November 5 2014
DA 13-0546
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 292N
IN THE MATTER OF:
D.C., JR.,
A Youth and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DJ 12-49
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade M. Zolynski, Chief Appellant Defender, Eileen A. Larkin, Nicholas
Domitrovich, Assistant Appellate Defenders, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Helena, Montana
Submitted on Briefs: October 1, 2014
Decided: November 5, 2014
Filed:
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 D.C. appeals from the Youth Court’s oral pronouncement of a sentence under the
Extended Juvenile Prosecution Act (EJPA), §§ 41-5-1601 to -1607, MCA, which included a
stayed adult sentence that did not specify the type of commitment or length of sentence. We
reverse and remand for resentencing.
¶3 On March 11, 2012, D.C. and his mother went to the Missoula County Detention
Center to report that D.C., then aged 16, had been involved in a robbery. D.C. was informed
of his rights and he and his mother agreed to a recorded interview. D.C.’s mother said she
had seen a television news story about a robbery of a Town Pump gas station in Lolo. The
story included surveillance images from the Town Pump, which showed a suspect wearing a
mask from the movie “Scream,” a black hooded sweatshirt, and yellow gloves, carrying a
single-strap bag and a black handgun. The images showed the suspect pointing the handgun
at the store clerk. The morning after seeing this story, D.C.’s mother discovered a box
outside the family home that contained a mask, a single-strap bag, yellow cleaning gloves, a
black hooded sweatshirt, and a Daisy air pistol. She said she immediately knew D.C. had
been involved in the robbery. D.C. said he had decided to rob the Town Pump as a way of
coming up with some money, because he had been unable to find a job. D.C. obtained
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$68.31 from the robbery and spent some of it on food and other items. The remaining
$28.00 was still in his wallet and was seized as evidence.
¶4 On April 3, 2012, a petition was filed in Youth Court alleging that D.C. had
committed robbery, punishable as a felony if committed by an adult. The petition also
requested that the case be designated an extended jurisdiction juvenile prosecution. On April
4, 2012, D.C. denied the charges in the petition. He also objected to application of the EJPA,
arguing that it violates double jeopardy because it allows imposition of both a juvenile
disposition and an adult sentence. The Youth Court denied the objection, and after a hearing,
found extended jurisdiction was appropriate in this case. On December 12, 2012, D.C.
admitted to robbery as alleged in the petition. Prior to disposition, he moved to suspend the
proceedings and enter into a consent decree. The Youth Court denied the motion and
proceeded to disposition.
¶5 At the dispositional hearing on March 13, 2013, the State recommended probation
until D.C.’s 25th birthday, with the opportunity to petition for early release from supervision
at age 21. Additionally, the State recommended a five-year adult commitment to the
Department of Corrections, to be stayed on the condition that D.C. remained compliant with
the conditions of probation. The Youth Court orally imposed a sentence placing D.C. on
probation until age 25, with the opportunity to petition for an early discharge at age 21. The
State asked the Court if it also intended to impose an adult sentence. The Court replied:
“Well, we could—yeah, and it is stayed, and the Court will, also, impose all of the conditions
of probation, that Youth Court has recommended.” The oral disposition did not state the
length of the stayed adult sentence or the type of commitment. The written disposition stated
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that D.C. would be placed on probation until age 25, with the opportunity to petition for
early release at age 21. It made no mention of an adult sentence.
¶6 Although we generally do not review issues not objected to in the trial court, we will
review a sentence alleged to be illegal or in excess of statutory mandates even if no objection
was raised. In re K.M.G., 2010 MT 81, ¶ 19, 356 Mont. 91, 229 P.3d 1227. Where a court’s
oral pronouncement of sentence conflicts with its written judgment, the oral pronouncement
controls. State v. Olivares-Coster, 2011 MT 196, ¶ 10, 361 Mont. 380, 259 P.3d 760.
¶7 If a youth in an extended jurisdiction juvenile prosecution admits to, or is adjudicated
to have committed, an offense that would be a felony if committed by an adult, the court is to
impose a single judgment consisting of two parts: a juvenile disposition and an adult
sentence. Section 41-5-1604(1)(a), MCA. The adult sentence is to be stayed on the
condition that the youth continues to comply with the provisions of the juvenile disposition
order. Section 41-5-1604(1)(a)(ii), MCA. The combined juvenile disposition and adult
sentence, however, may not exceed the maximum term of imprisonment that could be
imposed on an adult for that offense. Section 41-5-1604(1)(b), MCA. An adult convicted of
robbery must be sentenced to a term of not less than two or more than 40 years.
Section 45-5-401(2), MCA.
¶8 D.C. argues, and the State concedes, that the matter must be remanded to the Youth
Court for clarification of the length and type of commitment to be imposed as the stayed
adult sentence. The Youth Court was required to impose a stayed adult sentence of not less
than two or more than 40 years, but which, when combined with the juvenile disposition,
would not exceed an overall term of 40 years. Sections 41-5-1604(1)(b), 45-5-401(2), MCA.
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The Youth Court’s oral pronouncement of sentence did not comply with these statutory
mandates, because it did not specify that D.C.’s overall sentence would be for a term of less
than 40 years. Therefore, we must remand for resentencing.
¶9 D.C. also argues that on remand, the Youth Court should be limited to imposition of
the five-year DOC commitment recommended by the State at the dispositional hearing. Our
review of the oral disposition indicates that the Youth Court intended to adopt the State’s
recommendation. The Youth Court adopted the State’s recommendations regarding the
juvenile disposition. When prompted by the State regarding whether it wished to impose the
adult sentence, the Youth Court said “yeah, and it is stayed,” and added that it would also
accept the recommended conditions of probation. The Youth Court’s vague response
regarding the adult sentence was given in the midst of its oral pronouncement generally
accepting the State’s recommendations. It is therefore apparent that the oral pronouncement
was intended to also include acceptance of the State’s recommendation for a five-year DOC
commitment. We agree that on remand, the adult sentence imposed by the Youth Court
should not exceed the five-year DOC commitment recommended by the State in the prior
proceeding.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d)(iii) of
our Internal Operating Rules, pursuant to which this Court may enter a noncitable
memorandum opinion reversing the judgment of the trial court where it is manifest on the
face of the briefs and the record that the judgment is contrary to settled Montana law.
Having reviewed the briefs and the record, we conclude D.C. has demonstrated that the
judgment of the Youth Court is clearly contrary to settled Montana law.
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¶11 Reversed and remanded for resentencing consistent with prior proceedings.
/S/ LAURIE McKINNON
We Concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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