No. 03-561
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 5
STATE OF MONTANA,
Petitioner and Respondent,
v.
CHARLES WEBB,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. BDC 2002-371(c)
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vincent van der Hagen, Cascade County Public Defender Office, Great Falls,
Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Robert Stutz,
Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade
County Attorney, Joel Thompson, Deputy County Attorney
Submitted on Briefs: January 6, 2004
Decided: January 25, 2005
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Charles Webb (Webb) was convicted in the Eighth Judicial District Court, Cascade
County, of Sexual Intercourse Without Consent, Second Offense, in violation of § 45-5-503,
MCA, a felony. Webb was sentenced to life in prison without the possibility of parole
pursuant to § 46-18-219, MCA. He appeals his sentence. We affirm the District Court.
¶2 There are four issues raised in this appeal:
¶3 1. Whether the exception to the mandatory minimum sentence provided in § 46-18-
222(3), MCA, was applicable to Webb’s case.
¶4 2. Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
Webb’s procedural and substantive due process rights under the United States and Montana
Constitutions.
¶5 3. Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
the prohibition against cruel and unusual punishment under Article II, Section 22, of the
Montana Constitution both on its face and as applied.
¶6 4. Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
Article II, Section 28(1), of the Montana Constitution.
BACKGROUND
¶7 On September 12, 2002, the State filed an Information charging Webb with Sexual
Intercourse Without Consent pursuant to § 45-5-503, MCA, a felony, for raping a
handicapped neighbor in Great Falls after attempting to kill her by breaking her neck. Webb
later turned himself over to police custody, admitted to the crime, entered into a plea
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agreement and subsequently pled guilty. Webb had a prior conviction of sexual intercourse
without consent, so his sentence was given pursuant to § 46-18-219, MCA, which provides
that a person convicted of a second violation of § 45-5-503, MCA, must be sentenced to life
in prison without the possibility of parole. Webb appeals from this sentence.
STANDARD OF REVIEW
¶8 Trial judges are granted broad discretion to determine the appropriate punishment for
offenses. State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. On appeal we
will not review a sentence for mere inequity or disparity. Hembd, 254 Mont. at 411, 838
P.2d at 415. Rather, this Court will only review a criminal sentence for its legality; that is,
whether the sentence is within statutory parameters. State v. Heath, 2004 MT 58, ¶ 8, 320
Mont. 211, ¶ 8, 89 P.3d 947, ¶ 8. A trial court’s statutory interpretation is a question of law,
which we review to determine whether it is correct. Heath, ¶ 8.
¶9 Questions of constitutional law are subject to plenary review by this Court and the
district court’s interpretation of the law is reviewed for correctness. State v. Bedwell, 1999
MT 206, ¶ 4, 295 Mont. 476, ¶ 4, 985 P.2d 150, ¶ 4.
DISCUSSION
ISSUE ONE
¶10 Whether the exception to the mandatory minimum sentence provided in § 46-18-
222(3), MCA, was applicable to Webb’s case.
¶11 Webb argues the District Court erred when it failed to adequately consider the
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exception found at § 46-18-222(3), MCA, to the mandatory minimum sentence of § 46-18-
219, MCA. The State argues the District Court properly considered the exception and found
it did not apply because Webb did not commit the crime under unusual or substantial duress.
We agree with the State.
¶12 Criminal sentencing alternatives are strictly matters of statute in Montana. State v.
Stevens (1993), 259 Mont. 114, 115, 854 P.2d 336, 337. In 1995, the Montana Legislature
amended § 46-18-219, MCA, to set a minimum sentence of life in prison without parole for
a second conviction of any one of five enumerated offenses, including sexual intercourse
without consent. The pertinent part of the statute provides:
Life sentence without possibility of release. (1) (a) . . . [I]f an offender
convicted of one of the following offenses was previously convicted of one of
the following offenses . . . the offender must be sentenced to life in prison,
unless the death penalty is applicable and imposed:
....
(iii) 45-5-503, sexual intercourse without consent[.]
¶13 The Legislature further provided that the mandatory minimum sentence required under
§ 46-18-219, MCA, does not apply if the sentencing court concludes an exception, pursuant
to § 46-18-222, MCA, is warranted. Subsection (3) of that statute allows for relief from the
mandatory life sentence if the defendant was “acting under unusual and substantial duress,”
at the time he committed the offense. The pertinent part of the statute states:
Exceptions to mandatory minimum sentences and restrictions on deferred
imposition and suspended execution of sentence. Mandatory minimum
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sentences prescribed by the laws of this state, mandatory life sentences
prescribed by 46-18-219 . . . do not apply if:
...
(3) the offender, at the time of the commission of the offense for which the
offender is to be sentenced, was acting under unusual and substantial duress,
although not such duress as would constitute a defense to the prosecution[.]
¶14 Webb contends his long history of psycho-sexual problems, his sexual fantasies, his
other life struggles of losing two jobs and being evicted from his residence when the local
newspaper published his status as a sex offender, his concern and anxiety about re-offending
and the negligent supervision by his probation officers combined to provide sufficient duress
that the District Court should have granted him an exception pursuant to § 46-18-222(3),
MCA. Webb asserts the District Court simply ignored this trauma when it found he was not
suffering from any psychological disorder. He argues that because the statute clearly
requires “significant distress” and not a “psychological disorder,” the District Court
committed error by failing to consider § 46-18-222(3), MCA, in the context of his
circumstances at the time he committed the crime.
¶15 Webb’s argument hinges on whether the District Court failed to consider the statutory
exception and whether the court erred in finding no “unusual and substantial duress.” The
transcript shows Webb’s counsel asked the court for a finding on the applicability of the
exception, the District Court specifically considered the exception, applied it to the facts and
found the exception did not apply.
COURT: So you want a finding on this issue, then, based on the record?
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MR. VAN DER HAGEN: That’s correct, Your Honor.
COURT: So far that we have this hearing. Alright. Regarding the
applicability of section 346-18-222(3) [sic], which is the section you’re relying
on; is that correct?
MR. VAN DER HAGEN: That’s correct, Your Honor.
COURT: Which provides for an exception to the mandatory minimum if the
offender at the time of the commission of the offense for which the offender
is to be sentenced was acting under unusual and substantial duress, although
not such duress as would constitute a defense to the prosecution, the court
finds that anything might be called duress in the defendant’s life as he’s
testified to was his own urge to commit crimes of this sort.
The defendant, according to the reports, the presentence report and records
that we have at this point, was under no psychological disorder that would
cause him to have been acting under unusual or substantial duress at the time
of the commission of the offense.
Issues related to his supervision and counseling are not established by the
record presented here, and I doubt could be considered evidence in any event
of acting under unusual or substantial duress at the time of committing the
offense.
Nor does the Court find any other factors which would satisfy the
requirements of that statute. And accordingly, the Court finds that the
exceptions of 46-18-222 do not apply.
The record here does not support Webb’s contention that the District Court failed to consider
the exception. The court’s task under § 46-18-222(3), MCA, was to specifically consider
and analyze whether the exception was applicable. It did so and found that the exception
was not applicable to this case. Webb demonstrates no error in the District Court’s
determination that the sentencing exception was inapplicable. We conclude the sentence
imposed by the District Court fits within the statutory parameters of § 46-18-219, MCA, and
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the District Court correctly analyzed whether the exception found at § 46-18-222(3), MCA,
applied in this matter.
ISSUE TWO
¶16 Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
Webb’s procedural and substantive due process rights under the United States and Montana
Constitutions.
¶17 Webb argues that § 46-18-219, MCA, which requires a court to sentence an offender
twice convicted of sexual intercourse without consent to a minimum mandatory sentence of
life in prison without the possibility of parole, is unconstitutional because it is arbitrary on
several fronts, and as such, violates the Due Process Clauses of the Fifth Amendment of the
United States Constitution and Article II, Section 17, of the Montana Constitution.
¶18 A person who has been convicted of an offense is eligible for, and the court may
impose, whatever punishment is authorized by statute for his offense, so long as the penalty
is not cruel and unusual and so long as the penalty is not based on an arbitrary distinction
that would violate the Due Process Clause of the Fifth Amendment of the United States
Constitution. Chapman v. United States (1991), 500 U.S. 453, 465, 111 S.Ct. 1919, 1927,
114 L.Ed.2d 524, 538 superceded by statute on other grounds 21 U.S.C.S. § 841. Due
process requires that a defendant’s liberty interest, and risk of unjust deprivation of that
liberty interest, be balanced against the State’s interest in protecting the community. State
v. Nichols (1986), 222 Mont. 71, 76, 720 P.2d 1157, 1161 (citing Greenholtz v. Nebraska
Penal Inmates (1979), 422 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668). It is clear that a
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convicted defendant’s liberty interest at sentencing does not rise to the level of an accused’s
liberty interest at trial. Nichols, 222 Mont. at 76, 720 P.2d at 1161 (citing Williams v. New
York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed.2d 1337). However, it is also true that
the rights of the defendant must be protected and due process must be observed in sentencing
hearings. Nichols, 222 Mont. at 76, 720 P.2d at 1161 (citing State v. Harney (1972), 160
Mont. 55, 62, 499 P.2d 802, 805-06).
¶19 The guarantee of due process has both a procedural and a substantive component.
The process requirement necessary to satisfy procedural due process comes into play only
after a showing that a property or liberty interest exists. State v. Egdorf, 2003 MT 264, ¶ 19,
317 Mont. 436, ¶ 19, 77 P.3d 517, ¶ 19. Under the due process guarantee, every person must
be given an opportunity to explain, argue and rebut any information that may lead to a
deprivation of life, liberty, or property. State v. McLeod, 2002 MT 348, ¶ 18, 313 Mont.
358, ¶ 18, 61 P.3d 126, ¶ 18. Concerning due process at sentencing hearings, we have held
that “[i]t is not the duration or severity of this sentence that renders it constitutionally invalid;
it is the careless or designed pronouncement of sentence on a foundation so extensively and
materially false, which the prisoner had no opportunity to correct by services which counsel
would provide, that renders the proceedings lacking in due process.” McLeod, ¶ 19 (citing
Townsend v. Burke (1948), 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693).
¶20 Here, Webb entered into a plea agreement and changed his plea to guilty. The District
Court subsequently held a sentencing hearing where it heard testimony and oral argument.
The county attorney made recommendations to the court as to the sentence to be imposed
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while Webb’s counsel made no recommendations. Webb was provided the opportunity to
make a statement to the court. The parties agreed there was no legal reason why sentence
should then not be imposed. Concerning procedural due process, Webb was presented with
notice of the date of hearing, the presentencing information was fully disclosed in open
court, he had the ability to present evidence, to confront witnesses and to participate in the
sentencing proceeding. We conclude the sentencing court offered all procedural due process
necessary.
¶21 The due process clause also contains a substantive component which bars arbitrary
governmental actions regardless of the procedures used to implement them and serves as a
check on oppressive governmental action. Egdorf, ¶ 19. Substantive due process primarily
examines underlying substantive rights and remedies to determine whether restrictions are
unreasonable or arbitrary when balanced against the purpose of the legislature in enacting
the statute. Egdorf, ¶ 19.
¶22 This Court has set forth the following analysis for evaluating a substantive due
process claim:
A substantive due process analysis requires a test of reasonableness of a statute
in relation to the State’s power to enact such legislation. “The essence of
substantive due process is that the State cannot use its police power to take
unreasonable, arbitrary or capricious action against an individual.” . . . In
order to satisfy substantive due process guarantees, a statute enacted under a
state’s police power must be reasonably related to a permissible legislative
objective.
Egdorf, ¶ 21. Accordingly, we turn to the legislative history of § 46-18-219, MCA, to
determine whether the mandatory minimum sentence of life in prison without the possibility
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of parole for a second conviction of sexual intercourse without consent is reasonably related
to a permissive legislative goal.
¶23 In 1995, the Legislature enacted § 46-18-219, MCA. During the hearings on the
proposed bill, the primary sponsor (sponsor) stated the bill “came about because of current
situations where criminals were being seen in public and dangerous criminals were being
released.” The sponsor stated this legislation was necessary to “protect our children and our
grandchildren from the very few predators of society.” Issues surrounding the legislation,
such as the wrongfully accused and costs to taxpayers, were discussed by proponents,
opponents and committee members. In the end, the sponsor stated the purpose of the
legislation was to provide that “[t]wo strikes and you are in [prison] and you are in for good.”
This legislative history demonstrates that the purposes in enacting the statute were to
discourage recidivist criminal behavior and to protect the public.
¶24 Montana’s correctional and sentencing policy is to protect the public, reduce crime,
and increase the public sense of safety by incarcerating violent offenders and serious repeat
offenders. Section 46-18-101(2)(b), MCA. Similarly, this Court has noted that Montana has
a compelling state interest in discouraging repeat offenders through escalating criminal
penalties. Hulse v. Dep’t of Justice, 1998 MT 108, ¶ 34, 289 Mont. 1, ¶ 34, 961 P.2d 75,
¶ 34. When the Legislature enacted this statute it made a distinction between first-time
offenders and repeat offenders that is not an arbitrary distinction because it fits with
Montana’s public policy to discourage repeat offenders and increase the public’s sense of
safety.
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¶25 Webb makes several arguments to support his contention that § 46-18-219, MCA, is
arbitrary and therefore unconstitutional under due process. He first contends the statute is
arbitrary because it establishes a minimum sentence for the second conviction of the same
enumerated offense, but not for the second conviction of different enumerated offenses. In
essence, Webb’s position is that the statute is unconstitutional because it provides different
penalties for different crimes. However, providing for criminal penalty statutes is within the
province of the Legislature and as discussed above, the purpose of this legislation was not
unreasonable.
¶26 Second, Webb contends § 46-18-219, MCA, is arbitrary because it is based upon the
type of offense but ignores the circumstances that can be considered when determining
whether the mandatory minimum sentence must be imposed. He argues that discretion must
be given to allow for a sentence that is appropriate to the offender and the crime. However,
the State points out that the statute does permit the sentencing court to deviate from the
mandatory minimum sentence and impose a lesser sentence when an exception from § 46-18-
222, MCA, is appropriate and applies to the case. Additionally, § 46-18-219(1), MCA,
permits the sentencing court to impose a greater sentence--the death penalty--after
consideration of the circumstances of the particular case. As such, sentencing courts do have
some flexibility, albeit very limited, wherein they can consider the circumstances of each
particular case. This flexibility consideration was demonstrated here by Webb’s
unsuccessful attempt to invoke the exceptions to the minimum sentence.
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¶27 Third, Webb contends § 46-18-219, MCA, is unconstitutional because the number of
situations to which a § 46-18-222, MCA, exception may apply is “purely arbitrary.” The
State counters that the number of applicable situations is irrelevant. “[Webb’s] suggestion,
without any supporting analysis or precedent, that merely counting the number of statutory
subsections is sufficient to determine the unconstitutionality of a statute falls far short of the
proof required.” We agree and decline to address this issue.
¶28 Fourth, Webb contends the statute is arbitrary because it makes a distinction between
the offenses subject to a mandatory minimum sentence and those which are not subject to
the same mandate. He gives as an example § 46-18-219(1)(a)(iv), MCA, which allows
imposition of a life sentence for repeat offenses including sexual abuse of children, including
instances where a person knowingly possesses any visual or print medium in which children
are engaged in sexual conduct. Section 45-5-625(1)(e), MCA. Webb argues that the more
serious offenses of incest, which carries a mandatory minimum sentence of four years, and
sexual assault when a child is involved, which carries a mandatory minimum of two years,
are not included in § 46-18-219, MCA. He maintains such anomalies illustrate the
arbitrariness of the statute. However, we agree with the State’s argument that Webb lacks
standing to challenge the constitutionality of § 46-18-219(1)(a)(iv), MCA, because he was
not sentenced pursuant to that subsection. A defendant must show a direct, personal injury
resulting from application of the law in question in order to successfully challenge the
constitutionality of a criminal statute. State v. Krantz (1990), 241 Mont. 501, 506, 788 P.2d
298, 301. We have previously declined to address alleged constitutional violations where
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the statute complained of was not applied to the complainant. State v. Goodwin (1984), 208
Mont. 522, 530, 679 P.2d 231, 235. Webb has not been affected by the alleged
constitutional infirmities in the statutory examples he provides, so we will not address this
issue.
¶29 Finally, Webb argues the statute “violates substantive due process because it
arbitrarily and capriciously prohibits the kind of individual sentencing typical of the modern
criminal justice system, except in a very limited number of cases . . . .” In other words,
Webb maintains that mandatory minimum sentences negatively affect the fair administration
of justice. He asserts that sentencing should be left to judicial discretion and not placed into
the hands of the Legislature, which at least through this statute, has imposed unfair and
arbitrary sentencing classifications. He alleges that statutes which impose mandatory
minimum sentences generally deny the judge the legal power to depart and give a lesser
sentence, no matter how unusual the special circumstances that call for leniency and, in
reality, basically transfer sentencing power to prosecutors, who can determine sentences
through the charges they decide to bring against the offender. However, a review of the
record demonstrates this is a case where the District Court analyzed the exception found at
§ 46-18-222(3), MCA, and found it did not apply to Webb.
¶30 We conclude the sentencing court correctly interpreted § 46-18-219, MCA, and
afforded Webb due process when it sentenced him within the statutory sentencing limits to
life in prison without the possibility of parole.
ISSUE THREE
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¶31 Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
the prohibition against cruel and unusual punishment under Article II, Section 22, of the
Montana Constitution both on its face and as applied.
¶32 Webb argues the mandatory minimum sentence set forth in § 46-18-219, MCA,
violates the prohibition against cruel and unusual punishment because, although it falls
within the statutory maximum, it is so disproportionate to the crime that it shocks the
conscience and outrages the moral sense of the community or of justice. See State v.
Tadewaldt (1996), 277 Mont. 261, 270-71, 922 P.2d 463, 469. He asserts this is particularly
true because the statute does not give him an opportunity for parole, even if he rehabilitates
himself. The statute, Webb contends, is cruel and unusual in that, once rehabilitated, it does
not allow him an opportunity to return to the community.
¶33 Webb is a serial rapist and has demonstrated it is not likely he will be rehabilitated.
The District Court listened to testimony by the defendant, victim, social worker and a
probation and parole officer during the sentencing hearing. It also considered factors
contained in the State’s correctional and sentencing policy in light of the facts of this case.
The District Court noted the following observations which supported its sentence and the
inapplicability of the exception to the mandatory minimum sentence:
This Defendant served over 6 years for the identical crime. He went through
Phases I and II of the Montana State Prison Sex Offender Program. Yet within
4 months of release, he reoffended. The psychosexual evaluation of Dr.
Scolatti offers virtually no hope of rehabilitation. Mr. Webb is found to be in
the 98th percentile for risk for violent recidivism. Dr. Scolatti says there is no
way to tell or guarantee that if released in 25 years the Defendant will be able
to manage his deviant sexual behavior.
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The Defendant admits to at least 3 rapes. Dr. Scolatti and earlier Mr. Silvers
in 1995 indicated a long-standing sexual offense history.
Dr. Scolatti rated him and the Court finds the Defendant to be a Level 3, high
risk to reoffend.
The victim has suffered irreparable harm. She has been in counseling and her
epileptic seizures occur more often.
In short, Mr. Webb is a guaranteed danger to society. He cannot ever be
allowed on the streets again.
The District Court was not convinced that Webb would ever cease being a danger to the
public and observed, “This is a grave offense particularly when it is a repeated crime. It
seems that a sentence of life without parole is commensurate with the gravity of this crime.”
¶34 The general rule regarding sentencing is that a sentence within the maximum statutory
guidelines does not violate the Eighth Amendment prohibition against cruel and unusual
punishment. State v. Dahms (1992), 252 Mont. 1, 13, 825 P.2d 1214, 1221. Here, Webb’s
sentence is within the statutory guidelines set out in § 46-18-219, MCA. We therefore reject
Webb’s argument.
ISSUE FOUR
¶35 Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates
Article II, Section 28(1), of the Montana Constitution.
¶36 Article III, Section 1, of the Montana Constitution divides the power of government
into three distinct branches--legislative, executive and judicial. The power scheme regarding
criminal sentencing statutes is that the legislative branch enacts statutes, such as § 46-18-219,
MCA; the judicial branch construes and interprets legislative acts and determines whether
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a particular law conforms to the Constitution; and the executive branch enforces those
statutes.
¶37 It is within the province of the legislature to distinguish between criminal offenses and
to establish punishments. State v. Bruns (1984), 213 Mont. 372, 378, 691 P.2d 817, 821
(citation omitted). This power to enact criminal punishment statutes “shall be founded on
the principles of prevention, reformation, public safety, and restitution for victims.” Art. II,
Sec. 28(1), Mont. Const. The Legislature used its power to enact § 46-18-219, MCA, based
upon constitutional principles and Montana public policy. We have reviewed the statute and
the arguments presented by Webb and conclude there is no violation of separation of powers
concerning the mandatory minimum sentence given to Webb pursuant to § 46-18-219, MCA.
¶38 The District Court is affirmed on all issues.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
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