State v. RamboldState v. Rambold
For
For Appellee: Jay F. Lansing, Moses and Lansing, P.C., Nancy G. Schwartz, NG Schwartz Law, P.L.L.C., Billings.
For Amicus Legal Voice, Legal Momentum, Montana NOW, Pennsylvania NOW, Women‘s Law Project, and Sexual Violence Law Center: Vanessa Soriano Power, Stoel Rives LLP, Seattle, Washington.
JUSTICE WHEAT delivered the Opinion of the Court.
¶1 The State of Montana appeals the judgment of the Thirteenth Judicial District Court sentencing the Defendant Stacey Dean Rambold (Rambold) to 15 years for sexual intercourse without consent with all but 31 days suspended.
¶2 The following issues are presented for review:
¶3 Is this appeal precluded by the State‘s failure to object to the sentence?
¶4 Did the District Court impose an illegal sentence?
¶5 We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Rambold was charged by Information with three counts of Sexual Intercourse Without Consent in violation of
¶7 Rambold failed to comply with the terms of his deferred prosecution agreement. Rambold‘s treatment provider, Michael Sullivan, notified the State that Rambold would be terminated from the Sexual Offender Treatment Program due to his diminishing attendance at meetings, engaging in sexual activity with consenting adults without informing his therapist, and unapproved contact with minor-aged family members.
¶8 The State gave notice of its intent to prosecute Rambold on December 31, 2012, and moved the District Court to set the matter for trial. The parties executed a Binding Plea Agreement pursuant to
¶9 The District Court sentenced Rambold to 15 years’ incarceration with all but 31 days suspended. The court found that Rambold‘s violations of the Sexual Offender Treatment Program were not substantial or serious violations justifying the sentence urged by the State. The court also took notice of information it gleaned from interviews with C.M.:
In some respects, the Defendant took advantage of a troubled youth. I‘ve looked at those interviews. And it‘s easy enough to say the Defendant should have been aware, should not, obviously, have engaged in the conduct that he did. And it was a troubled youth, but a youth that was probably as much in control of the situation as was the Defendant, one that was seemingly, although troubled, older than her chronological age.
After significant public outcry, the District Court apologized, scheduled resentencing, and published an order acknowledging the illegality of Rambold‘s sentence under
STANDARDS OF REVIEW
¶10 We review a criminal sentence for its legality to determine whether the sentence is within statutory parameters. State v. Ruiz, 2005 MT 117, ¶ 8, 327 Mont. 109, 112 P.3d 1001 (citing State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, 106 P.3d 521).
DISCUSSION
¶11 Is this appeal precluded by the State‘s failure to object to the sentence?
¶12 The scope of appeal by the State is prescribed by
¶13 Rambold argues that his sentence was not imposed contrary to the law because the provisions of
¶14 The parties discuss application of State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), to the instant facts. It is not necessary, however, to invoke the exception provided in Lenihan when the State is raising the illegality of a sentence. We held in Lenihan that an appellate court may review sentences imposed in a criminal case if it is alleged that such a sentence is illegal. Lenihan, 184 Mont. at 343, 602 P.2d at 1000. A sentence is legal when it falls within the statutory parameters for that sentence, and is illegal when the court acts without statutory authority for a sentence. State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892; Lenihan, 184 Mont. at 342, 602 P.2d at 1000. The Lenihan exception is triggered when a challenged sentence is plausibly illegal, and not just objectionable. State v. Makarchuk, 2009 MT 82, ¶¶ 29-30, 349 Mont. 507, 204 P.3d 1213 (citing Kotwicki, ¶¶ 16-18). As we observed in Lenihan,
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 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 order alleged to be void.
Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (quoting State v. Braughton, 561 P.2d 1040, 1041 n.2 (Or. App. 1977)). The Lenihan exception affords to a defendant the right to appeal an illegal sentence, a right the State is accorded by statute. Therefore, this appeal is properly before the Court.
¶15 Did the District Court impose an illegal sentence?
¶16 The penalty for sexual intercourse without consent when the victim is less than 16 years old and the offender is three or more years older is set forth in
If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years ... .
The District Court was required to impose a sentence pursuant to this provision unless a separate statutory exception also applied.
¶17 With no other applicable exceptions to the mandatory minimum, we now turn to the legality of the suspended portion of Rambold‘s sentence. The District Court relied on
If the victim was less than 16 years of age, the imposition or execution of the first 30 days of a sentence of imprisonment imposed under the following sections may not be deferred or suspended and the provisions of 46-18-222 do not apply to the first 30 days of the imprisonment:
(a) 45-5-503, sexual intercourse without consent ....
¶18 We examined the proper application of this provision in State v. Fauque, 2000 MT 168, 300 Mont. 307, 4 P.3d 651.3 The statute requires a 30-day minimum sentence even when other exceptions to the mandatory minimum exist under
¶19 We stated in Fauque that “[t]he Legislature clearly intended the 4-year mandatory minimum sentence contained in
Except as provided in 45-9-202 and 46-18-222, the imposition or execution of the first 2 years of a sentence of imprisonment imposed under the following sections may not be deferred or suspended:
...
(g) 45-5-503(2) and (3), sexual intercourse without consent ... .
This subsection now prohibits suspension or deferral of the first two years of the mandatory minimum four-year prison sentence prescribed by
¶20 We have held that, when a sentence is determined to be unlawful under governing statutes, that portion of the sentence cannot be corrected, and we will not remand to the district court to give it the opportunity to correct the illegal provision. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087. In those circumstances, it is appropriate to vacate the sentence and remand to the District Court for resentencing. State v. Petersen, 2011 MT 22, ¶¶ 15-16, 359 Mont. 200, 247 P.3d 731 (applying Heafner). The sentence here was imposed under an inapplicable statute,
¶21 On remand for resentencing, we further instruct the court to reassign the case to a different judge to impose sentence. We have considered several factors to decide whether a new judge should be assigned to resentence a defendant in a particular case, among them; whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously-expressed views determined to be erroneous, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Coleman v. Risley, 203 Mont. 237, 249, 663 P.2d 1154 (1983) (citations omitted). In State v. Smith, 261 Mont. 419, 445-46, 863 P.2d 1000, 1016-17 (1993), we remanded for resentencing to a new judge when the judge‘s statement at trial evidenced bias against the defendant. Even where bias did not require reassignment to a new judge, we have reassigned where media coverage and public outrage “have snowballed to create an appearance of impropriety.” Washington v. Montana Mining Properties, 243 Mont. 509, 516, 795 P.2d 460, 464 (1990).
¶22 In the present case, Judge Baugh‘s statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice. The idea that C.M. could have “control” of the situation is directly at odds with the law, which holds that a youth is incapable of consent and, therefore, lacks any control over the situation whatsoever. That statement also disregards the serious power disparity that exists between an adult teacher and his minor pupil. In addition, there is no basis in the law for the court‘s distinction between the victim‘s “chronological
CONCLUSION
¶23 For the foregoing reasons, the judgment of the District Court is vacated and this matter is remanded for resentencing.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, COTTER, RICE and McKINNON concur.