No
No. 98-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 156
295 Mont. 100
983 P.2d 909
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CURTIS JEROME CHRISTIANSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
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The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Helena, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Mike
McGrath, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: November 12, 1998
Decided: July 1, 1999
Filed:
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__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶1. Curtis Jerome Christianson appeals from the amended judgment and sentence
entered by the District Court. He contends that the District Court's restriction on his
parole eligibility was unlawful. We affirm.
¶2. The issue raised on appeal is whether the District Court's restriction of
Christianson's parole eligibility complied with § 46-18-115(6), MCA, and § 46-18-202
(2), MCA. To resolve this issue, we address three sub-issues:
¶3. 1. Did the District Court violate § 46-18-115(6), MCA, by failing to state in open
court its reasons for restricting Christianson's parole eligibility?
¶4. 2. Was the District Court authorized to issue an order amending the written
judgment to list its reasons for imposing the parole eligibility restriction, in
compliance with § 46-18-115(6), MCA, and § 46-18-202(2), MCA?
¶5. 3. Did the District Court impose the parole eligibility restriction for insufficient
reasons, and thus abuse its discretion?
FACTUAL AND PROCEDURAL BACKGROUND
¶6. On the morning of September 6, 1996, Christianson was drinking beer and
playing video games in his living room. His three-year-old daughter, Taylor Nicole
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Salley, was running and playing in the house. Taylor ran in front of Christianson,
spilled his beer and accidentally unplugged the power cord on Christianson's game
machine. Christianson became angry and struck her in the stomach with a
backhanded blow. He hit Taylor with such force that she was knocked unconscious.
When she regained consciousness, she complained of stomach pains. Christianson
failed to seek medical attention, even though Taylor continued to get sicker
throughout the day.
¶7. At about 9:00 p.m. that evening, Taylor began coughing up a dark colored
mucous. Only then did Christianson contact emergency services. By the time help
arrived, Taylor was unconscious, and upon her arrival at the hospital, she was
pronounced dead. An autopsy revealed that Taylor died as the result of sepsis due to
the transection of her bowel. Christianson's blow, in conjunction with damage done
on previous occasions when he hit her, had severed Taylor's intestine and caused her
death.
¶8. Christianson was charged by information with deliberate homicide. He
subsequently pleaded guilty to an amended charge of mitigated deliberate homicide.
After a sentencing hearing held on October 9, 1997, the District Court sentenced
Christianson to a prison term of 40 years, with 10 years suspended. It further
designated that Christianson be ineligible for parole. The District Court filed its
written judgment and commitment that same day. However, the document failed to
set forth the court's reasons for restricting Christianson's parole eligibility.
¶9. Christianson did not appeal the judgment and commitment, but thereafter he
filed an application for sentence review with the Sentence Review Division of this
Court. The Division remanded the case to the District Court with instructions that it
include in its judgment the reasons it declared Christianson ineligible for parole or
participation in a supervised release program pursuant to § 46-18-202(2), MCA.
¶10. In compliance with the Division's directive, the District Court entered an order
on March 19, 1998, amending its prior judgment and commitment and setting forth
its reasons for ordering that Christianson be ineligible for parole. Christianson filed
his notice of appeal on May 12, 1998.
STATEMENT OF JURISDICTION
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¶11. As a preliminary matter, we deem it necessary to set forth the basis of
jurisdiction for entertaining this appeal. As stated earlier, the District Court orally
pronounced Christianson's sentence and entered the written judgment on October 9,
1997. After remand from the Sentence Review Division, it entered its order amending
the judgment on March 19, 1998. Christianson filed his notice of appeal on May 12,
1998.
¶12. Rule 5(b), M.R.App.P., provides that an appeal from a judgment must be taken
within 60 days. This Court has no jurisdiction to entertain an appeal filed more than
60 days after judgment. State v. Rice (1996), 275 Mont. 81, 83, 910 P.2d 245, 246
(citation omitted). Because Christianson did not file his notice of appeal within 60
days of the October 9th judgment, an appeal from that judgment is not timely, and
the Court has no jurisdiction to hear it.
¶13. However, a criminal defendant is also entitled to appeal from "orders after
judgment which affect the substantial rights of the defendant." Section 46-20-104,
MCA. Christianson filed his notice of appeal on May 12, 1998, which was within 60
days of the issuance of the March 19, 1998 order amending the judgment. This Court
thus has jurisdiction to review the District Court's post-judgment order to the extent
that it affects Christianson's substantial rights.
DISCUSSION
¶14. The District Court has the discretion to restrict a criminal defendant's parole
eligibility. Section 46-18-202(2), MCA, provides:
Whenever the district court imposes a sentence of imprisonment in the state prison for a
term exceeding 1 year, the court may also impose the restriction that the defendant is
ineligible for parole and participation in the supervised release program while serving that
term. If the restriction is to be imposed, the court shall state the reasons for it in writing. If
the court finds that the restriction is necessary for the protection of society, it shall impose
the restriction as part of the sentence and the judgment must contain a statement of the
reasons for the restriction.
(emphasis added). Additionally, § 46-18-115(6), MCA, provides that "the court shall
specifically state all reasons for the sentence, including restrictions . . . in open court on
the record and in the written judgment."(emphasis added).
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¶15. Christianson asserts that the parole restriction is unlawful for several reasons.
First, he contends that the District Court failed to state its reasons for restricting his
parole eligibility in the oral pronouncement of sentence and in the original written
judgment, in violation of §§ 46-18-202(2) and 115(6), MCA, which renders the
restriction invalid. Christianson further contends that the court could not correct
that error by amending the written judgment. He next argues that even if the court
could correct its error by amending the judgment, the reasons given by the court for
restricting his parole eligibility are insufficient. We examine each argument
individually.
I.
¶16. Did the District Court violate § 46-18-115(6), MCA, by failing to state in open court its reasons for
restricting Christianson's parole eligibility?
¶17. First, Christianson contends that his sentence is unlawful, because the District
Court failed to state in open court its reasons for restricting parole eligibility as
required by § 46-18-115(6), MCA. However, as this Court has already elaborated, an
appeal from the original judgment is untimely because Christianson failed to file a
notice of appeal within 60 days. This Court thus has no jurisdiction to entertain his
contention.
¶18. Nevertheless, because the reasons articulated by the court at the sentencing
hearing are relevant to the determination of other issues properly before the Court,
we take the opportunity at this time to comment on the District Court's
pronouncement. At the sentencing hearing, the court stated the following:
[Y]ou're here convicted of an unspeakable crime against a victim that was defenseless. A
child that should have been able to expect safety in your arms was denied that safety. And
what is particularly offensive about this is that this child was apparently repeatedly struck.
And which is most offensive is that this little girl took several hours to die what must have
been a very painful death without any medical attention by you. That is inexcusable.
Therefore, I will sentence you to 40 years in the Montana State Prison. I will, as [the
probation officer] has suggested, suspend 10 of those. And that suspension will be on all
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of the conditions set forth in the pre-sentence investigation.
As to the matter of parole, I have received a lot of letters from your family and friends,
and you're fortunate to have those people standing with you. They ask that I give you
mercy and that I show you compassion. And I feel somewhat as the representative of your
now deceased child. I will show you the mercy and compassion that you showed her, as
you let her die a painful death, and you will not be eligible for parole during your prison
sentence.
¶19. A review of the District Court's oral statement it its entirety reveals that it
imposed the restriction because of the heinous nature of Christianson's crime. The
court recounted several horrific features of the crime and found that Christianson let
his daughter "die a painful death" without exhibiting any mercy or compassion. In
short, it imposed the parole restriction because Christianson's crime was brutal and
callous.
¶20. Thus, although this Court has no jurisdiction to address whether the District
Court violated the statute's mandate that it state its reason for imposing the
restriction in open court, we nevertheless note that the court did, in fact, state its
reason.
II.
¶21. Was the District Court authorized to issue an order amending the written judgment to list its reasons
for imposing the parole eligibility restriction, in compliance with § 46-18-115(6), MCA, and § 46-18-202(2),
MCA?
¶22. Christianson next contends that the District Court violated both § 46-18-115(6)
and § 46-18-202(2), MCA, by failing to state its reasons for restricting his parole
eligibility in the original written judgment. He further argues that the court lacked
authority to correct that error by amending the written judgment after remand from
the Sentence Review Division. We reject Christianson's contention.
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¶23. Section 46-18-117, MCA, expressly provides that the District Court may correct
a sentence imposed in an illegal manner after remand from an appellate court:
Correction of sentence. The court may correct an erroneous sentence or disposition at any time and
may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after
remand from an appellate court.
Additionally, this Court has similarly held that a district court has the authority to modify
a judgment where the Court has remanded the matter for clarification. State v. Owens
(1988), 230 Mont. 135, 137, 748 P.2d 473, 474.
¶24. In conducting its review of the sentence, the Sentence Review Division functions
as an arm of this Court. Section 46-18-901, MCA. As this Court has stated in other
contexts, the Division thus functions as part of the appellate process. Ranta v. State,
1998 MT 95, ¶ 27, 288 Mont. 391, ¶ 27, 958 P.2d 670, ¶ 27. Accordingly, when the
Sentence Review Division, acting as an arm of this Court, remanded the matter to the
District Court, the District Court had the express statutory authority to correct the
sentence which was imposed in an illegal manner.
¶25. Additionally, § 46-18-117, MCA, provides that the court may correct an
erroneous sentence at any time. Based upon that statutory provision, it is well-settled
that it is within a district court's power to enter an order amending a judgment to
remedy certain clerical errors. State v. Winterrowd 1998 MT 74, ¶ 14, 288 Mont.
208, ¶ 14, 957 P.2d 522, ¶ 14 (citation omitted). The purpose of such an order is to
make the record reflect what was actually decided. Winterrowd, ¶ 14 (citation
omitted). The error "must be apparent on the face of the record to insure that the
correction does not in effect set aside a judgment actually rendered nor change what
was originally intended." Owens, 230 Mont. at 138, 748 P.2d at 474 (citation
omitted). In Owens, for example, the sentencing court had failed to designate the
defendant as a dangerous offender in the written order, even though it had made that
specific finding in open court. Owens, 230 Mont. at 138, 748 P.2d at 474-75. The
court amended the sentence in what was deemed a nunc pro tunc order to include
this designation. This Court held that a review of the record clearly revealed that
"the District Court intended to designate the defendant as dangerous" and thus
upheld the district court's order. Owens, 230 Mont. at 138-39, 748 P.2d at 474-75.
¶26. In another case, Lane, the sentencing court orally required that the defendant
complete sexual offender treatment before being eligible for parole, but in its written
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judgment it incorrectly stated that such treatment was only recommended. State v.
Lane, 1998 MT 76, ¶ 9, 288 Mont. 286, ¶ 9, 957 P.2d 9, ¶ 9. A year later, the court
entered a nunc pro tunc order to correct the error. Lane, ¶ 10. This Court held that
where the oral pronouncement of sentence and the written judgment and
commitment conflict, the oral pronouncement controls. In such a case, the court may
issue a nunc pro tunc order to correct the written judgment. Lane, ¶ 48. In Lane, the
record revealed that the district court intended the treatment to be required, and this
Court thus upheld the district court's nunc pro tunc order. Lane, ¶ 49.
¶27. Similarly, in this case, the record reveals that the District Court intended to
impose the parole eligibility restriction. However, the original written judgment did
not set forth the reasons for the restriction, which is an error that is readily apparent
on the face of the judgment. The amended judgment is consistent with the oral
pronouncement of judgment. It neither sets aside the original judgment nor changes
what was originally ordered. Instead, in compliance with the statutes, the order
merely set forth the court's reasons for imposing the restriction.
¶28. We additionally note, however, that even if the District Court did not have the
authority to amend the written judgment to comply with § 46-18-115(6) and § 46-18-
202(2), MCA, Christianson's appeal would nevertheless be rejected. As elaborated
upon earlier, Christianson did not challenge the District Court's original judgment
within 60 days as required by Rule 5(b), M.R.App.P. This Court would have no
jurisdiction to entertain Christianson's argument that the District Court failed to
articulate in its written judgment its reasons for restricting his parole eligibility.
¶29. We hold that the District Court had authority to issue an order amending the
written judgment to list its reasons for imposing the parole eligibility restriction, in
compliance with § 46-18-115(6) and § 46-18-202(2), MCA.
III.
¶30. Did the District Court impose the parole eligibility restriction for insufficient reasons, and thus
abuse its discretion?
¶31. It is well settled that district courts are afforded broad discretion in sentencing
criminal defendants. We will not overturn a court's sentencing decision, including
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the imposition of parole eligibility restrictions, absent an abuse of discretion. See
State v. Blake (1995) 274 Mont. 349, 351, 908 P.2d 676, 677 (citation omitted).
¶32. As pointed out earlier, at the oral pronouncement of the sentence, the District
Court restricted Christianson's parole eligibility because of the heinous nature of the
crime. It found that Christianson let his daughter die a painful death without
showing any compassion.
¶33. When the District Court entered its order amending its prior judgment and
commitment, it set forth three reasons for ordering Christianson be ineligible for
parole. First, the court noted that the presentence investigation report recommended
that Christianson be ineligible for parole. Second, it found that Christianson's crime
was "particularly awful" and "savage." It found that Christianson had severed his
three-year old daughter's intestine by severely striking her; that his daughter had
died a slow death, because despite her repeated complaints of stomach pain,
Christianson failed to give her medical attention; that Christianson had hit his
daughter in a similar fashion in the past; and that Christianson was too busy playing
video games and drinking beer to assist his daughter. Third, the District Court found
that the genuineness of Christianson's alleged remorse and acceptance of
responsibility was questionable. Allowing the small child to suffer for many hours
before obtaining medical attention was a crime that shocked the conscience of the
court. The court distinguished this case from similar offenses, and noted that this
case was particularly unusual because in the court's experience, most people who
have hit their child become immediately remorseful and seek medical attention for
the child. Finally, the court noted that Christianson had a lengthy criminal history,
consisting primarily of a string of DUI convictions.
¶34. Christianson argues that there were insufficient reasons for imposing the
restriction, and that the District Court therefore abused its discretion. Christianson
first contends that the rationale expressed by the District Court in its written order
improperly exceeded the rationale expressed by the court at the oral pronouncement
of sentence. Christianson asserts that according to this Court's decision in Lane, ¶ 40,
where we held that the oral sentence is the legally effective sentence, this Court may
not now consider the reasons articulated in the amended written judgment to the
extent that they differ from the reasons articulated at the oral pronouncement. In
particular, for example, he notes that although the District Court did not articulate
Christianson's lack of remorse as a reason for imposing the restriction at the
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sentencing hearing, the court articulated that as a reason in the amended judgment.
¶35. The State, in contrast, contends that this Court may consider all the reasons
expressed by the District Court in its amended written judgment. The State notes
that the two pronouncements of judgment are consistent. Regardless of the reasons
given, Christianson's parole eligibility is restricted. The State also cites State v.
Morrison (1993), 257 Mont. 282, 848 P.2d 514 and State v. Krantz (1990), 241 Mont.
501, 788 P.2d 298, and maintains that where the court has failed to sufficiently
articulate its reasons in the judgment, but the record contains substantial evidence to
support the district court's determination, the case is remanded to the district court
for the purpose of making findings to support the determination. In this case, the
State insists that the reasons expressed in the amended judgment are fully supported
by the record, and upon remand the District Court was well within its authority to
articulate all reasons for imposing the restriction.
¶36. At this time, however, we need not decide whether this Court can properly
consider written reasons that expand the rationale articulated at the sentencing
hearing. At both the oral pronouncement of sentence and in the amended written
judgment, the District Court stated that it was imposing the parole eligibility
restriction due to the brutal and callous nature of Christianson's crime. The heinous
nature of the crime is sufficient reason alone for imposing the restriction.
¶37. In the past, this Court has upheld restrictions based at least in part upon the
heinous nature of the crime. For example, in State v. Heit (1990), 242 Mont. 488, 791
P.2d 1379, this Court noted that the sentencing court set forth facts demonstrating
the pointless and brutal nature of the crime. Although the trial court did not
specifically articulate that the brutality of the crime distinguished it from other
crimes, we stated that the "heinous nature" of the crime as evidenced by the facts
specifically found by the trial court make the rational for the denial of parole
eligibility obvious. Heit, 242 Mont. at 494, 791 P.2d at 1383-84.
¶38. Christianson emphasizes that at the sentencing hearing, the court failed to
articulate his alleged lack of remorse as a reason for the restriction. He also cites
Blake, 274 Mont. 349, 908 P.2d 676, and notes that the court never found he posed a
danger to society. But this Court has never set forth a litmus test that must be met
before the District Court may impose parole eligibility restrictions. We have never
held that parole can be denied only in cases where the defendant poses a danger to
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society or where the defendant lacks remorse. Instead, we have left that decision to
the court's broad discretion based upon all the relevant facts.
¶39. In this case, the District Court recounted several facts and found that
Christianson murdered his young daughter in a particularly brutal fashion. It thus
concluded that parole restriction was warranted. This decision is left to the sound
discretion of the District Court in light of all the evidence. The record supports the
District Court's determination, and we will not substitute our judgment.
¶40. Finally, Christianson points to the court's statement at the sentencing hearing
that it felt "somewhat as the representative of [Christianson's] now deceased child."
Christianson contends that this statement indicates that the District Court became
unduly partisan and failed to act as an objective judicial officer. We disagree. When
viewed in the context of the entire proceeding, the court's comment simply
underscores its conclusion that the heinous, brutal nature of the crime was sufficient
reason alone to withdraw the privilege of parole eligibility. We hold that the District
Court did not abuse its discretion when it imposed the parole eligibility restriction.
¶41. Based upon all the foregoing, we hold that the District Court's restriction of
Christianson's parole eligibility complied with § 46-18-115(6), MCA and § 46-18-202
(2), MCA .
¶42. Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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/S/ TERRY N. TRIEWEILER
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