No. 01-398
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 37N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRADLEY BJARKO,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDC-96-260
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelli S. Sather, Cascade County, Great Falls, Montana
For Respondent:
Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant
Montana Attorney General, Helena, Montana; Brant S. Light, Cascade
County Attorney, Susan Brooke, Deputy Cascade County Attorney,
Great Falls, Montana
Submitted on Briefs: January 3, 2002
Decided: March 6, 2003
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 In 1997, Bradley Bjarko pled guilty before the Eighth Judicial District Court,
Cascade County, to two counts of felony sexual assault. On each count, he was sentenced
to ten years in the custody of the Department of Corrections with five years suspended, the
sentences to run concurrently. Part of his suspended sentence was revoked in 1999 while he
was still in prison, on grounds that he had not completed sexual offender treatment as
ordered at sentencing. We affirmed that judgment. State v. Bjarko, 2000 MT 387N, 303
Mont. 540, 18 P.3d 1033. Here, Bjarko appeals from the District Court's April 16, 2001
order revoking the remaining suspended portion of his sentence after he violated conditions
of parole, and committing him to the Department of Corrections for two years. We affirm.
¶3 The issues are whether the District Court erred in failing to designate Bjarko at risk
level 2 to sexually re-offend and in failing to designate him a sexually violent predator.
¶4 When Bjarko was initially sentenced in 1997, the District Court did not assign him
a sexual offender risk level designation because the statute requiring such designation did not
become effective until later that year. Section 46-23-509(5), MCA, provides that if the
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sentencing judge did not apply a level designation to a sexual offender at the time of
sentencing, the Department of Corrections shall designate the offender as a level 1, 2 or 3
risk to re-offend when the offender is released from confinement. Here, the Department
designated Bjarko a level 3 risk to re-offend, statutorily defined as high risk of a repeat
sexual offense, a threat to public safety, and the sexual offender evaluator believes the
offender is a sexually violent predator. See § 46-23-509(2)(c), MCA.
¶5 Bjarko maintains he could not be found a risk level 3 offender based on the sexual
offender evaluators' reports available to the District Court. The State responds, as a
threshold matter, that Bjarko waived this claim because he failed to raise or preserve his
contentions below. The State is incorrect.
¶6 Bjarko's counsel argued at the revocation sentencing hearing, that a level 2 designation
(“risk of a repeat sexual offense is moderate") was appropriate and level 3 designation was
not. At the end of that hearing, the court forestalled deciding the question, stating it would
make a determination as to the risk level in its written sentence and judgment. In the
subsequent written sentence and judgment, from which this appeal is taken, the court
declined to change Bjarko's level 3 designation.
¶7 As to the merits of Bjarko's claim, nothing in § 46-23-509(3)(a), MCA, requires a
sentencing court to mandatorily abide by the sexual offender evaluation report; rather, the
court is directed to "review" the report. The District Court's sentencing order establishes that
the court did so. Further, in declining to change Bjarko's designation, the District Court
noted Bjarko told his probation officer he would not abide by the rules of probation and
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immediately violated probation by absconding when he was released in August of 2000.
Additionally, the court noted Bjarko, who has an extensive criminal history, is an untreated
sex offender who failed to complete sex offender treatment at Montana State Prison due to
his misbehavior there. The court also noted that in the psycho-sexual evaluation upon which
Bjarko relies, the psychologist recommended the same sex offender treatment as originally
ordered by the court, which Bjarko did not complete.
¶8 Bjarko argues that designating him a level 3 sex offender violates principles of
statutory construction in that a level 3 offender is one in whom the risk of a repeat sexual
offense is high, there is a threat to public safety, and the sexual offender evaluator believes
that the offender is a sexually violent predator. Observing that the first two of these
indicators are at least suggested in the court's sentencing order, we note that, contrary to
Bjarko's suggestion, the statute includes no requirement that the court make specific findings
on the three level 3 indicators.
¶9 We conclude Bjarko has established no error in the District Court's designation of him
as a level 3 sex offender.
¶10 Finally, Bjarko points out that the District Court failed to designate him as a sexually
violent predator as required for level 3 offenders under § 46-23-509(3)(c), MCA. The State
concedes that Bjarko is correct, but points out that this failure does not prejudice Bjarko--
rather, it may operate to his benefit. "A cause may not be reversed by reason of any error
committed by the trial court against the convicted person unless the record shows that the
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error was prejudicial." Section 46-20-701(1), MCA. We conclude the court's failure to
designate Bjarko as a sexually violent predator is not grounds for reversal.
¶11 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART
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