court’s
authority
by
give way
was constrained
the former. Where one of the statutes must
to
(an
the other
issue we did not reach in Osborne because Osborne’s claim was
barred,
Osborne,
20),
authority
only
procedurally
the extent authorized
sentencing court’s
exists
to
¶
see
the
prevailing
the
statute.
Similarly,
sentencing
authority
not
under some
schemes a
court’s
does
See,
Pritchett,
e.g.,
prerequisites
arise until certain
have been satisfied.
State v.
(“District
539,
261, 7,
not
to
¶
MT
impose
302 Mont.
11 P.3d
courts are
authorized
¶
¶
statutory requirements
[found in
[the]
restitution until all
. . .
sentence of
added)).
schemes,
MCA,]
-249,
(emphasis
Under such
46-18-241 to
are satisfied.”
§§
therefore, any
authority
prerequisites
the court before the
to its
(Note
statutory authority.
that this
have
the situation in
by
fulfilled will be in the absence of
was
been
Nelson,
statutorily
supra.
sentence often
Mont,
was
authorized
Nelson’s
45-5-202(3),
Nelson,
Although
at
mandates of an unconstitutional statute.14 because 46-18-221, MCA, was, challenged constitutionality fact, the he § challenging sentencing statutory authority impose the court’s to the sentence, two-year weapon as follows: the enhancement statute cannot applied violating proscriptions to me without the constitutional thus, against jeopardy punishment; double and cruel and unusual the me, therefore, sentencing court, is as to and the applied statute invalid authority impose two-year weapon lacked to upon my felony enhancement conviction of assault.15 Lafley, in Relying reasoning argued on our the State Brown, 268, 975 1999 MT that Brown’s failure 46-18-221, MCA, in jeopardy challenge to raise his double to § Brown, his reliance on Lenihan in this Court. district court precluded argument urged did not the State’s and instead us dispute 8. Brown ¶ review, under the doctrine of error which we plain to consider his claim Brown, did. Yet, sentencing challenge 9-14. because Brown’s (that Lafley’s authority identical to the district court was without was top to enhancement statute on of Brown’s conviction apply weapon Brown, see of Lenihan. assault, 13), felony requisites he met the ¶ Lafley and Brown should be overruled reasons, For these hold that Lenihan by an who they appellant extent not be invoked he was challenging validity of the statute under which range allegation sentenced. An that a sentence falls within statute, sentencing but that the statute is itself therefore, court, was without invalid and that the the sentence, through sufficient to pass to Lafley and Brown-aLbeit gateway. (Indeed, the Court overrules invoke Lenihan to have his deciding Garrymore may implicitly-by constitutionality procedurally challenge barred otherwise merits.) MCA, 46-18-202(2), on the considered felony “application weapon of the enhancement statute We later held that underlying requires proof weapon of a violates the offense of use convictions where II, provision State jeopardy Section 25 of the Montana Constitution.” double v. of Article 224, 16, Guillaume, 29, 16, MCA, 46-18-221, applied Lafley constitutionality to him challenged as underlying (and, concomitantly, similarly whose convictions situated defendants attacking weapon), opposed the statute as required proof unconstitutional on its face. For of the use of a Lenihan, A purposes makes no difference. validity illegal regardless (allegedly) of whether sentence is *29 challenged applied. or as statute is on its face Line iii. The McLeod Legg other image Lafley-in result of the mirror also reached We have satisfied the allegation appellant’s
words, we determined fact, In State v. when, it did not. invoking Lenihan requisites pre-sentence McLeod, MT (“PSI”) had relied on the district court report which investigation for which incorrectly stated that the conviction sentence imposing actually it was felony, fifth when being sentenced was his McLeod was Therefore, alleged appeal McLeod on McLeod, 9-10. his fourth. ¶¶ predicated it illegal because was “that his history, violating his due his criminal thus misinformation about United States Amendment of the rights in the Fourteenth process II, Constitution.” Article Section of the Montana Constitution and court; McLeod, this issue in the district 16. McLeod had not raised ¶ unless he thus, raising appeal from it on procedurally he was barred exception.16 could invoke the Lenihan Lenihan, “[he] could invoke since concluded that McLeod We McLeod, Yet, validity of the sentence.”
challenges only legal ¶ within the imprisonment to a term of McLeod had been sentenced 45-9-102, MCA, the offense of range statutorily authorized (he the maximum dangerous drugs given was possession criminal McLeod, 11), challenging the sentence, and he was not five-year see substance, Therefore, allegation, was legality of 45-9-102. Nelson’s, received a lesser supra: might that he have analogous to range had the court not statutorily sentence within however, above, As explained relied on misinformation in the PSI. purposes. Even allegation “illegal” of an sentence for is not current conviction was McLeod’s if the court had been aware that the fifth) (not him to five felony, had to sentence fourth still thus, object at McLeod, 26; McLeod’s failure to years in see prison, of his our consideration sentencing precluded should have the time of ensuing is the fact that the error discussion of McLeod Essential to the diligence at or before the time of reasonable PSI could have been discovered with thus, object McLeod, 10,14,24; opportunity to the sentencing, had an McLeod ¶¶ see distinguishes concerning prior This fact of his convictions. misinformation McLeod’s number sentencing upon prior conviction situation from cases in which later-i.e., subsequent imposing particular sentence is court relies cases, McLeod, In such the to the proceeding-determined 17-22. to be invalid. See object opportunity possibly [not] have been afforded defendants “could consideration their previous because at the time of their convictions such, McLeod, sentencing.” 21. As previous the defendants at the time of convictions remained valid timely precluded their failure to make in those cases would not be challenges objection post-sentencing sentences. pursuing to their from
due process claim. Legg, The same is true of *30 P.3d 648. Legg fifty-year was sentenced to a term in prison State with Legg, See part no of the sentence suspended. 22. This was one-half ¶ Legg, law. See the maximum allowed appeal, under 52. On he ¶ claimed, alia, inter that his sentence was in process violation of due because the district court arbitrarily imposing had “acted sentence because it failed to consider the mitigating [a factors referenced in psychological evaluation of Legg], finding or make a of aggravating Legg, Legg circumstances.” had challenged not his sentence on this court; nevertheless, basis the district we concluded that we could the Legg review claim because “has challenged legal validity of his sentence alleging regard that it was issued without mitigating evaluation, factors identified in violating [the] thus his due process rights,” Legg, reasoning 60. This our holding contravened McLeod, Nelson. As in Legg’s claim was not that the court had imposed rather, a sentence statutory authority impose; which it had no to he arbitrarily claimed that the court had acted sentencing within the such, range authorized the statute. As he should not have been permitted to invoke Lenihan our of his obtain review claim. Therefore, Legg McLeod also should be overruled in so far as ¶93 to invoke the Lenihan exception to obtain they permit a defendant sentencing review a sentence which the court had authority to pursuant statute, impose concededly valid but which process (allegedly) was the result of an error in the sentence statutorily range. was selected within the Otherwise, Lenihan exception timely objection would swallow the by making appellate any allegedly rule review incorrect sentence possible.
iv. The Mieklon Line
statutory
The third line of cases that
is inconsistent with our
Micklon,
under Lenihan
with authority approach
began
plea agreement,
MT
requiring such a condition.” authority exists for no illegal because Micklon, in the district objected had to this condition 7. Micklon however, above, the district court; allegation discussed authority to condition was court was without the Lenihan have his pass through gateway for him to sufficient on the merits. challenge requirement to the interest considered Nevertheless, pursue held that Micklon could not his claim on conclusion, “[p]art appeal. reaching we first observed matter, rationale” behind the exception that, practical “is as a ‘a defendant often times must remain silent even face invalid possibility guard against conditions’ to *31 to one of
may forego
objects
a more lenient sentence if the defendant
Micklon,
Lenihan,
343,
(quoting
the conditions.”
9
suspended Micklon, 11. ¶ Yet, although recognized we that a defendant often will refrain objecting from he to what believes is an invalid or sentencing term judicial retaliation, condition fear of holding vindictiveness or our actually explained undermined this rationale. As in Lenihan and Micklon, when a defendant believes that objecting aspect to an of his cause the to judge forego a more lenient sentence, silent, he often times remain must even in the face aof Lenihan, questionable legality. condition of 184 Mont. at Micklon, 1000; Yet, doing possible 9. so as a practical is not when, Micklon, matter as in judge solicits the thoughts concerning defendant’s point, condition. At that objection condition, thereby defendant could voice an but he would rim the risk that the will judge impose harsher sentence (e.g., pay $55,000 make Micklon year). amount within one Alternatively, and, he could remain or thoughts silent state that he has no accordingly, Micklon, be deemed to “acquiesced” have the condition. Lastly, “affirmatively agreeD” “actively 10. he could imposition condition, participate[]” as concluded Micklon, chooses, had Irrespective Micklon done. he option however, the defendant’s desire to avoid a harsher sentence still exists. Accordingly, it does inevitably follow from the fact that a “affirmatively agreed” seemingly defendant to or “acquiesced” in on or a exception condition term his sentence that him, reasoning notwithstanding. unavailable to our in Micklon Given having the choice to remain silent the unpaid about interest accrue on (so fine, might balance Micklon well done so have avoid the $55,000 requirement of having pay year). harsher within one However, the applicability subject of Lenihan is not to such happenstance-namely, sentencing judge happened whether thoughts regarding aspect solicit the defendant’s of his sentence challenged aрpeal. later addition, level, at a more implication fundamental Micklon’s
that a
“illegal”
sentence is not
for Lenihan
if the defendant
purposes
seemingly “acquiesced
actively
imposition
or
in its
participated”
system.
contrary
judicial
to one of the most basic tenets of our
It is
granted
are
sentencing
power
authority
axiomatic that a
court’s
71, 41,
by
Legislature,
Hicks,
MT
the
not the defendant. State v.
(“A
41, 133
authority
in
district court’s
statute,
sentencing
by
a criminal defendant is defined and constrained
power
impose
and the court has no
a
in the absence
to
sentence
of
added)); Lenihan,
184 Mont.
statutory authority.” (emphasis
specific
(“The sentencing authority
a court exists
of
probation set 92 S.Ct. trial to a or deferred officer 514, 519-21, Wingо, U.S. punishment Barker v. forth the relevant statute. Cf. (1972) speedy providing (discussing the “societal interest 2186-87 to, from, separate opposition times in interests which exists and at accused”). *33 42
Erickson, 276, 192, MT 119, Mont. 124 that Lenihan P.3d may not invoked-notwithstanding allegation sentencing an that the court statutory authority lacked to impose challenged the sentence-where the appears defendant to have complicit been in its imposition, Micklon, 10; Eaton, 12-13; Erickson, see 34, 30, is ¶¶ ¶¶ erroneous and should explicitly. be overruled
E.
Application
Summation
summarize,
any
To
review
criminal
was
¶102
sentence that
imposed,
allegedly,
in the
authority,
absence
of
notwithstanding
the
object
defendant’s failure to
at
the time of
Mont,
(“Where
Lenihan,
sentencing.
at
fulfill range concededly valid term within the authorized {see, e.g., supra, 70-72, Nelson the discussions of statute ¶¶ Legg supra) 90-93, McLeod requisites not meet the does ¶¶ Lenihan. If received is one that the sentence defendant had it not erred sentencing court still was “illegal” for is not alleged, then maimer Nelson, 274 Mont. at at 668.20 See P.2d purposes. in Lenihan is meant Lastly, repeating nothing it bears had the a defendant who never timely appeal by
preclude place. in the first at the time of object opportunity McLeod, Lane, 17-22; 31- supra; n.16, MT ¶¶ ¶¶ 46-20-701(2), 31-33; ¶¶ *34 MCA. hand, Garrymore may to the case at Applying principles these the Lenihan have otherwise
pass through gateway and his procedurally challenges appeal. to his sentence reviewed on barred Jersey, 530 466, Apprendi v. New S.Ct. 2348 Relying on U.S. 120 26, II, 24 of the (2000), and its as well as Article Sections progeny, 46-1-401, (2001), he that the Constitution and MCA claims § Montana authority imposed parole its it Court “exceeded when District restriction, an eligibility imposed illegal and thus unconstitutional explains He that sentence.” further 20 9, Incidentally, that the Court we review criminal sentences ¶ as states 85, Herd, year legality. MT one 490, 22, 87 actual for State v. 2004 include at least incarceration 180, 15, 295 22, 320 1017, 22; Montoya, v. ¶ Mont. P.3d State 1999MT ¶ ¶ ¶ 288, 15, 937, regard, clarify important it ¶ ¶
Mont. 983 P.2d 15. In this is “legality” meaning has it does in term a in the standard of review context than broader the Lenihan context. review, signifies review a a our the term that “wewill not As standard of use of 317, Webb, 5, 8, 325 disparity.” inequity ¶ v. MT Mont. sentence for mere or State 2005 8, Ruiz, 117, 8, 106 521, 12; 8; Montoya, ¶ P.3d also but see State v. 2005 MT ¶ 327 Mont. ¶ ¶ see 1001, Rather, 109, 8, 112 reviewing for P.3d when criminal sentences ¶ ¶ (i) authority determining sentencing “legality,” to had we are whether the 41, issue, 41, 331 471, Hicks, 71, impose ¶ ¶ 2006 MT Mont. sentence State v. (ii) 206, 41; 12, Ruiz, parameters within set ¶ ¶ 133 P.3d whether sentence falls (iii) 15, Montoya, by to applicable sentencing statutes, whether the court adhered ¶ statutes, see, e.g., applicable State v. 7, affirmative mandates of the 273 Mont. Pritchett, (1995); 261, Pence, 223, 231, 902 41, 46 MT ¶ P.2d State v. 2000 140, 7; Williams, 136, 1, 7, 11 539, 8, 316 Mont. ¶ v. 2003 MT ¶ ¶ 302 Mont. P.3d State 34, 136 100, 34, 8; Shults, ¶ MT Mont. P.3d ¶ ¶ ¶ 507, correctness. “legality” general in terms 34. We have also stated this review in a sense ¶ 84, 16, 27, 16, Megard, P.3d ¶ ¶ v. MT State (“This only. imposition legality The for ¶ Court a district court’s of sentence reviews interpreted question is the district court is one of and the determination whether law (citation 188, 6, correctly.” omitted)); Sprinkle, State the law (“Sentencing law. We the district is based on review application district court to determine whether the court’s of the statutes (citation omitted)). correct.” was Lenihan, by contrast, challenged is is not concerned with whether Indeed, earlier, exception approach, the Lenihan such an as noted “correct.” under Rather, timely objection legality in the context rule. swallow the would by a valid question: the sentence at issue was authorized a narrower whether involves such, purposes than our sentencing “legality” “legality” is narrower for Lenihan statute. As of criminal sentences. standard of review
[t]he imposed district court making sentence enhancement after additional of fact on findings Garrymore contested matters. Jason had both a statutory right constitutional and a not to have the charged Information, enhancement unless it was and proved jury by proof to a beyond reasonable doubt. The imposition of the parole restriction in this case constitutes an illegal sentence.
Thus, while acknowledges that he was within sentenced ranges by 45-5-102(2), (authorizing MCA § a sentence 46-18-202(2), of life imprisonment) MCA (authorizing § sentencing court to restrict parole eligibility), offender’s he claims this latter statute invalid because authorized the District Amendment, Court-in II, contravention Sixth Article Sections 46-1-401, 24 and MCA-to his eligibility § restrict by jury the basis facts not found beyond reasonable doubt. In words, other he alleges the District Court lacked 46-18-202(2) portion was, sentence because § an n unconstitutional grant him, applied power Legislature and, alternatively, a sentencing application because court’s of 46-18- 202(2) allegations constrained 46-1-401. Such constitute satisfy colorable claims that requisites invoking the Lenihan claims, exception. We therefore reach the merits of these notwithstanding Garrymore’s them failure to raise in the first instance in the District Court. *35 imposition parole
III. Issue 2: Did eligibility restriction, by because it was on facts not based found doubt, jury beyond Garrymore’s a reasonable violate federal and and to rights state constitutional jury process? trial and due Garrymore 45-5-102(l)(a), violating was convicted of MCA
¶107 § (2001).21 punishable This offense is as follows:
A person convicted of the offense of deliberate homicide shall 46-18-310, punished provided as by through death in 46-18-301 age of the person unless the is less than 18 at the time offense, imprisonment, or commission of the life imprisonment prison in state a term of not than 10 less otherwise, specified Unless further references are the 2001 to Annotated, time Montana Code crime which was effect at the committed (on Brister, 13, 26, January 3,2003). or about (“[T]he time law in effect at the of the commission sentence.”). possible controls crime as in 46-18-219 years, except provided as years or more than 100 46-18-222. 45-5-102(2), MCA.
Section case, in this penalty not seek the death The State did Thus, at issue here. and -222 are not 46-18-219 exceptions listed §§ terms, are as follows: that claims, specific in more Garrymore’s maximum he was for the offense of which prison in the state “imprisonment “life imprisonment” convicted is that of these years”; . . . more than 100 both for a term of not (which, parole applied as contemplate possibility máximums sentence, years, that he serve at least 30 see Garrymore’s requires 46-18-202(2) 46-23-201(3), MCA); federal and state that violates § § sentencing judge to the extent it authorizes a provisions constitutional ineligible parole” that the offender is “impose restriction doubt; by jury beyond a reasonable the basis of facts not found restricting statute from sentencing judge prohibited also eligibility by jury on the of facts not found prisoner’s parole basis doubt; Court, therefore, beyond a reasonable and that the District eligibility Garrymore’s lacked to add the restriction to above, life sentence. As noted these claims are based on the Sixth and Amendments, II, interpreted Apprendi; Fourteenth Article Constitution; and 46-1-401. I Sections 24 and of the Montana begin Apprendi. a discussion of federal claim under Claim
A. Federal Constitutional
longstanding principles
At
in this case are
of criminal
issue
two
first,
charged
procedure:
upon
a defendant’s conviction for a
offense,
hath
pronounce
judgment,
“the court must
which
law
crime,”
478-79, 120
S.Ct. at 2356
Apprendi,
annexed to the
530 U.S.
omitted)
quotation
(quoting
and internal
marks
4 W.
(emphasis
(1769));
Blackstone,
England
on the
369-70
Commentaries
Laws of
second,
that “the
must convince the trier of all the
prosecution
doubt,”
guilt” “beyond
Apprendi,
essential elements of
a reasonable
omitted)
(internal
marks
quotation
U.S. at
fill eligibility restriction on his sentence was in violation of these protections. starting point analyzing constitutional The this claim Supreme Apprendi, is the Court’s decision which the Court authorizing addressed whether a factual determination an increase in possible prison by the maximum sentence for an offense must be made jury proof beyond on the basis of a reasonable doubt. See Apprendi, 530 U.S. at at 2351. 120 S.Ct. Apprendi charged was a 23-count indictment with a number shootings, as as the possession weapons. well unlawful various
Apprendi,
foregoing procedures
rejected
the Court
analysis,
At the outset of its
Amendments.
by determining whether
question
notion that
could be answered
crime
motivated
racial bias
finding
Apprendi’s
that
was
committed
purpose
a
to intimidate was an “element”
with
merely
a
“factor” or “enhancement.”
offense or
certain
if he
Jersey
Apprendi
pains
New
threatened
with
pains
a
additional
if he
unlawfully possessed
weapon
with
to intimidate them because of
purpose
selected his victims with
justice,
it seems
that the
simple
their race. As matter of
obvious
safeguards
designed
protect Apprendi
from
procedural
should
acts that
pains
apply equally
unwarranted
two
New
Jersey
singled
punishment. Merely using
out for
the label
has
surely
“sentence enhancement”
to describe the latter
does not
treating
differently.
for
them
provide
principled basis
Apprendi,
see also
2355;
Apprendi,
“[t]he substantive
criminal
law
judge
The
was
sentence for each offense.
prescribed
(unless
thought
he
simply
meant
that he
inappropriate
the sentence was so
circumstances
eligibility
reason,
“[a]
restriction...
the State’s observation that
For this
inapposite.
do not afford an
penalty
“Labels
is not considered a
enhancement”
(alteration
Apprendi,
should
the pardon process
Blackstone,
invoke
to commute
As
others,
clear,
among many
“[t]he
has made
judgment,
though
pronounced
judges,
or awarded
is not their determination
sentence,
but the determination
and sentence of the law.”
(second
Apprendi, 530 U.S.
¶117
established
was,
law,
“punishment
by
tied to the offense” and that American
judges
“exercised
legally prescribed
discretion within a
range.”
Apprendi, 530 U.S.
n.10,
bounded discretion
trials,
the Court
required in criminal
heightened degree
persuasion
recidivism,
that,
“it is unconstitutional
except
concluded
for the fact of
jury the assessment of facts
legislature
for a
to remove from the
a criminal
range of
to which
prescribed
penalties
increase
S.Ct. at 2363
exposed.” Aрprendi,
530 U.S. at
defendant
(alteration omitted).
conviction, any
of a
fact
prior
“Other than the fact
*39
beyond
prescribed
for a crime
penalty
that increases
a
jury,
beyond
and proved
must
submitted
to a
maximum
see
2362-63;
Apprendi,
New
scheme could not stand. Pursuant
to that
scheme,
judge
the trial
in Apprendi’s case had been
to impose
allowed
punishment greater
a
than
punishment
the maximum
authorized for
unlawfully
firearm,
the crime of
possessing
judge’s
a
based on the
finding by preponderance
of the evidence that Apprendi’s purpose for
unlawfully
possessing
firearm was to intimidate his victim on the
basis of a particular characteristic
the victim possessed. Apprendi, 530
By
U.S. at
120 S.Ct. at
“removing]
jury
2363.
from the
that,
found,
determination
of a fact
if
exposes the criminal defendant
a penalty exceeding
the maximum
punished
he would receive if
according to the
jury
alone,”
facts reflected in the
verdict
this scheme
ignores “[t]he historic link
judgment
between verdict and
and the
judges’
consistent
limitation on
discretion
operate
within the limits
legal
penalties provided.” Apprendi,
482-83,
U.S.
S.Ct. at
The
prohibits
Sixth Amendment
such a practice.
Apprendi,
range
by
jury’s
finding,
authorized
reflected
verdict-which
its
beyond
doubt,
“purposely
reasonable
that
had
or
knowingly cause[d]
the death of another human being,”
45-5-
102(l)(a),
“life imprisonment”
“imprisonment
MCA-was
or
in the state
prison for a term
years,”
of not less than 10
or more than 100
(As
45-5-102(2),
above,
MCA.
noted
neither
penalty
the death
nor the
here.)
exceptions
listed
46-18-219 and -222 are at issue
The
§§
question to be
possibility
answered
whether
the restriction “without
parole”
range.
words,
exceeded this
In other
stated
were
reasons
by
restriction,
the District
imposing
parole eligibility
Court for
substance,
findings
exposed Garrymore
factual
to a punishment
greater
punishment
jury’s guilty
than the
authorized
verdict
“sentencing
meaning.”
The Court clarified that the term
factor” is not “devoid of
Bather, the term
circumstance,
aggravating
appropriately describes a
be either
character,
range
mitigating
supports
specific
sentence within the
jury’s finding
guilty
the defendant
hand,
used to
offense. On the other
when the term “sentence enhancement” is
sentence,
beyond
it is the
describe an increase
the maximum authorized
equivalent
greater
functional
the
of an element of a
offense than the one covered
jury’s
Indeed,
guilty
squarely
verdict.
it fits
within the usual definition of
“element” of the offense.
n.19, 120
Apprendi,
[t]he restriction of
. .
.
among others,
represents
option,
legislature
one
has made
judges
ordinary sentencing.
available to district
in the course of
The full
parole
furlough eligibility permitted by
restriction on
46-18-202(2)
apart
section
has no existence
from the sentence
underlying
for the
offense.
Cavanaugh,
Cavanaugh
Thus,
Apprendi,
120 S.Ct. at
the fact
U.S.
2362-63
than
conviction,
prior
penalty
of a
fact that
increases the
for a crime
prescribed maximum must
beyond
jury,
submitted to a
added)).
proved beyond
(emphasis
a reasonable doubt.”
The Court
Apprendi,
did not
great
define
term
detail
but it did so in
Arizona,
Ring
Blakely
v.
(2002),
536 U.S.
S.Ct. 2428
(2004).
Washington, 542 U.S.
S.Ct. 2531
Ring,
capital sentencing
the Court confronted Arizona’s
*41
law,
statutory
penalty
scheme. Under Arizona
the
maximum
for first-
Ring,
death,
2434;
degree
murder was
makes an increase
fact,
on the
of a
that
fact-no matter
the State labels
finding
how
by jury beyond
Ring,
be found
a reasonable doubt.”
536 U.S.
it-must
Ring,
see also
2439;
at
122 S.Ct. at
at
not violate “because the relevant maximum’ is not months, B 10-year Blakely, but the maximum for class felonies.” rejected U.S. at The argument S.Ct. Court outright: *42 precedents “statutory
Our make clear ... that the maximum” for Apprendi purposes judge may impose is the maximum sentence a solely jury on the basis the in the verdict or of facts reflected words, by “statutory admitted In other the relevant defеndant. judge may impose maximum” is not the maximum sentence facts, finding may impose after additional the maximum he but inflicts any findings. judge without additional When a allow, jury does not punishment jury’s that the verdict alone makes essential to the has not found all the facts “which law authority. punishment,” judge proper and the exceeds his omitted). (citations Thus, 303-04, 124 at 2537 Blakely, 542 U.S. at S.Ct. ‘maximum concluded, years is no more 10 “[t]he the Court sentence’ (because judge that is what the Apprendi here than it was 20 crime) Ring a hate or death in imposed upon finding could have (because imposed upon finding could judge that is what the have 304, 124 juryA “could Blakely, 542 U.S. at S.Ct. at 2538. aggravator).” machinery justice if it in the State’s not function as circuitbreaker relegated making were a determination that the defendant some point something wrong, preliminary judicial inquisition did a mere to a actually punish.” Blakely, into the facts of the crime the State seeks to 306-07, 124 542 U.S. at S.Ct. Ring Blakely Thus, clear, “statutory make Apprendi purposes possible
maximum” for is not the maximum Rather, provided given sentence in the criminal code for a offense. may is the maximum sentence the defendant receive “on the basis of jury by the facts reflected in the or admitted the defendant.” verdict omitted). Blakely, (emphasis 542 U.S. at S.Ct. at 2537 For this reason, by Garrymore’s challenge simply pointing cannot be answered 45-5-102(2) out that authorizes a sentence of “life imprisonment” § 46-18-202(2) judge eligibility. a district to restrict permits parole § Cavanaugh, pre-Apprendi case, question did not answer the clarified by Ring Blakely, whether, in order the “without 46-18-202(2), a possibility parole” pursuant restriction district § court first must find additional facts-i.e., already admitted facts not by by jury the defendant or found and reflected its verdict. regard, Garrymore argues that while the maximum the statute or may imprisonment” authorized be “life for a term of not... more than 100 “imprisonment prison state without the maximum sentence years” possibility parole, jury’s verdict in his case was “life or imprisonment” more than 100 prison in the state for term of not... “imprisonment Thus, “[t]he verdict alone did years” possibility parole. That imposed judge. restriction parole authorize findings acknowledges of fact.” He required enhancement additional 45-5-102(2) or not explicitly does not state whether § however, eligibility parole; forth therein include punishments set 46-23-201(1) pardons parole] [of that “the provides board confined parole by appropriate person on nonmedical order release serving sentences under prison, except... persons in a state 46-18-202(2) , probability there is reasonable opinion . . . when its prisoner to the can released without detriment prisoner that the community.” to the submits, convicted of person Accordingly, timing (subject eligible
deliberate homicide unless is restricted 46-23-201(2)-(3)), eligibility requirements 46-18-202(2). words, ‘life “[a] In other fact-finding under § after further *43 Rather, life.” the offender’s natural [does] sentence’ not mean for a prison in the state “imprisonment “life imprisonment” terms years” include an more than 100 than 10 term of not less оnly may be overcome eligibility which presumption parole of implicit maintains, Therefore, he findings of fact. additional, upon post-verdict fact-finding... was to post-verdict Court’s] [District effect of the “[t]he eligibility, years’ parole actual time before a from 30 increase term of imprisonment.”25 to a literal life-time 45-5- interplay of the between Garrymore’s interpretation §§ 46-18-202(2) sure, 102(2), 46-23-201, prisoner To be is incorrect. designated unless otherwise eligible pursuant to 46-23-201 parole § here). 46-18-202(2) (or 46-18-219, is not at issue pursuant to § § violation However, Apprendi this scheme does not create of 46-23-201 in thing, placement For one perceives. § parole eligibility that is a support the Code does not conclusion 45-5-102(2), under implicit in sentences presumption, § fact-finding. through judicial additional Whereas must be overcome 46-18-202(2) Judgment” chapter in the “Sentence and appears § may provision outlining “[sentences Title follows a sentences,” restrictions on imposed,” “[additional and itself outlines contrast, of Title 46 46-23-201, by appears separate chapter § clemency. In the concerning granting probation, parole, language contrary, organization suggests to the this explicit absence of 46-23-201) (§ yields granting parole that the on nonmedical provision (§ eligibility 46-18- provision restricting parole to the an offender’s 202(2)), not vice versa.26 46-18-202(2) above, Furthermore, provides that as discussed § sentencing judge imprisonment a sentence of imposes
“[w]henever the exceeding year, judge prison in a state for term for ineligible parole that the offender is also the restriction serving while supervised program release participation sentencing judge, grant unqualified term.” Such an year, contradicts only exceeding the term’s one upon conditioned ensuing discussion, guarantee purposes there is no that a parole while For imposition prisoner eligible parole paroled, of a for in fact be who is will and, thus, prisoner’s liberty greater eligibility restriction on the restriction makes for a (“The Cavanaugh, P.2d at 892 clear effect 189 Mont. at harsher sentence. 46-18-202(2) escaping permit judge a district to close one avenue of section full force of is to sentence.”). scheme, fact, contemplates The (mandating possibility See, e.g., a life sentence without characterization. of 46-18-219 recidivists). specified imprisonment” vein, suggestion means “life that “life the State’s the same meaning rejected. possibility parole” If that were the imprisonment intended must be without 46-18-202(2) print. Legislature, would be a waste then *44 presumption parole eligibility
notion that there is a of to be overcome. 46-18-202(2) Indeed, if setting overcoming were forth the method for presumption, expect language such a one to see that would to effect-e.g., “if the ‘X’ may parole eligibility court finds then it restrict notwithstanding 46-23-201.” 46-18-202(2) sure, To be the second sentence of mandates “[i]f the ineligible parole [that restriction the offender is
participation supervised program serving rеlease while imposed, sentencing judge term] is to be the shall state the reasons for Yet, in writing.”27 provision, imposes specific while this which a requirement judge eligibility, on a who restricts a defendant’s parole undoubtedly contemplates fact-finding part sentencing on the of the restriction, in to imposition order substantiate its of the such a requirement necessarily place resulting beyond does not the “statutory Apprendi’s maximum.” First, Supreme rejected argument Court has “that
every
bearing
sentencing
fact
a
on
jury.”
must be found
a
(1999).
States,
Jones v. United
227, 248, 119
1215, 1226
526 U.S.
S.Ct.
Indeed,
judge
to
Court has “never doubted the
of a
a sentence within a
imposing
exercise broad discretion in
Booker,
range.” United States v.
220, 233, 125
738,
543 U.S.
S.Ct.
(2005)
added).
often,
(emphasis
The exercise of this discretion will
if
invariably,
implicit
explicit findings
not
necessitate
or
of fact that the
hand,
Judge’s
“[t]he
“[t]he
at
the case
the District
written reasons were as follows:
restraint”;
prior
Defendant
Defendant was arrested on the same
three
of
has
convictions
abuse
unlawful
charges
type
in the States of Utah and
jurisdiction
charges
dismissed”; “[t]he
California but moved from their
were
committed”;
“[flurther,
probation
Defendant was on
when this offense was
Sonju’s
adopts portion
Court
of Mr.
reasons.” These reasons are consistent with the
given by
judge orally
sentencing hearing.
reasons
at the
See 7 of the Court’s
Opinion.
Judge
The Court notes that another factor considered
District
Garrymore’s
Specifically,
pronouncing
sentence was
lack of remorse. See
31.
¶¶
judge
during
sentencing hearing
“throughout
the trial and these
stated
contrary
testimony,
proceedings,
I
remorse from this
to the
have not seen
sentencing,
However, subsequent
we decided State v.
defendant.”
to
Cesnik,
court
sentencing
MT
we held that a
failing
augment
refusing
punish
a defendant or
his sentence for
or
accept responsibility or show remorse for the offense of which he has been convicted
right
right
appeal the
and has invoked his
to remain silent
when he has a
conviction
throughout
sentencing hearing
expressly
maintained his innocence
at the
Shreves,
20-23,
Cesnik,
18-25;
proceedings.
Mont.
MT
¶¶
see also State v.
¶¶
hand,
Garrymore does not
20-23. In the case at
¶¶
against
allege
protections
incrimination
or federal constitutional
self
were
his state
Judge
part Garrymore’s
failure to
when the District
based the sentence
violated
discussion,
remorse; thus,
purposes
this factor was
demonstrate sufficient
otherwise valid
consideration.
sentence.
selecting
or relevant
important
deems
judge
However, “the
309,
the Sixth Amendment judicial power jury It limits power. a reservation power, but judicial infringes on power that the claimed only to the extent not do so. It sentencing does jury. of the Indeterminate province sure, discretion, expense not at the judicial to be but increases finding function of the facts essentiаl jury’s traditional indeterminate schemes penalty. Of course imposition lawful board) (like judge judicial factfinding, in that involve important rule on those facts he deems may implicitly pertain discretion. But the facts do not exercise of his *45 right legal the defendant has a to a lesser to whether judicial all sentence-and that makes the difference insofar jury role of the is concerned. In impingement upon traditional system says judge may punish burglary a that with 10 to 40 every risking jail. he in In a years, burglar knows is sentence, system punishes burglary 10-year that with a with a home gun, burglar another 30 added for use of a who enters entitled to no more than a 10-year unarmed sentence-and is Amendment bearing upon the Sixth the facts that reason of by jury. entitlement must be found a
Blakely,
mandate as a condition for
Rather,
only
fact.
sentencing judge
requires
find a
restriction]
in
judge
[imposing
“state the reasons
for
scheme,
46-18-202(2),
Washington’s sentencing
writing.” Section
MCA.
Blakely’s
sentencing,
is useful
as it existed at
the time of
permit
crucial distinction. That scheme did not
illustrating
this
Blakely’s
on the
sentencing judge to enhance
sentence
basis
sentence-i.e.,
on
computing
range
the standard
already
facts
used
“
Rather,
Blakely’s guilty plea.
‘[a]
of the facts admitted
basis
only
can
considered
justify
exceptional
offered to
be
reason
factors other than those which
are used in
if it takes into account
” Blakely, the offense.’
range
the standard
sentence for
computing
added).
(alteration
original, emphasis
U.S. at
S.Ct.
already admitted
had Thus,
find additional
facts-facts not
judge
contrast,
by Blakely-in
By
order to
the enhanced sentence.
46-18-202(2),
pursuant
first
second sentences of
a
sentencing judge’s
imposing
parole eligibility
reasons for
restriction
may
jury’s verdict,
take into account facts reflected in the
as well as
verdict;
finding
other facts not reflected in that
no particular
but
may
mandated
the restriction
imposed.28
before
be
Construing
operation
scheme similar in
45-
§§
5-102(2)
46-18-202(2),
Supreme
the Arizona
Court
found no
Apprendi
at issue in statutory provision
violation. Under the
(Ariz.
Fell,
2005),
if the
penalty
death
is not
first-degree
only
murder the
other
are life
possible sentences
(“life”)
possibility
specified period
of release after a
or life with no
(“natural
life”).
Fell,
of eventual
release
possibility
Although
1.¶
“nothing
provision] required
any specific
[the
fact be
imposed,”
found before a natural
life sentence could be
the defendant
argued
‘presumptive’
nonetheless
that “life is the
sentence for first
Fell,
degree
‘aggravated’
murder and that natural
life is an
sentence.”
rejected
12-13. The court
this contention:
provide
The statute does not
that a defendant “shall” receive life
contrary,
unless certain facts are found. To the
the statute
sentence,
provides
imposes
“[i]f
the court
life
the court
order that
the defendant not be released on
basis for the
13-703(A)
remainder
of the defendant’s natural
life.” A.R.S. §
added).
(emphasis
legislature
require
Had the
intended to
finding
made
a natural
life sentence could
specific
before
be
28 Cavanaugh,
required
In
stated that “District Courts are
to determine
eligibility
necessary
furlough
the full
for ‘the
whether
restriction
Cavanaugh,
protection
Mont. at
society’
person
after
when
is sentenced
conviction.”
Apprendi
Blakely,
interpretation
such an
... this to determine whether exercise its discretion appropriately can assured) or whether (although is possible future release life in prison. the rest of his or her spend must instead defendant (alteration Fell, original). 14-15 45-5-102(2) and 46- applicable to reasoning equally §§ This 46-18-202(2) requires
18-202(2).
above,
nothing in
explained
As
finding
it restricts
to make a
before
district
Legislature did not make
eligibility. The Montana
parole
defendant’s
exclude the
punishment
possibility
an increase in a defendant’s
Booker,
fact,”
543 U.S. at
“contingent
finding
on the
omitted).
(internal
Rather,
marks
46-18-
quotation
decisions, however, distinguishable Eire from the case (Vt. 2005), Provost, Provost, provides typical example. 896 A.2d stated, part: the statute at issue in relevant be punishment degree
The for murder in the first shall unless years for life Eindfor a minimum term of 35 imprisonment mitigating factors aggravating the court finds that there are If court finds that the justify a different minimum term. factors, outweigh Einy mitigating factors aggravating including may longer years, up than 35 to and minimum term mitigating If the court finds that factors parole. life without factors the minimum term be set outweigh any aggravating years. not less than 15 at less than 35 but omitted). Provost, added, quotation internal marks (emphasis 14¶ Court stated Interpreting provision, Supreme the Vermont may impose the court . . . without “[t]he maximum sentence jury’s imprisonment verdict is fife finding any facts in addition to Provost, minimum 15. The court thirty-five years.” term of with a had intended “to attach Legislature the Vermont reasoned accompanying minimum terms significance to the difference between Provost, surprising, 17. It is not fife imprisonment.” sentences of that the statute “violates therefore, ultimately the court concluded *47 Apprendi Blakely sentencing the rule in requires because weigh specific aggravating mitigating court to factors not found jury beyond imposing reasonable doubt a sentence of life before Provost, Leake, parole.” added); without 17 (emphasis cf. (Minn. 2005) (also 312, 321, by Garrymore, N.W.2d cited holding that “a that a judge’s finding prior conviction constitutes ” ‘statutory “heinous crime’ affects the maximum’ a sentence because without of life imprisonment possibility of release cannot be made). finding until such a light discussion, foregoing punishments provided of the 45-5-102(2) presumption parole eligibility do not contain a § by post-verdict fact-finding which must be overcome before a 46-18-202(2) may impose court the restriction in that the § Rather, ineligible parole. offender is for the maximum sentence the jury’s guilty impose verdict authorized District Court imprisonment” case was “life or in the “imprisonment prison state without years,” possibility a term of not . . . more than 100 46-18-202(2) reason, For this parole. application Garrymore’s imprisonment of life was not unconstitutional under sentence, Apprendi Garrymore’s therefore, and its is not progeny, illegal under the Sixth and Fourteenth Amendments. Statutory B. State Claim 46-1-401, statutory The basis for state claim is § response Apprendi. (2001),29 It provides,
MCA which was enacted in pertinent part, as follows:
(1) impose penalty A court an incarceration specified provision enhancement in Title Title or other of law unless:
(a) act, omission, enhancing charged or fact was information, indictment, or a reference to the complaint, act, omission, containing enhancing or fact statute or statutes act, omission, fact; [and] penalty enhancing and the for the or (b) unanimously jury, jury if the case was tried before a act, omission, finding enhancing or separate found in a doubt;... beyond fact occurred a reasonable 46-1-401(3), brief, quotes he the 2001 version of but In his cites no these two versions have 2003 substantive of this statute. The differences between version accuracy, Garrymore’s claim; however, I the sake of note that effect on controls, see 107 n.21. the 2001 version omission, (3) act, or omission, fact is an enhancing act, or An offense or defining charged in the statute fact, stated whether statute, included in the that is not in another stated and that allows charged offense of the elements definition statute, an to, provided to add requires charged for the offense by statute period provided incarceration incarceration instead of penalty or to the death offense. charged statute for the provided period *48 (4) for the same prior fact of one or more convictions Use of the offenses to types or more other offense or for one type of is not charged for a offense penalty the incarceration enhance of this section. subject requirements to the 46-18-202(2) and 46-1-401 conflict with that Garrymore suggests §§ sentencing judge extent that the former authorizes each other to the aby on facts not found eligibility based parole to restrict an offender’s doubt; over 46-18- prevails 46-1-401 jury beyond § a reasonable § Court, therefore, 202(2); was without and that the District (This restriction on his sentence. impose parole eligibility n.13.) in 86 analogous to the scenario discussed above argument ¶ 46-18-202(2) and 46-1-401 are incorrect. Sections Garrymore is ¶144 the mandates of the Rather, merely 46-1-401 codifies not in conflict. § Amendments, by Supreme as construed Sixth and Fourteenth Thus, disposition progeny. in and its Apprendi Court the disposition on this statute is identical to Garrymore’s claim based claim III For the under Part A. above. of his federal constitutional imposing discussed, the District Court’s stated reasons just reasons sentence were not facts eligibility restriction on parole to, by provided court to add as require[d] allow[ed] [the] “that . . . 45-5-102(2)] for statute, by period provided [§ an incarceration 46-1-401(3). homicide],” To contemplated [deliberate § homicide charge of deliberate contrary, jury’s guilty verdict on sentence of “life Court the District of not prison for a term “imprisonment the state imprisonment” or years,” possibility without the or more than less than contravene 46-1-401. Thus, Garrymore’s § sentence does not parole. Claim C. State Constitutional II, under Article rights that his Garrymore argues Lastly,
¶145 violated when Constitution were of the Montana Sections 24 and 46-18- under ineligible him deemed the District Court 202(2) doubt. beyond a reasonable jury found on facts not based impartial “trial right an accused guarantees Section 24 jury,” provides “[t]he while Section 26 right by jury of trial secured to all and shall “[i]n remain inviolate” and that all criminal actions, the verdict shall be unanimous.” out, points correctly, we have “refused to lock-step’ ‘march the United Supreme with States Court’s interpretation of corresponding provisions constitution,” in the federal where, particularly case, as in this “the language of the Montana Constitution setting rights guaranteed forth the is not identical language Woirhaye used the federal Constitution.” v. Fourth Court, 185, 14, 972 Judicial Dist. Thus, Woirhaye, we construed Sections 24 and 26 as affording greater jury right Amendment, trial than does the Sixth 46-17-201(3) and we invalidated former because it allowed right jury misdemeanor criminal defendant to exercise his ato trial only justice once-either court or in district court on trial de novo. Woirhaye, 25-26. Yet, while we have interpreted some of our state constitutional provisions as providing protection more than do their federal counterparts, Garrymore explained, has not respect specific sentence, why Sections 24 and 26 dictate a contrary result to the result reached Apprendi. Woirhaye, applied jury above under trial right entirely context, in an different does not afford an answer. above, explained pursuant As in detail to the first two *49 46-18-202(2) sentences of a sentencing judge upon is authorized § conviction of deliberate homicide to restrict the defendant’s parole eligibility having to find without first fact. This scheme satisfies the Apprendi; dictates of the Sixth Amendment and whether however, it violates Sections 24 and something is not we can undeveloped address based on the assertion that “the increased protection afforded criminal defendants under Montana’s jury guarantees!] constitutional trial that the parole establishes] rights, illegal.” restriction in this case violated Jason’s and is state Accordingly, is not entitled to relief on his constitutional claim.
CONCLUSION Although Garrymore object during did not authority impose parole proceeding to District Court’s sentence, eligibility allegation appeal on his life his that restriction 46-18-202(2) (because authority the court lacked such is invalid on grounds) requisites constitutional satisfies review may obtain that he meaning the Lenihan exception, invoking object. failure to sentence, notwithstanding his illegal allegedly under arguments the merits of respect With jury’s MCA, 46-1-401, the maximum Apprendi “life case was in this impose Court to the District verdict of not for a term prison in the state “imprisonment imprisonment.” For this parole. without possibility years,” . more than . . eligibility reason, had the court illegal. is not restriction, Garrymore’s sentence concurring. COTTER, specially JUSTICE now, rather than conclusion I concur in Justice Nelson’s in our the inconsistencies up time to clear later, an appropriate Therefore, I in the discussion join Lenihan jurisprudence. Special of Justice Nelson’s forth in 45-106 resolution set
proposed
with the
I concurred
separately
I
to note
Concurrence.
write
Micklon, in Court’s resolution
initiated
it was Micklon who
grounds
on the
since
requirements,
he should
leniency as to the restitution
request for
this is so.
the result.
I still believe
quarrel
heard to
now be
that our decision in Micklon
might be construed
However,
to the extent
circumstances,
I would
a challenge under other
preclude
legally
101 is
by Justice Nelson
agree
that the conclusion reached
correct.
notes
footnote of its
the State refers to this
timely objection
“jurisdiction.”
given
surprising,
to the
we
rule as Lenihan
This is not
that
have,
occasion,
“jurisdiction”
respect
application
on
used the term
with
to our
Mont,
See,
exception.
e.g., Lenihan,
343,
(“We,
Lenihan
184
Notes
as notes have the Court characterized the ¶ judicial risk of “all”-of the rationale “part”-not vindictiveness Micklon, MT Mont. behind Lenihan. See State v. ¶ least applied 9. And we have one ¶ ¶ arguably speak situation the defendant had an incentive to up, where (the Stone, not silent. Stone to remain 44-47 sentenced authorized). Thus, statutorily three more than was Lenihan is judicial not cases there risk of limited to in which was a vindictiveness or hearing. retaliation Argument ii. The Second State’s respect to the State’s contention that Lenihan should ¶61 With permitted because are not “appellants available rule, that, general on change appeal,” theories State is correct as a change theory arguments legal “[a] not raise new on party 211, 39,89 Heath, 58, 39,320 MT appeal,” State However, underlying argument premise is the the State’s sentencing term or objection that an was made to the appellant challenges appeal that the appellant condition changed legal theory support has advanced since receiving object harsher sentence.” sentence for fear of Erickson did not to his Erickson, ¶ 33.