No. 01-639
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 258
ROGER LARUE GILBERT,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger L. Gilbert (pro se), Glendive, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant
Attorney General, Helena, Montana
Robert M. McCarthy, Butte-Silver Bow County Attorney; Carlo Canty,
Deputy County Attorney, Butte, Montana
Submitted on Briefs: May 2, 2002
Decided: November 21, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Appellant Roger Gilbert pled guilty to and was sentenced for
negligent arson and burglary in the Second Judicial District Court,
Silver Bow County. Gilbert subsequently filed a petition for
postconviction relief. The petition challenged the legality of the
District Court’s retention of jurisdiction for purposes of parole
and a restitution provision in the sentence. The District Court
denied Gilbert’s petition and Gilbert appeals. We reverse and
remand.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err when it retained jurisdiction
to revisit Gilbert’s parole restriction?
¶4 2. Did the District Court err when it postponed the
consideration and imposition of restitution?
BACKGROUND
¶5 On October 12, 1999, the State filed an information in the
District Court which charged Gilbert with: arson, a felony, in
violation of § 45-6-103, MCA (1997), or in the alternative
negligent arson, a felony or misdemeanor, in violation of § 45-6-
102, MCA (1997); two counts of burglary, both felonies, in
violation of § 45-6-204, MCA (1997); and theft, a felony, in
violation of § 45-6-301, MCA (1997). On October 14, 1999, Gilbert
pled guilty to negligent arson and one count of burglary. Pursuant
to a plea agreement, the State dismissed the remaining charges.
¶6 Following a sentencing hearing, and after considering the
State’s sentencing recommendation and a pre-sentence investigation
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conducted by the Montana Adult Probation and Parole Office, the
District Court entered its Judgment and Order of Commitment on
February 7, 2000. The District Court sentenced Gilbert to ten
years in the Montana State Prison, five suspended, for the offense
of negligent arson and fifteen years in the Montana State Prison,
ten suspended, for the offense of burglary, to be served
concurrently with the negligent arson sentence.
¶7 Further, based on Gilbert’s “extensive criminal history” and
pursuant to § 46-18-202(2), MCA, the District Court declared
Gilbert ineligible for parole or any supervised release program
during the unsuspended portion of the sentence. However, in the
very next sentence, the District Court seemingly contradicted this
restriction by declaring Gilbert eligible for parole once he
completed chemical or substance abuse treatment, obtained a mental
evaluation and complied with the recommended treatment, and
completed a boot camp program administered by the Department of
Corrections. The court maintained that it retained “continuing
jurisdiction in this matter and may reconsider the parole
restriction specifically set forth above upon petition of the
Defendant in the event the Defendant successfully completes each of
the foregoing conditions.” Finally, the District Court ordered
that during the portion of the suspended sentence, and in the event
that Gilbert is granted early parole, Gilbert “shall pay
restitution in an amount to be stipulated by counsel and approved
by the Court.”
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¶8 On October 3, 2000, Gilbert filed a petition for
postconviction relief. In his petition, Gilbert alleged, in part,
that the District Court imposed an illegal sentence in that the
court had no authority to retain jurisdiction over the parole
eligibility matter. Further, Gilbert maintained that the District
Court unlawfully imposed the restitution provision. Gilbert filed
an amended petition for postconviction relief on February 1, 2001,
which raised additional issues irrelevant to this appeal.
Following a hearing, the District Court denied the petition on June
20, 2001. On August 3, 2001, Gilbert filed a notice of appeal from
the District Court’s order of denial.
STANDARD OF REVIEW
¶9 The standard of review of a district court’s denial of a
petition for postconviction relief is whether the district court’s
findings of fact are clearly erroneous and whether its conclusions
of law are correct. State v. Wright, 2001 MT 282, ¶ 9, 307 Mont.
349, ¶ 9, 42 P.3d 753, ¶ 9.
DISCUSSION
ISSUE ONE
¶10 Did the District Court err when it retained jurisdiction to revisit Gilbert’s parole
restriction?
¶11 The District Court’s February 7, 2000, judgment and order
contains two distinct, yet seemingly contradictory, parole
provisions. Initially, the District Court stated:
IT IS THE DECISION OF THIS COURT that pursuant to
Section 46-18-202(2), MCA and for the specific reason of
the Defendant’s extensive criminal history, the Defendant
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shall be ineligible for parole or participation in any
form of any supervised release program while the
Defendant is serving the unsuspended, concurrent five (5)
year terms of imprisonment ordered by the Court.
However, the very next statement in the District Court’s order
provides:
IT IS THE FURTHER ORDER OF THIS COURT that pursuant to
Section 46-18-202(2), MCA and for the specific reason of the Defendant’s
extensive criminal history, the Defendant shall be ineligible for parole or
participation in any form of any supervised release program until the
Defendant has: (a) satisfactorily completed in full all courses of counseling or
treatment for chemical or substance abuse at the Montana State Prison made
available by and determined to be in the Defendant’s best interests of
rehabilitation by the Department of Corrections; (b) obtained a full scale
mental evaluation and any recommended course of counseling or treatment
made available by the Department of Corrections; and (c) completed the
Treasure State Correctional Training Facility (boot camp) program
administered by the Department of Corrections.
As to the latter provision, the District Court retained “continuing jurisdiction” to reconsider
the parole restriction set forth in the former provision.
¶12 Gilbert argues that a district court may retain
jurisdiction to revisit a previously imposed sentence in select
statutorily provided circumstances. Gilbert maintains that no
statutory exception applies to the case at bar. Therefore,
according to Gilbert, the District Court erred when it retained
continuing jurisdiction to reexamine Gilbert’s parole restriction.
Gilbert, rather tenuously, asserts that since the retention of
jurisdiction was unlawful, this Court should not only strike the
retention provision of the judgment, but should also vacate the
parole restriction altogether.
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¶13 The State maintains that the District Court did not unlawfully
retain jurisdiction because the retention “did not change or modify
Gilbert’s underlying sentence.” If we conclude otherwise, the
State contends that we should simply strike the retention of
jurisdiction provision from the sentence and allow the parole board
to determine whether Gilbert has satisfied the parole eligibility
requirements.
¶14 The State’s alternative suggestion does not appear to be a
workable solution. For, if we merely strike the retention of
jurisdiction provision, the District Court’s judgment and order
will still contain the contradictory parole restriction and parole
eligibility provisions. It is unclear to us whether the parole
board would even examine Gilbert’s parole eligibility in the face
of the clear parole preclusion immediately preceding the
eligibility provision. Thus, we will first determine whether the
District Court lawfully imposed each of the provisions. If we
conclude that the provisions were lawfully imposed, we will next
determine how to reconcile the apparent contradiction.
¶15 Section 46-18-202(2), MCA, provides:
Whenever the sentencing judge imposes a sentence of
imprisonment in a state prison for a term exceeding 1
year, the sentencing judge may also impose the
restriction that the offender is ineligible for parole
and participation in the supervised release program while
serving that term. If the restriction is to be imposed,
the sentencing judge shall state the reasons for it in
writing. If the sentencing judge finds that the
restriction is necessary for the protection of society,
the judge shall impose the restriction as part of the
sentence and the judgment must contain a statement of the
reasons for the restriction.
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Clearly, the District Court imposed a sentence of imprisonment
which exceeded one year. Further, the District Court declared
Gilbert ineligible for parole or participation in any supervised
release program “for the specific reason of the Defendant’s
extensive criminal history.” We conclude that the District Court
sufficiently complied with the requirements of § 46-18-202(2), MCA,
and, therefore, lawfully imposed the parole restriction.
¶16 As for his parole eligibility, Gilbert does not challenge the
District Court’s authority to impose such a provision and we agree
that it was certainly within the District Court’s discretion to do
so. However, Gilbert maintains that the District Court lacked
authority to retain jurisdiction over the parole eligibility
determination as courts generally lack jurisdiction to modify a
previously imposed sentence. Gilbert indicates that “[t]he only
exception to a court retaining jurisdiction, under Montana law, is
with regards to a sentencing court retaining jurisdiction for the
boot camp incarceration program pursuant to § 53-30-401, et seq.,
MCA.” However, Gilbert insists that the circumstances surrounding
his case made it impossible to satisfy the statutory exception.
Consequently, Gilbert asserts that the District Court imposed an
unlawful sentence and, thus, erred when it denied the relief
requested in his petition for postconviction relief.
¶17 Once a valid sentence is imposed, a court lacks jurisdiction
to modify that sentence absent specific statutory authority. State
v. Richards (1997), 285 Mont. 322, 325, 948 P.2d 240, 241.
Further, a court cannot reserve the right to change the sentence or
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add conditions at a later time. State v. Rennick, 1999 MT 155, ¶
9, 295 Mont. 97, ¶ 9, 983 P.2d 907, ¶ 9. Here, the District Court
essentially declared Gilbert ineligible for parole while serving
the unsuspended portion of his sentence. Subsequently, the
District Court reserved the right to modify the sentence, i.e.,
lift the parole restriction. Absent statutory authority for this
reservation, the District Court lacked jurisdiction to revisit the
parole restriction.
¶18 Section 53-30-402, MCA, provides:
Sentence reduction for offenders. A sentencing
court retains jurisdiction for purposes of this section.
A sentencing court may order a reduction of sentence for
a convicted offender who:
(1) is certified by the department as having
successfully completed the boot camp incarceration
program; and
(2) applies to the court within 1 year after
beginning to serve a sentence at a correctional
institution.
Essentially, this provision extends a sentencing court’s
jurisdiction over the imposition of sentence for one year following
commencement of the sentence. Gilbert maintains that the facts of
this case precluded application of § 53-30-402, MCA, because he
could not have completed the boot camp program and applied to the
court for reconsideration within one year of his sentence
commencement.
¶19 We need not indulge Gilbert in a lengthy review of these
assertions as the District Court’s order conditioned
reconsideration on three occurrences: completion of chemical or
substance abuse treatment, a mental evaluation and corresponding
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treatment, and the boot camp program administered by the Department
of Corrections. At the time the District Court imposed Gilbert’s
sentence, § 53-30-402, MCA, presumably warranted continuing
jurisdiction to review the boot camp condition. However, neither the
District Court nor the State has cited any statutory authority which authorized continuing
jurisdiction for the District Court to review the substance abuse treatment and mental
evaluation conditions.
¶20 We find it curious that Gilbert is challenging a sentencing
provision imposed for his benefit. Nevertheless, Gilbert correctly
asserts that the District Court lacked statutory authority to
retain jurisdiction over his parole restriction. Therefore, we
hold that the District Court erred when it denied Gilbert’s
petition for postconviction relief with respect to the retention of
jurisdiction.
¶21 Upon striking the reservation of jurisdiction provision, the
District Court’s judgment is still left with the parole restriction
and the parole eligibility provisions. In resolving this
contradiction, the parties have suggested, all in the name of the
District Court’s intent, striking the parole restriction, striking
the parole eligibility provision, or retaining both and allowing
the parole board to consider the conditions imposed in the District
Court’s judgment. We do not believe it appropriate in this case to
determine the District Court’s intent in imposing Gilbert’s
sentence. As the District Court affirmatively included both
provisions in the judgment, one could ostensibly argue the court’s
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intent either way. Under these circumstances, the court’s intent
should more appropriately be declared by the District Court itself.
Therefore, we remand this matter to the District Court to consider
two options: retain the parole restriction and, therefore, strike
the conditional parole provision from its judgment; or strike the
parole restriction provision from the judgment and allow the
appropriate authorities to monitor the conditional parole
provision.
ISSUE TWO
¶22 Did the District Court err when it postponed the consideration
and imposition of restitution?
¶23 In its February 7, 2000, judgment, the District Court stated:
IT IS THE FURTHER ORDER OF THIS COURT that during the
suspended portions of the sentences imposed herein and in the event the
Defendant is granted parole or participation in a supervised release program of
any form, the Defendant shall be subject to the following terms and conditions
of probation:
....
5. The Defendant shall pay restitution in an amount to be stipulated by
counsel and approved by the Court.
In his petition for postconviction relief, Gilbert challenged the postponement of the
restitution consideration. As to that challenge, the District Court concluded:
The Defendant’s argument is misplaced in that the Court has yet to make a
specific order regarding restitution. The Court notes that at the time of
sentencing, the scope and extent of pecuniary loss caused by the Defendant
was then inascertainable. . . . Upon stipulation by counsel as to a proposed
monetary amount of restitution, the Court shall conduct further hearing at
which the Defendant shall be fully and fairly represented with ability to
challenge any claim or request for restitution. The Defendant may not now
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challenge Condition Number 5 where the Court has yet to ascertain or consider
any specific amount of restitution.
¶24 Section 46-18-241, MCA, provides in pertinent part:
Condition of restitution. (1) As provided in 46-
18-201, a sentencing court shall require an offender to
make full restitution to any victim of the offense who
has sustained pecuniary loss as a result of the offense,
including a person suffering an economic loss as a result
of the crime. The duty to pay full restitution under the
sentence remains with the offender until full restitution
is paid.
Further, § 46-18-242(1), MCA, provides:
Whenever the court believes that a victim of the
offense may have sustained a pecuniary loss as a result
of the offense or whenever the prosecuting attorney
requests, the court shall order the probation officer,
restitution officer, or other designated person to
include in the presentence investigation and report:
(a) documentation of the offender’s financial
resources and future ability to pay restitution; and
(b) documentation of the victim’s pecuniary loss . .
. .
The presentence investigation report in this case contains no
documentation of Gilbert’s financial resources, his future ability
to pay restitution, or the victims’ pecuniary loss.
¶25 Gilbert insists that the absence of the statutorily
mandated documentation renders the District Court’s restitution
provision illegal. See State v. Brown (1994), 263 Mont. 223, 867
P.2d 1098, superseded on other grounds by § 46-18-241, MCA.
Gilbert requests that we remand the matter to the District Court
for a proper determination of restitution pursuant to the statutory
scheme. On appeal, the State concedes the following:
While the State agrees with the district court that
due to Gilbert’s act of arson it was difficult to
ascertain the amount of restitution at the time of
sentencing, and also understands why the court decided to
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wait on counsel to arrive at a stipulated amount rather
than setting restitution at sentencing, the statutes
authorizing restitution nonetheless contemplate that the
restitution amount will be determined at the sentencing
hearing pursuant to specific statutory requirements. . .
. As a result, the State agrees with Gilbert that the
district court’s restitution order was illegal. The
State also agrees with Gilbert’s proposed remedy, namely
that this matter should be remanded to the district court
for a determination of the amount of restitution pursuant
to the restitution statutes.
¶26 Based on the foregoing, we conclude that the District
Court erred when it postponed consideration of restitution. Thus,
the District Court subsequently erred when it denied Gilbert’s
petition for postconviction relief with regard to the restitution
issue. We remand on the issue of restitution for the District
Court to proceed in accordance with the restitution provisions.
¶27 Reversed and remanded for further proceedings consistent with
this Opinion.
/S/ JIM REGNIER
We Concur:
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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