97-510
No. 97-510
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 59
STATE OF MONTANA,
Plaintiff and Respondent,
vs.
WAYNE SPOTTED BLANKET,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas S. Winsor, Michael Scott Winsor, Winsor Law
Firm, Helena, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer M. Anders,
Assistant Attorney General, Helena, Montana; Kim
Christopher, Lake County Attorney, Polson, Montana
Submitted on Briefs: March 5, 1998
Decided: March 17, 1998
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 The youth, Wayne Spotted Blanket (Spotted Blanket), appeals from
the District Court's May 15, 1997 order denying his motion to dismiss for
lack of jurisdiction. We affirm.
Background
¶2 On October 17, 1996, the Lake County Attorney filed an amended
petition in Cause No. DJ-96-26, to initiate proceedings against Spotted
Blanket under the Youth Court Act, § 41-5-501, MCA. The petition
alleged that Spotted Blanket, age 14, was a delinquent youth and a serious
juvenile offender as set forth in §§ 41-5-103(7) and (24), MCA, in that he
committed six felony offenses under state law in September and October
1996. In Count I (aggravated burglary) and Count II (sexual intercourse
without consent), it was alleged that on September 21 or 22, Spotted
Blanket entered the home of Genevieve Morigeau and forcibly raped the
babysitter, T.Z., at knife point while she was caring for two young children.
In Count V (aggravated burglary) and Count VI (felony assault), Spotted
Blanket was alleged to have entered the home of Dixie Miller on the night
of October 2, 1996. When Miller awoke and started to scream, Spotted
Blanket choked her with a belt from her bathrobe. He then left her
residence when she continued to scream. Count III (sexual intercourse
without consent) alleged that on October 4, 1996, Spotted Blanket
convinced M.E. to hide with him in the bushes in a Ronan city park.
Spotted Blanket then choked and raped M.E. In Count IV (sexual
intercourse without consent), the State alleged that on October 5, 1996,
Spotted Blanket forced M.E.'s sister, Ma.E., to engage in sexual intercourse
at knife point. According to the prosecutor's affidavit, Spotted Blanket
admitted that he entered Morigeau's residence, attacked Miller and raped
T.Z., M.E. and Ma.E.
¶3 Along with the petition, the State filed its motion to transfer the
proceedings to the District Court under § 41-5-206, MCA. The District
Court heard this motion on October 23, 1996, and, following the hearing,
ruled that Counts III and IV, only, would be transferred. An information
charging Spotted Blanket with these offenses was filed October 28, 1996, in
Lake County Cause No. DC-96-112. Thereafter Spotted Blanket retained
counsel, Thomas S. Winsor, who presently represents him on appeal.
¶4 On February 24, 1997, the Lake County Attorney filed a new Youth
Court petition addressing the charges which had not been transferred,
Counts I, II, V and VI, and a motion to transfer these counts to District
Court for prosecution. On March 5, 1997, defense counsel, Spotted
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Blanket and the State entered into a written stipulation agreeing as follows:
1. That Counts I and II of DJ-97-06 [aggravated
burglary of Genevieve Morigeau's residence and sexual
intercourse without consent against T.Z., respectively] be
transferred to District Court where Defendant is to be treated
as an adult;
2. That Counts I and II of DJ-97-06 be
consolidated with the Counts in District Court case DC-96-112;
3. That Counts III and IV [aggravated burglary and
felony assault involving Dixie Miller] of DJ-97-06 remain in
Youth Court;
4. That as a result of this Stipulation no further
hearings are necessary for the transfer and consolidation of
Counts I and II of DJ-97-06 to DC-96-112;
5. That the Youth Court hearing on the motion to
transfer in DJ-97-06 scheduled for March 19, 1997 be
vacated;
6. That the hearing in DJ-97-06 for the youth's
admission or denial on the petition presently scheduled for
March 19, 1997 be rescheduled [sic] April 16, 1997;
7. That Defendant be granted a continuance of the
omnibus hearing in DC-96-112 to April 16, 1997; and,
8. That Defendant waives his speedy trial rights as
to this continuance in both actions.
¶5 On March 14, 1997, pursuant to this stipulation, the State filed an
amended information in District Court charging Spotted Blanket with
aggravated burglary of Genevieve Morigeau's residence (Count I) and with
sexual intercourse without consent against T.Z. (Count II), M.E. (Count III)
and Ma.E. (Count IV). On May 16, 1997, Spotted Blanket, his counsel and
the State executed a plea agreement and Spotted Blanket signed an
acknowledgment of rights under which he agreed to enter Alford pleas to
the charged offenses in exchange for the State's recommendation that he be
committed to the Department of Corrections for 40 years on Count I and for
50 years on each of Counts II, III, and IV, with various conditions and with
all commitments to run concurrently. Following a hearing, the District
Court accepted Spotted Blanket's pleas and on June 6, 1997, sentenced him
within the parameters of the plea agreement to a total 50-year commitment
with the Department of Corrections subject to a number of conditions.
¶6 Spotted Blanket filed his notice of appeal on June 16, 1997, from
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"the Court's ruling of May 15, 1997 on his motion to dismis [sic] this
matter." Other matters pertaining to the background of this case will be
discussed, to the extent necessary, in our opinion.
Issues
¶7 On appeal, Spotted Blanket raises the following issues:
¶8 1. Did the Youth Court err in transferring this case from the
Youth Court to District Court?
¶9 2. Did the Youth Court err in transferring Counts I and II to
District Court without a finding of probable cause?
¶10 3. Did the State courts have jurisdiction over Spotted Blanket, a
juvenile member of the Confederated Salish and Kootenai Tribes?
Discussion
I.
¶11 In his first and second issues, Spotted Blanket contends that the
District Court abused its discretion when it transferred his case from Youth
Court to District Court because: (1) there was insufficient evidence that the
juvenile facilities were inadequate as required by § 41-5-206(1)(d)(ii),
MCA, and our decision in Matter of J.K.C. (1995), 270 Mont. 342, 891
P.2d 1169; and because (2) the court failed to make a finding of probable
cause with respect to Counts I and II (aggravated burglary of Genevieve
Morigeau's home and sexual intercourse without consent against T.Z.) as
required by § 41-5-206(1)(d)(i), MCA. We decline to address these issues
and arguments for the following four reasons.
¶12 First, Spotted Blanket's notice of appeal was limited to the District
Court's order denying his May 15, 1997 motion to dismiss for lack of
jurisdiction. This motion addressed and argued only the matter which
Spotted Blanket now raises on appeal under his third issue, not the
propriety of the transfer of his case from Youth Court to District Court.
The record reflects that Spotted Blanket has not filed a notice of appeal
from any order transferring his case from the Youth Court to the District
Court. Rule 4(c), M.R.App.P., requires that the notice of appeal "shall
designate the judgment, order or part thereof appealed from." We will not
consider an appeal from an order not designated in the notice of appeal.
See State v. Delap (1989), 237 Mont. 346, 350-51, 772 P.2d 1268, 1271.
¶13 Second, our review of the record on appeal indicates that Spotted
Blanket never challenged the propriety of the transfer of his case from
Youth Court to District Court on the grounds he now argues, nor did he
reserve the right to appeal these issues pursuant to § 46-12-204(3), MCA, in
the plea agreement or otherwise. It is well settled that issues and claims of
error not properly preserved in the trial court are barred from appellate
review. Section 46-20-701, MCA; State v. Swoboda (1996), 276 Mont.
479, 481, 918 P.2d 296, 298. Moreover--and our cases are legion on this
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point--we will not consider issues raised for the first time on appeal when
the appellant had the opportunity to make his objections at the trial level.
State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491.
¶14 Third, Spotted Blanket and his counsel entered into a written
stipulation with the State in which Spotted Blanket agreed that Counts I and
II (aggravated burglary of Genevieve Morigeau's residence and sexual
intercourse without consent against T.Z.) would be transferred to the
District Court without further hearing. Accordingly, having agreed that no
probable cause hearing would be necessary, Spotted Blanket is now in no
position to argue that the District Court erred in failing to enter a probable
cause finding. See Topco, Inc. v. State (1996), 275 Mont. 352, 358, 912
P.2d 805, 808 ("it is improper to raise an issue on appeal as to a question of
law or fact after the parties have entered into a stipulation as to that law or
fact") (citations omitted).
¶15 Finally, Spotted Blanket entered a plea of guilty to the four felony
counts set out in the amended information. It is well settled that a plea of
guilty which is voluntary and understandingly made (and there is no
argument, here, to the contrary) constitutes a waiver of nonjurisdictional
defects and defenses, including claims of constitutional violations which
occurred prior to the plea. Stilson v. State (1996), 278 Mont. 20, 22, 924
P.2d 238, 239 (citations omitted). The fact that Spotted Blanket's was an
Alford plea does not change this principle of law. See State v. Butler
(1995), 272 Mont. 286, 291, 900 P.2d 908, 911.
¶16 Accordingly, for the foregoing reasons, we hold that Spotted Blanket
has waived appellate review of his first and second issues.
II.
¶17 Did the State courts have jurisdiction over Spotted Blanket, a
juvenile member of the Confederated Salish and Kootenai Tribes?
¶18 Spotted Blanket argues that the State courts did not have jurisdiction
over this matter because he is a member of the Confederated Salish and
Kootenai Tribes (Tribes) and because his offenses were committed within
the exterior boundaries of the Flathead Reservation against Tribal members
while he was a juvenile. As pointed out above, Spotted Blanket raised this
issue in the District Court by motion to dismiss, and the court denied his
motion. The question of whether a motion to dismiss is properly granted or
denied on the basis of a lack of subject matter jurisdiction is one of law
which we review de novo. See Poteat v. St. Paul Mercury Ins. Co. (1996),
277 Mont. 117, 119, 918 P.2d 677, 679 (citations omitted). In the case at
bar, we hold that the State Youth Court and District Court did properly
exercise subject matter jurisdiction over this case.
¶19 Public Law 280, enacted by Congress in 1953, among other things,
authorized the State to acquire criminal jurisdiction over offenses
committed by or against Indians on Indian reservations within the State.
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See State ex rel. McDonald v. District Court of Fourth Judicial District
(1972), 159 Mont. 156, 159, 496 P.2d 78, 80. In 1963, the Montana
Legislature enacted Ch. 81, L. 1963 which, in substance, obligated and
bound the State of Montana to criminal jurisdiction over Indians on the
Flathead Reservation. Tribal consent to this assumption of jurisdiction
required by subsequent amendments to P.L. 280) was granted by the
enactment of Tribal Ordinance 40-A, dated May 16, 1964, and the governor
of Montana thereafter issued the required proclamation on June 30, 1964.
Almost a year later on May 5, 1965, Tribal Ordinance 40-A (Revised) was
enacted clarifying language in the original ordinance limiting its scope to
criminal laws and repealing the original Ordinance 40-A. Thereafter, the
governor issued another proclamation dated October 8, 1965. McDonald,
159 Mont. at 160-61, 496 P.2d at 80. This Court has long recognized that
the State of Montana has exercised criminal jurisdiction over Indians
committing crimes on the Flathead Indian Reservation. McDonald, 159
Mont. at 161, 496 P.2d at 81. See also Campbell v. Crist (D.Mont. 1980),
491 F.Supp. 586, 588.
¶20 Spotted Blanket argues, however, that because P.L. 280 makes no
specific mention of juveniles, he is not subject to State court jurisdiction
and that the State's exercise of jurisdiction over juveniles is contrary to
notions of tribal sovereignty and the Flathead policy of rehabilitation. We
disagree.
¶21 At the outset, and while not dispositive one way or the other of the
jurisdictional issue raised here, we note that this case was investigated by
both Tribal and State law enforcement and that Spotted Blanket was
ultimately prosecuted in State court with the knowledge, concurrence and
cooperation of the Tribal authorities. In point of fact, the record indicates
that the Tribal prosecutor and Tribal juvenile officer jointly made the
referral of Spotted Blanket's case to the State--a decision that, according to
the Chief Judge of the Tribal Court, was clearly within their power and
discretion.
¶22 More importantly, the United States Supreme Court has addressed
and decided the jurisdictional issue raised by Spotted Blanket contrary to
his position. In Washington v. Confederated Bands and Tribes of the
Yakima Indian Nation (1979), 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740,
the Court approved the State of Washington's partial assumption of
jurisdiction over the defendant Yakima Indian Tribes under P.L. 280 with
regard to various jurisdictional categories, including "juvenile delinquency."
Washington, 439 U.S. at 465-66 n. 1, 475-76, 499, 99 S.Ct. at 744 n. 1,
748-49, 760, 58 L.Ed.2d at 747 n. 1, 752-53, 767. In doing so the Court
noted that Washington had done no more than "refrain from exercising the
full measure of allowable jurisdiction without the consent of the tribe
affected." Washington, 439 U.S. at 495, 99 S.Ct. at 758, 58 L.Ed.2d at 764.
Moreover, the Court stated:
We are unable to conclude that the State, in asserting a less
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intrusive presence on the Reservation while at the same time
obligating itself to assume full jurisdictional responsibility
upon request, somehow flouted the will of Congress. A State
that has accepted the jurisdictional offer in Pub.L. 280 in a
way that leaves substantial play for tribal self-government,
under a voluntary system of partial jurisdiction that reflects a
responsible attempt to accommodate the needs of both Indians
and non-Indians within a reservation, has plainly taken action
within the terms of the offer made by Congress to the States
in 1953.
Washington, 439 U.S. at 499, 99 S.Ct. at 760, 58 L.Ed.2d at 767.
¶23 This is, of course, precisely what Montana has done on the Flathead
Reservation. See Ch. 81, L. 1963 (codified at §§ 2-1-301, -302 and -303,
MCA). Furthermore, as previously noted, the Tribes' Ordinance 40-A
(Revised) extended concurrent jurisdiction to the State over certain specific
areas, including "Juvenile Delinquency and Youth Rehabilitation" and "All
Criminal Laws of the State of Montana . . . ." See Liberty v. Jones (1989),
240 Mont. 16, 18, 782 P.2d 369, 371; Larrivee v. Morigeau (1979), 184
Mont. 187, 193-94, 602 P.2d 563, 566-67, cert. denied, 455 U.S. 964
(1980).
¶24 In 1993, the Montana Legislature adopted a statute that allowed the
Tribes to withdraw their consent to exercise of State criminal misdemeanor
and civil jurisdiction. Section 1, Ch. 542, L. 1993 (codified at § 2-1-306,
MCA). The Tribes sought withdrawal of most forms of criminal
misdemeanor jurisdiction in Resolution 94-123, and the requested
retrocession became effective in September 1994, with the governor's
proclamation of September 30, 1994. Notwithstanding, the State's
jurisdiction over felonies and civil matters within the scope of Ordinance
40-A (Revised) was otherwise unaffected. Accordingly, Montana retains
concurrent jurisdiction with the Tribes over juvenile delinquency and
criminal felony matters.
¶25 Spotted Blanket's argument that lack of any specific mention of
"juveniles" or "juvenile jurisdiction" in P.L. 280
precludes the assertion ofjurisdiction by the State over these matters
is without merit. Congress did not specify any particular sorts of
jurisdictional categories within the law's jurisdictional offer.
Rather, P.L. 280 included all criminal offenses and
civil causes of action within its provisions. See Washington, 439 U.S. at
471-74 n. 9, 99 S.Ct. at 746-48 n. 9, 58 L.Ed.2d at 750-51 n. 9.
¶26 We hold that Spotted Blanket is properly subject to the jurisdiction
of the courts of Montana under the provisions of P.L. 280.
¶27 Affirmed.
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/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
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