State v. HoltState v. Holt
Lead Opinion
delivered the Opinion of the Court.
¶1 Barry Holt appeals from his sentence following his guilty plea to a charge of burglary under
BACKGROUND
¶2 In the early morning hours of November 12,2006, Holt looked into the windows of a house and saw a 12-year-old girl asleep. He entered the house, went into the girl’s bedroom, and tried to pull down her pants. The State charged Holt with burglary and attempted sexual assault and trial on those charges commenced in July, 2009. After completing the first day of trial, Holt and the State reached a plea agreement in which Holt agreed to plead guilty to burglary. The State agreed to dismiss the charge of attempted sexual assault and to withdraw its request that Holt be designated a persistent felony offender. The parties agreed to recommend a ten-year sentence to the Montana State Prison with no parole restrictions, to run concurrently with the sentence imposed in a separate case against Holt in which he was charged with failure to register as a sex offender. Holt’s attorney explained the agreement:
Our understanding of the agreement is that Mr. Holt will plead guilty in this matter, DC 09-06, to burglary. And he will admit in his allocution that he entered the [M] residence without permission with the intent to commit misdemeanor assault by touching [K. M.] in a provoking or insulting manner.
At the change-of-plea hearing Holt testified that he entered the residence without permission with the intent to commit an assault against the victim K. M. Holt entered a guilty plea to the burglary charge and the District Court accepted the changed plea.
¶3 In 1992 Holt was convicted of sexual battery of a minor in Louisiana. Like the 2006 incident in Montana, the Louisiana offense involved Holt’s entering a house and touching a young girl. Holt moved to Montana in 1998 and lived under the alias of Jack White until he was arrested for the burglary and attempted sexual assault charges in 2006. He never registered as a sex offender after moving to Montana as required by
¶4 In November, 2009, the District Court conducted a sentencing hearing on both the burglary conviction and the conviction for failure to register. The District Court first considered the burglary conviction and informed the parties that it intended to depart from the plea agreement because the psychosexual evaluation indicated that Holt was a high risk to re-offend and that he should be designated as Level III sex offender. The District Court therefore determined that Holt should be required to complete sex offender treatment in prison as a condition of parole eligibility. Since this was a deviation from the plea agreement in which the parties had agreed that there would be no restrictions on parole eligibility, the District Court gave Holt the opportunity to withdraw his guilty plea to burglary. Holt declined to withdraw the guilty plea to the burglary and expressed his desire to continue with the sentencing. Accordingly, the District Court sentenced Holt to ten years at the Montana State Prison for the burglary conviction in accordance with the plea agreement. The District Court also designated Holt as a Level III sex offender and conditioned parole eligibility on the burglary sentence upon completion of sex offender treatment.
¶5 The District Court then sentenced Holt to five years at Montana State Prison on the conviction for failure to register as a sex offender, to run concurrently with the burglary sentence. The District Court’s sentence for failure to register also designated Holt as a Level III sex offender and conditioned release upon completion of sex offender treatment.
¶6 On appeal, Holt contends that it was illegal for the District Court to designate him a Level III sex offender or to condition parole eligibility for the burglary conviction upon completion of sex offender treatment.
STANDARD OF REVIEW
¶7 This Court generally reviews a criminal sentence longer than one year for legality only; that is, whether it falls within the statutory parameters. State v. Hernandez,
DISCUSSION
¶8 Holt pled guilty to burglary which is defined by statute:
A person commits the offense of burglary if the person knowingly enters or remains unlawfully in an occupied structure and:
(a) the person has the purpose to commit an offense in the occupied structure; or
(b) the person knowingly or purposely commits any other offense within that structure.
¶9 The District Court made the following findings at the November 24, 2009 sentencing hearing:
Now, let me say this then, because there’s additional concern, I have the presentence report prepared by the Department of Corrections together with this psychosexual evaluation conducted by Dr. Bakko in this matter.
Based upon that information, the defendant is going — there would be evidence to suggest that the defendant should be designated a risk Level III, which is the highest level risk to sexually re-offend. Because of that, the Court is going to require as a prior condition of parole, that the defendant undergo sex offender treatment Phases I and II before being eligible for parole.
But the psychosexual evaluation, frankly, leaves me no alternative, in my mind, in protecting the community but to require that treatment as a necessary part of the sentence in this case.
All right. As the Court has indicated on the record, it is going to deviate from the plea agreement in one respect and that’s related to the requirement for the sexual offender treatment.
I’ll have to say that the psychosexual evaluation that the Court has received gives me great pause in this case. There’s been a number of previous instances, as far as criminal conduct in the past, Mr. Holt, that makes the Court very concerned, especially if you remain untreated, that you will ever get a handle on the sexual problems that you have. And clearly, you have them. And, you know, for your own sake, at least, you need to enroll in and get as much out of these programs as you possibly can. I hope you will do that out of a sense of common decency and a desire to benefit yourself in some respects.
The statute also requires that the Court give reasons for any restrictions of parole eligibility. The reasons are that pursuant to the psychosexual evaluation, the defendant is the highest risk level to reoffend sexually. Therefore, there is a huge need for the defendant to undergo the sexual offender treatment Phases I and II in order to protect society. Frankly, if he doesn’t undergo that treatment, there’s little hope that the Court can protect society once he is out.
Moreover, the defendant’s past criminal conduct would indicate that parole restriction based upon the need for treatment is wholly consistent with the protection of society and protecting future, innocent victims.
In addition, it’s important that the defendant undergo this sexual offender treatment for his own rehabilitative purposes. So not only does this restriction serve to protect society, but it serves to provide some rehabilitative treatment for this defendant.
¶10 The record demonstrates that Holt acquiesced in and did not object to the sex offender treatment condition of his burglary sentence as it was explained by the District Court. Therefore, Holt cannot complain about that condition on appeal. A condition of a sentence is reviewed for reasonableness only if the defendant objects at the time of sentencing. Hernandez, ¶ 3.
¶11 As noted, Holt entered a guilty plea on the burglary charge, and was separately convicted after a bench trial of the failure to register charge. At the sentencing hearing the District Court first considered the sentence on the burglary charge. (“At this time the Court calls Cause No. DC 09-06.”) The District Court and the parties first resolved Holt’s prior pro se motion to withdraw the guilty plea to the burglary. Holt was questioned and withdrew the motion to withdraw the guilty plea so that they could “proceed with sentencing.” The District Court then informed the parties of the conclusion that, based upon the psychosexual evaluation completed as part of the presentence investigation, Holt should be designated a Level III sex offender, and should be required to successfully complete sexual offender treatment prior to eligibility for parole. Otherwise the District Court intended to follow the plea agreement.
¶12 The District Court informed Holt that this deviation from the plea agreement provided him the opportunity to withdraw his guilty plea to the burglary charge. The Court stated: “So I’ve articulated that so the defendant can know that and if he wishes to withdraw his plea on that basis, I’m affording him that opportunity at this time.... So if that is not acceptable I need to know that right now.” Holt’s attorney did not request to withdraw the guilty plea and did not object to the imposition of the treatment condition. Holt’s attorney stated that Holt understood that the wording of the condition-whether sex offender treatment were a condition of release or of a condition for parole eligibility-would affect how quickly he could enter treatment once in prison.
¶13 There followed an extended discussion of the wording of the sexual offender treatment condition that ultimately involved the District Court, a probation officer, Holt’s attorney, and Holt himself. Holt expressed his belief that the sex offender treatment condition was beneficial to him because it would lessen the chance of his being “shipped off to any county lockup with no treatment” instead of remaining in a larger facility like the Montana State Prison. Holt explained his understanding, based on information from other inmates at the Yellowstone County Detention Center, that he would be accepted into the treatment program and could complete it more quickly if the treatment were a condition of release, not a condition of parole.
¶14 After listening to arguments over whether the wording of the condition affected how quickly Holt could enter sex offender treatment, the District Court stated:
So it would be my preference I’ll just indicate that he will not be parole eligible until he’s entered and completed Phases I and II of sexual offender treatment. That’s what I anticipate doing. So the question for Mr. Holt is whether he wished to go forward with that understanding.
The Defendant: Yes, your Honor.
There was then additional discussion on the issue of whether the wording of the treatment condition had any practical effect. At the end of that discussion Holt stated: “Yes, Your Honor. I’ll bend on that and I’ll say yes. Okay. I will go through the treatment. I want to have incentive to do it.”
¶15 The District Court then stated once again:
So I guess the question is, do we proceed under the basis that I’m going to indicate that he’ll have to complete these [sex offendertreatment] phases before he’s eligible for parole. Do you wish to proceed [with sentencing] Mr. Holt?
The Defendant: Yes, sir.
It is abundantly clear that Holt declined multiple opportunities to withdraw from the guilty plea agreement and that he agreed to imposition of the sexual offender treatment as a condition to the burglary charge.
¶16 Holt argues on appeal that he was confused at the time of sentencing and believed that the treatment condition would only apply to the conviction for failure to register as a sex offender. That contention is not supported by the record. The record demonstrates that the District Court considered the burglary sentence first; that Holt and his attorney knew that the discussion involved sex offender treatment for the burglary conviction; and that the District Court moved on to the separate sentence for failure to register only after the burglary sentence was announced and concluded.
¶17 Holt made no legal objection to the sex offender treatment at sentencing, which precludes appellate review of whether the condition was improper, unreasonable, or an abuse of discretion. Hernandez, ¶ 3; State v. Kotwocki,
¶18 Holt next argues that the District Court improperly imposed a condition that he register as a sexual offender as part of the burglary sentence. The District Court did not impose any registration requirement as part of the burglary sentence. The only reference to registration is in the District Court’s list of recommendations “[s]hould the Defendant be released on parole....” A district court may make recommendations to be considered by the Board of Pardons and Parole if parole is granted. Heafner, ¶ 6.
¶19 The registration requirement was actually only one of the District Court’s recommendations in this case. The burglary sentence provided: “If the Defendant is convicted of a crime listed in
¶20 Finally, Holt argues that the District Court improperly designated him as a Level III sex offender. He relies upon
¶21 Prior to sentencing a person convicted of a defined sexual offense, the district court must receive recommendations from the Department of Corrections or a sexual offender evaluator of the appropriate sexual offender level designation.
Concurrence Opinion
concurring in part and dissenting in part.
¶23 I concur with the Court’s conclusion that the District Court’s recommendation to the parole board, that Holt be required to register as a sexual offender if granted parole, is legal. Opinion, ¶¶ 18-19.1 also concur with the Court’s conclusion that the Level 3 sexual offender designation in Holt’s burglary sentence is illegal. Opinion, ¶¶ 20-21.
¶24 I dissent, however, from the Court’s resolution of Holt’s challenge to the sexual offender treatment condition on his parole eligibility. Opinion, ¶¶ 10-17. Holt challenges this condition as illegal; and for the reasons discussed below, I conclude that he is correct, as there is no statutory authority for it. I therefore would reverse and remand for resentencing. I dissent from our contrary decision.
I. Whether Holt’s Sentencing Claim May Be Reviewed on Appeal
¶25 At the outset, there is some question as to whether Holt preserved for appellate review his challenge to the parole-eligibility condition. As a general rule, a party may raise on appeal only those issues and claims that were properly preserved through timely objection in the trial court. State v. West,
¶26 But there are certain other facts which militate against the conclusion that Holt waived this issue. First, the sexual offender treatment condition was not part of the plea agreement. The District Court decided to add the condition only after receiving the psychosexual evaluation. Second, at the July 27, 2009 change-of-plea hearing, during the parties’ verbal explanation of their plea agreement to the District Court, the State made the following representation:
The only thing I would like to put on the record is that for the failure to register conviction, it is my understanding that he will undergo a psychosexual evaluation and the State at the time of sentencing will be asking that the defendant-that the Court order that the defendant follow all of those treatment recommendations as part of his judgment in that case. [Emphases added.]
Third, at the sentencing hearing, the court referred to these “previous discussions” in explaining why it had decided to impose a sexual offender treatment condition on Holt’s sentence despite the fact that this condition had not been a part of the plea agreement. This certainly could lead one to understand that the court intended to place the condition onthefailure-to-register sentence, as opposed to the burglary sentence, in accordance with the prosecutor’s representation during the “previous discussions.”
¶27 Given these facts, the lack of a contemporaneous objection to the sexual offender treatment condition is not as clear-cut as the Court implies. On the record before us, and as a purely factual matter, I am unwilling, as the Court does, to leap to the conclusion that Holt “acquiesced” in the imposition of the condition on his burglary sentence.
¶28 But more importantly, as a legal matter, I strenuously disagree with this Court’s continuing policy of allowing the courts of this state to impose unauthorized sentences if a defendant “acquiesces” in the illegality. See State v. Walker,
¶29 It is one thing to acquiesce in an “error,” which “takes away the right of objecting to it.”
¶30 This much is clear from our statement, in case after case after case, that a court which lacks jurisdiction cannot acquire it by consent of the parties. Stanley v. Lemire,
¶31 Likewise, we have uniformly held that courts “do not have the power to impose a [criminal] sentence unless authorized by a specific grant of statutory authority.” State v. Burch,
¶32 In Pena, we distinguished between an “error” in sentencing and an outright lack of “power” to impose a sentence. We said: ‘Whether a district court commits a statutory error in imposing a sentence must not be confused with the question of whether the court had the ‘power’ or ‘capacity’ to impose the sentence in the first instance. An error in sentencing does not divest a district court of subject matter jurisdiction over the case before it.” Pena, ¶ 22.
¶33 The point is that this whole notion of “acquiescence” in illegal sentences is totally devoid of any legal foundation. To be sure, a defendant can “acquiesce” in an “error” committed in the process of imposing sentence, which generally means (absent plain error review) that he cannot obtain review of it on appeal. But there is no way that a defendant can “acquiesce” in a sentence which a court does not have legal authority to impose. A party can no more acquiesce in a court’s exercise of nonexistent sentencing authority than a party can acquiesce in a court’s exercise of nonexistent jurisdiction. This principle is self-evident and irrefutable, and the Court does not even attempt to refute it. Rather, the Court simply ignores it.
¶34 In State v. Evert,
“[B]y statute and by numerous rulings by the Supreme Court, ... a district court judgment, once it has been passed, is basically set in stone. However, it’s always been my practice-and also been the practice of this Court-that if a Defendant who has previously been sentenced appears before either myself or you and shows good cause as to why his sentence should be amended, generally mitigated, we don’t object to that. We don’t hold firm to the technicalities of the statute or the Supreme Court rulings. ”
Evert, ¶ 6 (emphasis added). Rightly, the Evert Court was appalled:
The laws of the State of Montana are written to ensure that justice is served and the well-being of society and individuals is safe-guarded. Contrary to the County Attorney’s pronouncement to the District Court that “we don’t hold firm to the technicalities of the statute or the Supreme Court rulings,” adherence to the legislative enactments and the decisions of this Court is not a matter of convenience or prosecutorial preference. No court or officer of the court has the prerogative of circumventing or modifying the procedures established by law.
Evert, ¶ 19 (emphasis added). We only promote such disregard for the “technicalities” of the law when we ignore the law ourselves and allow “acquiescence” in an illegal act to preclude appellate review.
¶35 In State v. Lenihan,
¶36 For these reasons, the Court’s assertion that Holt’s supposed “acquiescence” in the sexual offender treatment condition precludes him from raising it on appeal is flat wrong. Opinion, ¶ 10. It is true that he may not challenge the “reasonableness” of the condition, Opinion, ¶ 10, or obtain review of whether the condition is “improper, unreasonable, or an abuse of discretion,” Opinion, ¶ 17. Indeed, our precedents are well settled on this point: failure to object at sentencing precludes review of the reasonableness of the sentence. State v. Ashby,
¶37 Holt is not challenging the reasonableness of the parole-eligibility condition. He is challenging its legality. See e.g. Br. of Appellant at 4 (“The court erred and exceeded its statutory authority in sentencing Mr. Holt for burglary by requiring him to ... complete sex offender treatment ....”); id. at 8 (“The unlawful sentencing provisions on the burglary conviction that require Mr. Holt to ... complete sex offender treatment in MSP ... must be stricken from the burglary sentence.”). Thus, we should be determining whether that condition is statutorily authorized. The Court errs in failing to do so.
¶38 My ensuing discussion proceeds as follows. I first review the standards for determining whether a term or condition of sentence is statutorily authorized. I then address whether there is statutory authority for the sexual offender treatment condition on Holt’s parole eligibility. Lastly, I express my concern with the State’s argument in
II. Standards for Sentencing Authority
¶39 We have said that district courts are afforded “broad discretion” in criminal sentencing. State v. Herd,
¶40 Authority to impose a particular sentence cannot be inferred. To the contrary, we have emphasized that a term of sentence must be “specifically and explicitly” authorized by “a specific grant of statutory authority.” Burch, ¶¶ 23, 36 (emphasis added). Also, we have acknowledged the fundamental canons of statutory construction which state that
[i]n interpreting such statutes [governing a sentencing judge’s authority to impose a sentence], our role “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where the plain language of the statute is clear and unambiguous, no further interpretation is required.”
Burch, ¶ 23 (quoting State v. Kroll,
¶41 Correspondingly, we have rejected the notion of “residual” sentencing authority. See e.g. Burch, ¶¶ 22-36. Likewise, we have rejected the proposition that sentencing authority is inherent. In White, for example, we observed that
the State approaches this issue from the wrong perspective, asking whether the statute “limits” the court’s sentencing authority. District courts do not have inherent authority to impose criminal sentences except as “limited” by statute. To the contrary, it is well-established that... a district court has no power to impose a sentence in the absence of specific statutory authority.
White, ¶ 22 (emphasis added).
¶42 In short, the threshold question in all cases involving a challenge to a term or condition of sentence is whether that term or condition is “specifically and explicitly” authorized by a “specific grant” of statutory authority. The question whether the district court abused its discretion, or whether the term or condition is reasonable, does not enter into the analysis until a specific grant of authority to impose the term or condition has been located somewhere in the Montana Code Annotated. Cf. Burch, ¶ 29 (“[A] district court’s authority is determined by statute, not administrative rule.”).
¶43 From the oral pronouncement of sentence, it appears that the District Court relied on
III. Sections 46-18-201(4)(o) and -202(2), MCA
¶44 First,
¶45 Second,
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. [Emphases added.]
¶46 Nothing in this language specifically and explicitly authorizes the imposition of conditions on parole eligibility. The statute does not say that the sentencing judge may impose “the restriction that the offender is ineligible for parole unless the offender does X, Y, and Z.” Nor does the statute permit the sentencing judge to impose restrictions (plural) on parole eligibility. There is one-and only one-restriction authorized by this statute, as evidenced by the statute’s repeated references to “the restriction.” And “the restriction” which the statute authorizes is “the restriction that the offender is ineligible for parole ... while serving that term [of imprisonment]”-period. Either the offender is deemed ineligible for parole while serving the term of imprisonment, or he is not. To place conditions on that eligibility is to impose a restriction different from the one restriction that is specifically and explicitly authorized by the statute. It goes further than the statute allows and impinges upon the authority of the parole board.
¶47 In sum, neither
IV.
¶48
A. Burch
¶49 In Burch, we considered whether the district court had authority to impose conditions on Burch’s parole. Burch argued that sentencing judges are not generally authorized to impose parole conditions in the absence of express statutory authority. Burch, ¶ 16. The State, however, argued that conditions on parole are lawful because parole is statutorily defined as “the release to the community of a prisoner... prior to the expiration of the prisoner’s term.”
¶51 We accordingly rejected the State’s theory that
¶52 Under Burch, then, judges lack authority to impose conditions to be met during parole, and the question here is whether judges have authority to impose conditions to be met before parole will be allowed. There is no language in
¶53 Again,
¶54 While parole may be within (or a part of) a term of incarceration because it occurs prior to the expiration of the prisoner’s term (as the State argued in Burch), this fact did not persuade us in Burch that the judge has authority to place conditions on the parole. Equally so, the fact that parole may be within (or a part of) a term of incarceration does not mean that the judge has authority to
B. The Parole Board
¶55 Even assuming, for the sake of argument, that
¶56 It would be one thing if parole was not covered elsewhere in the Montana Code Annotated. In that situation, one might argue for an expansive construction of
¶57 Indeed, the members of the parole board-not sentencing judges-are charged with determining whether, when, and under what conditions an offender is eligible for parole. “Parole” is defined as “the release to the community of a prisoner by the decision of the board prior to the expiration of the prisoner’s term.”
¶58 Similarly, “[t]he board” is authorized to release on medical parole a prisoner who has a qualifying medical condition, who is not under a sentence of death or life imprisonment without possibility of release, and who is unlikely to pose a detriment to himself or herself, the victim, or the community.
¶59 In creating the Board of Pardons and Parole and making that agency “responsible for... parole” (
¶60 For example, a judge sentencing a sexual or violent offender “shall, as a condition to probation, parole, or deferment or suspension of sentence, impose upon the defendant reasonable employment or occupational prohibitions and restrictions designed to protect the class or classes of persons containing the likely victims of further offenses by the defendant.”
¶61 So, to summarize, the Legislature created the Board of Pardons and Parole. The Legislature granted that agency authority over parole. And the Legislature provided for a very few specific and explicit exceptions where a sentencing judge may intrude upon the parole board’s otherwise exclusive authority over parole matters. In these circumstances, it would be absurd to conclude that the Legislature intended
¶62 “In the construction of a statute, the intention of the legislature is to be pursued if possible.”
¶63 Here,
¶64 Under the statutory scheme, a sentencing judge has express authority to say that an inmate will never be parole eligible.
¶65 In sum, a construction of
V. The Level 3 Designation
¶66 Lastly, for purposes of future cases, I express my concern with the State’s argument in support of the Level 3 tier designation in Holt’s burglary sentence.
¶67
¶68 The State’s contrary argument proceeds as follows. First, the State notes that the definition of “sexual offense” includes “any violation of a law of another state ... that is reasonably equivalent to a violation listed in subsection (6)(a).”
¶69 While this construction of the statutory scheme is certainly inventive, it ultimately must be rejected. “Statutory construction should not lead to absurd results if a reasonable interpretation can avoid it.” State v. Letasky,
VI. Conclusion
¶70 In Hernandez, Chief Justice McGrath pointed out that “[t]he Legislature has created the process to review sentences.” Hernandez, ¶ 16 (McGrath, C.J., specially concurring). Specifically, “the Legislature has provided the Sentence Review Division [SRD] for the exclusive review of legally authorized felony sentences.” Hernandez, ¶ 11 (McGrath, C.J., specially concurring). The Chief Justice made the point that, given the existence of the SRD and the Legislature’s plain intent that sentences be reviewed by that body, this Court should not impinge upon that delegation of authority by reviewing sentences for reasonableness. Hernandez, ¶ 12 (McGrath, C.J., specially concurring); but see Zimmerman, ¶ 24 (McGrath, C.J., specially concurring).
¶71 This same principle, applied here, mandates that sentencing judges refrain from imposing terms and conditions relating to parole. Parole is a matter delegated exclusively to the Board of Pardons and Parole, except where specific statutory authority allows a sentencing judge to impose specifically and explicitly enumerated restrictions on parole. Burch, ¶¶ 14-31, 36. Sentencing judges have attempted to interfere with the parole process for some time now, but both this Court and the Legislature have consistently rejected their attempts to do so. The District Court’s sentence here interfered with a matter that is left solely to the discretion of the parole board. Again, a sentencing judge has authority to say that an inmate will never become parole eligible,
¶72 It is clear that when the Legislature wants to grant authority to sentencing judges to restrict parole eligibility, it is capable of doing so-as it did in
¶73 The State cites, and I have found, no statute (applicable to Holt’s 2006 burglary offense) specifically and explicitly authorizing a sentencing judge to impose a sexual offender treatment condition on an offender’s parole eligibility. I accordingly would hold that this condition on Holt’s burglary sentence is illegal. We should reverse and remand for resentencing, at which point if the District Court wants to make a recommendation to the parole board that Holt complete a sexual offender treatment program before being eligible for parole, the court may do so.
¶74 I concur and dissent.
Notes
Accord In re Marriage of Miller,
I therefore would overrule State v. Bullman,
Admittedly, this conclusion is in tension with our decision in State v. Marshall,
Subsection (2) states that persons under sentence of death, persons who have been placed by the Department of Corrections in prison temporarily for assessment or sanctioning, persons serving a sentence under
State v. Tracy,