Lead Opinion
delivered the Opinion of the Court.
¶1 A jury сonvicted Appellant Jason Lucas Garrymore of deliberate homicide on February 27, 2004. Thereafter, the Fourth Judicial District Court sentenced him to life imprisonment without the possibility of parole. Garrymore challenges the parole restriction and urges us to vacate his sentence. We affirm.
¶2 We consider the following issues on appeal:
¶3 (1) Does Garrymore’s failure to object to the District Court’s imposition of sentence preclude our review on appeal?
¶4 (2) Did the District Court’s imposition of the parole eligibility restriction pursuant to § 46-18-202(2), MCA (2001), violate Garrymore’s federal and state constitutional and statutory rights to jury trial and due process?
BACKGROUND
¶5 After an incident on January 2, 2003, left nearly two-year-old Tylin Garrymore dead, the State charged her father, Appellant Jason Lucas Garrymore (Garrymore), with deliberate homicide in violation of § 45-5-102, MCA (2001). Garrymore pleaded not guilty to the charge on February 4, 2003, and the case proceeded to trial by jury. The jury convicted Garrymore of deliberate homicide on February 27, 2004.
¶6 After completion of a pre-sentence report, Garrymore’s case proceeded to sentencing on May 6, 2004. At the hearing, both Garrymore and the State presented evidence of Garrymore’s past conduct and character, and each side argued for a different sentence. The State adopted the recommendation of Mr. Sonju, the probation/parole officer who had prepared the pre-sentence report. Relying on considerable evidence, Mr. Sonju concluded that Garrymore could not be rehabilitated, and recommended that Garrymore be given a life sentence without the possibility of parole. Conversely, Garrymore argued that he was never given an opportunity to properly rehabilitate, especially when his mental health issues were considered, and urged the court not to impose a parole eligibility restriction.
¶7 Notwithstanding Garrymore’s arguments to the contrary, the District Court adjudged Garrymore a violent offender and sentenced him to life imprisonment without the possibility of parole. The court provided the following basis for its decision:
Now, this defendant has three convictions for domestic abuse and unlawful restraint. He was arrested on the same type of charges in Utah and California but moved out of their jurisdiction so the charges were dismissed. In addition, he was on probation when this offense was committed.
Now, throughout the trial and these proceedings, contrary to the testimony, I have not seen any remorse from this defendant. And I’m going to adopt some of Mr. Sonju’s reasons as my reasons. Mr. Sonju,quite candidly, said, I have been looking for all mitigating factors in this case. What is most disturbing is that I have been unable to find any.
Further, I agree with Mr. Sonju, especially after viewing the photographs, that I do not believe Tylin’s death was caused by a tragic culmination оf accidents.
Though he may not have actively planned this death, his behavior, sadistic or otherwise, certainly caused it. He has a record of being mean and abusive to women.
As a result of his delay, the child died a violent, slow, painful death. She could have been taken to the hospital and possibly saved. He talked the mother out of that, and it appears that he would rather save his own neck from child abuse charges than save his two-year-old adopted daughter.
Finally, in our society, and I think we all realize it, even total strangers rush to assist a child in distress. But you, her adoptive father, chose to abuse and, from the pictures, torture this little girl and let her die.
So it’s now the judgment of this Court that you be sentenced to life imprisonment in the Montana State Prison without eligibility for parole.
(Emphasis added.) Garrymore did not object to the sentence at the time of its pronouncement by the District Court.
¶8 Garrymore appeals, asserting that the District Court imposed the parole eligibility restriction in violation of his federal and state constitutional and statutory rights.
STANDARD OF REVIEW
¶9 We review criminal sentences that include at least one year of actual incarceration to determine whether they are legal. State v. Herd,
DISCUSSION
Issue 1: Does Garrymore’s failure to object to the District Court’s imposition of sentence preclude our review on appeal?
¶10 Noting that “the defense did not assert a state or federal constitutional objection to the sentencing court’s statutory authority to restrict parole,” the State offers a brief argument that the merits of Garrymore’s claim should not be reviewed on appeal. The State acknowledges the exception to the contemporaneous objection rule we adopted for sentencing purposes in State v. Lenihan,
¶11 Initially, we observe that the State’s “three reason” argument is very brief and is not supported by reference to any case from our Lenihan jurisprudence, but, rather, by citations, without analysis, to a state civil case and a federal case addressing the exercise of plain error review, a separate doctrine not at issue herein.
It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.
Lenihan,
¶12 First, the State offers that Lenihan does not apply because “neither party recommended a deferred or suspended sentence in this case.” Although the Lenihan case involved the imposition of a deferred sentence, the rule we adopted therein was not limited to probationary sentences, and we have undertaken, pursuant to Lenihan, appellate review of sentences which had no deferred or suspended portions. See State v. Honey,
¶13 Secondly, noting that the parole ineligibility condition Garrymore challenges on appeal was raised during the sentencing hearing by the prosecution, the State contends that the Lenihan rule is inapplicable because an objection by Garrymore “would not have provoked judicial vindictiveness which Lenihan fears,” and that Garrymore’s appellate challenge is nothing more than an impermissible change of theories on appeal. Though judicial vindictiveness was a concern addressed in Lenihan, our holding therein was not limited to such circumstances, and we have since explained that the risk of judicial vindictiveness is only “part” of the rationale underpinning the Lenihan rule. See State v. Micklon,
¶14 Thirdly, the State contends that Garrymore’s sentence “was not, as Garrymore now contends, unconstitutional.” We presume from this statement the State means that, because of the State’s confidence in the constitutionality of the sentence, Garrymore’s sentence cannot be “illegal” for purposes of applying the Lenihan rule. However, the Lenihan rule allows “an appellate court to review” certain sentences, on their substantive merits, which are “alleged” to be illegal, Lenihan,
¶15 Lastly, the State suggests that, because Garrymore’s sentence is within statutory parameters, we “should refrain from invoking Lenihan to address a constitutional challenge to § 46-18-202(2),” citing only to United States v. Cotton,
Issue 2: Did the District Court’s imposition of the parole eligibility restriction pursuant to § 46-18-202(2), MCA (2001), violate Garrymore’s federal and state constitutional and statutory rights to jury trial and due process?
¶16 Convicted of deliberate homicide pursuant to § 45-5-102(l)(a), MCA, Garrymore received a life sentence without the possibility of parole from the District Court. On appeal, Garrymore argues that the District Court’s imposition of the parole eligibility restriction was unconstitutional. Specifically, he argues that the parole eligibility restriction constitutes a sentence enhancement which was based on facts not found by a jury. Accordingly, Garrymore argues that the imposition of the parole eligibility restriction by the District Court violated his rights to trial by jury and due process guaranteed by both the Montana and United States Constitutions, as well as commensurate state statutory rights provided by § 46-1-401, MCA.
Federal Constitutional Claim
¶17 Garrymore’s federal constitutional claim is predicated on the United States Supreme Court’s decision in Apprendi v. New Jersey,
¶18 In Apprendi, a defendant pled guilty in New Jersey state court to three offenses, one of which was possession of a firearm for an unlawful purpose. Apprendi,
¶19 However, the defendant in Apprendi did not receive a sentence between five and ten years, as authorized for second degree offenses in New Jersey. Rather, pursuant to a New Jersey hate crime enhancement statute, the trial judge found by a preponderance of the evidence that the defendant was motivated by racial bias, and as such, imposed an additional two years of incarceration. Apprendi,
¶20 On appeal, the Supreme Court reversed, holding “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Apprendi,
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Apprendi,
¶21 Though Apprendi demonstrated the Sixth Amendment’s application to the sentencing process, an issue of practical importance remained; namely, what did “statutory maximum” mean for the purposes of Apprendi’s requirement that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”? Apprendi,
¶22 Accordingly, the Supreme Court provided further clarification in Ring v. Arizona,
[T]he relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Blakely,
¶23 Garrymore compares his cause to that of the defendant in Apprendi. Specifically, Garrymore characterizes the parole eligibility restriction as a sentence enhancement, and asserts that the parole eligibility restriction increased his penalty beyond the statutory maximum authorized by the jury verdict. Accordingly, we take up the Montana statutes at issue.
¶24 Conviction of the offense of deliberate homicide, § 45-5-102(l)(a), MCA, is punishable as follows:
(2) A person convicted of the offense of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, unless the person is less than 18 years of age at the time of the commission of the offense, by life imprisonment, or by imprisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-219 and 46-18-222.
Section 45-5-102(2), MCA. Because the State did not seek the death penalty, and since neither § 46-18-219, MCA, nor § 46-18-222, MCA, is applicable to Garrymore’s case, the maximum sentence which could have been imposed upon Garrymore pursuant to the language of the statute was “life imprisonment.” However, Garrymore argues that the parole eligibility restriction, although plainly authorized by another statute (§ 46-18-202(2), MCA), operates to allow the imposition of a sentence which improperly exceeds the range authorized by § 45-5-102(2), MCA. He argues that the “life sentences” authorized by § 45-5-102(2), MCA, contain a presumption of parole eligibility which can be overcome only by additional factfinding pursuant to § 46-18-202(2), MCA, and that because such factfinding was not reflected by the jury’s verdict, but was conducted by the sentencing judge, the parole eligibility restriction violates the Sixth Amendment.
Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term. If 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 for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction.
It is clear from the language of the statute that a sentencing judge, when imposing a prison term exceeding one year, may also impose a parole eligibility restriction in the judge’s sole discretion. This provision evidences a legislative intent to authorize, but not require, sentencing judges to restrict parole whenever they impose prison terms exceeding one year. Accordingly, it is evident that the parole eligibility restriction imposed upon Garrymore fell within the statutory range for his offense. Indeed, we held in Cavanaugh v. Crist,
¶26 It is for this reason Garrymore’s assertion that § 45-5-102(2), MCA, contains an implicit “presumption of parole eligibility” is critical to his argument. He seeks to demonstrate that under the penalty statute, standing alone and without the operation of § 46-18-202(2), MCA, he was entitled to а parole-eligible sentence (subject to the requirements of the parole statute, § 46-23-201, MCA), which was then taken away from him by the sentencing judge. However, we reject Garrymore’s argument that such a presumption exists.
¶27 We find no indicia in the sentencing statutes of a legislative intent to create a presumption in favor of parole eligibility which must be overcome in order for a sentencing judge to impose a parole restriction. The broad grant of discretionary authority-clearly indicated by the term “may also impose”-given to sentencing judges under § 46-18-202(2), MCA, to impose parole eligibility restrictions on the enormous class of sentences which exceed a one-year term of imprisonment bebes such an assertion. With regard to these sentences, no limitation has been placed upon the exercise of this grant of authority by the legislature. Thus, a parole-eligible sentence was not taken away from Garrymore because he was not entitled to such a sentence to begin with. There is no implicit presumption of parole eligibility.
¶28 Of course, we acknowledge that a parole eligibihty restriction must be accompanied by reasons stated in writing pursuant to § 46-18-202(2), MCA. We disagree, however, with Garrymore’s contention that the implicit fact-finding embodied within § 46-18-202(2), MCA, places the restriction beyond the “statutory maximum” for the purposes of Apprendi. We initially note that the Supreme Court has rejected the argument that “every fact with a bearing on sentencing must be found by a jury . . . .” Jones v. United States,
¶29 As the Supreme Court noted in Blakely and United States v. Booker,
[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar as judicial impingement upon the traditional rolе of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar 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 by a jury.
Blakely,
¶30 Applying this reasoning to Garrymore’s sentence demonstrates his argument is without merit. First, as noted above, a plain reading of the statutes evidences the legislature’s intent to make life imprisonment without the possibility of parole an authorized sentence for deliberate homicide. See §§ 45-5-102(2) and 46-18-202(2), MCA. Second, although § 46-18-202(2), MCA, requires written reasons to support imposition of parole eligibility restriction, those reasons need not go beyond those facts found by the jury. Indeed, the factfinding requirement embodied in § 46-18-202(2), MCA, simply requires a judge to support his discretion with reasons, but does not tie the parole eligibility restriction to any particular facts or findings whatsoever. Instead, under the plain language of the statute, it is entirely possible for a judge to restrict parole based solely upon facts found by the jury.
¶31 Further, imposition of a parole restriction is not necessarily improper merely because the sentencing judge finds facts, to aid in the exercise of his discretion, not found by the jury. Here, the sentencing judge noted Garrymore’s prior convictions and his lack of remorse among the factors he considered in pronouncing sentence. Of course, as noted above, a prior conviction is a specific exception to the Apprendi rule, but, critical to this discussion, lack of remorse is an example of a fact “important to the exercise” of the sentencing discretion which does not “pertain to whether the defendant has a legal right to a lesser sentence ....” Blakely,
¶32 Under Blakely, this sort of indeterminate sentencing scheme-i.e., leaving parole eligibility restrictions to the discretion of sentencing judges-is constitutional. Accordingly, and because § 46-18-202(2), MCA, does not remove from the jury a determination of facts necessary to restrict parole, we conclude that the statutory maximum punishment for the crime of deliberate homicide when the death penalty is not sought, for the purposes of Apprendi, is life imprisonment without the possibility of parole.
¶33 Faced with an almost identical issue, the Arizona Supreme Court came to the
¶34 Section 46-18-202(2), MCA, permits a sentencing judge to impose a parole eligibility restriction whenever the judge imposes a sentence that exceeds one year. Further, while a judge must state the reasons for the restriction if it is imposed, no particular finding of fact need be included among those reasons. For that reason, and because we conclude that the legislature intended the statutory maximum for § 45-5-102(l)(a), MCA, to be life imprisonment without the possibility of parole, we conclude that the District Court restriction of Garrymore’s parole eligibility did not violate Garrymore’s federal constitutional rights.
State Statutory Claim
¶35 Mirroring his federal constitutional claim above, Garrymore argues that the District Court’s restriction on his parole eligibility pursuant to § 46-18-202(2), MCA, violated his statutory rights under § 46-1-401, MCA (2001), a statute enacted in response to Apprendi. Again, we must disagree.
¶36 Section 46-1-401, MCA (2001), provides in pertinent part:
(1) A court may not impose an incarceration penalty enhancement specified in Title 45, Title 46, or any other provision of law unless:
(a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment, with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact;
(b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt; and
(2) The enhancement issue may be submitted to a jury on a form separate from the verdict form or may be separately stated on the verdict form. The jury must be instructed that it is to reach a verdict on the offense charged in the information, complaint, or indictment before the jury can consider whether the enhancing act, omission, or fact occurred.
(3) An enhancing act, omission, or fact is an act, omission, or fact, whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, an incarceration period provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense.
Codifying Apprendi, § 46-1-401, MCA, essentially requires a jury determination of the facts necessary to impose an additional sentence pursuant to a sentence enhancement statute. Because we see no substantive distinction between the principles enunciated in Apprendi and its progeny and this statutory rendering thereof, our disposition of Garrymore’s claim under the statute is also the same as our disposition of his federal constitutional claims.
¶37 As he did above, Garrymore argues that the application of § 46-18-202(2), MCA, “allowe[ed]” or “require[ed]” the District Court to add on to the sentence authorized by § 45-5-102(2), MCA. However, as mentioned
State Constitutional Claim
¶38 Finally, Garrymore argues that the District Court violated his rights under Article II, Sections 24 and 26, of the Montana Constitution when it restricted his parole eligibility pursuant to § 46-18-202(2), MCA. Specifically, Garrymore argues that because the Montana Constitution is more protective of the right to jury trial than the United States Constitution, he should prevail on state constitutional grounds regardless of our disposition of his case under the federal constitution and Apprendi. Unfortunately, we find this argument too undeveloped to undertake a distinctive application of state constitutional principles.
¶39 Garrymore correctly notes that we have interpreted Article II, Sections 24 and 26 of the Montana Constitution as affording a greater jury trial right than does the Sixth Amendment to the United States Constitution. See Woirhaye v. Fourth Judicial Dist. Court,
¶40 Affirmed.
Notes
The State’s use of the term “Lenihan jurisdiction” echoes our own frequent misuse of the term. As a technical matter, a court cannot create its own jurisdiction. “Jurisdiction as applied to courts is the power or capacity given by law to a court to entertain, hear and determine the particular case or matter.” Peña v. State,
See State v. Brister,
We have decided a number of cases addressing or touching on the meaning of an “illegal” sentence for purposes of the Lenihan rule: see, for example, State v. Nelson,
Concurrence Opinion
specially concurring.
I. Introduction
¶45 I concur in the result of the Court’s Opinion; however, I do not agree with the
¶46 In particular, with respect to Issue 1,1 agree with the Court that, notwithstanding Garrymore’s failure to raise his sentencing claims in the first instance in the District Court, we nevertheless may reach the merits of those claims by way of the Lenihan exception to the timely objection rule. See State v. Lenihan,
¶47 I find it insufficient, however, to end the discussion there and not explain why Garrymore has, in fact, satisfied the requisites for invoking the Lenihan exception. Indeed, the Comb’s truncated analysis implies that unless the State demonstrates in a given case that the Lenihan exception is not available, the appealing defendant may, by default, invoke it. This is not the case, as explained below, though the Court’s treatment of Issue 1 could lead one to believe otherwise.
¶48 Furthermore, we stated in Lenihan that “[i]t appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Lenihan,
¶49 To the contrary, it is necessary not only that we articulate the contours of Lenihan, but also that, for at least three reasons, the exception be crafted as narrowly as possible. First, in basic fairness to defendants, the practiсing prosecution and defense bars, and the courts, our Lenihan rule must be clear, unambiguous, and predictable in its application. Second, as mentioned above, Lenihan is an exception to the timely objection rule, which is set forth in §§ 46-20-104(2) and -701(2), MCA. While this Court has the inherent power to protect the statutory and constitutional rights of criminal defendants, see, e.g., State v. Finley,
¶50 In assuming that we ultimately will develop a narrow and focused definition of the Lenihan exception on a case-by-case basis, prompted by and as a consequence of the Court’s Opinion and this Special Concurrence, we are, in truth, to quote Oliver Wendell Holmes, Jr., “spending] a great deal of. . . time shoveling smoke.” Notably, we already have been presented with arguments to limit the exception’s availability. See, e.g., Brief of Respondent at 6-9, State v. Ironmaker,
¶51 Indeed, it is our obligation to articulate the Lenihan exception as clearly as possible, and it is our responsibility to clean up our case law and, thereby, take some of the offerings off the steam table. I am convinced that the Court’s unwillingness here to shoulder this obligation and to address forthrightly the complexities of the Lenihan exception in its present and unstructured state in our case law will simply encourage-rather than constrain-muddled, ad hoc, and unpredictable decision-making. Again, such an approach serves no one. ¶52 For these reasons, I am proceeding beyond the Court’s discussion under Issue 1 by providing a comprehensive analysis of the foundation for the Lenihan exception, addressing the inconsistencies in our jurisprudence, and articulating a narrow and concise Lenihan rule-specifically, the exception may be invoked only by a defendant who alleges a colorable claim that the sentencing court lacked statutory authority to impose the challenged sentence. I then explain, based on this articulation, why Garrymore may invoke Lenihan in this case.
¶53 With respect to Issue 2,1 agree with the Court that application of § 46-18-202(2), MCA (2001) (the parole eligibility statute) to Garrymore’s sentence of life imprisonment was not unconstitutional under Apprendi v. New Jersey,
II. Issue 1: Does Garrymore’s failure to object in the District Court to its imposition of the parole eligibility restriction preclude our considering his challenges thereto on appeal?
A. Background
¶54 Garrymore did not object during the sentencing proceeding to the District Court’s restricting his parole eligibility. Nor did he raise the constitutional and statutory issues he now pursues on appeal. He did suggest a lesser sentence of 40 years and argued against restricting his parole eligibility. Specifically, defense counsel recommended as follows:
I believe it’s appropriate for the Court to sentence Mr. Garrymore to a term of years, a specific term of years, and I would suggest the number 40.
... And we would urge upon you to give Mr. Garrymore the possibility of parole after whatever period of time this Court thinks is appropriate as a sentence in this case.
However, a defendant’s request at the sentencing hearing for a particular sentence does not constitute an objection to the sentence actually imposed. State v. Nelson,
¶55 Generally, this Court may not consider an issue to which a timely objection was not made in the district court. See §§ 46-20-104(2), - 701(2), MCA; State v. Brister,
B. The State’s Three Lenihan Arguments
¶56 The State advances “three reasons” why the Lenihan exception is not available to Garrymore in this case: (1) “the Lenihan rationale does not apply” because “neither party recommended a deferred or suspended sentence in this case” and because “a contemporaneous Apprendi objection would not have provoked the judicial vindictiveness that Lenihan fears”; (2) “appellants are not permitted to change theories on appeal”; and (3) “the sentence Garrymore received was within statutory parameters and it was not... unconstitutional.” As stated earlier, I agree with the Court’s rejection of each of these assertions.
¶57 As the Court states in ¶ 12, it is not a prerequisite to invoking Lenihan that the sentence at issue be one that the sentencing court deferred or suspended. The language of Lenihan does not carry such an implication. Rather, we stated that “[i]t appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Lenihan,
¶58 Likewise, the State’s analogous suggestion that Lenihan applies only to cases in which there was a risk of judicial vindictiveness or retaliation at the sentencing hearing must be rejected as well. As we explained in Lenihan, this risk is of particular concern in the context of a deferred (and, for the same reasons, a suspended) sentence:
As a practical matter, [appellate review of the allegedly illegal sentence] may be a defendant’s only hope in cases involving deferred imposition of sentence. If a defendant objects to one of the conditions, the sentencing judge could very well decide to forego the deferred sentence and send him to prison. To guard against this possibility, a defendant often times must remain silent even in the face of invalid conditions.
Lenihan,
¶59 Our acknowledgement of the risk of judicial vindictiveness or retaliation, however, was not meant as a limitation on the availability of Lenihan to situations in which such risk was present. To the contrary, in adopting the Lenihan exception, our primary reasoning was as follows:
The sentencing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorizedL]... Where, as in this case, it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing order alleged to be void.
Lenihan,
¶60 Thus, our discussion of a defendant’s incentive to remain silent in the face of an invalid condition placed on his deferred (or suspended) sentence was simply an additional rationale for our decision to allow particular sentencing challenges to be raised for the first time on appeal. Indeed, as the Court notes in ¶ 13, we have characterized the risk of judicial vindictiveness as “part”-not “all”-of the rationale behind Lenihan. See State v. Micklon,
ii. The State’s Second Argument
¶61 With respect to the State’s contention that Lenihan should not be available to Garrymore because “appellants are not permitted to change theories on appeal,” the State is correct that, as a general rule, “[a] party may not raise new arguments or change his legal theory on appeal,” State v. Heath,
¶62 We have long held that “a party complaining of error must stand or fall upon the ground relied on in the trial court.” Bower v. Tebbs,
¶63 Indeed, if a challenge to a sentence comes within the meaning of Lenihan’s “illegal or exceeds statutory mandates” concept, then it would be counterintuitive for us to refuse to consider that challenge on the ground that the appellant objected in the district court under one legal theory but now (on appeal) advances a different legal theory. Such a rule would reward appellants who made no objection whatsoever to the alleged sentencing error (and, thus, gave the sentencing court no oрportunity to remedy the alleged error) and punish those who did object but then changed their legal theories. Moreover, as the Court aptly observes in ¶ 13, this approach ultimately would create an institutional incentive for defendants not to object during sentencing and thereby undermine the efficacy of the sentencing process. Accordingly, the State’s change-of-legal-theories argument must be rejected.
iii. The State’s Third Argument
¶64 The State argues that “this Court should refrain from invoking Lenihan to address a constitutional challenge to § 46-18-202(2)” because “the sentence Garrymore received was within statutory parameters and it was not... unconstitutional.” Garrymore responds that “the Court cannot make this... determination without considering the substantive merits of the issue to begin with.” In other words, Garrymore contends that since this Court will not reach the merits of a sentencing claim to which a timely objection was not made in the district court unless the Lenihan exception applies, application of Lenihan cannot depend on whether the defendant ultimately will prevail on his underlying claim.
¶65 Garrymore is correct. To say that the Lenihan exception may be invoked only when the contested sentence is in fact illegal or in excess of statutory mandates puts the proverbial cart before the horse. By virtue of the timely objection rule, we will not reach the merits and make that determination without first deciding that the defendant may invoke Lenihan. For this reason, Lenihan is more properly viewed as a “gateway” through which a defendant must pass in order to have his otherwise procedurally barred sentencing claim considered on the merits. As stated above, the question here is whether Garrymore may pass through this gateway. I now turn to that question.
C. Definition of the Lenihan Exception
¶66 In Lenihan, we stated that an appellate court may review any sentence imposed in a criminal case if (1) it is “alleged” (2) that such sentence is “illegal or exceeds statutory mandates.”Lenihan,
¶67 However, while this standard is minimal-requiring only an allegation-it is also specific. By “illegal or exceeds statutory mandates,” we did not mean that the sentencing court simply imposed an objectionable sentence. Such an interpretation of the Lenihan exception would render the timely objection rule a practical nullity in the sentencing context. Rather, as discussed already, the basis for our adopting this exception to the timely objection rule in the sentencing context was the principle that a sentencing court’s purported exercise of power not granted to it by law is subject to appellate review.
Specifically, we stated that
[t]he sentencing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized[.]... Where, as in this case, it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing ordеr alleged to be void.
¶68 Thus, “illegal or exceeds statutory mandates” reflects a narrow concern: whether the challenged sentence was statutorily authorized. Given this precise focus, only a defendant who alleges a colorable claim that
¶69 For instance, the defendant may allege that the sentencing court imposed a sentence that is outside the range provided by the relevant sentencing statute. See, e.g., State v. Stone,
¶70 Our decision in State v. Nelson,
¶71 In addressing Lenihan’s applicability, we first emphasized that “an appellate court may review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Nelson,
Sections 46-18-201(11) and 46-18-225, MCA, do not preclude a court from sentencing a nonviolent felony offender to prison. . . . Although these statutes require consideration of alternatives to imprisonment, such consideration would not have necessarily changed the court’s final sentence for Nelson. Nelson’s sentence of ten years is not in excess of the maximum statutorily authorized by § 45-5-202(3), MCA.
Sections 46-18-201(11) and 46-18-225, MCA, impose an affirmative duty upon the court to take certain matters into consideration in sentencing. If the court fails to abide by this requirement, the sentence is subject to challenge or objection. That does not mean, however, that in the absence of an objection, the sentencе is thereby illegal. The District Court, after considering the criteria in § 46-18-225, MCA, and stating its reasons why alternatives to imprisonment were not selected as required by § 46-18- 201(11), MCA, could still have legally sentenced Nelson to ten years in prison. Thus, Nelson’s sentence does not come within the exception found in Lenihan and Hatfield.
Nelson,
¶72 As the foregoing reasoning in Nelson makes clear, an allegation that the sentencing court did not impose a particular sentence within the range authorized by the applicable punishment statutes is not the kind of error for which the Lenihan exception may be invoked. Nelson alleged that he might have been given an alternative to imprisonment had the district court abided by its “affirmative duty”; yet, his sentence of ten years was authorized by § 45-5-202(3),
D. Further Clarification of the Lenihan Exception
¶73 Our applications of the Lenihan exception over the past 27 years have, for the most part, conformed with the foregoing principles; however, there have been a number of cases in which we diverged from the original meaning of “illegal or exceeds statutory mandates.” As discussed earlier, these inconsistencies in our jurisprudence have rendered our precedents irreconcilable with any one conceivable definition of the Lenihan exception. Thus, for the sake of clarity and uniformity in this and future cases, it is necessary to revisit some of our precedents and resolve the inconsistencies, which I group below into three lines of cases. As a preliminary matter, however, I pause to explain why doing so at this juncture is appropriate.
i. The Necessity and Appropriateness of Resolving Inconsistencies in our Lenihan Jurisprudence at this Juncture
¶74 At present, anyone attempting to ascertain the meaning of Lenihan’s “illegal or exceeds statutory mandates” concept is doomed to failure due to the fact that, as just noted, we diverged in a number of cases from our original statutory authority approach and thereby created inconsistencies in our Lenihan jurisprudence (which are identified and analyzed in detail below). Notably, the uncertainty and confusion engendered by our seemingly arbitrary applications of Lenihan is evident from some of the arguments made to this Court over the years and has led to conflicting views over whether criminal defendants have been “abusing” the exception and whether it is broad or narrow.
¶75 Tellingly, both arguments concerning Lenihan’s scope are incorrect. The assertion that we have progressively narrowed the Lenihan exception over the years is belied by cases such as State v. McLeod,
¶76 The Court states that “neither of the parties has cited to any of these cases or offered such argument.” Thus, the Court “deem[s] it inappropriate to undertake such issues until they have been properly raised and briefed.” ¶ 15 n.3. To be sure, neither the State nor Garrymore asserts in their briefs, “This Court’s applications of Lenihan over the years have been confusing and unpredictable. Please clarify the exception! Here’s how... .”-a request that certainly would have been warranted. However, they do, in fact, cite an array of cases from our Lenihan jurisprudence, including Lenihan; State v. Hatfield,
¶77 When faced with similar situations in the past, our approach has been to clear up the inconsistencies in our jurisprudence, even if the parties did not cite the conflicting cases and offer corresponding argument. For instance, in State v. Montoya,
Although not put at issue by the parties, we note at the outset that there is a rather prevalent inconsistency in this Court’s case law regarding the appropriate standard of review of criminal sentences.
Montoya, ¶ 11. We therefore “[took] [that] opportunity to clarify the proper standard.” Montoya, ¶ 13. After tracing back through our case law to the source of the confusion, see Montoya, ¶¶ 13-14, we held that
[t]his Court reviews a criminal sentence only for legality .... To the extent that Davison, White, Gunderson, and any other decisions from this Court suggest that we also review criminal sentences for an abuse of discretion, they are overruled.
Montoya, ¶ 15.
¶78 We have taken this approach in a number of other cases. See In re Estate of Bradshaw,
¶79 Notwithstanding, the Court, it seems, given its refusal in the case at hand to confront the inconsistencies in our Lenihan jurisprudence, would henceforth passively permit the continuation of a dichotomy in our case law until a party cites to the cases and specifically argues for a resolution. (Paradoxically, as noted earlier, there is an incentive for the parties not to request such resolution, since the existence of conflicting parallel standards gives each side hope that we will employ the standard favorable to their position in the given case.) I do not believe that we should adopt such a limitation on our ability to clean up our own messes. To be sure, I do not dispute the principle that we do not address issues not presented to us or not properly briefed. However, this principle is not absolute.
¶80 Accordingly, while it might be ideal to wait for the perfect case-complete with model briefing and an all-inclusive list of the cases which cite Lenihan and its progeny-in which to address and resolve our inconsistent applications of the Lenihan exception, the vastly increased reliance on Lenihan in recent years (see ¶ 48 n.l, supra) necessitates action on our part forthwith. And I cannot accept refraining from undertaking this issue now on the ground that the State’s and Garrymore’s briefing is inadequate, as such condition is largely due to the parties’ misconceptions of Lenihan created by our own confusing applications.
¶81 In this regard, the Chief Justice’s Special Concurrence criticizes Garrymore for “merely cit[ing] to Lenihan and its progeny” for the proposition that a criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates
Vernes also appeals from the portion of her sentence imposing restitution costs. Vernes failed to raise an objection at the time of sentencing, but this Court will consider an appeal from an alleged illegal sentence in a criminal case, even when the defendant did not raise a timely objection in the district court. See State v. Lenihan (1979),184 Mont. 338 ,602 P.2d 997 .
Vernes, ¶ 26. We then proceeded to set forth the relevant standard of review and address the merits of Vemes’s claim. See Vernes, ¶¶ 27-30. Similarly, in State v. Gallagher,
Gallagher now challenges his sentence on appeal, and, consistent with our rule in State v. Lenihan (1979),184 Mont. 338 ,602 P.2d 997 , we will review his challenge to the illegality of the sentence, despite no objection in the trial court. Lenihan,184 Mont, at 343 ,602 P.2d at 1000 ; see also State v. Brister,2002 MT 13 , ¶ 16,308 Mont. 154 , ¶ 16,41 P.3d 314 , ¶ 16.
Gallagher, ¶ 30. And in the case at hand, for that matter, the Court never explains why Garrymore’s sentencing claims satisfy the requisites for invoking Lenihan.
¶82 Thus, while the Chief Justice’s admonition that “counsel must present more in the way of discussion and analysis regarding entitlement to the exception” is well-taken, it is also precisely why we must articulate the contours of the Lenihan exception and resolve the inconsistencies in our case law now. Otherwise, we impose on counsel the hopeless task of deciphering-in the face of our superficial and conflicting applications ofLenihan-why the requisites for invoking the exception were satisfied in some cases and not in others, though the facts of the cases are materially indistinguishable.
¶83 We have been presented with a variety of arguments by the State and by criminal defendants in this case as well as in previous cases.
ii. The Lafley Line
¶84 In the first line of cases that is inconsistent with our statutory authority approach under Lenihan, we determined that the appellant’s
¶85 We determined that Lafley was “not challenging the legality of the sentence.” Lafley, ¶ 27 (emphasis added). In reaching this conclusion, we first observed that “a sentence is not illegal when it is within the parameters provided by statute.” Lafley, ¶ 26 (internal quotation marks omitted). We then explained that because § 46-18-221, MCA, authorizes a court to sentence a person who uses a dangerous weapon in the commission of an offense “ ‘to a term of imprisonment in the state prison of not less than 2 years or more than 10 years,’ ” Lafley, ¶ 27 (quoting § 46-18-221, MCA), and because Lafley was sentenced to two years imprisonment for the use of a weapon in the commission of the assault, the sentence imposed by the district court was within statutory parameters. Thus, we held that Lafley was barred from pursuing his claim on appeal. Lafley, ¶ 27.
¶86 Yet, although our statement that “a sentence is not illegal when it is within the parameters provided by statute” was correct, it was also incomplete. It goes without saying that a legislature may not authorize a sentencing court to contravene state or federal constitutional provisions. Thus, while “[t]he sentencing authority of a court exists solely by virtue of a statutory grant of power,” Lenihan,
¶87 Accordingly, the fact that an appellant’s sentence falls within the parameters provided by the relevant statute does not make Lenihan unavailable to him where his allegation is that the statute itself is invalid. A sentence is no less “illegal” because it conforms to the mandates of an unconstitutional statute.
¶88 Relying on our reasoning in Lafley, the State argued in State v. Brown,
¶89 For these reasons, Lafley and Brown should be overruled to the extent they hold that Lenihan may not be invoked by an appellant who is challenging the validity of the statute under which he was sentenced. An allegation that a sentence falls within the range authorized by the sentencing statute, but that the statute is itself invalid and that the sentencing court, therefore, was without authority to impose the sentence, is sufficient to pass through the Lenihan gateway. (Indeed, the Court overrules Lafley and Brown-aLbeit implicitly-by deciding that Garrymore may invoke Lenihan to have his otherwise procedurally barred challenge to the constitutionality of § 46-18-202(2), MCA, considered on the merits.)
iii. The McLeod and Legg Line
¶90 We have also reached the mirror image result of Lafley-in other words, we determined that the appellant’s allegаtion satisfied the requisites for invoking Lenihan when, in fact, it did not. In State v. McLeod,
¶91 We concluded that McLeod could invoke Lenihan, since “[he] challenges only the legal validity of the sentence.” McLeod, ¶ 15. Yet, McLeod had been sentenced to a term of imprisonment within the range statutorily authorized by § 45-9-102, MCA, for the offense of criminal possession of dangerous drugs (he was given the maximum five-year sentence, see McLeod, ¶ 11), and he was not challenging the legality of § 45-9-102. Therefore, his allegation, in substance, was
¶92 The same is true of State v. Legg,
¶93 Therefore, McLeod and Legg also should be overruled in so far as they permit a defendant to invoke the Lenihan exception to obtain review of a sentence which the sentencing court had authority to impose pursuant to a concededly valid sentencing statute, but which (allegedly) was the result of an error in the process by which the sentence was selected within the statutorily authorized range. Otherwise, the Lenihan exception would swallow the timely objection rule by making appellate review of any allegedly incorrect sentence possible.
iv. The Mieklon Line
¶94 The third line of cases that is inconsistent with our statutory authority approach under Lenihan began with State v. Micklon,
¶95 On appeal, Micklon contended “that the condition of his sentence requiring that interest accrue on the unpaid balance of his fine is illegal because no statutory authority exists for such a condition.” Micklon, ¶ 7. Micklon had not objected to this condition in the district court; however, as discussed above, his allegation that the district court was without statutory authority to impose the condition was sufficient for him to pass through the Lenihan gateway and have his challenge to the interest requirement considered on the merits.
¶96 Nevertheless, we held that Micklon could not pursue his claim on appeal. In reaching this conclusion, we first observed that “[p]art of the rationale” behind the Lenihan exception “is that, as a practical matter, ‘a defendant often times must remain silent even in the face of invalid conditions’ to guard against the possibility that the sentencing
¶97 Yet, although we recognized that a defendant often will refrain from objecting to what he believes is an invalid sentencing term or condition for fear of judicial vindictiveness or retaliation, our holding actually undermined this rationale. As explained in Lenihan and Micklon, when a defendant believes that objecting to an aspect of his sentence may cause the sentencing judge to forego a more lenient sentence, he often times must remain silent, even in the face of a condition of questionable legality. See Lenihan,
¶98 Accordingly, it does not inevitably follow from the fact that a defendant “affirmatively agreed” to or seemingly “acquiesced” in a condition on or a term of his sentence that the Lenihan exception is unavailable to him, our reasoning in Micklon notwithstanding. Given the choice to remain silent about having interest accrue on the unpaid balance of his fine, Micklon might well have done so (so as to avoid the harsher requirement of having to pay the $55,000 within one year). However, the applicability of Lenihan is not subject to such happenstance-namely, whether the sentencing judge happened to solicit the defendant’s thoughts regarding the aspect of his sentence later challenged on appeal.
¶99 In addition, at a more fundamental level, Micklon’s implication that a sentence is not “illegal” for Lenihan purposes if the defendant seemingly “acquiesced or actively participated” in its imposition is contrary to one of the most basic tenets of our judicial system. It is axiomatic that a sentencing court’s power and authority are granted by the Legislature, not the defendant. State v. Hicks,
¶100 In a similar vein, it is important to recognize that the statutorily authorized punishment for a given crime represents the Legislature’s judgment as to the appropriate range of penalties for that offense. An acquiescence or active participation rule would devalue this judgment and burden the community with costs that the Legislature has not deemed appropriate given the crime.
¶101 For the foregoing reasons, the suggestion in Micklon, in State v. Eaton,
E. Summation and Application
¶102 To summarize, we may review any criminal sentence that was imposed, allegedly, in the absence of statutory authority, notwithstanding the defendant’s failure to object at the time of sentencing. Lenihan,
¶103 In this regard, I note that several types of colorable sentencing challenges, distilled from the discussion above, emerge from our Lenihan cases thus far: the measure of the sentence (duration of imprisonment, amount of fine, etc.) falls outside the range authorized by the applicable sentencing statute; a term of or a condition on the sentence was not authorized by any statute; the sentence falls within the range authorized by the applicable sentencing statute, but the sentencing statute is itself invalid, facially or as
¶104 By contrast, an allegation that the sentencing court failed to fulfill an “affirmative duty” or that it erroneously selected a particular term within the range authorized by a concededly valid sentencing statute {see, e.g., the discussions of Nelson at ¶¶ 70-72, supra, and McLeod and Legg at ¶¶ 90-93, supra) does not meet the requisites of Lenihan. If the sentence the defendant received is one that the sentencing court still was authorized to impose had it not erred in the maimer alleged, then the sentence is not “illegal” for Lenihan purposes. See Nelson,
¶105 Lastly, it bears repeating that nothing in Lenihan is meant to preclude a timely appeal by a defendant who never had the opportunity to object at the time of sentencing in the first place. See ¶ 90 n.16, supra; McLeod, ¶¶ 17-22; State v. Lane,
¶106 Applying these principles to the case at hand, Garrymore may pass through the Lenihan gateway and have his otherwise procedurally barred challenges to his sentence reviewed on appeal. Relying on Apprendi v. New Jersey,
[t]he district court imposed a sentence enhancement after making additional findings of fact on contested matters. Jason Garrymore had both a constitutional and a statutory right not to have the enhancement imposed unless it was charged in the Information, and proved to a jury by proofbeyond a reasonable doubt. The imposition of the parole restriction in this case constitutes an illegal sentence.
Thus, while Garrymore acknowledges that he was sentenced within the ranges authorized by § 45-5-102(2), MCA (authorizing a sentence of life imprisonment) and § 46-18-202(2), MCA (authorizing a sentencing court to restrict an offender’s parole eligibility), he claims that this latter statute is invalid because it authorized the District Court-in contravention of the Sixth Amendment, Article II, Sections 24 and 26, and § 46-1-401, MCA-to restrict his eligibility for parole on the basis of facts not found by a jury beyond a reasonable doubt. In other words, he alleges that the District Court lacked authority to impose this portion of his sentence because § 46-18-202(2) was, as applied to him, an ■unconstitutional grant of power by the Legislature and, alternatively, because a sentencing court’s application of § 46-18-202(2) is constrained by § 46-1-401. Such allegations constitute colorable claims that satisfy the requisites for invoking the Lenihan exception. We therefore may reach the merits of these claims, notwithstanding Garrymore’s failure to raise them in the first instance in the District Court.
III. Issue 2: Did imposition of the parole eligibility restriction, because it was based on facts not found by a jury beyond a reasonable doubt, violate Garrymore’s federal and state constitutional and statutory rights to jury trial and due process?
¶107 Garrymore was convicted of violating § 45-5-102(l)(a), MCA (2001).
A person convicted of the offense of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, unless the person is less than 18 years of age at the time of the commission of the offense, by life imprisonment, or by imprisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-219 and 46-18-222.
Section 45-5-102(2), MCA.
¶108 The State did not seek the death penalty in this case, and the exceptions listed in §§ 46-18-219 and -222 are not at issue here. Thus, Garrymore’s claims, in more specific terms, are as follows: that the maximum sentence authorized for the offense of which he was convicted is “life imprisonment” or “imprisonment in the state prison for a term of not . . . more than 100 years”; that both of these máximums contemplate the possibility of parole (which, as applied to Garrymore’s sentence, requires that he serve at least 30 years, see § 46-23-201(3), MCA); that § 46-18-202(2) violates federal and state constitutional provisions to the extent it authorizes a sentencing judge to “impose the restriction that the offender is ineligible for parole” on the basis of facts not found by a jury beyond a reasonable doubt; that a sentencing judge is prohibited also by statute from restricting a prisoner’s parole eligibility on the basis of facts not found by a jury beyond a reasonable doubt; and that the District Court, therefore, lacked authority to add the parole eligibility restriction to Garrymore’s life sentence. As noted above, these claims are based on the Sixth and Fourteenth Amendments, as interpreted in Apprendi; Article II, Sections 24 and 26, of the Montana Constitution; and § 46-1-401. I begin with a discussion of Garrymore’s federal claim under Apprendi.
A. Federal Constitutional Claim
¶109 At issue in this case are two longstanding principles of criminal procedure: first, that upon a defendant’s conviction for a charged offense, “the court must pronounce that judgment, which the law hath annexed to the crime,” Apprendi,
¶110 The Framers enshrined these fundamental guarantees in the Sixth Amendment, which ensures an accused the right to “trial, by an impartial jury,” and in the Fourteenth Amendment, which proscribes any deprivation of liberty without “due process of law.” See Apprendi,
fill As explained above, Garrymore alleges that the parole eligibility restriction on his sentence was imposed in violation of these constitutional protections. The starting point for analyzing this claim is the Supreme Court’s decision in Apprendi, in which the Court addressed whether a factual determination authorizing an increase in the maximum possible prison sentence for an offense must be made by a jury on the basis of proof beyond a reasonable doubt. See Apprendi,
¶112 Apprendi was charged in a 23-count indictment with a number of shootings, as well as the unlawful possession of various weapons. Apprendi,
¶113 At the plea hearing, the trial judge heard sufficient evidence to establish Apprendi’s guilt on all three counts. Thereafter, the prosecutor filed a motion for an extended term under the hate crime statute. Apprendi,
¶114 On appeal, the Supreme Court considered whether the foregoing procedures comported with the Sixth and Fourteenth Amendments. At the outset of its analysis, the Court rejected the notion that this question could be answered by determining whether the finding that Apprendi’s crime was motivated by racial bias and committed with a purpose to intimidate was an “element” of the offense or merely a sentencing “factor” or “enhancement.”
Nеw Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obviousthat the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to describe the latter surely does not provide a principled basis for treating them differently.
Apprendi,
¶115 The Court then examined the roles historically served by juries and judges in criminal proceedings and the measure of persuasion to which prosecutors were held. Among other things, the Court explained that in the late 18th century,
“[t]he substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant simply to impose that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon process to commute it).” As Blackstone, among many others, has made clear, “[t]he judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law.”
Apprendi,
¶116 The 19th century saw a shift in this country from statutes providing fixed-term sentences to those providing judges with discretion; however, such discretion was invariably “bound by the range of sentencing options prescribed by the legislature.” Apprendi,
¶117 Thus, the Court observed, the historical evidence established that “punishment was, by law, tied to the offense” and that American judges “exercised sentencing discretion within a legally prescribed range.” Apprendi,
¶118 The Court acknowledged the inconsistency between this historically mandated conclusion and the Court’s recent decision in Almendarez-Torres v. United States,
¶119 Lastly, with respect to the burden necessary to prove the facts which expose an accused to a particular punishment, the Court reaffirmed the rationales undergirding the right to have the jury verdict based on proof “beyond a reasonable doubt.”
As we made clear in Winship, the “reasonable doubt” requirement “has [a] vital role in our criminal procedure for cogent reasons.” Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and... the certainty that he would be stigmatized by the conviction.” We thus require this, among other, procedural protections in order to “provid[e] concrete substance for the presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously.
Apprendi,
¶120 Hence, given the foregoing history of the jury trial right, the bounded discretion judges had in imposing sentences, and the heightened degree of persuasion required in criminal trials, the Court concluded that, except for the fact of recidivism, “it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Apprendi,
¶121 In light of this constitutional rule, the Court concluded that New Jersey’s statutory scheme could not stand. Pursuant to that scheme, the trial judge in Apprendi’s case had been allowed to impose a punishment greater than the maximum punishment authorized for the crime of unlawfully possessing a firearm, based on the judge’s finding by a preponderance of the evidence that Apprendi’s purpose for unlawfully possessing a firearm was to intimidate his victim on the basis of a particular characteristic the victim possessed. Apprendi,
¶122 Applying these principles to the case at hand, the sentence range authorized by the jury’s verdict-which reflected its finding, beyond a reasonable doubt, that Garrymore had “purposely or knowingly cause[d] the death of another human being,” § 45-5-102(l)(a), MCA-was “life imprisonment” or “imprisonment in the state prison for a term of not less than 10 years or more than 100 years,” § 45-5-102(2), MCA. (As noted above, neither the death penalty nor the exceptions listed in §§ 46-18-219 and -222 are at issue here.) The question to be answered is whether the restriction “without possibility of parole” exceeded this range. In other words, were the reasons stated by the District Court for imposing the parole eligibility restriction, in substance, factual findings that exposed Garrymore to a punishment greater than the punishment authorized by the jury’s guilty verdict alone? SeeApprendi,
¶123 Section 46-18-202(2) provides that “[w]henever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term” (emphasis added). By virtue of the word “may,” it is clear that imposing a parole eligibility restriction is a sentencing option available to a sentencing judge to be exercised at his or her discretion whenever the sentence at issue exceeds one year. In other words, the restriction falls within the sentencing range prescribed by the legislature for offenses which, upon conviction, carry a sentence of imprisonment in a state prison for a term exceeding one year. This includes Garrymore’s life sentence.
¶124 Indeed, in Cavanaugh v. Crist,
[t]he restriction of parole and furlough program eligibility . . . represents one option, among others, the legislature has made available to district judges in the course of ordinary sentencing. The full restriction on parole and furlough eligibility permitted by section 46-18-202(2) has no existence apart from the sentence imposed for the underlying offense.
Cavanaugh,
¶ 125 However, while the foregoing language of Cavanaugh remains true today, it does not fully answer the question at hand, which depends on the technical meaning of “statutory maximum.” See Apprendi,
¶126
¶127 This scheme contradicted the holding oí Apprendi. “If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt.” Ring,
¶128 In Blakely, the Court dealt with Washington’s determinate sentencing scheme. Pursuant to a plea agreement, Blakely pleaded guilty to second-degree kidnapping, which as a class B felony carried a maximum term of 10 years. Blakely,
¶129 On appeal, the state argued that the 90-month sentence did not violate Apprendi “because the relevant ‘statutory maximum’ is not 53 months, but the 10-year maximum for class B felonies.” Blakely,
Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.
¶130 Thus, as Ring and Blakely make clear, the “statutory maximum” for Apprendi purposes is not the maximum possible sentence provided in the criminal code for a given offense. Rather, it is the maximum sentence the defendant may receive “on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely,
¶131 In this regard, Garrymore argues that while the maximum sentence authorized by the statute may be “life imprisonment” or “imprisonment in the state prison for a term of not... more than 100 years” without the possibility of parole, the maximum sentence authorized by the jury’s verdict in his case was “life imprisonment” or “imprisonment in the state prison for a term of not... more than 100 years” with the possibility of parole. Thus, “[t]he verdict alone did not authorize the parole restriction imposed by the judge. That enhancement required additional findings of fact.” He acknowledges that § 45-5-102(2) does not state explicitly whether or not the punishments set forth therein include eligibility for parole; however, § 46-23-201(1) provides that “the board [of pardons and parole] may release on nonmedical parole by appropriate order any person confined in a state prison, except... persons serving sentences imposed under 46-18-202(2) . . . , when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.”
¶132 Accordingly, Garrymore submits, a person convicted of deliberate homicide is eligible for parole (subject to the timing requirements of § 46-23-201(2)-(3)), unless that eligibility is restricted after further fact-finding under § 46-18-202(2). In other words, “[a] ‘life sentence’ [does] not mean the offender’s natural life.” Rather, the terms “life imprisonment” and “imprisonment in the state prison for a term of not less than 10 years or more than 100 years” include an implicit presumption of parole eligibility which may be overcome only upon additional, post-verdict findings of fact. Therefore, he maintains, “[t]he effect of the [District Court’s] post-verdict fact-finding... was to increase a sentence from 30 years’ actual time before parole eligibility, to a literal life-time term of imprisonment.”
¶133 Garrymore’s interpretation of the interplay between §§ 45-5-102(2), 46-23-201, and 46-18-202(2) is incorrect. To be sure, a prisoner is parole eligible pursuant to § 46-23-201 unless designated otherwise pursuant to § 46-18-202(2) (or § 46-18-219, which is not at issue here). However, this scheme does not create the Apprendi violation Garrymore
¶134 Furthermore, as discussed above, § 46-18-202(2) provides that “[w]henever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term.” Such an unqualified grant of authority to the sentencing judge, conditioned only upon the term’s exceeding one year, contradicts the notion that there is a presumption of parole eligibility to be overcome. Indeed, if § 46-18-202(2) were setting forth the method for overcoming such a presumption, one would expect to see language to that effect-e.g., “if the court finds ‘X’ then it may restrict parole eligibility notwithstanding 46-23-201.”
¶135 To be sure, the second sentence of § 46-18-202(2) mandates that “[i]f the restriction [that the offender is ineligible for parole and participation in the supervised release program while serving his term] is to be imposed, the sentencing judge shall state the reasons for it in writing.”
¶136 First, the Supreme Court has rejected the argument “that every fact with a bearing on sentencing must be found by a jury.” Jones v. United States,
the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar 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 by a jury.
Blakely,
¶137 Second, the second sentence of § 46-18-202(2) does not mandate as a condition for imposing a parole eligibility restriction that the sentencing judge find a particular fact. Rather, it requires only that the judge “state the reasons for [imposing the restriction] in writing.” Section 46-18-202(2), MCA. Washington’s sentencing scheme, as it existed at the time of Blakely’s sentencing, is useful for illustrating this crucial distinction. That sсheme did not permit the sentencing judge to enhance Blakely’s sentence on the basis of the facts already used in computing the standard range sentence-i.e., on the basis of the facts admitted in Blakely’s guilty plea. Rather, “ ‘[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.’ ” Blakely,
¶138 Construing a sentencing scheme similar in operation to §§ 45-5-102(2) and 46-18-202(2), the Arizona Supreme Court found no Apprendi violation. Under the statutory provision at issue in State v. Fell,
The statute does not provide that a defendant “shall” receive life unless certain facts are found. To the contrary, the statute provides that “[i]f the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainder of the defendant’s natural life.” A.R.S. § 13-703(A) (emphasis added). Had the legislature intended to require a specific finding be made before a natural life sentence could be imposed, it surely would have said so specifically, as it did in the statutes governing sentencing for felonies other than first degree murder.
... In this area, the legislature has concluded that the trial court can appropriately exercise its discretion to determine whether future release is possible (although not assured) or whether the defendant must instead spend the rest of his or her life in prison.
Fell, ¶¶ 14-15 (alteration in original).
¶139 This reasoning is equally applicable to §§ 45-5-102(2) and 46-18-202(2). As explained above, nothing in § 46-18-202(2) requires a district court to make a particular finding before it restricts a defendant’s parole eligibility. The Montana Legislature did not make an increase in a defendant’s punishment to exclude the possibility of parole “contingent on the finding of a fact,” Booker,
¶140 Garrymore cites a number of cases in his briefs and his notices of supplemental authority that reach a contrary result. These decisions, however, Eire distinguishable from the case at hand. State v. Provost,
The punishment for murder in the first degree shall be imprisonment for life Eind for a minimum term of 35 years unless the court finds that there are aggravating or mitigating factors which justify a different minimum term. If the court finds that the aggravating factors outweigh Einy mitigating factors, the minimum term may be longer than 35 years, up to and including life without parole. If the court finds that the mitigating factors outweigh any aggravating factors the minimum term may be set at less than 35 years but not less than 15 years.
Provost, ¶ 14 (emphasis added, internal quotation marks omitted).
¶141 Interpreting this provision, the Vermont Supreme Court stated that “[t]he maximum sentence the court may impose . . . without finding any facts in addition to the jury’s verdict is fife imprisonment with a minimum term of thirty-five years.” Provost, ¶ 15. The court reasoned that the Vermont Legislature had intended “to attach significance to the difference between minimum terms accompanying sentences of fife imprisonment.” Provost, ¶ 17. It is not surprising, therefore, that the court ultimately concluded that the statute “violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by a jury beyond a reasonable doubt before imposing
¶142 In light of the foregoing discussion, the punishments provided in § 45-5-102(2) do not contain a presumption of parole eligibility which must be overcome by post-verdict fact-finding before a sentencing court may impose the restriction in § 46-18-202(2) that the offender is ineligible for parole. Rather, the maximum sentence the jury’s guilty verdict authorized the District Court to impose in this case was “life imprisonment” or “imprisonment in the state prison for a term of not . . . more than 100 years,” without the possibility of parole. For this reason, application of § 46-18-202(2) to Garrymore’s sentence of life imprisonment was not unconstitutional under Apprendi and its progeny, and Garrymore’s sentence, therefore, is not illegal under the Sixth and Fourteenth Amendments.
B. State Statutory Claim
¶143 The basis for Garrymore’s state statutory claim is § 46-1-401, MCA (2001),
(1) A court may not impose an incarceration penalty enhancement specified in Title 45, Title 46, or any other provision of law unless:
(a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment, with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact; [and]
(b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt;...
(3) An enhancing aсt, omission, or fact is an act, omission, or fact, whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, an incarceration period provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense.
(4) Use of the fact of one or more prior convictions for the same type of offense or for one or more other types of offenses to enhance the incarceration penalty for a charged offense is not subject to the requirements of this section.
Garrymore suggests that §§ 46-18-202(2) and 46-1-401 conflict with each other to the extent that the former authorizes a sentencing judge to restrict an offender’s parole eligibility based on facts not found by a jury beyond a reasonable doubt; that § 46-1-401 prevails over § 46-18-202(2); and that the District Court, therefore, was without authority to impose the parole eligibility restriction on his sentence. (This argument is analogous to the scenario discussed above in ¶ 86 n.13.)
¶144 Garrymore is incorrect. Sections 46-18-202(2) and 46-1-401 are not in conflict. Rather, § 46-1-401 merely codifies the mandates of the Sixth and Fourteenth Amendments, as construed by the Supreme Court in Apprendi and its progeny. Thus, the disposition of Garrymore’s claim based on this statute is identical to the disposition of his federal constitutional claim under Part III A. above. For the reasons just discussed, the District Court’s stated reasons for imposing the parole eligibility restriction on Garrymore’s sentence were not facts “that allow[ed] or require[d] [the] . . . court to add
C. State Constitutional Claim
¶145 Lastly, Garrymore argues that his rights under Article II, Sections 24 and 26, of the Montana Constitution were violated when the District Court deemed him ineligible for parole under § 46-18-202(2) based on facts not found by the jury beyond a reasonable doubt. Section 24 guarantees an accused the right to “trial by an impartial jury,” while Section 26 provides that “[t]he right of trial by jury is secured to all and shall remain inviolate” and that “[i]n all criminal actions, the verdict shall be unanimous.”
¶146 Garrymore points out, correctly, that we have “refused to ‘march lock-step’ with the United States Supreme Court’s interpretation of corresponding provisions in the federal constitution,” рarticularly where, as in this case, “the language of the Montana Constitution setting forth the rights guaranteed is not identical to the language used in the federal Constitution.” Woirhaye v. Fourth Judicial Dist. Court,
¶147 Yet, while we have interpreted some of our state constitutional provisions as providing more protection than do their federal counterparts, Garrymore has not explained, with respect to his specific sentence, why Sections 24 and 26 dictate a result contrary to the result reached above under Apprendi. Woirhaye, which applied the jury trial right in an entirely different context, does not afford an answer.
¶148 As explained in detail above, pursuant to the first two sentences of § 46-18-202(2) a sentencing judge is authorized upon a conviction of deliberate homicide to restrict the defendant’s parole eligibility without first having to find a particular fact. This scheme satisfies the dictates of the Sixth Amendment and Apprendi; whether it violates Sections 24 and 26, however, is not something we can address based on the undeveloped assertion that “the increased protection afforded criminal defendants under Montana’s constitutional jury trial guarantees!] establishes] that the parole restriction imposed in this case violated Jason’s rights, and is illegal.” Accordingly, Garrymore is not entitled to relief on his state constitutional claim.
CONCLUSION
¶149 Although Garrymore did not object during the sentencing proceeding to the District Court’s authority to impose the parole eligibility restriction on his life sentence, his allegation on appeal that the court lacked such authority (because § 46-18-202(2) is invalid on constitutional and statutory grounds) satisfies the requisites for invoking the Lenihan exception, meaning that he may obtain review of his allegedly illegal sentence, notwithstanding his failure to object.
¶150 With respect to the merits of Garrymore’s arguments under Apprendi and § 46-1-401, MCA, the maximum sentence the jury’s verdict authorized the District Court to impose in this case was “life imprisonment.” or “imprisonment in the state prison for a term of not . . . more than 100 years,” without the possibility of parole. For this reason, the court had authority to impose the parole eligibility restriction, and Garrymore’s sentence is not illegal.
Lenihan has been cited as an exception to the time objection rule in thirty cases since it was decided on November 21, 1979. All but eight of those cases have been handed down dining the last seven years.
As the Court notes in footnote 1 of its Opinion, the State refers to this exception to the timely objection rule as Lenihan “jurisdiction.” This is not surprising, given that we have, on occasion, used the term “jurisdiction” with respect to our application of the Lenihan exception. See, e.g., Lenihan,
Our occasional use of this term is a misnomer. A court does not establish its own jurisdiction. Rather, “[¡jurisdiction as applied to courts is the power or capacity given by law to a court to entertain, hear and determine the particular case or matter.” State ex rel. Johnson v. District Court of Eighteenth Judicial Dist.,
Thus, given “the morass into which one is led... by loose talk about jurisdiction,” City of Yonkers v. United States,
The State has also suggested, in previous cases, that we “cabin” the Lenihan exception, Brief of Respondent at 9, State v. Ironmaker,
A recent example of this risk occurred in State v. Erickson,
The allegation must, of course, conform to our rules and precedents requiring proper argument and citation. See M. R. App. P. 23(a)(4); In re Marriage of McMahon,
Our cases are legion and our law well-settled that a sentencing court’s authority to impose a criminal sentence derives from the law; it is not inherent. Thus, a court’s authority to sentence exists only to the extent authorized by sentencing statutes. See State v. Hicks,
Had Nelson properly preserved his claim by making a timely objection in the district court, we most likely would have remanded the case for resentencing. See Nelson,
Incidentally, the Indiana courts have construed their version of the Lenihan exception similarly. In Kleinrichert v. State,
See, e.g., Brief of Respondent at 10, State v. Kotwicki (No. 05-178) (“Kotwicki is abusing this Court’s Lenihan jurisdiction by changing theories on appeal to obtain review of an alleged sentencing irregularity rather than a truly unauthorized or illegal sentence.... Lenihan is not a liсense to sandbag____”); Brief of Respondent at 6, State v. Ironmaker,
Incidentally, although we made abundantly clear in Montoya that “[a] question of legality... implies de novo review,” Montoya, ¶ 12, and, in the process, overruled any prior decisions that held otherwise, we have since reinstated the standard disapproved in Montoya. See State v. Leitheiser,
See Arrowhead Sch. Dist. #75, Park Co. v. Klyap,
See, e.g., Brief of Respondent at 6-9, State v. Ironmaker,
This principle is also implicated where two allegedly conflicting sentencing statutes both apply to the defendant. See, e.g., State v. Osborne,
Similarly, under some statutory schemes a sentencing court’s authority does not arise until certain prerequisites have been satisfied. See, e.g., State v. Pritchett,
We later held that “application of the weapon enhancement statute to felony convictions where the underlying offense requires proof of use of a weapon violates the double jeopardy provision of Article II, Section 25 of the Montana Constitution.” State v. Guillaume,
Lafley challenged the constitutionality of § 46-18-221, MCA, as applied to him (and, concomitantly, to similarly situated defendants whose underlying convictions required proof of the use of a weapon), as opposed to attacking the statute as unconstitutional on its face. For purposes of Lenihan, this makes no difference. A sentence is (allegedly) illegal regardless of whether the validity of the sentencing statute is challenged on its face or as applied.
Essential to the ensuing discussion of McLeod is the fact that the error in the PSI could have been discovered with reasonable diligence at or before the time of sentencing, see McLeod, ¶¶ 10,14,24; thus, McLeod had an opportunity to object to the misinformation concerning the number of his prior convictions. This fact distinguishes McLeod’s situation from cases in which a prior conviction upon which the sentencing court relies in imposing a particular sentence is later-i.e., subsequent to the sentencing proceeding-determined to be invalid. See McLeod, ¶¶ 17-22. In such cases, the defendants “could [not] possibly have been afforded the opportunity to object to the consideration of their previous convictions at the time of sentencing because their previous convictions remained valid at the time of sentencing.” McLeod, ¶ 21. As such, the defendants in those cases would not be precluded by their failure to make a timely objection from pursuing post-sentencing challenges to their sentences.
The “acquiesced or actively participated” principle had been applied in a line of cases involving alleged trial and procedural errors. See Harris, ¶¶ 28, 32; State v. White Clay,
This is not to say that the requirement that interest accrue on the balance of Micklon’s $55,000 fine was in fact illegal. We did not reach this issue because we concluded that Micklon had waived his right to challenge the interest condition on appeal. Rather, the point here is that an allegation that the sentencing court lacked statutory authority to impose the challenged sentence is sufficient to pass through the Lenihan gateway, irrespective of the defendant’s supposed complicity in that sentence.
Obvious costs include those associated with incarceration or monitoring by a probation officer (pursuant to a suspended or deferred sentence) in excess of the period set forth in the relevant punishment statute. Cf. Barker v. Wingo, 407 U.S. 514, 519-21,
Incidentally, as the Court states in ¶ 9, we review criminal sentences that include at least one year of actual incarceration for legality. State v. Herd,
As a standard of review, our use of the term signifies that “we will not review a sentence for mere inequity or disparity.” State v. Webb,
Lenihan, by contrast, is not concerned with whether the challenged sentence is “correct.” Indeed, under such an approach, as noted earlier, the Lenihan exception would swallow the timely objection rule. Rather, legality in the Lenihan context involves a narrower question: whether the sentence at issue was authorized by a valid sentencing statute. As such, “legality” for Lenihan purposes is narrower than our “legality” standard of review of criminal sentences.
Unless specified otherwise, further statutory references are to the 2001 Montana Code Annotated, which was in effect at the time Garrymore committed this crime (on or about January 3,2003). See State v. Brister,
For this reason, the State’s observation that “[a] parole eligibility restriction... is not considered a penalty enhancement” is inapposite. “Labels do not afford an acceptable answer.” Apprendi,
The Court clarified that the term “sentencing factor” is not “devoid of meaning.” Bather, the term
appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense.
Apprendi,
Of course, a jury verdict is not required with respect to facts a defendant has admitted-for instance, pursuant to a guilty plea. See United, States v. Booker,
For purposes of the ensuing discussion, while there is no guarantee that a prisoner who is eligible for parole will in fact be paroled, the imposition of a parole eligibility restriction makes for a greater restriction on the prisoner’s liberty and, thus, a harsher sentence. See Cavanaugh,
In the same vein, the State’s suggestion that “life imprisonment” means “life imprisonment without possibility of parole” must be rejected. If that were the meaning intended by the Legislature, then § 46-18-202(2) would be a waste of print.
In the case at hand, the District Judge’s written reasons were as follows: “[t]he Defendant has three prior convictions of abuse and unlawful restraint”; “[t]he Defendant was arrested on the same type of charges in the States of Utah and California but moved from their jurisdiction and charges were dismissed”; “[t]he Defendant was on probation when this offense was committed”; and “[flurther, the Court adopts a portion of Mr. Sonju’s reasons.” These reasons are consistent with the reasons given by the judge orally at the sentencing hearing. See ¶ 7 of the Court’s Opinion.
The Court notes that another factor considered by the District Judge in pronouncing sentence was Garrymore’s lack of remorse. See ¶¶ 7, 31. Specifically, the judge stated during the sentencing hearing that “throughout the trial and these proceedings, contrary to the testimony, I have not seen any remorse from this defendant.” However, subsequent to Garrymore’s sentencing, we decided State v. Cesnik,
In Cavanaugh, we stated that “District Courts are required to determine whether the full restriction on parole and furlough eligibility is necessary for ‘the protection of society’ when a person is sentenced after conviction.” Cavanaugh,
The third sentence of § 46-18-202(2), however, is another matter. It provides that “[i]f the sentencing judge finds that the restriction is necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction” (emphasis added). In other words, if the judge “finds that the restriction is necessary for the protection of society,” the judge not only may make the defendant ineligible for pairóle, the judge must do so (whether or not the judge would have imposed the restriction in the absence of the third sentence’s mandate). Because the District Court did not impose the parole eligibility restriction on Garrymore’s life sentence on the ground that it was necessary for the protection of society, we need not decide in this case whether the third sentence of § 46-18-202(2) constitutes an Apprendi violation.
In his brief, Garrymore cites the 2001 version of § 46-1-401(3), but he quotes the 2003 version of this statute. The differences between these two versions have no substantive effect on Garrymore’s claim; however, for the sake of accuracy, I note that the 2001 version controls, see ¶ 107 n.21.
Concurrence Opinion
specially concurring.
¶41 I concur in the Court’s opinion on both issues. I write separately to caution criminal defense attomeys-public defenders, appellate public defenders and privately retained counsel-that I, at least, will expect more from them in future cases asserting Lenihan.
¶42 As is apparent from the Court’s discussion of the State’s arguments about Lenihan’s applicability, the application of that case is far from automatic. Not every sentence to which no objection is made at the time of sentencing may successfully be appealed under Lenihan. Thus, it is my view that the party asserting the “Lenihan exception” bears the burden of establishing her or his entitlement to that exception. A mere reference and citation to Lenihan will not suffice in the future, at least for me.
¶43 Here, in the standard of review section of Garrymore’s opening brief, counsel merely cited to Lenihan and its progeny for the proposition that a “criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates.” Counsel then stated, without analysis, that “[a] failure to raise a contemporaneous objection to an illegal sentence at the time of hearing does not result in a waiver of the defendant’s objection!,]” and cited to four of our cases for that proposition. The problem with this approach is that we have other cases refusing to apply the Lenihan exception. It is my view that counsel must present more in the way of discussion and analysis regarding entitlement to the exception.
¶44 When appellate counsel fails to do so, the result is a discussion such as that contained in our opinion here: the burden of establishing an appellant’s entitlement to the Lenihan exception improperly shifts. Under this shift, the State becomes responsible for establishing why Lenihan does not-or should not-apply in a given case. While this has been our approach in the past, it is an approach I am unwilling to continue to follow. Therefore, I encourage criminal defense counsel to clearly establish entitlement to the exception in their opening brief, or risk a determination that-because they have not done so-they have not met their burden on appeal.
Concurrence Opinion
specially concurring.
¶151 I concur in Justice Nelson’s conclusion that now, rather than later, is an appropriate time to clear up the inconsistencies in our Lenihan jurisprudence. Therefore, I