NO. 95-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TAMMY SWOBODA.
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roberta A. Drew, Deputy Public Defender,
Yellowstone County Public Defenders,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Ass't Attorney General,
Helena, Montana
Marcia Good Sept, Deputy Yellowstone County
Attorney, Billings, Montana
Submitted on Briefs: April 11, 1996
Decided: May 17, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Tammy Swoboda (Swoboda) appeals from her sentence imposed by
the Yellowstone County, Thirteenth Judicial District Court.
Swoboda pled guilty to the crime of sexual abuse of children, a
felony. The court committed Swoboda to the Department of
Corrections and Human Services for fifteen years. We affirm.
The issue on appeal is as follows:
Did the District Court abuse its discretion when it
failed to consider and discuss alternatives to
imprisonment for a nonviolent felony offense pursuant to
§§ 46-18-225, and 46-18-201(11) [formerly(l MCA,
before sentencing Swoboda to a term of imprisonment?
We review a sentence on appeal to determine whether the
sentencing court clearly abused its discretion in imposing
sentence. State v. Blake (Mont. 1995), 908 P.2d 676, 677, 52
St.Rep. 1269, 1270; State v. Beach (1985), 217 Mont. 132, 153, 705
P.2d 94, 107. Criminal sentencing alternatives are strictly a
matter of statute in Montana. State v. LaMere (19951, 272 Mont.
355, 358, 900 P.2d 926, 928; State v. Stevens (1993), 259 Mont.
114, 115, 854 P.2d 336, 337. Therefore, our standard of review is
whether the District Court correctly interpreted the applicable
statutes. LaMere, 900 P.2d at 928.
Swoboda qualified as a nonviolent felony offender. She argues
that Montana law, § 46-18-201(11), MCA, requires the sentencing
court to consider alternatives to incarceration, including the ten
sentencing criteria found in § 46-18-225, MCA, when sentencing
nonviolent offenders. If the court does not select alternatives to
imprisonment it must state its reasons for not doing so. Section
2
46-18-201(U), MCA. Swoboda argues that the court failed to
fulfill this statutory requirement.
In three recent cases in which district courts failed to
consider alternatives to incarceration for nonviolent offenders, we
remanded for resentencing. State v. Pence (1995), 273 Mont. 223,
902 P.2d 41; LaMere, 900 P.2d 926; Stevens, 854 P.2d 336. However,
in these cases the defendants raised the issue of consideration of
alternatives to incarceration before the district court, or, as in
Stevens, the State conceded that the statute had not been followed.
Stevens, 854 P.2d at 337; see also State v. Nelson (Mont. 1995),
906 P.2d 663, 52 St.Rep. 1069.
However, in the instant case, the issue of consideration of
alternatives to imprisonment was not raised before the District
Court and the State did not concede that the statute had not been
followed. The transcript of the sentencing hearing reveals that
Swoboda did not object to the court's failure to consider
sentencing alternatives nor did she request reconsideration.
Swoboda did not alert the District Court to the alleged failure to
consider alternatives to imprisonment. Nelson, 906 P.2d at 667.
Thus, the court was not able to correct any deficiency in the
sentencing process. Nelson, 906 P.2d at 667.
This Court does not review issues which were not preserved for
appeal in the court below. Sections 46-20-205 and 46-20-701, MCA.
We have held that failure to raise an issue before the district
court bars a defendant from raising the issue on appeal under § 46-
20-104, MCA. Nelson, 906 P.2d at 667; State v. Arlington (1994),
3
265 Mont. 127, 151, 875 P.2d 307, 321.
An exception to this general rule is found in the holdings of
State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025 and State v.
Lenihan (1979), 184 Mont. 338, 602 P.2d 997. See also Nelson, 906
P.2d at 667. In those cases we held 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. Hatfield, 846
P.2d at 1029; Lenihan, 602 P.2d at 1000.
Both Hatfield and Lenihan involved situations where the
judgment was void due to lack of statutory authority. In Hatfield
and Lenihan, the district courts' sentences were illegal or in
excess of statutory authority because the courts lacked the
specific statutory authority to impose the sentence. See Nelson,
906 P.2d at 668. Unlike Hatfield and Lenihan, Swoboda's sentence
is neither illegal nor does it exceed statutory authority.
Swoboda was sentenced to fifteen years with the Department of
Corrections and Human Services for the offense of sexual abuse of
children, a felony, in violation of § 45-5-625, MCA. When Swoboda
was sentenced, a person convicted of this offense could be punished
by imprisonment for a term not to exceed 50 years or fined not more
than $10,000, or both. Section 45-5-625(2) (b), MCA (1993).
Swoboda's fifteen-year sentence is thus neither illegal nor in
excess of the statutory mandates.
Additionally, §§ 46-18-201(11) and 46-18-225, MCA, do not
preclude a court from sentencing a nonviolent felony offender to
4
prison. Nelson, 906 P.2d at 668. Section 46-18-225, MCA, states:
"Prior to sentencing a nonviolent felony offender to a term of
imprisonment . . I1 the court shall take into account certain
criteria (emphasis added). Section 46-18-201(11) states: "If the
offender is subsequently sentenced to the state prison . . . 'I the
court shall state why alternatives to imprisonment were not
selected (emphasis added). Although these statutes require
consideration of alternatives to imprisonment, such consideration
would not have necessarily changed the court's final sentence for
Swoboda.
Finally, Swoboda argues that the District Court violated
Swoboda's rights of due process by not considering alternatives to
imprisonment. Therefore, Swoboda alleges, even though she did not
object to the District Court's failure to consider alternatives to
imprisonment, we should review her sentencing under the "plain
error" exception to § 46-20-104, MCA. Section 46-20-104(2), MCA,
provides:
Upon appeal from a judgment, the court may review
the verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 46-20-701(2).
The exceptions provided in 5 46-20-701(2)l, MCA, are as follows:
Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.
No claim alleging an error affecting jurisdictional or
constitutional rights may be noticed on appeal, if the
I
Except for the "[convicted person]" language, this 1995
version of the statute is identical to the 1993 version in effect
at the time of Swoboda's sentencing.
5
alleged error was not objected to as provided in 46-20-
104, unless the defendant [convicted person] establishes
that the error was prejudicial as to his guilt or
punishment and that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant [convicted
person1 or his attorney that prevented the claim from
being raised and disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant
[convicted person] or his attorney and could not have
been ascertained by the exercise of reasonable diligence.
Swoboda does not argue that any of exceptions provided by
subsections (a), (b), or (c), are present. Rather, Swoboda's
contention concerning these exceptions is limited to the following
argument:
The legislature has provided a process which a sentencing
court must follow prior to determining whether a person
convicted of a crime shouldbe imprisoned. §46-18-201 and
546-18-225. In the instant case, the sentencing court
did not consider the sentencing statutes in violation of
Swoboda's due process rights. Such a due process
violation is manifestly unjust. Consequently, Swoboda
asks this court to find that the sentencing court abused
its discretion when it failed to comply with Swoboda's
due process rights prior to passing sentence.
Swoboda's failure to discuss the provisions of § 46-20-701(2) (a)(b)
and (c) defeats any application of the statutory exceptions in this
case. Nonetheless, we recently held that the doctrine of common
law plain error review can continue to survive despite the
existence of Montana's plain error statute. State v. Finley (Mont.
1996), _ P.2d __, 53 St.Rep. 310. In Finley, we discussed the
background and application of the common law doctrine of plain
error as well as the statutory requirements of § 46-70-701(2), MCA,
in Montana. In Finlev, we articulated an understandable rationale
6
and rule concerning plain error. Finley, 53 St.Rep. at 315. In
Finlev, we held:
this Court may discretionarily review claimed errors that
implicate a criminal defendant's fundamental
constitutional rights, even if no contemporaneous
objection is made and notwithstanding the inapplicability
of the § 46-20-701(2), MCA, criteria, where failing to
review the claimed error at issue may result in a
manifest miscarriage of justice, may leave unsettled the
question of the fundamental fairness of the trial or
proceedings, or may compromise the integrity of the
judicial process.
Finlev, 53 St.Rep. at 315.
Here, our refusal to review the District Court's failure to
consider alternative to imprisonment does not rise to the level of
a manifest miscarriage of justice, will not leave unsettled the
question of the fundamental fairness of the trial or proceedings,
nor will it compromise the integrity of the judicial process.
Finlev, 53 St.Rep. at 315. As stated earlier, Swoboda's sentence
is neither illegal nor in excess of the statutory mandates. Under
§§ 46-18-201(11) and 46-18-225, MCA, the District Court was not
precluded from sentencing a nonviolent felony offender to prison.
Nelson, 906 P.2d at 668. Although these statutes require
consideration of alternatives to imprisonment, such consideration
would not have necessarily changed the court's final sentence for
Swoboda. Thus, we decline to review this unobjected-to error by
the District Court under the plain error doctrine as articulated in
Finlev.
We do, however, restate our caution from Nelson:
Prior to sentencing a nonviolent felony offender to
imprisonment, the court must examine and take into
account the ten specific criteria set forth in § 46-18-
7
225, MCA.
Section 225 requires consideration of such
thinqs as where the needs of the offender
would be best served. These statutes do not
provide the court with any discretion. The
legislature has directed trial courts to make
these considerations before any nonviolent
offender is incarcerated.
LaMere, 900 P.2d at 928 (emphasis added). Explicit,
rather than implicit consideration of the criteria makes
for a much more meaningful appellate review. In future
cases, we strongly encourage district courts, in imposing
sentence upon nonviolent offenders, to specifically
recognize and address the criteria set forth in § 46-18-
225, MCA.
Nelson, 906 P.2d at 668. Notwithstanding our recognition of the
importance of trial courts specifically addressing the criteria set
forth in § 46-18-225, MCA, Swoboda, having failed to object to the
sentence or to move for reconsideration, is barred from raising the
issue of consideration of alternatives on appeal. Affirmed.
We concur: /