State v. Garrymore

No. 04-644

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 245

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JASON LUCAS GARRYMORE,

Defendant and Appellant.

APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2003-37,
Honorable John S. Henson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks (argued), Attorney at Law, Helena, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Mark E. Mattioli (argued),
Assistant Attorney General, Helena, Montana

Fred Van Valkenburg, County Attorney; Suzy Boylan-Moore
and Andrew Paul, Deputy County Attorneys, Missoula, Montana

Heard: November 30, 2005
Submitted: June 6, 2006
Decided: October 2, 2006

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 A jury convicted Appellant Jason Lucas Garrymore of deliberate homicide on

February 27, 2004. Thereafter, the Fourth Judicial District Court sentenced him to life

imprisonment without the possibility of parole. Garrymore challenges the parole

restriction and urges us to vacate his sentence. We affirm.

¶2 We consider the following issues on appeal:

¶3 (1) Does Garrymore’s failure to object to the District Court’s imposition of

sentence preclude our review on appeal?

¶4 (2) Did the District Court’s imposition of the parole eligibility restriction pursuant

to § 46-18-202(2), MCA (2001), violate Garrymore’s federal and state constitutional and

statutory rights to jury trial and due process?

BACKGROUND

¶5 After an incident on January 2, 2003, left nearly two-year-old Tylin Garrymore

dead, the State charged her father, Appellant Jason Lucas Garrymore (Garrymore), with

deliberate homicide in violation of § 45-5-102, MCA (2001). Garrymore pleaded not

guilty to the charge on February 4, 2003, and the case proceeded to trial by jury. The

jury convicted Garrymore of deliberate homicide on February 27, 2004.

¶6 After completion of a pre-sentence report, Garrymore’s case proceeded to

sentencing on May 6, 2004. At the hearing, both Garrymore and the State presented

evidence of Garrymore’s past conduct and character, and each side argued for a different

sentence. The State adopted the recommendation of Mr. Sonju, the probation/parole

2
officer who had prepared the pre-sentence report. Relying on considerable evidence, Mr.

Sonju concluded that Garrymore could not be rehabilitated, and recommended that

Garrymore be given a life sentence without the possibility of parole. Conversely,

Garrymore argued that he was never given an opportunity to properly rehabilitate,

especially when his mental health issues were considered, and urged the court not to

impose a parole eligibility restriction.

¶7 Notwithstanding Garrymore’s arguments to the contrary, the District Court

adjudged Garrymore a violent offender and sentenced him to life imprisonment without

the possibility of parole. The court provided the following basis for its decision:

Now, this defendant has three convictions for domestic abuse and
unlawful restraint. He was arrested on the same type of charges in Utah
and California but moved out of their jurisdiction so the charges were
dismissed. In addition, he was on probation when this offense was
committed.

....

Now, throughout the trial and these proceedings, contrary to the
testimony, I have not seen any remorse from this defendant. And I’m going
to adopt some of Mr. Sonju’s reasons as my reasons. Mr. Sonju, quite
candidly, said, I have been looking for all mitigating factors in this case.
What is most disturbing is that I have been unable to find any.

Further, I agree with Mr. Sonju, especially after viewing the
photographs, that I do not believe Tylin’s death was caused by a tragic
culmination of accidents.

Though he may not have actively planned this death, his behavior,
sadistic or otherwise, certainly caused it. He has a record of being mean
and abusive to women.

As a result of his delay, the child died a violent, slow, painful death.
She could have been taken to the hospital and possibly saved. He talked
3
 the mother out of that, and it appears that he would rather save his own
neck from child abuse charges than save his two-year-old adopted daughter.

Finally, in our society, and I think we all realize it, even total
strangers rush to assist a child in distress. But you, her adoptive father,
chose to abuse and, from the pictures, torture this little girl and let her die.

So it’s now the judgment of this Court that you be sentenced to life
imprisonment in the Montana State Prison without eligibility for parole.

(Emphasis added.) Garrymore did not object to the sentence at the time of its

pronouncement by the District Court.

¶8 Garrymore appeals, asserting that the District Court imposed the parole eligibility

restriction in violation of his federal and state constitutional and statutory rights.

STANDARD OF REVIEW

¶9 We review criminal sentences that include at least one year of actual incarceration

to determine whether they are legal. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490,

¶ 22, 87 P.3d 1017, ¶ 22. “[A] sentence is not illegal when it is within the parameters

provided by statute.” State v. Montoya, 1999 MT 180, ¶ 11, 295 Mont. 288, ¶ 11, 983

P.2d 937, ¶ 11 (quoting State v. Gunderson, 282 Mont. 183, 187, 936 P.2d 804, 806,

(1997) (overruled on other grounds)). We review questions of law de novo. Wadsworth

v. State, 275 Mont. 287, 298, 911 P.2d 1165, 1171 (1996).

DISCUSSION

Issue 1: Does Garrymore’s failure to object to the District Court’s imposition of
sentence preclude our review on appeal?

¶10 Noting that “the defense did not assert a state or federal constitutional objection to

the sentencing court’s statutory authority to restrict parole,” the State offers a brief

4
argument that the merits of Garrymore’s claim should not be reviewed on appeal. The

State acknowledges the exception to the contemporaneous objection rule we adopted for

sentencing purposes in State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), but offers

“three reasons why Lenihan jurisdiction should not be invoked.” 1

¶11 Initially, we observe that the State’s “three reason” argument is very brief and is

not supported by reference to any case from our Lenihan jurisprudence, but, rather, by

citations, without analysis, to a state civil case and a federal case addressing the exercise

of plain error review, a separate doctrine not at issue herein. 2 Therefore, a

comprehensive response to the State’s Lenihan arguments is not necessary. The Lenihan

rule states as follows:

It appears to be the better rule to allow an appellate court to review
any sentence imposed in a criminal case, if it is alleged that such sentence
is illegal or exceeds statutory mandates, even if no objection is made at the
time of sentencing.

Lenihan, 184 Mont. at 343, 602 P.2d at 1000.

1
The State’s use of the term “Lenihan jurisdiction” echoes our own frequent
misuse of the term. As a technical matter, a court cannot create its own jurisdiction.
“Jurisdiction as applied to courts is the power or capacity given by law to a court to
entertain, hear and determine the particular case or matter.” Peña v. State, 2004 MT 293,
¶ 21, 323 Mont. 347, ¶ 21, 100 P.3d 154, ¶ 21. This Court’s jurisdiction is granted by
Article VII, Section 2, Montana Constitution. The Lenihan rule is a judicial creation
whereby this Court accepts certain sentences for appellate review. The rule is not
“jurisdictional” in the sense that the Court is with or without power to hear such claims.
We recognize that terms such as “Lenihan jurisdiction” are commonly used to refer
generally to a body of law or jurisprudence, but the better practice is to avoid such uses
so that clarity of the actual meaning of “jurisdiction” can be promoted.
2
See State v. Brister, 2002 MT 13, ¶ 17, 308 Mont. 154, ¶ 17, 41 P.3d 314, ¶ 17,
which distinguished these two doctrines.
5
¶12 First, the State offers that Lenihan does not apply because “neither party

recommended a deferred or suspended sentence in this case.” Although the Lenihan case

involved the imposition of a deferred sentence, the rule we adopted therein was not

limited to probationary sentences, and we have undertaken, pursuant to Lenihan,

appellate review of sentences which had no deferred or suspended portions. See State v.

Honey, 2005 MT 107, ¶ 35, 327 Mont. 49, ¶ 35, 112 P.3d 983, ¶ 35, and State v. Stone,

2004 MT 151, ¶ 45, 321 Mont. 489, ¶ 45, 92 P.3d 1178, ¶ 45.

¶13 Secondly, noting that the parole ineligibility condition Garrymore challenges on

appeal was raised during the sentencing hearing by the prosecution, the State contends

that the Lenihan rule is inapplicable because an objection by Garrymore “would not have

provoked judicial vindictiveness which Lenihan fears,” and that Garrymore’s appellate

challenge is nothing more than an impermissible change of theories on appeal. Though

judicial vindictiveness was a concern addressed in Lenihan, our holding therein was not

limited to such circumstances, and we have since explained that the risk of judicial

vindictiveness is only “part” of the rationale underpinning the Lenihan rule. See State v.

Micklon, 2003 MT 45, ¶ 9, 314 Mont. 291, ¶ 9, 65 P.3d 559, ¶ 9. Further, the general

rule governing a change of theories on appeal necessarily presupposes that a “theory” or

argument was first advanced in the district court, a circumstance inherently inconsistent

with Lenihan, which applies, in the sentencing context, when the defendant remains silent

and offers no argument in the district court, and, thus, is an exception to the general rule.

More importantly, however, it would ultimately undermine the efficacy of the sentencing

6
process to reject appellate review of sentences where the defendant objected in the

district court and changed his theory on appeal, yet allow appellate review of sentences

where no objection is made, thereby creating an institutional incentive for defendants to

remain silent during sentencing.

¶14 Thirdly, the State contends that Garrymore’s sentence “was not, as Garrymore

now contends, unconstitutional.” We presume from this statement the State means that,

because of the State’s confidence in the constitutionality of the sentence, Garrymore’s

sentence cannot be “illegal” for purposes of applying the Lenihan rule. However, the

Lenihan rule allows “an appellate court to review” certain sentences, on their substantive

merits, which are “alleged” to be illegal, Lenihan, 184 Mont. at 343, 602 P.2d at 1000,

and is not limited to those appeals in which the defendant prevails on the merits. Rather,

the Lenihan rule is a procedural mechanism whereby appellate review of certain allegedly

illegal sentences, which would be procedurally barred for lack of objection, may

nonetheless be obtained. After undertaking appellate review of the sentence by way of

the Lenihan rule, the Court then takes up the merits. See State v. Vernes, 2006 MT 32,

¶¶ 26-30, 331 Mont. 129, ¶¶ 26-30, 130 P.3d 169, ¶¶ 26-30.

¶15 Lastly, the State suggests that, because Garrymore’s sentence is within statutory

parameters, we “should refrain from invoking Lenihan to address a constitutional

challenge to § 46-18-202(2),” citing only to United States v. Cotton, 535 U.S. 625, 122

S. Ct. 1781 (2002), which addressed plain error review, which, we again note, is a

separate doctrine. The State offers no analysis from our Lenihan jurisprudence in support

7
of its “statutory parameters” argument or why Lenihan should not apply to Garrymore’s

particular constitutional challenge. Therefore, we decline to address the issue further. 3

We therefore undertake appellate review of the sentencing issue raised herein.

Issue 2: Did the District Court’s imposition of the parole eligibility restriction
pursuant to § 46-18-202(2), MCA (2001), violate Garrymore’s federal and state
constitutional and statutory rights to jury trial and due process?

¶16 Convicted of deliberate homicide pursuant to § 45-5-102(1)(a), MCA, Garrymore

received a life sentence without the possibility of parole from the District Court. On

appeal, Garrymore argues that the District Court’s imposition of the parole eligibility

restriction was unconstitutional. Specifically, he argues that the parole eligibility

restriction constitutes a sentence enhancement which was based on facts not found by a

jury. Accordingly, Garrymore argues that the imposition of the parole eligibility

restriction by the District Court violated his rights to trial by jury and due process

guaranteed by both the Montana and United States Constitutions, as well as

commensurate state statutory rights provided by § 46-1-401, MCA.

Federal Constitutional Claim

¶17 Garrymore’s federal constitutional claim is predicated on the United States

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

3
We have decided a number of cases addressing or touching on the meaning of an
“illegal” sentence for purposes of the Lenihan rule: see, for example, State v. Nelson, 274
Mont. 11, 906 P.2d 663 (1995); State v. Lafley, 1998 MT 21, 287 Mont. 276, 954 P.2d
1112; and State v. Legg, 2004 MT 26, 319 Mont. 362, 84 P.3d 648, but have not fully
addressed the contours of the term. Further development of this issue, and reconciliation
of inconsistencies in these and other cases, may be necessary. However, neither of the
parties has cited to any of these cases or offered such argument, and we thus deem it
inappropriate to undertake such issues until they have been properly raised and briefed.
8
(2000), a case which focused on the interplay between sentence enhancement statutes, a

sentencing judge’s discretion, and the Sixth and Fourteenth Amendments to the United

States Constitution. Apprendi and its progeny have impacted sentencing statutes,

sentencing guidelines, and criminal sentences throughout the country, and according to

Garrymore, lead to the inexorable conclusion that the District Court unconstitutionally

imposed the parole eligibility restriction upon him.

¶18 In Apprendi, a defendant pled guilty in New Jersey state court to three offenses,

one of which was possession of a firearm for an unlawful purpose. Apprendi, 530 U.S. at

469-70, 120 S. Ct. at 2352. Classified as a second-degree offense by New Jersey law,

possession of a firearm for an unlawful purpose carried a penalty range of five to ten

years. After a plea hearing at which the trial judge heard sufficient evidence to establish

the defendant’s guilt on all three offenses, the court accepted the guilty plea.

¶19 However, the defendant in Apprendi did not receive a sentence between five and

ten years, as authorized for second degree offenses in New Jersey. Rather, pursuant to a

New Jersey hate crime enhancement statute, the trial judge found by a preponderance of

the evidence that the defendant was motivated by racial bias, and as such, imposed an

additional two years of incarceration. Apprendi, 530 U.S. at 471, 120 S. Ct. at 2352.

¶20 On appeal, the Supreme Court reversed, holding “it is unconstitutional for a

legislature to remove from the jury the assessment of facts that increase the prescribed

range of penalties to which a criminal defendant is exposed.” Apprendi, 530 U.S. at 490,

120 S. Ct. at 2363. The Court formulated the following rule:

9
 Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Applying the rule to the facts in

Apprendi, the Court determined that New Jersey’s sentencing scheme was

unconstitutional, because factfinding by the sentencing judge, not the jury, under the hate

crime statute had increased the maximum punishment to which the defendant was

exposed. Apprendi, 530 U.S. at 497, 120 S. Ct. at 2366-67. Therefore, the statutory

scheme constituted a “departure from the jury tradition that is an indispensable part of our

criminal justice system” and violated the Sixth Amendment. Apprendi, 530 U.S. at 497,

120 S. Ct. at 2366.

¶21 Though Apprendi demonstrated the Sixth Amendment’s application to the

sentencing process, an issue of practical importance remained; namely, what did

“statutory maximum” mean for the purposes of Apprendi’s requirement that “any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt”? Apprendi, 530 U.S. at 490,

120 S. Ct. at 2362-63. This question was critical because any judicially imposed

sentence which exceeded “the prescribed statutory maximum” was violative of a

defendant’s rights under Apprendi.

¶22 Accordingly, the Supreme Court provided further clarification in Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428 (2002), and Blakely v. Washington, 542 U.S. 296, 124

S. Ct. 2531 (2004). In Ring, the Court considered Arizona’s capital sentencing statutes,

10
which provided that a death sentence could not be imposed unless, following a sentencing

hearing conducted by the trial judge, one aggravating circumstance was found by the

judge. Ring, 536 U.S. at 597, 122 S. Ct. at 2437. In Blakely, the Court considered

Washington’s determinate sentencing scheme, which provided a mandatory sentencing

range for Blakely’s crime, and authorized a judge to impose a sentence above the range if

he found “compelling reasons justifying an exceptional sentence.” Blakely, 542 U.S. at

299, 124 S. Ct. at 2535. In concluding that these sentencing statutes violated the holding

in Apprendi, the Court explained that, “the ‘statutory maximum’ for Apprendi purposes is

the maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at

2537. In other words:

[T]he relevant “statutory maximum” is not the maximum sentence a judge
may impose after finding additional facts, but the maximum he may impose
without any additional findings.

Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537. A subtle distinction thus emerged: the

“statutory maximum” is not the maximum possible sentence authorized by statute, but,

rather, the maximum sentence for which a defendant is eligible “on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124

S. Ct. at 2537.

¶23 Garrymore compares his cause to that of the defendant in Apprendi. Specifically,

Garrymore characterizes the parole eligibility restriction as a sentence enhancement, and

asserts that the parole eligibility restriction increased his penalty beyond the statutory

11
maximum authorized by the jury verdict. Accordingly, we take up the Montana statutes

at issue.

¶24 Conviction of the offense of deliberate homicide, § 45-5-102(1)(a), MCA, is

punishable as follows:

(2) A person convicted of the offense of deliberate homicide shall
be punished by death as provided in 46-18-301 through 46-18-310, unless
the person is less than 18 years of age at the time of the commission of the
offense, by life imprisonment, or by imprisonment in the state prison for a
term of not less than 10 years or more than 100 years, except as provided in
46-18-219 and 46-18-222.

Section 45-5-102(2), MCA. Because the State did not seek the death penalty, and since

neither § 46-18-219, MCA, nor § 46-18-222, MCA, is applicable to Garrymore’s case,

the maximum sentence which could have been imposed upon Garrymore pursuant to the

language of the statute was “life imprisonment.” However, Garrymore argues that the

parole eligibility restriction, although plainly authorized by another statute (§ 46-18-

202(2), MCA), operates to allow the imposition of a sentence which improperly exceeds

the range authorized by § 45-5-102(2), MCA. He argues that the “life sentences”

authorized by § 45-5-102(2), MCA, contain a presumption of parole eligibility which can

be overcome only by additional factfinding pursuant to § 46-18-202(2), MCA, and that

because such factfinding was not reflected by the jury’s verdict, but was conducted by the

sentencing judge, the parole eligibility restriction violates the Sixth Amendment.

¶25 Section 46-18-202(2), MCA, which authorizes restrictions on parole eligibility,

provides as follows:

12
 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.

It is clear from the language of the statute that a sentencing judge, when imposing a

prison term exceeding one year, may also impose a parole eligibility restriction in the

judge’s sole discretion. This provision evidences a legislative intent to authorize, but not

require, sentencing judges to restrict parole whenever they impose prison terms

exceeding one year. Accordingly, it is evident that the parole eligibility restriction

imposed upon Garrymore fell within the statutory range for his offense. Indeed, we held

in Cavanaugh v. Crist, 189 Mont. 274, 278, 615 P.2d 890, 893 (1980), that “[§ 46-18-

202(2), MCA] does not permit district judges to add any time beyond the statutory

maximum for the underlying offense,” thus establishing that the restriction falls within

the statutory range of punishments for offenses exceeding one year in the state prison.

However, Cavanaugh did not address the subtle distinction later advanced by Ring and

Blakely, and discussed above: whether Garrymore was eligible to receive imposition of

the parole eligibility restriction under § 46-18-202(2), MCA, based upon the facts

reflected in the jury’s verdict.

¶26 It is for this reason Garrymore’s assertion that § 45-5-102(2), MCA, contains an

implicit “presumption of parole eligibility” is critical to his argument. He seeks to

13
demonstrate that under the penalty statute, standing alone and without the operation of

§ 46-18-202(2), MCA, he was entitled to a parole-eligible sentence (subject to the

requirements of the parole statute, § 46-23-201, MCA), which was then taken away from

him by the sentencing judge. However, we reject Garrymore’s argument that such a

presumption exists.

¶27 We find no indicia in the sentencing statutes of a legislative intent to create a

presumption in favor of parole eligibility which must be overcome in order for a

sentencing judge to impose a parole restriction. The broad grant of discretionary

authority—clearly indicated by the term “may also impose”—given to sentencing judges

under § 46-18-202(2), MCA, to impose parole eligibility restrictions on the enormous

class of sentences which exceed a one-year term of imprisonment belies such an

assertion. With regard to these sentences, no limitation has been placed upon the exercise

of this grant of authority by the legislature. Thus, a parole-eligible sentence was not

taken away from Garrymore because he was not entitled to such a sentence to begin with.

There is no implicit presumption of parole eligibility.

¶28 Of course, we acknowledge that a parole eligibility restriction must be

accompanied by reasons stated in writing pursuant to § 46-18-202(2), MCA. We

disagree, however, with Garrymore’s contention that the implicit fact-finding embodied

within § 46-18-202(2), MCA, places the restriction beyond the “statutory maximum” for

the purposes of Apprendi. We initially note that the Supreme Court has rejected the

14
argument that “every fact with a bearing on sentencing must be found by a jury . . . .”

Jones v. United States, 526 U.S. 227, 248, 119 S. Ct. 1215, 1226 (1999).

¶29 As the Supreme Court noted in Blakely and United States v. Booker, 543 U.S. 220,

125 S.Ct. 738 (2005), though the exercise of a judge’s discretion often necessitates

findings of fact to support a particular sentence, a defendant does not necessarily have a

right to have those facts found by a jury in all instances. Booker, 543 U.S. at 233, 125

S. Ct. at 750; Blakely, 542 U.S. at 309, 124 S. Ct. at 2540. Instead, where it is conferred

by a legislature, a judge can exercise “broad discretion in imposing a sentence within a

statutory range.” Booker, 543 U.S. at 233, 125 S. Ct. at 750. Thus, while a judge may

not find facts which, once found, increase the defendant’s exposure to punishment, a

judge may find facts to support the exercise of discretion in imposing a sentence which

falls within the statutory maximum. As explained in Blakely:

[T]he Sixth Amendment by its terms is not a limitation on judicial power,
but a reservation of jury power. It limits judicial power only to the extent
that the claimed judicial power infringes on the province of the jury.
Indeterminate sentencing does not do so. It increases judicial discretion, to
be sure, but not at the expense of the jury’s traditional function of finding
the facts essential to lawful imposition of the penalty. Of course
indeterminate schemes involve judicial factfinding, in that a judge (like a
parole board) may implicitly rule on those facts he deems important to the
exercise of his sentencing discretion. But the facts do not pertain to whether
the defendant has a legal right to a lesser sentence—and that makes all the
difference insofar as judicial impingement upon the traditional role of the
jury is concerned. In a system that says the judge may punish burglary with
10 to 40 years, every burglar knows he is risking 40 years in jail. In a
system that punishes burglary with a 10-year sentence, with another 30
added for use of a gun, the burglar who enters a home unarmed is entitled
to no more than a 10-year sentence—and by reason of the Sixth
Amendment the facts bearing upon that entitlement must be found by a
jury.
15
Blakely, 542 U.S. at 308-09, 124 S. Ct. at 2540.

¶30 Applying this reasoning to Garrymore’s sentence demonstrates his argument is

without merit. First, as noted above, a plain reading of the statutes evidences the

legislature’s intent to make life imprisonment without the possibility of parole an

authorized sentence for deliberate homicide. See §§ 45-5-102(2) and 46-18-202(2),

MCA. Second, although § 46-18-202(2), MCA, requires written reasons to support

imposition of parole eligibility restriction, those reasons need not go beyond those facts

found by the jury. Indeed, the factfinding requirement embodied in § 46-18-202(2),

MCA, simply requires a judge to support his discretion with reasons, but does not tie the

parole eligibility restriction to any particular facts or findings whatsoever. Instead, under

the plain language of the statute, it is entirely possible for a judge to restrict parole based

solely upon facts found by the jury.

¶31 Further, imposition of a parole restriction is not necessarily improper merely

because the sentencing judge finds facts, to aid in the exercise of his discretion, not found

by the jury. Here, the sentencing judge noted Garrymore’s prior convictions and his lack

of remorse among the factors he considered in pronouncing sentence. Of course, as noted

above, a prior conviction is a specific exception to the Apprendi rule, but, critical to this

discussion, lack of remorse is an example of a fact “important to the exercise” of the

sentencing discretion which does not “pertain to whether the defendant has a legal right

to a lesser sentence . . . .” Blakely, 542 U.S. at 309, 124 S. Ct. at 2540. In other words,

finding a “lack of remorse” does not trigger the imposition of the parole restriction under
16
the statutes nor endue the District Court with additional statutory authority to impose the

restriction. Imposition of the restriction remains within the sentencing judge’s discretion

and a part of indeterminate sentencing. Thus, the “lack of remorse” finding was merely

one which the sentencing judge found useful in guiding the exercise of his discretion,

along with others.

¶32 Under Blakely, this sort of indeterminate sentencing scheme—i.e., leaving parole

eligibility restrictions to the discretion of sentencing judges—is constitutional.

Accordingly, and because § 46-18-202(2), MCA, does not remove from the jury a

determination of facts necessary to restrict parole, we conclude that the statutory

maximum punishment for the crime of deliberate homicide when the death penalty is not

sought, for the purposes of Apprendi, is life imprisonment without the possibility of

parole.

¶33 Faced with an almost identical issue, the Arizona Supreme Court came to the same

conclusion. In State v. Fell, 115 P.3d 594, ¶¶ 8-19 (Ariz. 2005), the defendant argued,

based on Apprendi, that a statutory sentencing scheme surrounding a deliberate homicide

statute created a presumptive sentence of life with the possibility of parole, in part

because the statute authorizing parole restrictions called for findings of fact. Fell, ¶¶ 13,

18. The court, however, rejected the defendant’s argument, and held that (a) there was no

presumption of parole eligibility for deliberate homicide, and (b) because the legislature

had not required a sentencing court to find specific facts before restricting parole, the

factfinding requirement did not increase the statutory maximum for Apprendi purposes.

17
Fell, ¶¶ 14-18; see also Booker, 543 U.S. at 233, 125 S. Ct. at 750. As the court noted,

“[a] statutory requirement that a judge make findings . . . does not mean that any specific

finding is necessary for imposition of the sentence.” Fell, ¶ 18.

¶34 Section 46-18-202(2), MCA, permits a sentencing judge to impose a parole

eligibility restriction whenever the judge imposes a sentence that exceeds one year.

Further, while a judge must state the reasons for the restriction if it is imposed, no

particular finding of fact need be included among those reasons. For that reason, and

because we conclude that the legislature intended the statutory maximum for § 45-5-

102(1)(a), MCA, to be life imprisonment without the possibility of parole, we conclude

that the District Court restriction of Garrymore’s parole eligibility did not violate

Garrymore’s federal constitutional rights.

State Statutory Claim

¶35 Mirroring his federal constitutional claim above, Garrymore argues that the

District Court’s restriction on his parole eligibility pursuant to § 46-18-202(2), MCA,

violated his statutory rights under § 46-1-401, MCA (2001), a statute enacted in response

to Apprendi. Again, we must disagree.

¶36 Section 46-1-401, MCA (2001), provides in pertinent part:

(1) A court may not impose an incarceration penalty enhancement
specified in Title 45, Title 46, or any other provision of law unless:
(a) the enhancing act, omission, or fact was charged in the
information, complaint, or indictment, with a reference to the statute or
statutes containing the enhancing act, omission, or fact and the penalty for
the enhancing act, omission, or fact;

18
 (b) if the case was tried before a jury, the jury unanimously found in
a separate finding that the enhancing act, omission, or fact occurred beyond
a reasonable doubt; and
....

(2) The enhancement issue may be submitted to a jury on a form
separate from the verdict form or may be separately stated on the verdict
form. The jury must be instructed that it is to reach a verdict on the offense
charged in the information, complaint, or indictment before the jury can
consider whether the enhancing act, omission, or fact occurred.

(3) An enhancing act, omission, or fact is an act, omission, or fact,
whether stated in the statute defining the charged offense or stated in
another statute, that is not included in the statutory definition of the
elements of the charged offense and that allows or requires a sentencing
court to add to, as provided by statute, an incarceration period provided by
statute for the charged offense or to impose the death penalty instead of a
statutory incarceration period provided by statute for the charged offense.

Codifying Apprendi, § 46-1-401, MCA, essentially requires a jury determination of the

facts necessary to impose an additional sentence pursuant to a sentence enhancement

statute. Because we see no substantive distinction between the principles enunciated in

Apprendi and its progeny and this statutory rendering thereof, our disposition of

Garrymore’s claim under the statute is also the same as our disposition of his federal

constitutional claims.

¶37 As he did above, Garrymore argues that the application of § 46-18-202(2), MCA,

“allowe[ed]” or “require[ed]” the District Court to add on to the sentence authorized by

§ 45-5-102(2), MCA. However, as mentioned previously, § 45-5-102(2), MCA,

authorizes a district court to impose both life imprisonment and life imprisonment

without the possibility of parole. Thus, § 46-18-202(2), MCA, does not, vis-à-vis an “act,

omission, or fact,” allow or require a sentencing court to increase punishment for a
19
charged offense. Accordingly, we conclude that the District Court’s sentence did not

violate § 46-1-401, MCA.

State Constitutional Claim

¶38 Finally, Garrymore argues that the District Court violated his rights under Article

II, Sections 24 and 26, of the Montana Constitution when it restricted his parole

eligibility pursuant to § 46-18-202(2), MCA. Specifically, Garrymore argues that

because the Montana Constitution is more protective of the right to jury trial than the

United States Constitution, he should prevail on state constitutional grounds regardless of

our disposition of his case under the federal constitution and Apprendi. Unfortunately,

we find this argument too undeveloped to undertake a distinctive application of state

constitutional principles.

¶39 Garrymore correctly notes that we have interpreted Article II, Sections 24 and 26

of the Montana Constitution as affording a greater jury trial right than does the Sixth

Amendment to the United States Constitution. See Woirhaye v. Fourth Judicial Dist.

Court, 1998 MT 320, 292 Mont. 185, 972 P.2d 800. However, Garrymore fails to offer a

compelling reason why the greater jury trial right in Montana dictates a different result in

his case. Accordingly, we will not further consider the argument.

¶40 Affirmed.

/S/ JIM RICE

20
We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Chief Justice Karla M. Gray specially concurring.

¶41 I concur in the Court’s opinion on both issues. I write separately to caution

criminal defense attorneys—public defenders, appellate public defenders and privately

retained counsel—that I, at least, will expect more from them in future cases asserting

Lenihan.

¶42 As is apparent from the Court’s discussion of the State’s arguments about

Lenihan’s applicability, the application of that case is far from automatic. Not every

sentence to which no objection is made at the time of sentencing may successfully be

appealed under Lenihan. Thus, it is my view that the party asserting the “Lenihan

exception” bears the burden of establishing her or his entitlement to that exception. A

mere reference and citation to Lenihan will not suffice in the future, at least for me.

¶43 Here, in the standard of review section of Garrymore’s opening brief, counsel

merely cited to Lenihan and its progeny for the proposition that a “criminal sentence may

be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates.”

Counsel then stated, without analysis, that “[a] failure to raise a contemporaneous

objection to an illegal sentence at the time of hearing does not result in a waiver of the

defendant’s objection[,]” and cited to four of our cases for that proposition. The problem

21
with this approach is that we have other cases refusing to apply the Lenihan exception. It

is my view that counsel must present more in the way of discussion and analysis

regarding entitlement to the exception.

¶44 When appellate counsel fails to do so, the result is a discussion such as that

contained in our opinion here: the burden of establishing an appellant’s entitlement to the

Lenihan exception improperly shifts. Under this shift, the State becomes responsible for

establishing why Lenihan does not—or should not—apply in a given case. While this

has been our approach in the past, it is an approach I am unwilling to continue to follow.

Therefore, I encourage criminal defense counsel to clearly establish entitlement to the

exception in their opening brief, or risk a determination that—because they have not done

so—they have not met their burden on appeal.

/S/ KARLA M. GRAY

Justice James C. Nelson, specially concurring.

I. Introduction

¶45 I concur in the result of the Court’s Opinion; however, I do not agree with the lack

of detail in the Court’s reasoning. I therefore write separately to set forth an independent

analysis of the important issues raised in this appeal.

¶46 In particular, with respect to Issue 1, I agree with the Court that, notwithstanding

Garrymore’s failure to raise his sentencing claims in the first instance in the District

Court, we nevertheless may reach the merits of those claims by way of the Lenihan
22
exception to the timely objection rule. See State v. Lenihan, 184 Mont. 338, 343, 602

P.2d 997, 1000 (1979). In arriving at this conclusion, I also agree with the Court’s

rejection of each of the State’s “three reasons” why Lenihan should not be available to

Garrymore.

¶47 I find it insufficient, however, to end the discussion there and not explain why

Garrymore has, in fact, satisfied the requisites for invoking the Lenihan exception.

Indeed, the Court’s truncated analysis implies that unless the State demonstrates in a

given case that the Lenihan exception is not available, the appealing defendant may, by

default, invoke it. This is not the case, as explained below, though the Court’s treatment

of Issue 1 could lead one to believe otherwise.

¶48 Furthermore, we stated in Lenihan that “[i]t appears to be the better rule to allow

an appellate court to review any sentence imposed in a criminal case, if it is alleged that

such sentence is illegal or exceeds statutory mandates, even if no objection is made at the

time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000. Yet, in the 27 years

since adopting this exception, we have never defined “illegal or exceeds statutory

mandates.” Rather, we have simply allowed defendants to invoke the exception when it

seemed right to do so—and vice versa. And in most of these cases, we provided little or

no insight into our reasoning. The unfortunate result of our proceeding in this manner is,

as the Court implies in footnote 3 of its Opinion, that our cases have not been consistent

with respect to any one conceivable definition of “illegal or exceeds statutory mandates.”

23
Because these inconsistencies will only proliferate—and at an increasingly rapid pace 1—

until we explicitly articulate the contours of the Lenihan exception, I do not agree with

the Court’s conclusion in ¶ 11 that a comprehensive response to the State’s (and

Garrymore’s) Lenihan arguments is “not necessary” here.

¶49 To the contrary, it is necessary not only that we articulate the contours of Lenihan,

but also that, for at least three reasons, the exception be crafted as narrowly as possible.

First, in basic fairness to defendants, the practicing prosecution and defense bars, and the

courts, our Lenihan rule must be clear, unambiguous, and predictable in its application.

Second, as mentioned above, Lenihan is an exception to the timely objection rule, which

is set forth in §§ 46-20-104(2) and -701(2), MCA. While this Court has the inherent

power to protect the statutory and constitutional rights of criminal defendants, see, e.g.,

State v. Finley, 276 Mont. 126, 132-38, 915 P.2d 208, 212-15 (1996), overruled in part

on other grounds, State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d

817, ¶ 21, we are not privileged to simply ignore lawful statutory mandates in order to

achieve a particular result for the sake of either palatability or expediency. Third, by not

articulating a clear and narrow Lenihan rule, we are, implicitly, maintaining an approach

that relies less on careful, comprehensive, record-based legal analysis and more on ad hoc

decision-making, which serves neither the litigants nor the courts, not to mention the law.

1
Lenihan has been cited as an exception to the time objection rule in thirty cases since it
was decided on November 21, 1979. All but eight of those cases have been handed down during
the last seven years.
24
¶50 In assuming that we ultimately will develop a narrow and focused definition of the

Lenihan exception on a case-by-case basis, prompted by and as a consequence of the

Court’s Opinion and this Special Concurrence, we are, in truth, to quote Oliver Wendell

Holmes, Jr., “spend[ing] a great deal of . . . time shoveling smoke.” Notably, we already

have been presented with arguments to limit the exception’s availability. See, e.g., Brief

of Respondent at 6-9, State v. Ironmaker, 2005 MT 226N, 328 Mont. 522 (Table), 120

P.3d 811 (Table) (No. 04-610) (arguing that “Lenihan should be limited to facially

invalid sentences which the lower court has no authority to impose”); Brief of

Respondent at 7-11, State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485 (No.

04-002) (suggesting that a defendant may not invoke the Lenihan exception where his

sentence is within the range authorized by statute and he is not alleging that the statute is

unconstitutional). Yet, we have chosen to ignore these arguments and persist in an ad

hoc approach. Moreover, experience teaches that, not surprisingly, prosecutors and

criminal defense attorneys each will argue whatever version of Lenihan in our existing

jurisprudence best serves their particular theory in the given case. Unfortunately, as

explained below, our present jurisprudential cafeteria offers up a precedent for nearly

every theory. Thus, there simply is not the incentive the Court presumes for the

practicing bar to seek a narrow and focused Lenihan rule. That obligation falls solely on

this Court.

¶51 Indeed, it is our obligation to articulate the Lenihan exception as clearly as

possible, and it is our responsibility to clean up our case law and, thereby, take some of

25
the offerings off the steam table. I am convinced that the Court’s unwillingness here to

shoulder this obligation and to address forthrightly the complexities of the Lenihan

exception in its present and unstructured state in our case law will simply encourage—

rather than constrain—muddled, ad hoc, and unpredictable decision-making. Again, such

an approach serves no one.

¶52 For these reasons, I am proceeding beyond the Court’s discussion under Issue 1 by

providing a comprehensive analysis of the foundation for the Lenihan exception,

addressing the inconsistencies in our jurisprudence, and articulating a narrow and concise

Lenihan rule—specifically, the exception may be invoked only by a defendant who

alleges a colorable claim that the sentencing court lacked statutory authority to impose

the challenged sentence. I then explain, based on this articulation, why Garrymore may

invoke Lenihan in this case.

¶53 With respect to Issue 2, I agree with the Court that application of § 46-18-202(2),

MCA (2001) (the parole eligibility statute) to Garrymore’s sentence of life imprisonment

was not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000), and did not contravene § 46-1-401, MCA (2001). And I further agree that

Garrymore did not adequately develop his claim under Article II, Sections 24 and 26, of

the Montana Constitution. However, these issues are indisputably complex. And while

the Court’s discussion under Issue 2 supplies a measure of insight into our reasoning, I

believe it is necessary and appropriate to explain in further detail, for the benefit of the

parties, the practicing bar, and the lower courts, the intricacies of Apprendi’s application

26
to our parole eligibility statute. Accordingly, I am providing an independent analysis of

Garrymore’s Sixth Amendment and statutory claims.

II. Issue 1: Does Garrymore’s failure to object in the District Court to its
imposition of the parole eligibility restriction preclude our considering his
challenges thereto on appeal?

A. Background

¶54 Garrymore did not object during the sentencing proceeding to the District Court’s

restricting his parole eligibility. Nor did he raise the constitutional and statutory issues he

now pursues on appeal. He did suggest a lesser sentence of 40 years and argued against

restricting his parole eligibility. Specifically, defense counsel recommended as follows:

I believe it’s appropriate for the Court to sentence Mr. Garrymore to a term
of years, a specific term of years, and I would suggest the number 40.
....
. . . And we would urge upon you to give Mr. Garrymore the
possibility of parole after whatever period of time this Court thinks is
appropriate as a sentence in this case.

However, a defendant’s request at the sentencing hearing for a particular sentence does

not constitute an objection to the sentence actually imposed. State v. Nelson, 274 Mont.

11, 18, 906 P.2d 663, 667 (1995). Thus, we must determine, as a threshold matter,

whether Garrymore’s failure to object in the District Court to its imposition of the parole

eligibility restriction on his life sentence precludes our considering his challenges thereto

on appeal.

¶55 Generally, this Court may not consider an issue to which a timely objection was

not made in the district court. See §§ 46-20-104(2), -701(2), MCA; State v. Brister, 2002

27
MT 13, ¶ 15, 308 Mont. 154, ¶ 15, 41 P.3d 314, ¶ 15. However, a longstanding exception

to this rule exists in the context of sentencing. Specifically, as mentioned above, we held

in State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), that we will “review any

sentence imposed in a criminal case, if it is alleged that such sentence is illegal or

exceeds statutory mandates, even if no objection [was] made at the time of sentencing.”

Lenihan, 184 Mont. at 343, 602 P.2d at 1000; see also Brister, ¶ 16. 2 The precise

2
As the Court notes in footnote 1 of its Opinion, the State refers to this exception to the
timely objection rule as Lenihan “jurisdiction.” This is not surprising, given that we have, on
occasion, used the term “jurisdiction” with respect to our application of the Lenihan exception.
See, e.g., Lenihan, 184 Mont. at 343, 602 P.2d at 1000 (“We, therefore, accept jurisdiction in this
matter.”); State v. Honey, 2005 MT 107, ¶ 35, 327 Mont. 49, ¶ 35, 112 P.3d 983, ¶ 35 (“[E]ven if
a defendant fails to contemporaneously object at sentencing, we will accept jurisdiction of an
appeal that has been timely filed which alleges that a sentence is illegal or exceeds statutory
authority.”); State v. Kroll, 2004 MT 203, ¶ 19, 322 Mont. 294, ¶ 19, 95 P.3d 717, ¶ 19 (same);
State v. Muhammad, 2002 MT 47, ¶ 23, 309 Mont. 1, ¶ 23, 43 P.3d 318, ¶ 23 (same); Brister,
¶ 16 (same).
Our occasional use of this term is a misnomer. A court does not establish its own
jurisdiction. Rather, “[j]urisdiction as applied to courts is the power or capacity given by law to a
court to entertain, hear and determine the particular case or matter.” State ex rel. Johnson v.
District Court of Eighteenth Judicial Dist., 147 Mont. 263, 267, 410 P.2d 933, 935 (1966)
(internal quotation marks omitted); see also Eberhart v. United States, ___ U.S. ___, ___, 126
S.Ct. 403, 405 (2005) (per curiam) (equating “jurisdictional” with “prescriptions delineating the
classes of cases . . . falling within a court’s adjudicatory authority” (emphasis added, internal
quotation marks omitted)). Once it is determined that a court lacks subject matter jurisdiction,
the only further action the court can take is to dismiss the case. In re Marriage of Miller, 259
Mont. 424, 427, 856 P.2d 1378, 1380 (1993); see also Arbaugh v. Y & H Corp., ___ U.S. ___,
___, 126 S.Ct. 1235, 1244 (2006) (“[S]ubject-matter jurisdiction, because it involves the court’s
power to hear a case, can never be forfeited or waived.” (internal quotation marks omitted)).
Thus, given “the morass into which one is led . . . by loose talk about jurisdiction,” City
of Yonkers v. United States, 320 U.S. 685, 695, 64 S.Ct. 327, 333 (1944) (Frankfurter, J.,
dissenting), it is important to clarify that the Lenihan exception is not a source of “jurisdiction”
by which we consider an appellant’s otherwise procedurally barred challenge to his sentence.
Rather, this Court’s jurisdiction derives from Article VII, Section 2, of the Montana Constitution,
which includes “general supervisory control over all other courts,” and Lenihan,
correspondingly, is a judicially-created exception to the timely objection rule.
28
question at hand, therefore, is whether Garrymore may invoke this exception in order to

have his otherwise procedurally barred challenge to his sentence heard on appeal.

B. The State’s Three Lenihan Arguments

¶56 The State advances “three reasons” why the Lenihan exception is not available to

Garrymore in this case: (1) “the Lenihan rationale does not apply” because “neither party

recommended a deferred or suspended sentence in this case” and because “a

contemporaneous Apprendi objection would not have provoked the judicial

vindictiveness that Lenihan fears”; (2) “appellants are not permitted to change theories on

appeal”; and (3) “the sentence Garrymore received was within statutory parameters and it

was not . . . unconstitutional.” As stated earlier, I agree with the Court’s rejection of each

of these assertions. 3

i. The State’s First Argument

3
The State has also suggested, in previous cases, that we “cabin” the Lenihan exception,
Brief of Respondent at 9, State v. Ironmaker, 2005 MT 226N, 328 Mont. 522 (Table), 120 P.3d
811 (Table) (No. 04-610), or simply overrule it, Brief of Respondent at 8, State v. Micklon, 2003
MT 45, 314 Mont. 291, 65 P.3d 559 (No. 02-415) (“Montana is hopeful that this Court will
someday reject the rationale underlying Lenihan, at least to the extent it permits convicted
persons to remain silent with respect to the conditions a sentencing court deems necessary to
suspend a given sentence.”). However, the State recently retreated from this position and argued
a more favorable view of Lenihan. Specifically, during oral arguments in Gratzer v. Mahoney
(No. 05-075) on November 9, 2005, in the context of discussing the remedies available to a
prisoner challenging the legality of his sentence, counsel asserted that Lenihan is integral to the
adequacy of the remedy of direct appeal: “[B]ecause of this Court’s decision in Lenihan, in
particular, the scope of review on direct appeal is much broader than it was previously. . . .
[T]hat makes the remedy very adequate and effective.” Counsel acknowledged that he has
“quibbled with Lenihan in many briefs” and “tried to undermine Lenihan”; but “in preparation
for this case, I have become a Lenihan convert, because I think it really does . . . support the
adequacy and effectiveness of direct appeal.” Given this about-face, as well as our reaffirmation
of Lenihan in Brister, ¶ 21, Lenihan’s continued vitality is not an issue, and we therefore need
only address whether the exception applies on the given facts of the case.
29
¶57 As the Court states in ¶ 12, it is not a prerequisite to invoking Lenihan that the

sentence at issue be one that the sentencing court deferred or suspended. The language of

Lenihan does not carry such an implication. Rather, we stated that “[i]t appears to be the

better rule to allow an appellate court to review any sentence imposed in a criminal case,

if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no

objection is made at the time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at

1000 (emphasis added). Accordingly, in State v. Honey, 2005 MT 107, 327 Mont. 49,

112 P.3d 983, we concluded that Honey could invoke the Lenihan exception,

notwithstanding the fact that the district court had not suspended or deferred any portion

of his sentence. See Honey, ¶¶ 34-35. On numerous other occasions, we have queried

whether, pursuant to Lenihan, we could review an appellant’s challenge to a sentence

which had been neither suspended nor deferred. See Nelson, 274 Mont. at 18-20, 906

P.2d at 667-68; State v. Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v.

Lafley, 1998 MT 21, ¶¶ 26-27, 287 Mont. 276, ¶¶ 26-27, 954 P.2d 1112, ¶¶ 26-27; State

v. McLeod, 2002 MT 348, ¶¶ 11, 15, 313 Mont. 358, ¶¶ 11, 15, 61 P.3d 126, ¶¶ 11, 15;

State v. Legg, 2004 MT 26, ¶¶ 22, 60, 319 Mont. 362, ¶¶ 22, 60, 84 P.3d 648, ¶¶ 22, 60.

And, in State v. Stone, 2004 MT 151, 321 Mont. 489, 92 P.3d 1178, the State conceded,

and we agreed, that the Lenihan exception applied to Stone, who had been given a non-

deferred, non-suspended sentence. See Stone, ¶¶ 45, 47. Thus, Lenihan is not limited to

deferred and suspended sentences.

30
¶58 Likewise, the State’s analogous suggestion that Lenihan applies only to cases in

which there was a risk of judicial vindictiveness or retaliation at the sentencing hearing

must be rejected as well. As we explained in Lenihan, this risk is of particular concern in

the context of a deferred (and, for the same reasons, a suspended) sentence:

As a practical matter, [appellate review of the allegedly illegal sentence]
may be a defendant’s only hope in cases involving deferred imposition of
sentence. If a defendant objects to one of the conditions, the sentencing
judge could very well decide to forego the deferred sentence and send him
to prison. To guard against this possibility, a defendant often times must
remain silent even in the face of invalid conditions.

Lenihan, 184 Mont. at 343, 602 P.2d at 1000. 4

¶59 Our acknowledgement of the risk of judicial vindictiveness or retaliation,

however, was not meant as a limitation on the availability of Lenihan to situations in

which such risk was present. To the contrary, in adopting the Lenihan exception, our

primary reasoning was as follows:

The sentencing authority of a court exists solely by virtue of a statutory
grant of power and therefore cannot be exercised in any manner not
specifically authorized[.] . . . Where, as in this case, it is alleged that a
sentencing court has exceeded its statutory authority in imposing a specific
sentence, an objection below is not a prerequisite to the challenging of the
sentencing order alleged to be void.

Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (ellipsis in original, internal quotation

marks omitted) (quoting State v. Braughton, 561 P.2d 1040, 1041 n.2 (Or.App. 1977)).

4
A recent example of this risk occurred in State v. Erickson, 2005 MT 276, 329 Mont.
192, 124 P.3d 119. The district court told Erickson that, but for the plea agreement, it likely
would have given him the maximum sentence and that, if Erickson objected to the court’s
sentencing order, his case could go to trial. See Erickson, ¶ 33. Given these statements by the
court, we observed that “it is understandable why Erickson did not object to his sentence for fear
of receiving a harsher sentence.” Erickson, ¶ 33.
31
¶60 Thus, our discussion of a defendant’s incentive to remain silent in the face of an

invalid condition placed on his deferred (or suspended) sentence was simply an

additional rationale for our decision to allow particular sentencing challenges to be raised

for the first time on appeal. Indeed, as the Court notes in ¶ 13, we have characterized the

risk of judicial vindictiveness as “part”—not “all”—of the rationale behind Lenihan. See

State v. Micklon, 2003 MT 45, ¶ 9, 314 Mont. 291, ¶ 9, 65 P.3d 559, ¶ 9. And we have

applied Lenihan in at least one situation where the defendant arguably had an incentive to

speak up, not remain silent. See Stone, ¶¶ 44-47 (the court sentenced Stone to three years

more than was statutorily authorized). Thus, Lenihan is not limited to cases in which

there was a risk of judicial vindictiveness or retaliation at the sentencing hearing.

ii. The State’s Second Argument

¶61 With respect to the State’s contention that Lenihan should not be available to

Garrymore because “appellants are not permitted to change theories on appeal,” the State

is correct that, as a general rule, “[a] party may not raise new arguments or change his

legal theory on appeal,” State v. Heath, 2004 MT 58, ¶ 39, 320 Mont. 211, ¶ 39, 89 P.3d

947, ¶ 39. However, underlying the State’s argument is the premise that an objection was

made to the particular sentencing term or condition that the appellant challenges on

appeal and the appellant has since changed the legal theory advanced in support of that

objection. Yet, if an objection was in fact made to the particular sentencing term or

condition, it would be unnecessary for the appellant to invoke Lenihan, as his claim

32
would be properly preserved. The only question would be whether we must nevertheless

refuse to consider it because the legal theory behind the objection has changed.

¶62 We have long held that “a party complaining of error must stand or fall upon the

ground relied on in the trial court.” Bower v. Tebbs, 132 Mont. 146, 160, 314 P.2d 731,

739 (1957). The rationale underlying this rule is that it is fundamentally unfair to fault

the trial court for failing to rule correctly on an issue it was never given the opportunity to

consider. See Day v. Payne, 280 Mont. 273, 276-77, 929 P.2d 864, 866 (1996); State v.

Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. But this is the

same rationale underlying the timely objection rule, to which Lenihan is an exception.

¶63 Indeed, if a challenge to a sentence comes within the meaning of Lenihan’s

“illegal or exceeds statutory mandates” concept, then it would be counterintuitive for us

to refuse to consider that challenge on the ground that the appellant objected in the

district court under one legal theory but now (on appeal) advances a different legal

theory. Such a rule would reward appellants who made no objection whatsoever to the

alleged sentencing error (and, thus, gave the sentencing court no opportunity to remedy

the alleged error) and punish those who did object but then changed their legal theories.

Moreover, as the Court aptly observes in ¶ 13, this approach ultimately would create an

institutional incentive for defendants not to object during sentencing and thereby

undermine the efficacy of the sentencing process. Accordingly, the State’s change-of-

legal-theories argument must be rejected.

iii. The State’s Third Argument

33
¶64 The State argues that “this Court should refrain from invoking Lenihan to address

a constitutional challenge to § 46-18-202(2)” because “the sentence Garrymore received

was within statutory parameters and it was not . . . unconstitutional.” Garrymore

responds that “the Court cannot make this . . . determination without considering the

substantive merits of the issue to begin with.” In other words, Garrymore contends that

since this Court will not reach the merits of a sentencing claim to which a timely

objection was not made in the district court unless the Lenihan exception applies,

application of Lenihan cannot depend on whether the defendant ultimately will prevail on

his underlying claim.

¶65 Garrymore is correct. To say that the Lenihan exception may be invoked only

when the contested sentence is in fact illegal or in excess of statutory mandates puts the

proverbial cart before the horse. By virtue of the timely objection rule, we will not reach

the merits and make that determination without first deciding that the defendant may

invoke Lenihan. For this reason, Lenihan is more properly viewed as a “gateway”

through which a defendant must pass in order to have his otherwise procedurally barred

sentencing claim considered on the merits. As stated above, the question here is whether

Garrymore may pass through this gateway. I now turn to that question.

C. Definition of the Lenihan Exception

¶66 In Lenihan, we stated that an appellate court may review any sentence imposed in

a criminal case if (1) it is “alleged” (2) that such sentence is “illegal or exceeds statutory

34
mandates.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000. Thus, a mere allegation is

sufficient to pass through the Lenihan gateway. 5

¶67 However, while this standard is minimal—requiring only an allegation—it is also

specific. By “illegal or exceeds statutory mandates,” we did not mean that the sentencing

court simply imposed an objectionable sentence. Such an interpretation of the Lenihan

exception would render the timely objection rule a practical nullity in the sentencing

context. Rather, as discussed already, the basis for our adopting this exception to the

timely objection rule in the sentencing context was the principle that a sentencing court’s

purported exercise of power not granted to it by law is subject to appellate review. 6

Specifically, we stated that

[t]he sentencing authority of a court exists solely by virtue of a statutory
grant of power and therefore cannot be exercised in any manner not
5
The allegation must, of course, conform to our rules and precedents requiring proper
argument and citation. See M. R. App. P. 23(a)(4); In re Marriage of McMahon, 2002 MT 198,
¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6 (“[W]e will not consider unsupported issues or
arguments. Similarly, this Court is under no obligation to locate authorities or formulate
arguments for a party in support of positions taken on appeal.” (citation omitted)); State v. Holt,
2006 MT 151, ¶ 70, 332 Mont. 426, ¶ 70, 139 P.3d 819, ¶ 70 (Nelson, J., concurring) (“Holt did
not articulate a persuasive argument on appeal which would demonstrate that his sentence in this
case falls within the seminal rule set forth in Lenihan.”). Furthermore, the allegation must be
filed within the time limitations for direct appeals. See M. R. App. P. 5(b); State v. Muhammad,
2002 MT 47, ¶¶ 22-23, 309 Mont. 1, ¶¶ 22-23, 43 P.3d 318, ¶¶ 22-23; Brister, ¶ 16.
6
Our cases are legion and our law well-settled that a sentencing court’s authority to
impose a criminal sentence derives from the law; it is not inherent. Thus, a court’s authority to
sentence exists only to the extent authorized by sentencing statutes. See State v. Hicks, 2006 MT
71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (“A district court’s authority in sentencing a
criminal defendant is defined and constrained by statute, and the court has no power to impose a
sentence in the absence of specific statutory authority.” (citing State v. Ruiz, 2005 MT 117, ¶ 12,
327 Mont. 109, ¶ 12, 112 P.3d 1001, ¶ 12)); State v. Hatfield, 256 Mont. 340, 346, 846 P.2d
1025, 1029 (1993) (“We have long held that a district court has no power to impose a sentence in
the absence of specific statutory authority.” (citing State v. Stone, 40 Mont. 88, 105 P. 89 (1909),
and State v. Openshaw, 172 Mont. 511, 565 P.2d 319 (1977))).
35
 specifically authorized[.] . . . Where, as in this case, it is alleged that a
sentencing court has exceeded its statutory authority in imposing a specific
sentence, an objection below is not a prerequisite to the challenging of the
sentencing order alleged to be void.

Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (ellipsis in original, internal quotation

marks omitted) (quoting Braughton, 561 P.2d at 1041 n.2); see also Commonwealth v.

Lane, 345 A.2d 233, 234 n.5 (Pa.Super. 1975) (“[A] sentence that exceeds the statutory

maximum is not subject to waiver.”), cited in Lenihan, 184 Mont. at 342, 602 P.2d at

1000; State v. Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996) (explaining that

the sentence in Lenihan was illegal or in excess of statutory mandates because the district

court lacked the specific statutory authority to impose the sentence); State v. Nelson, 274

Mont. 11, 19, 906 P.2d 663, 668 (1995) (same).

¶68 Thus, “illegal or exceeds statutory mandates” reflects a narrow concern: whether

the challenged sentence was statutorily authorized. Given this precise focus, only a

defendant who alleges a colorable claim that his sentence was imposed in the absence of

statutory authority may pass through the Lenihan gateway and have his otherwise

procedurally barred sentencing claim considered on the merits.

¶69 For instance, the defendant may allege that the sentencing court imposed a

sentence that is outside the range provided by the relevant sentencing statute. See, e.g.,

State v. Stone, 2004 MT 151, ¶ 44, 321 Mont. 489, ¶ 44, 92 P.3d 1178, ¶ 44 (alleging that

his five-year sentence exceeds the two-year maximum sentence authorized by the

applicable statute). Or, the defendant may allege that the court imposed a sentence that is

not authorized by any statute. See, e.g., Lenihan, 184 Mont. at 339-40, 602 P.2d at 998
36
(alleging that the district judge did not have statutory authority to impose a condition on

his sentence requiring him to reimburse the county for his appointed counsel’s attorney

fees); State v. Hatfield, 256 Mont. 340, 345-46, 846 P.2d 1025, 1028-29 (1993) (alleging

that the district court was without authority to impose a sentence of 210 days in jail, 180

of which would be served at the discretion of the supervising probation officer); State v.

Honey, 2005 MT 107, ¶ 34, 327 Mont. 49, ¶ 34, 112 P.3d 983, ¶ 34 (alleging that the

district court was without authority to impose a restitution obligation).

¶70 Our decision in State v. Nelson, 274 Mont. 11, 906 P.2d 663 (1995), illustrates this

narrow focus on statutory authority. In Nelson, the defendant argued on appeal that

because he qualified as a nonviolent felony offender, Montana law required the

sentencing court to consider alternatives to incarceration when sentencing him.

However, he had not raised this issue in the district court; therefore, we stated, this Court

would not review his sentencing challenge unless he could invoke Lenihan. See Nelson,

274 Mont. at 17-18, 906 P.2d at 666-67.

¶71 In addressing Lenihan’s applicability, we first emphasized that “an appellate court

may review any sentence imposed in a criminal case, if it is alleged that such sentence is

illegal or exceeds statutory mandates, even if no objection is made at the time of

sentencing.” Nelson, 274 Mont. at 18, 906 P.2d at 667 (citing Lenihan, 184 Mont. at 343,

602 P.2d at 1000, and Hatfield, 256 Mont. at 346, 846 P.2d at 1029). We then reasoned

as follows:

Sections 46-18-201(11) and 46-18-225, MCA, do not preclude a court from
sentencing a nonviolent felony offender to prison. . . . Although these
37
 statutes require consideration of alternatives to imprisonment, such
consideration would not have necessarily changed the court’s final sentence
for Nelson. Nelson’s sentence of ten years is not in excess of the maximum
statutorily authorized by § 45-5-202(3), MCA.
Sections 46-18-201(11) and 46-18-225, MCA, impose an affirmative
duty upon the court to take certain matters into consideration in sentencing.
If the court fails to abide by this requirement, the sentence is subject to
challenge or objection. That does not mean, however, that in the absence of
an objection, the sentence is thereby illegal. The District Court, after
considering the criteria in § 46-18-225, MCA, and stating its reasons why
alternatives to imprisonment were not selected as required by § 46-18-
201(11), MCA, could still have legally sentenced Nelson to ten years in
prison. Thus, Nelson’s sentence does not come within the exception found
in Lenihan and Hatfield.

Nelson, 274 Mont. at 19-20, 906 P.2d at 668 (emphases added). 7

¶72 As the foregoing reasoning in Nelson makes clear, an allegation that the

sentencing court did not impose a particular sentence within the range authorized by the

applicable punishment statutes is not the kind of error for which the Lenihan exception

may be invoked. Nelson alleged that he might have been given an alternative to

imprisonment had the district court abided by its “affirmative duty”; yet, his sentence of

ten years was authorized by § 45-5-202(3), MCA. Thus, his allegation, in substance, was

that the court erred in its determination of which sentence within the statutorily

authorized range was appropriate for Nelson, not that it imposed a sentence for which

there was no statutory authority. For this reason, he could not invoke the Lenihan

exception. See also Swoboda, 276 Mont. at 482, 918 P.2d at 298 (reaching the same

7
Had Nelson properly preserved his claim by making a timely objection in the district
court, we most likely would have remanded the case for resentencing. See Nelson, 274 Mont. at
17, 906 P.2d at 666 (“In three recent cases in which the district courts failed to consider
alternatives to incarceration for nonviolent offenders, we remanded for resentencing.”).
38
conclusion concerning Swoboda’s allegation); State v. Goulet, 277 Mont. 308, 312, 921

P.2d 1245, 1247 (1996) (same). 8

D. Further Clarification of the Lenihan Exception

¶73 Our applications of the Lenihan exception over the past 27 years have, for the

most part, conformed with the foregoing principles; however, there have been a number

of cases in which we diverged from the original meaning of “illegal or exceeds statutory

mandates.” As discussed earlier, these inconsistencies in our jurisprudence have

rendered our precedents irreconcilable with any one conceivable definition of the

Lenihan exception. Thus, for the sake of clarity and uniformity in this and future cases, it

is necessary to revisit some of our precedents and resolve the inconsistencies, which I

group below into three lines of cases. As a preliminary matter, however, I pause to

explain why doing so at this juncture is appropriate.

i. The Necessity and Appropriateness of Resolving Inconsistencies
in our Lenihan Jurisprudence at this Juncture

8
Incidentally, the Indiana courts have construed their version of the Lenihan exception
similarly. In Kleinrichert v. State, 297 N.E.2d 822 (Ind. 1973), cited in Lenihan, 184 Mont. at
342, 602 P.2d at 1000, the Supreme Court of Indiana stated: “Normally, this Court will not
consider an issue which is first raised on appeal, but a court of review cannot ignore a
fundamental error which is apparent on the face of the record, such as an incorrect sentence.”
Kleinrichert, 297 N.E.2d at 826. Subsequently, the court clarified that “to be fundamental error,
the error must go to the substance of the sentence itself—i.e. an illegal sentence—not the
procedures upon arriving at the sentence.” Ellis v. State, 567 N.E.2d 1142, 1145 (Ind. 1991); see
also Carman v. State, 473 N.E.2d 618, 620 (Ind. 1985) (Kleinrichert “concerned [a] sentence[]
which [was] imposed outside the statutory authority of the trial judge. . . . In the instant case, on
the other hand, the sentence was imposed consistently with the statutory discretion vested in the
trial judge. The statute providing the penalty for a class B felony permits a sentence of twenty
years, the sentence imposed here.”).
39
¶74 At present, anyone attempting to ascertain the meaning of Lenihan’s “illegal or

exceeds statutory mandates” concept is doomed to failure due to the fact that, as just

noted, we diverged in a number of cases from our original statutory authority approach

and thereby created inconsistencies in our Lenihan jurisprudence (which are identified

and analyzed in detail below). Notably, the uncertainty and confusion engendered by our

seemingly arbitrary applications of Lenihan is evident from some of the arguments made

to this Court over the years and has led to conflicting views over whether criminal

defendants have been “abusing” the exception and whether it is broad or narrow. 9

¶75 Tellingly, both arguments concerning Lenihan’s scope are incorrect. The assertion

that we have progressively narrowed the Lenihan exception over the years is belied by

cases such as State v. McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126, and State v.

Legg, 2004 MT 26, 319 Mont. 362, 84 P.3d 648, which stand for the proposition that any

alleged sentencing error may be reviewed on appeal (by way of Lenihan) if the error is

simply framed as a “due process” violation. See McLeod, ¶¶ 15-16; Legg, ¶¶ 58, 60.

Conversely, the suggestion that we have made the Lenihan exception broad is belied by
9
See, e.g., Brief of Respondent at 10, State v. Kotwicki (No. 05-178) (“Kotwicki is
abusing this Court’s Lenihan jurisdiction by changing theories on appeal to obtain review of an
alleged sentencing irregularity rather than a truly unauthorized or illegal sentence. . . . Lenihan is
not a license to sandbag . . . .”); Brief of Respondent at 6, State v. Ironmaker, 2005 MT 226N,
328 Mont. 522 (Table), 120 P.3d 811 (Table) (No. 04-610) (“Although this Court has repeatedly
emphasized that Lenihan is a narrow exception, it is not treated as such by defense counsel.”);
Brief of Karl Eric Gratzer in Support of Petition for Writ of Habeas Corpus at 20, Gratzer v.
Mahoney (No. 05-075) (“[T]his Court has recently shown an inclination to restrict the already
narrow Lenihan exception.” (citing State v. McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126,
and State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559)); Counsel for the State, Oral
Arguments, Gratzer v. Mahoney (No. 05-075) (November 9, 2005) (“Lenihan in itself is very
broad. It applies to sentencing. The Court calls it ‘narrow,’ but I think when it says ‘narrow,’ it
means it only applies to sentencing.”).
40
cases such as State v. Lafley, 1998 MT 21, 287 Mont. 276, 954 P.2d 1112, and Nelson,

supra, which stand for the proposition that any sentence falling within the parameters of a

sentencing statute—irrespective of the statute’s constitutionality—does not qualify under

Lenihan for our review. See Lafley, ¶¶ 26-27; Nelson, 274 Mont. at 19-20, 906 P.2d at

668. Until we reconcile this case law, no one can reasonably predict whether the Lenihan

exception will be available to a given defendant who failed to object to some aspect of his

or her sentence in the lower court.

¶76 The Court states that “neither of the parties has cited to any of these cases or

offered such argument.” Thus, the Court “deem[s] it inappropriate to undertake such

issues until they have been properly raised and briefed.” ¶ 15 n.3. To be sure, neither the

State nor Garrymore asserts in their briefs, “This Court’s applications of Lenihan over the

years have been confusing and unpredictable. Please clarify the exception! Here’s

how. . . .”—a request that certainly would have been warranted. However, they do, in

fact, cite an array of cases from our Lenihan jurisprudence, including Lenihan; State v.

Hatfield, 256 Mont. 340, 846 P.2d 1025 (1993); State v. Brewer, 1999 MT 269, 296

Mont. 453, 989 P.2d 407; State v. Brister, 2002 MT 13, 308 Mont. 154, 41 P.3d 314;

State v. Legg, 2004 MT 26, 319 Mont. 362, 84 P.3d 648; State v. Stone, 2004 MT 151,

321 Mont. 489, 92 P.3d 1178; State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661;

State v. Muhammad, 2002 MT 47, 309 Mont. 1, 43 P.3d 318; and State v. Honey, 2005

MT 107, 327 Mont. 49, 112 P.3d 983. See Appellant’s Brief at 9-10 (March 4, 2005);

Brief of Respondent at 14-15 (May 20, 2005); Appellant’s Reply Brief at 1-5 (June 6,

41
2005). Even a cursory review of these precedents, in the context of the Lenihan issue

presented by Garrymore, discloses glaring inconsistencies in our applications of the

exception and consequent inequitable treatment of numerous defendants.

¶77 When faced with similar situations in the past, our approach has been to clear up

the inconsistencies in our jurisprudence, even if the parties did not cite the conflicting

cases and offer corresponding argument. For instance, in State v. Montoya, 1999 MT

180, 295 Mont. 288, 983 P.2d 937, we observed as follows:

Although not put at issue by the parties, we note at the outset that
there is a rather prevalent inconsistency in this Court’s case law regarding
the appropriate standard of review of criminal sentences.

Montoya, ¶ 11. We therefore “[took] [that] opportunity to clarify the proper standard.”

Montoya, ¶ 13. After tracing back through our case law to the source of the confusion,

see Montoya, ¶¶ 13-14, we held that

[t]his Court reviews a criminal sentence only for legality . . . . To the extent
that Davison, White, Gunderson, and any other decisions from this Court
suggest that we also review criminal sentences for an abuse of discretion,
they are overruled.

Montoya, ¶ 15. 10

10
Incidentally, although we made abundantly clear in Montoya that “[a] question of
legality . . . implies de novo review,” Montoya, ¶ 12, and, in the process, overruled any prior
decisions that held otherwise, we have since reinstated the standard disapproved in Montoya.
See State v. Leitheiser, 2006 MT 70, ¶ 13, 331 Mont. 464, ¶ 13, 133 P.3d 185, ¶ 13 (“The
standard of review of the legality of a sentence is whether the sentencing court abused its
discretion.” (emphasis added)); State v. Setters, 2001 MT 101, ¶ 16, 305 Mont. 253, ¶ 16, 25
P.3d 893, ¶ 16 (same). As a result, we eventually will need to overrule either Leitheiser and
Setters (and their progeny) or Montoya (and its progeny), notwithstanding our effort seven years
ago to clarify the standard once and for all.
42
¶78 We have taken this approach in a number of other cases. See In re Estate of

Bradshaw, 2001 MT 92, ¶¶ 13-16, 305 Mont. 178, ¶¶ 13-16, 24 P.3d 211, ¶¶ 13-16

(identifying discrepancies in our applications of the five criteria for assessing undue

influence and overruling nine cases that stood for the “erroneous” approach, although the

parties had not raised and argued the “muddled” nature of our precedents); State v. Van

Kirk, 2001 MT 184, ¶¶ 29-47, 306 Mont. 215, ¶¶ 29-47, 32 P.3d 735, ¶¶ 29-47 (resolving

the “inconsistency and confusion” over the proper test to be applied in a harmless error

analysis, although the parties had not identified this inconsistency and confusion and

requested clarification); Gliko v. Permann, 2006 MT 30, ¶¶ 15-24, 331 Mont. 112, ¶¶ 15-

24, 130 P.3d 155, ¶¶ 15-24 (concluding that we “must” resolve two inconsistent lines of

authority pertaining to whether the existence of a special relationship giving rise to a

fiduciary duty is a question of fact or a question of law, even though the parties had

merely cited some of the inconsistent cases and not specifically argued the inconsistency

issue); State v. Brister, 2002 MT 13, ¶ 21, 308 Mont. 154, ¶ 21, 41 P.3d 314, ¶ 21

(overruling three precedents—although neither of the parties had cited to any of these

cases or offered such argument—to the extent they held that failure to raise a

contemporaneous objection to an illegal sentence at the time of hearing results in a

waiver of the defendant’s objection).

¶79 Notwithstanding, the Court, it seems, given its refusal in the case at hand to

confront the inconsistencies in our Lenihan jurisprudence, would henceforth passively

permit the continuation of a dichotomy in our case law until a party cites to the cases and

43
specifically argues for a resolution. (Paradoxically, as noted earlier, there is an incentive

for the parties not to request such resolution, since the existence of conflicting parallel

standards gives each side hope that we will employ the standard favorable to their

position in the given case.) I do not believe that we should adopt such a limitation on our

ability to clean up our own messes. To be sure, I do not dispute the principle that we do

not address issues not presented to us or not properly briefed. However, this principle is

not absolute. 11 When, in the course of resolving a particular case, we become aware of

inconsistent case law or parallel lines of authority standing for two irreconcilable

standards, we have a duty to remedy the conflict if for no other reason than to ensure that

similarly situated litigants are, in the particular case and thereafter, treated equally—

which is the fundamental rationale on which the constitutional guarantee of equal

protection of the law is based.

11
See Arrowhead Sch. Dist. #75, Park Co. v. Klyap, 2003 MT 294, ¶ 79, 318 Mont. 103,
¶ 79, 79 P.3d 250, ¶ 79 (Gray, C.J., concurring in part and dissenting in part) (“I fully support
this Court’s efforts in recent years to ‘square away’ inconsistent or parallel lines of authority
which cause ongoing difficulties for practitioners and trial courts. We generally, and properly,
do so by analyzing why one line of authority is preferable and overruling other cases, in whole or
in part, which are inconsistent therewith. See, e.g., Quantum Elec., Inc. v. Schaeffer, 2003 MT
29, 314 Mont. 193, 64 P.3d 1026; State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d
900; In re Estate of Bradshaw, 2001 MT 92, 305 Mont. 178, 24 P.3d 211; State v. Montoya,
1999 MT 180, 295 Mont. 288, 983 P.2d 937. In my view, we should continue that approach in
the present case.”); Leichtfuss v. Dabney, 2005 MT 271, ¶ 37 n.8, 329 Mont. 129, ¶ 37 n.8, 122
P.3d 1220, ¶ 37 n.8 (observing that “a court may consider an issue antecedent to . . . and
ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief,”
and that “[i]f the court were limited to the arguments and reasoning of counsel in its decisions of
cases, to the exclusion of its own observations, many cases would lead us far from what we
understand to be the true object of the court” (ellipsis in original, internal quotation marks
omitted)).
44
¶80 Accordingly, while it might be ideal to wait for the perfect case—complete with

model briefing and an all-inclusive list of the cases which cite Lenihan and its progeny—

in which to address and resolve our inconsistent applications of the Lenihan exception,

the vastly increased reliance on Lenihan in recent years (see ¶ 48 n.1, supra) necessitates

action on our part forthwith. And I cannot accept refraining from undertaking this issue

now on the ground that the State’s and Garrymore’s briefing is inadequate, as such

condition is largely due to the parties’ misconceptions of Lenihan created by our own

confusing applications.

¶81 In this regard, the Chief Justice’s Special Concurrence criticizes Garrymore for

“merely cit[ing] to Lenihan and its progeny” for the proposition that a criminal sentence

may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates

and then “stat[ing], without analysis,” that a failure to raise a contemporaneous objection

to an illegal sentence at the time of sentencing does not result in a waiver of the

defendant’s objection. ¶ 43. Yet, while Garrymore’s Lenihan discussion in his opening

brief indeed leaves much to be desired (he later develops his Lenihan arguments in

greater detail in his reply brief), the superficiality of his analysis, notably, mirrors our

own in a number of cases. For instance, the full extent of our Lenihan discussion in State

v. Vernes, 2006 MT 32, 331 Mont. 129, 130 P.3d 169, is as follows:

Vernes also appeals from the portion of her sentence imposing
restitution costs. Vernes failed to raise an objection at the time of
sentencing, but this Court will consider an appeal from an alleged illegal
sentence in a criminal case, even when the defendant did not raise a timely
objection in the district court. See State v. Lenihan (1979), 184 Mont. 338,
602 P.2d 997.
45
Vernes, ¶ 26. We then proceeded to set forth the relevant standard of review and address

the merits of Vernes’s claim. See Vernes, ¶¶ 27-30. Similarly, in State v. Gallagher,

2005 MT 336, 330 Mont. 65, 125 P.3d 1141, we provided the following brief explanation

for why Gallagher could invoke the exception:

Gallagher now challenges his sentence on appeal, and, consistent with our
rule in State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997, we will
review his challenge to the illegality of the sentence, despite no objection in
the trial court. Lenihan, 184 Mont. at 343, 602 P.2d at 1000; see also State
v. Brister, 2002 MT 13, ¶ 16, 308 Mont. 154, ¶ 16, 41 P.3d 314, ¶ 16.

Gallagher, ¶ 30. And in the case at hand, for that matter, the Court never explains why

Garrymore’s sentencing claims satisfy the requisites for invoking Lenihan.

¶82 Thus, while the Chief Justice’s admonition that “counsel must present more in the

way of discussion and analysis regarding entitlement to the exception” is well-taken, it is

also precisely why we must articulate the contours of the Lenihan exception and resolve

the inconsistencies in our case law now. Otherwise, we impose on counsel the hopeless

task of deciphering—in the face of our superficial and conflicting applications of

Lenihan—why the requisites for invoking the exception were satisfied in some cases and

not in others, though the facts of the cases are materially indistinguishable.

¶83 We have been presented with a variety of arguments by the State and by criminal

defendants in this case as well as in previous cases. 12 In my view, we have been

12
See, e.g., Brief of Respondent at 6-9, State v. Ironmaker, 2005 MT 226N, 328 Mont.
522 (Table), 120 P.3d 811 (Table) (No. 04-610) (arguing that “Lenihan should be limited to
facially invalid sentences which the lower court has no authority to impose”); Brief of
Respondent at 9-10, State v. Kotwicki (No. 05-178) (asserting that “[t]he purpose of the Lenihan
46
sufficiently apprised of the issue and the competing interests. Therefore, while I might

otherwise agree with the Court that “it [is] inappropriate to undertake such issues until

they have been properly raised and briefed,” ¶ 15 n.3, I conclude that this is one of those

rare instances in which we must undertake review of our case law to resolve

inconsistencies therein, notwithstanding the parties’ failure to brief this issue fully.

ii. The Lafley Line

¶84 In the first line of cases that is inconsistent with our statutory authority approach

under Lenihan, we determined that the appellant’s allegation did not satisfy the requisites

for invoking the exception when, in fact, it did. In State v. Lafley, 1998 MT 21, 287

Mont. 276, 954 P.2d 1112, Lafley had been convicted of felony assault and sentenced to

ten years in the Montana State Prison plus two years for the use of a dangerous weapon.

Lafley, ¶¶ 1, 17. On appeal, he claimed, inter alia, that the two-year sentence constituted

double jeopardy and cruel and unusual punishment. Lafley, ¶ 27. Lafley had not raised

this claim in the district court; thus, he could not pursue it on appeal unless he could

invoke Lenihan.

exception is to prevent sentencing courts from vindictively punishing convicts who object to
illegal sentences or conditions,” and that “[h]ow the sentencing court went about imposing its
fine is not an issue that Lenihan compels this Court to review”); Brief of Respondent at 7-11,
State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d 485 (No. 04-002) (suggesting that a
defendant may not invoke the Lenihan exception where his sentence is within the range
authorized by statute and he is not alleging that the statute is unconstitutional); Appellant’s Reply
Brief at 3-4, State v. Kotwicki (No. 05-178) (arguing that, in determining whether a defendant
may invoke Lenihan, this Court need not “attempt to divine why no objection was raised to the
illegal sentence or condition”); Brief of Appellant at 2-3, State v. Micklon, 2003 MT 45, 314
Mont. 291, 65 P.3d 559 (No. 02-415) (asserting that because a sentencing court has no power to
impose a sentence in the absence of specific statutory authority, such a sentence is illegal and,
therefore, may be reviewed by this Court under the Lenihan exception).
47
¶85 We determined that Lafley was “not challenging the legality of the sentence.”

Lafley, ¶ 27 (emphasis added). In reaching this conclusion, we first observed that “a

sentence is not illegal when it is within the parameters provided by statute.” Lafley, ¶ 26

(internal quotation marks omitted). We then explained that because § 46-18-221, MCA,

authorizes a court to sentence a person who uses a dangerous weapon in the commission

of an offense “ ‘to a term of imprisonment in the state prison of not less than 2 years or

more than 10 years,’ ” Lafley, ¶ 27 (quoting § 46-18-221, MCA), and because Lafley was

sentenced to two years imprisonment for the use of a weapon in the commission of the

assault, the sentence imposed by the district court was within statutory parameters. Thus,

we held that Lafley was barred from pursuing his claim on appeal. Lafley, ¶ 27.

¶86 Yet, although our statement that “a sentence is not illegal when it is within the

parameters provided by statute” was correct, it was also incomplete. It goes without

saying that a legislature may not authorize a sentencing court to contravene state or

federal constitutional provisions. Thus, while “[t]he sentencing authority of a court exists

solely by virtue of a statutory grant of power,” Lenihan, 184 Mont. at 342, 602 P.2d at

1000 (internal quotation marks omitted), the granted power may not infringe

constitutional rights. In other words, a sentencing court’s authority to impose a particular

sentence derives solely from valid sentencing statutes. 13

13
This principle is also implicated where two allegedly conflicting sentencing statutes
both apply to the defendant. See, e.g., State v. Osborne, 2005 MT 264, ¶ 4, 329 Mont. 95, ¶ 4,
124 P.3d 1085, ¶ 4, in which the appellant claimed that § 61-8-731, MCA (2003) (the felony
DUI sentencing statute) conflicted with § 46-18-502, MCA (2003) (the persistent felony offender
sentencing statute) and that the district court’s sentencing authority was constrained by the
48
¶87 Accordingly, the fact that an appellant’s sentence falls within the parameters

provided by the relevant statute does not make Lenihan unavailable to him where his

allegation is that the statute itself is invalid. A sentence is no less “illegal” because it

conforms to the mandates of an unconstitutional statute. 14 Hence, because Lafley

challenged the constitutionality of § 46-18-221, MCA, he was, in fact, challenging the

sentencing court’s statutory authority to impose the two-year sentence, as follows: the

weapon enhancement statute cannot be applied to me without violating the constitutional

proscriptions against double jeopardy and cruel and unusual punishment; thus, the statute

is invalid as applied to me, and the sentencing court, therefore, lacked statutory authority

to impose the two-year weapon enhancement upon my conviction of felony assault. 15

former. Where one of the statutes must give way to the other (an issue we did not reach in
Osborne because Osborne’s claim was procedurally barred, see Osborne, ¶ 20), the sentencing
court’s authority exists only to the extent authorized by the prevailing statute.
Similarly, under some statutory schemes a sentencing court’s authority does not arise
until certain prerequisites have been satisfied. See, e.g., State v. Pritchett, 2000 MT 261, ¶ 7, 302
Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7 (“District courts are not authorized to impose a sentence of
restitution until all [the] . . . statutory requirements [found in §§ 46-18-241 to -249, MCA,] are
satisfied.” (emphasis added)). Under such schemes, therefore, any sentence imposed by the
court before the prerequisites to its authority have been fulfilled will be in the absence of
statutory authority. (Note that this was not the situation in Nelson, supra. Nelson’s sentence of
ten years was statutorily authorized by § 45-5-202(3), MCA. Nelson, 274 Mont. at 20, 906 P.2d
at 668. Although the sentencing court had an “affirmative duty” under §§ 46-18-201(11) and
-225, MCA, to take certain matters into consideration in sentencing, doing so was not a
prerequisite to its authority, Nelson, 274 Mont. at 20, 906 P.2d at 668, which is the crucial
distinction here.)
14
We later held that “application of the weapon enhancement statute to felony
convictions where the underlying offense requires proof of use of a weapon violates the double
jeopardy provision of Article II, Section 25 of the Montana Constitution.” State v. Guillaume,
1999 MT 29, ¶ 16, 293 Mont. 224, ¶ 16, 975 P.2d 312, ¶ 16.
15
Lafley challenged the constitutionality of § 46-18-221, MCA, as applied to him (and,
concomitantly, to similarly situated defendants whose underlying convictions required proof of
49
¶88 Relying on our reasoning in Lafley, the State argued in State v. Brown, 1999 MT

31, 293 Mont. 268, 975 P.2d 321, that Brown’s failure to raise his double jeopardy

challenge to § 46-18-221, MCA, in the district court precluded his reliance on Lenihan in

this Court. Brown, ¶ 8. Brown did not dispute the State’s argument and instead urged us

to consider his claim under the doctrine of plain error review, which we did. See Brown,

¶¶ 9-14. Yet, because Brown’s sentencing challenge was identical to Lafley’s (that the

district court was without authority to apply the weapon enhancement statute on top of

Brown’s conviction of felony assault, see Brown, ¶ 13), he met the requisites of Lenihan.

¶89 For these reasons, Lafley and Brown should be overruled to the extent they hold

that Lenihan may not be invoked by an appellant who is challenging the validity of the

statute under which he was sentenced. An allegation that a sentence falls within the

range authorized by the sentencing statute, but that the statute is itself invalid and that the

sentencing court, therefore, was without authority to impose the sentence, is sufficient to

pass through the Lenihan gateway. (Indeed, the Court overrules Lafley and Brown—

albeit implicitly—by deciding that Garrymore may invoke Lenihan to have his otherwise

procedurally barred challenge to the constitutionality of § 46-18-202(2), MCA,

considered on the merits.)

iii. The McLeod and Legg Line

the use of a weapon), as opposed to attacking the statute as unconstitutional on its face. For
purposes of Lenihan, this makes no difference. A sentence is (allegedly) illegal regardless of
whether the validity of the sentencing statute is challenged on its face or as applied.
50
¶90 We have also reached the mirror image result of Lafley—in other words, we

determined that the appellant’s allegation satisfied the requisites for invoking Lenihan

when, in fact, it did not. In State v. McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126,

the pre-sentence investigation report (“PSI”) on which the district court had relied in

imposing sentence incorrectly stated that the conviction for which McLeod was being

sentenced was his fifth felony, when it actually was his fourth. McLeod, ¶¶ 7, 9-10.

Therefore, McLeod alleged on appeal “that his sentence is illegal because it was

predicated on misinformation about his criminal history, thus violating his due process

rights in the Fourteenth Amendment of the United States Constitution and Article II,

Section 17, of the Montana Constitution.” McLeod, ¶ 16. McLeod had not raised this

issue in the district court; thus, he was procedurally barred from raising it on appeal

unless he could invoke the Lenihan exception. 16

¶91 We concluded that McLeod could invoke Lenihan, since “[he] challenges only the

legal validity of the sentence.” McLeod, ¶ 15. Yet, McLeod had been sentenced to a

term of imprisonment within the range statutorily authorized by § 45-9-102, MCA, for

16
Essential to the ensuing discussion of McLeod is the fact that the error in the PSI could
have been discovered with reasonable diligence at or before the time of sentencing, see McLeod,
¶¶ 10, 14, 24; thus, McLeod had an opportunity to object to the misinformation concerning the
number of his prior convictions. This fact distinguishes McLeod’s situation from cases in which
a prior conviction upon which the sentencing court relies in imposing a particular sentence is
later—i.e., subsequent to the sentencing proceeding—determined to be invalid. See McLeod,
¶¶ 17-22. In such cases, the defendants “could [not] possibly have been afforded the opportunity
to object to the consideration of their previous convictions at the time of sentencing because their
previous convictions remained valid at the time of sentencing.” McLeod, ¶ 21. As such, the
defendants in those cases would not be precluded by their failure to make a timely objection
from pursuing post-sentencing challenges to their sentences.
51
the offense of criminal possession of dangerous drugs (he was given the maximum five-

year sentence, see McLeod, ¶ 11), and he was not challenging the legality of § 45-9-102.

Therefore, his allegation, in substance, was analogous to Nelson’s, supra: that he might

have received a lesser sentence within the statutorily authorized range had the court not

relied on misinformation in the PSI. As explained above, however, this is not an

allegation of an “illegal” sentence for Lenihan purposes. Even if the court had been

aware that the current conviction was McLeod’s fourth (not fifth) felony, it still had

authority to sentence him to five years in prison, see McLeod, ¶ 26; thus, McLeod’s

failure to object at the time of sentencing should have precluded our consideration of his

due process claim.

¶92 The same is true of State v. Legg, 2004 MT 26, 319 Mont. 362, 84 P.3d 648. Legg

was sentenced to a fifty-year term in State prison with no part of the sentence suspended.

See Legg, ¶ 22. This was one-half the maximum allowed under law. See Legg, ¶ 52. On

appeal, he claimed, inter alia, that his sentence was in violation of due process because

the district court had “acted arbitrarily in imposing sentence because it failed to consider

the mitigating factors referenced in [a psychological evaluation of Legg], or make a

finding of aggravating circumstances.” Legg, ¶ 58. Legg had not challenged his sentence

on this basis in the district court; nevertheless, we concluded that we could review the

claim because Legg “has challenged the legal validity of his sentence by alleging that it

was issued without regard to the mitigating factors identified in [the] evaluation, thus

violating his due process rights,” Legg, ¶ 60. This reasoning contravened our holding in

52
Nelson. As in McLeod, Legg’s claim was not that the court had imposed a sentence

which it had no statutory authority to impose; rather, he claimed that the court had acted

arbitrarily within the sentencing range authorized by the statute. As such, he should not

have been permitted to invoke Lenihan to obtain our review of his claim.

¶93 Therefore, McLeod and Legg also should be overruled in so far as they permit a

defendant to invoke the Lenihan exception to obtain review of a sentence which the

sentencing court had authority to impose pursuant to a concededly valid sentencing

statute, but which (allegedly) was the result of an error in the process by which the

sentence was selected within the statutorily authorized range. Otherwise, the Lenihan

exception would swallow the timely objection rule by making appellate review of any

allegedly incorrect sentence possible.

iv. The Micklon Line

¶94 The third line of cases that is inconsistent with our statutory authority approach

under Lenihan began with State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559.

Pursuant to a plea agreement, Micklon pleaded guilty to felony criminal possession of

dangerous drugs with intent to distribute. The agreement provided that the State would

dismiss the remaining counts of the information and recommend a ten-year suspended

sentence and that Micklon would pay a fine and surcharge totaling $55,000; however, the

agreement did not specify a payment schedule. See Micklon, ¶¶ 3-4. At sentencing,

Micklon requested that he be allowed to pay the $55,000 in five annual installments,

while the State requested that he be required to pay the entire amount within one year

53
from the sentencing date. The district court agreed to Micklon’s request, on the condition

that interest accrue on the balance of the fine at a rate of ten percent per year. See

Micklon, ¶ 4.

¶95 On appeal, Micklon contended “that the condition of his sentence requiring that

interest accrue on the unpaid balance of his fine is illegal because no statutory authority

exists for such a condition.” Micklon, ¶ 7. Micklon had not objected to this condition in

the district court; however, as discussed above, his allegation that the district court was

without statutory authority to impose the condition was sufficient for him to pass through

the Lenihan gateway and have his challenge to the interest requirement considered on the

merits.

¶96 Nevertheless, we held that Micklon could not pursue his claim on appeal. In

reaching this conclusion, we first observed that “[p]art of the rationale” behind the

Lenihan exception “is that, as a practical matter, ‘a defendant often times must remain

silent even in the face of invalid conditions’ to guard against the possibility that the

sentencing court may forego a more lenient sentence if the defendant objects to one of the

conditions.” Micklon, ¶ 9 (quoting Lenihan, 184 Mont. at 343, 602 P.2d at 1000).

Micklon, however, had not remained silent during his sentencing. In response to the

district court’s asking him “for his thoughts about having interest accrue on the unpaid

balance of his fine as an incentive to pay the fine in a shorter time period,” Micklon had

responded that “although it might create a greater financial burden on him, paying

interest would be acceptable to him.” Micklon, ¶ 10. Thus, we reasoned that he had

54
“affirmatively agreed to the inclusion of the interest condition in his sentence.” Micklon,

¶ 10. We then cited the principle, long established in the non-sentencing context, that

“[w]e will not put a district court in error for an action in which the appealing party

acquiesced or actively participated,” Micklon, ¶ 10 (quoting State v. Harris, 1999 MT

115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881, ¶ 32), 17 and we concluded that Micklon,

therefore, had “waived” his right to appeal the allegedly illegal condition on his

suspended sentence, Micklon, ¶ 11.

¶97 Yet, although we recognized that a defendant often will refrain from objecting to

what he believes is an invalid sentencing term or condition for fear of judicial

vindictiveness or retaliation, our holding actually undermined this rationale. As

explained in Lenihan and Micklon, when a defendant believes that objecting to an aspect

of his sentence may cause the sentencing judge to forego a more lenient sentence, he

often times must remain silent, even in the face of a condition of questionable legality.

See Lenihan, 184 Mont. at 343, 602 P.2d at 1000; Micklon, ¶ 9. Yet, doing so is not

possible as a practical matter when, as in Micklon, the sentencing judge solicits the

defendant’s thoughts concerning the condition. At that point, the defendant could voice

an objection to the condition, but he thereby would run the risk that the judge will impose

17
The “acquiesced or actively participated” principle had been applied in a line of cases
involving alleged trial and procedural errors. See Harris, ¶¶ 28, 32; State v. White Clay, 1998
MT 244, ¶¶ 22-24, 291 Mont. 147, ¶¶ 22-24, 967 P.2d 370, ¶¶ 22-24; Matter of R.B.O., 277
Mont. 272, 282-83, 921 P.2d 268, 274-75 (1996); In re Pedersen, 261 Mont. 284, 287, 862 P.2d
411, 413 (1993); In re Marriage of Smith, 242 Mont. 495, 501, 791 P.2d 1373, 1377 (1990), and
cases cited therein; In re Marriage of West, 233 Mont. 47, 51, 758 P.2d 282, 285 (1988). Harris
itself involved four allegations of trial error; the defendant did not allege that he was serving a
sentence which was beyond the court’s authority to impose. See Harris, ¶¶ 3-6.
55
a harsher sentence (e.g., make Micklon pay the $55,000 amount within one year).

Alternatively, he could remain silent or state that he has no thoughts and, accordingly, be

deemed to have “acquiesced” in the condition. Micklon, ¶ 10. Lastly, he could

“affirmatively agree[]” to or “actively participate[]” in the imposition of the condition, as

we concluded Micklon had done. Micklon, ¶ 10. Irrespective of the option he chooses,

however, the defendant’s desire to avoid a harsher sentence still exists.

¶98 Accordingly, it does not inevitably follow from the fact that a defendant

“affirmatively agreed” to or seemingly “acquiesced” in a condition on or a term of his

sentence that the Lenihan exception is unavailable to him, our reasoning in Micklon

notwithstanding. Given the choice to remain silent about having interest accrue on the

unpaid balance of his fine, Micklon might well have done so (so as to avoid the harsher

requirement of having to pay the $55,000 within one year). However, the applicability of

Lenihan is not subject to such happenstance—namely, whether the sentencing judge

happened to solicit the defendant’s thoughts regarding the aspect of his sentence later

challenged on appeal.

¶99 In addition, at a more fundamental level, Micklon’s implication that a sentence is

not “illegal” for Lenihan purposes if the defendant seemingly “acquiesced or actively

participated” in its imposition is contrary to one of the most basic tenets of our judicial

system. It is axiomatic that a sentencing court’s power and authority are granted by the

Legislature, not the defendant. State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41,

133 P.3d 206, ¶ 41 (“A district court’s authority in sentencing a criminal defendant is

56
defined and constrained by statute, and the court has no power to impose a sentence in

the absence of specific statutory authority.” (emphasis added)); Lenihan, 184 Mont. at

342, 602 P.2d at 1000 (“The sentencing authority of a court exists solely by virtue of a

statutory grant of power and therefore cannot be exercised in any manner not specifically

authorized.” (emphasis added, internal quotation marks omitted)). A court does not gain,

by virtue of a defendant’s acquiescence or affirmative agreement, the power or authority

to take a particular action that it does not otherwise have the power or authority to take. 18

Take, for example, an appeal by a defendant who, to evade imposition of a life sentence,

bargained with the sentencing court and the prosecutor to serve two years in prison and

have his left arm severed (a sentence for which there is no statutory authority), but then

subsequently decided that he wanted to keep his arm. Surely his allegation that this

sentence was not statutorily authorized is not nullified by the fact that he “actively

participated” in its imposition. Cf. Comer v. Schriro, ___ F.3d ___, ___, 2006 WL

2613669 at *9, 2006 U.S. App. LEXIS 23291 at *31 (9th Cir. 2006) (“ ‘[T]he waiver

concept was never intended as a means of allowing a criminal defendant to choose his

own sentence.’ ” (alteration in original) (quoting Com. v. McKenna, 383 A.2d 174, 181

(Pa. 1978))).

18
This is not to say that the requirement that interest accrue on the balance of Micklon’s
$55,000 fine was in fact illegal. We did not reach this issue because we concluded that Micklon
had waived his right to challenge the interest condition on appeal. Rather, the point here is that
an allegation that the sentencing court lacked statutory authority to impose the challenged
sentence is sufficient to pass through the Lenihan gateway, irrespective of the defendant’s
supposed complicity in that sentence.
57
¶100 In a similar vein, it is important to recognize that the statutorily authorized

punishment for a given crime represents the Legislature’s judgment as to the appropriate

range of penalties for that offense. An acquiescence or active participation rule would

devalue this judgment and burden the community with costs that the Legislature has not

deemed appropriate given the crime. 19 We should not be so quick to disregard these

costs simply because the defendant and the sentencing court have. Lenihan certainly

does not stand for such an approach.

¶101 For the foregoing reasons, the suggestion in Micklon, in State v. Eaton, 2004 MT

283, 323 Mont. 287, 99 P.3d 661, and in State v. Erickson, 2005 MT 276, 329 Mont. 192,

124 P.3d 119, that Lenihan may not be invoked—notwithstanding an allegation that the

sentencing court lacked statutory authority to impose the challenged sentence—where the

defendant appears to have been complicit in its imposition, see Micklon, ¶ 10; Eaton,

¶¶ 12-13; Erickson, ¶¶ 30, 34, is erroneous and should be overruled explicitly.

E. Summation and Application

¶102 To summarize, we may review any criminal sentence that was imposed, allegedly,

in the absence of statutory authority, notwithstanding the defendant’s failure to object at

the time of sentencing. Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (“Where . . . it is

alleged that a sentencing court has exceeded its statutory authority in imposing a specific

19
Obvious costs include those associated with incarceration or monitoring by a probation
officer (pursuant to a suspended or deferred sentence) in excess of the period set forth in the
relevant punishment statute. Cf. Barker v. Wingo, 407 U.S. 514, 519-21, 92 S.Ct. 2182, 2186-87
(1972) (discussing the “societal interest in providing a speedy trial which exists separate from,
and at times in opposition to, the interests of the accused”).
58
sentence, an objection below is not a prerequisite to the challenging of the sentencing

order alleged to be void.” (internal quotation marks omitted)). Accordingly, the Lenihan

exception to the timely objection rule is properly invoked by a defendant who alleges a

colorable claim that the sentencing court lacked statutory authority to impose the

challenged sentence.

¶103 In this regard, I note that several types of colorable sentencing challenges, distilled

from the discussion above, emerge from our Lenihan cases thus far: the measure of the

sentence (duration of imprisonment, amount of fine, etc.) falls outside the range

authorized by the applicable sentencing statute; a term of or a condition on the sentence

was not authorized by any statute; the sentence falls within the range authorized by the

applicable sentencing statute, but the sentencing statute is itself invalid, facially or as

applied; and the sentencing court’s authority to impose the sentence never arose because

the court did not fulfill the statutory prerequisites to that authority. Such allegations

reflect the principle that a sentencing court has no power to impose a criminal sentence in

the absence of specific statutory authority, Hicks, ¶ 41; Lenihan, 184 Mont. at 342, 602

P.2d at 1000, and an appellant may pass through the Lenihan gateway and have his

otherwise procedurally barred sentencing claim reviewed on appeal if he alleges, with

supporting analysis, that his sentence, or a portion thereof, is invalid for any of these

reasons.

¶104 By contrast, an allegation that the sentencing court failed to fulfill an “affirmative

duty” or that it erroneously selected a particular term within the range authorized by a

59
concededly valid sentencing statute (see, e.g., the discussions of Nelson at ¶¶ 70-72,

supra, and McLeod and Legg at ¶¶ 90-93, supra) does not meet the requisites of Lenihan.

If the sentence the defendant received is one that the sentencing court still was authorized

to impose had it not erred in the manner alleged, then the sentence is not “illegal” for

Lenihan purposes. See Nelson, 274 Mont. at 20, 906 P.2d at 668. 20

¶105 Lastly, it bears repeating that nothing in Lenihan is meant to preclude a timely

appeal by a defendant who never had the opportunity to object at the time of sentencing

20
Incidentally, as the Court states in ¶ 9, we review criminal sentences that include at
least one year of actual incarceration for legality. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont.
490, ¶ 22, 87 P.3d 1017, ¶ 22; State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983
P.2d 937, ¶ 15. In this regard, it is important to clarify that the term “legality” has a broader
meaning in the standard of review context than it does in the Lenihan context.
As a standard of review, our use of the term signifies that “we will not review a sentence
for mere inequity or disparity.” State v. Webb, 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d
521, ¶ 8; see also Montoya, ¶ 12; but see State v. Ruiz, 2005 MT 117, ¶ 8, 327 Mont. 109, ¶ 8,
112 P.3d 1001, ¶ 8. Rather, when reviewing criminal sentences for “legality,” we are
determining (i) whether the sentencing court had statutory authority to impose the sentence at
issue, State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41; Ruiz, ¶ 12, (ii)
whether the sentence falls within the parameters set by the applicable sentencing statutes,
Montoya, ¶ 15, or (iii) whether the court adhered to the affirmative mandates of the applicable
sentencing statutes, see, e.g., State v. Pence, 273 Mont. 223, 231, 902 P.2d 41, 46 (1995); State v.
Pritchett, 2000 MT 261, ¶ 7, 302 Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7; State v. Williams, 2003 MT 136,
¶ 8, 316 Mont. 140, ¶ 8, 69 P.3d 222, ¶ 8; State v. Shults, 2006 MT 100, ¶ 34, 332 Mont. 130,
¶ 34, 136 P.3d 507, ¶ 34. We have also stated this “legality” review in a general sense in terms
of correctness. See State v. Megard, 2006 MT 84, ¶ 16, 332 Mont. 27, ¶ 16, 134 P.3d 90, ¶ 16
(“This Court reviews a district court’s imposition of sentence for legality only. The question is
one of law and the determination is whether the district court interpreted the law correctly.”
(citation omitted)); State v. Sprinkle, 2000 MT 188, ¶ 6, 300 Mont. 405, ¶ 6, 4 P.3d 1204, ¶ 6
(“Sentencing is based on statutory law. We review the district court’s application of the
sentencing statutes to determine whether the district court was correct.” (citation omitted)).
Lenihan, by contrast, is not concerned with whether the challenged sentence is “correct.”
Indeed, under such an approach, as noted earlier, the Lenihan exception would swallow the
timely objection rule. Rather, legality in the Lenihan context involves a narrower question:
whether the sentence at issue was authorized by a valid sentencing statute. As such, “legality”
for Lenihan purposes is narrower than our “legality” standard of review of criminal sentences.
60
in the first place. See ¶ 90 n.16, supra; McLeod, ¶¶ 17-22; State v. Lane, 1998 MT 76,

¶¶ 31-33, 288 Mont. 286, ¶¶ 31-33, 957 P.2d 9, ¶¶ 31-33; § 46-20-701(2), MCA.

¶106 Applying these principles to the case at hand, Garrymore may pass through the

Lenihan gateway and have his otherwise procedurally barred challenges to his sentence

reviewed on appeal. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000), and its progeny, as well as Article II, Sections 24 and 26, of the Montana

Constitution and § 46-1-401, MCA (2001), he claims that the District Court “exceeded its

authority when it imposed the parole eligibility restriction, and thus imposed an illegal

and unconstitutional sentence.” He further explains that

[t]he district court imposed a sentence enhancement after making additional
findings of fact on contested matters. Jason Garrymore had both a
constitutional and a statutory right not to have the enhancement imposed
unless it was charged in the Information, and proved to a jury by proof
beyond a reasonable doubt. The imposition of the parole restriction in this
case constitutes an illegal sentence.

Thus, while Garrymore acknowledges that he was sentenced within the ranges authorized

by § 45-5-102(2), MCA (authorizing a sentence of life imprisonment) and § 46-18-

202(2), MCA (authorizing a sentencing court to restrict an offender’s parole eligibility),

he claims that this latter statute is invalid because it authorized the District Court—in

contravention of the Sixth Amendment, Article II, Sections 24 and 26, and § 46-1-401,

MCA—to restrict his eligibility for parole on the basis of facts not found by a jury

beyond a reasonable doubt. In other words, he alleges that the District Court lacked

authority to impose this portion of his sentence because § 46-18-202(2) was, as applied to

him, an unconstitutional grant of power by the Legislature and, alternatively, because a
61
sentencing court’s application of § 46-18-202(2) is constrained by § 46-1-401. Such

allegations constitute colorable claims that satisfy the requisites for invoking the Lenihan

exception. We therefore may reach the merits of these claims, notwithstanding

Garrymore’s failure to raise them in the first instance in the District Court.

III. Issue 2: Did imposition of the parole eligibility restriction, because it was
based on facts not found by a jury beyond a reasonable doubt, violate
Garrymore’s federal and state constitutional and statutory rights to jury trial
and due process?

¶107 Garrymore was convicted of violating § 45-5-102(1)(a), MCA (2001). 21 This

offense is punishable as follows:

A person convicted of the offense of deliberate homicide shall be
punished by death as provided in 46-18-301 through 46-18-310, unless the
person is less than 18 years of age at the time of the commission of the
offense, by life imprisonment, or by imprisonment in the state prison for a
term of not less than 10 years or more than 100 years, except as provided in
46-18-219 and 46-18-222.

Section 45-5-102(2), MCA.

¶108 The State did not seek the death penalty in this case, and the exceptions listed in

§§ 46-18-219 and -222 are not at issue here. Thus, Garrymore’s claims, in more specific

terms, are as follows: that the maximum sentence authorized for the offense of which he

was convicted is “life imprisonment” or “imprisonment in the state prison for a term of

not . . . more than 100 years”; that both of these maximums contemplate the possibility of

parole (which, as applied to Garrymore’s sentence, requires that he serve at least 30

21
Unless specified otherwise, further statutory references are to the 2001 Montana Code
Annotated, which was in effect at the time Garrymore committed this crime (on or about January
3, 2003). See State v. Brister, 2002 MT 13, ¶ 26, 308 Mont. 154, ¶ 26, 41 P.3d 314, ¶ 26 (“[T]he
law in effect at the time of the commission of the crime controls as to the possible sentence.”).
62
years, see § 46-23-201(3), MCA); that § 46-18-202(2) violates federal and state

constitutional provisions to the extent it authorizes a sentencing judge to “impose the

restriction that the offender is ineligible for parole” on the basis of facts not found by a

jury beyond a reasonable doubt; that a sentencing judge is prohibited also by statute from

restricting a prisoner’s parole eligibility on the basis of facts not found by a jury beyond a

reasonable doubt; and that the District Court, therefore, lacked authority to add the parole

eligibility restriction to Garrymore’s life sentence. As noted above, these claims are

based on the Sixth and Fourteenth Amendments, as interpreted in Apprendi; Article II,

Sections 24 and 26, of the Montana Constitution; and § 46-1-401. I begin with a

discussion of Garrymore’s federal claim under Apprendi.

A. Federal Constitutional Claim

¶109 At issue in this case are two longstanding principles of criminal procedure: first,

that upon a defendant’s conviction for a charged offense, “the court must pronounce that

judgment, which the law hath annexed to the crime,” Apprendi, 530 U.S. at 478-79, 120

S.Ct. at 2356 (emphasis and internal quotation marks omitted) (quoting 4 W. Blackstone,

Commentaries on the Laws of England 369-70 (1769)); and second, that “the prosecution

must convince the trier of all the essential elements of guilt” “beyond a reasonable

doubt,” Apprendi, 530 U.S. at 478, 120 S.Ct. at 2356 (internal quotation marks omitted)

(quoting In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071 (1970), in turn quoting C.

McCormick, Evidence § 321, at 681-82 (1954)).

63
¶110 The Framers enshrined these fundamental guarantees in the Sixth Amendment,

which ensures an accused the right to “trial, by an impartial jury,” and in the Fourteenth

Amendment, which proscribes any deprivation of liberty without “due process of law.”

See Apprendi, 530 U.S. at 476-77, 120 S.Ct. at 2355. The Supreme Court has

characterized the right of jury trial as “no mere procedural formality, but a fundamental

reservation of power in our constitutional structure. Just as suffrage ensures the people’s

ultimate control in the legislative and executive branches, jury trial is meant to ensure

their control in the judiciary.” Blakely v. Washington, 542 U.S. 296, 305-06, 124 S.Ct.

2531, 2538-39 (2004).

¶111 As explained above, Garrymore alleges that the parole eligibility restriction on his

sentence was imposed in violation of these constitutional protections. The starting point

for analyzing this claim is the Supreme Court’s decision in Apprendi, in which the Court

addressed whether a factual determination authorizing an increase in the maximum

possible prison sentence for an offense must be made by a jury on the basis of proof

beyond a reasonable doubt. See Apprendi, 530 U.S. at 469, 120 S.Ct. at 2351.

¶112 Apprendi was charged in a 23-count indictment with a number of shootings, as

well as the unlawful possession of various weapons. Apprendi, 530 U.S. at 469, 120

S.Ct. at 2352. Pursuant to a plea agreement, he pleaded guilty in New Jersey state court

to three of the charged offenses, one of which was second-degree possession of a firearm

for an unlawful purpose (Count 18). Apprendi, 530 U.S. at 469-70, 120 S.Ct. at 2352.

Under New Jersey law, this offense carried a penalty range of 5 to 10 years; however, as

64
part of the plea agreement, the State reserved the right to request the imposition of an

enhanced sentence on the ground that Count 18 was committed with a biased purpose,

and Apprendi, correspondingly, reserved the right to challenge the hate crime sentence

enhancement as unconstitutional. Apprendi, 530 U.S. at 470, 120 S.Ct. at 2352.

¶113 At the plea hearing, the trial judge heard sufficient evidence to establish

Apprendi’s guilt on all three counts. Thereafter, the prosecutor filed a motion for an

extended term under the hate crime statute. Apprendi, 530 U.S. at 470, 120 S.Ct. at 2352.

At the evidentiary hearing on Apprendi’s “purpose” for the shooting on which Count 18

was based, Apprendi adduced evidence that he was not in any way biased against

African-Americans. Nevertheless, the judge found, by a preponderance of the evidence,

that Apprendi’s actions were taken “ ‘with a purpose to intimidate’ ” and that the crime

“ ‘was motivated by racial bias.’ ” Apprendi, 530 U.S. at 470-71, 120 S.Ct. at 2352. This

finding had the effect of doubling the range of punishment for Count 18 to between 10

and 20 years. Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351. The judge then

sentenced him to a 12-year term of imprisonment, which was 2 years greater than the

maximum punishment authorized by the facts to which he had admitted guilt. Apprendi,

530 U.S. at 469, 471, 120 S.Ct. at 2351, 2352. (Apprendi was also sentenced to shorter

concurrent sentences on the other two counts. Those sentences were not at issue on

Apprendi’s appeal before the Supreme Court. See Apprendi, 530 U.S. at 471, 474, 120

S.Ct. at 2352, 2354.)

65
¶114 On appeal, the Supreme Court considered whether the foregoing procedures

comported with the Sixth and Fourteenth Amendments. At the outset of its analysis, the

Court rejected the notion that this question could be answered by determining whether

the finding that Apprendi’s crime was motivated by racial bias and committed with a

purpose to intimidate was an “element” of the offense or merely a sentencing “factor” or

“enhancement.”

New Jersey threatened Apprendi with certain pains if he unlawfully
possessed a weapon and with additional pains if he selected his victims
with a purpose to intimidate them because of their race. As a matter of
simple justice, it seems obvious that the procedural safeguards designed to
protect Apprendi from unwarranted pains should apply equally to the two
acts that New Jersey has singled out for punishment. Merely using the
label “sentence enhancement” to describe the latter surely does not provide
a principled basis for treating them differently.

Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355; see also Apprendi, 530 U.S. at 495-96, 120

S.Ct. at 2365-66 (“[M]erely because the state legislature placed its hate crime sentence

‘enhancer’ ‘within the sentencing provisions’ of the criminal code ‘does not mean that

the finding of a biased purpose to intimidate is not an essential element of the offense.’

. . . [T]he mere presence of this ‘enhancement’ in a sentencing statute does not define its

character.”). 22

¶115 The Court then examined the roles historically served by juries and judges in

criminal proceedings and the measure of persuasion to which prosecutors were held.

Among other things, the Court explained that in the late 18th century,

22
For this reason, the State’s observation that “[a] parole eligibility restriction . . . is not
considered a penalty enhancement” is inapposite. “Labels do not afford an acceptable answer.”
Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365 (alteration and internal quotation marks omitted).
66
 “[t]he substantive criminal law tended to be sanction-specific; it prescribed
a particular sentence for each offense. The judge was meant simply to
impose that sentence (unless he thought in the circumstances that the
sentence was so inappropriate that he should invoke the pardon process to
commute it).” As Blackstone, among many others, has made clear, “[t]he
judgment, though pronounced or awarded by the judges, is not their
determination or sentence, but the determination and sentence of the law.”

Apprendi, 530 U.S. at 479-80, 120 S.Ct. at 2357 (second alteration in original, citations

and footnotes omitted).

¶116 The 19th century saw a shift in this country from statutes providing fixed-term

sentences to those providing judges with discretion; however, such discretion was

invariably “bound by the range of sentencing options prescribed by the legislature.”

Apprendi, 530 U.S. at 481, 120 S.Ct. at 2358. In other words, while it had become

permissible for judges to take into consideration various factors relating both to the

offense and the offender in imposing judgment, such discretion could only be exercised

“within the range prescribed by statute” for that offense. Apprendi, 530 U.S. at 481, 120

S.Ct. at 2358; see also Apprendi, 530 U.S. at 482 n.9, 120 S.Ct. at 2358 n.9 (“ ‘[I]f the

law has given the court a discretion as to the punishment, it will look in pronouncing

sentence into any evidence proper to influence a judicious magistrate to make it heavier

or lighter, yet not to exceed the limits fixed for what of crime is within the allegation and

the verdict.’ ” (alteration in original) (quoting 1 J. Bishop, Criminal Law § 948 (9th ed.

1923))).

¶117 Thus, the Court observed, the historical evidence established that “punishment

was, by law, tied to the offense” and that American judges “exercised sentencing

67
discretion within a legally prescribed range.” Apprendi, 530 U.S. at 483 n.10, 120 S.Ct.

at 2359 n.10. This evidence, in turn, pointed to “a single, consistent conclusion: The

judge’s role in sentencing is constrained at its outer limits by the facts alleged in the

indictment and found by the jury. Put simply, facts that expose a defendant to a

punishment greater than that otherwise legally prescribed were by definition ‘elements’

of a separate legal offense.” Apprendi, 530 U.S. at 483 n.10, 120 S.Ct. at 2359 n.10.

¶118 The Court acknowledged the inconsistency between this historically mandated

conclusion and the Court’s recent decision in Almendarez-Torres v. United States, 523

U.S. 224, 118 S.Ct. 1219 (1998). See Apprendi, 530 U.S. at 487-90, 120 S.Ct. at 2361-

62. In Almendarez-Torres, the Court held that the fact of recidivism, though it may

increase the maximum penalty to which a defendant is exposed, need not be charged in

an indictment or information. Almendarez-Torres, 523 U.S. at 243-47, 118 S.Ct. at 1230-

33; see also Jones v. United States, 526 U.S. 227, 248-49, 119 S.Ct. 1215, 1226-27

(1999) (discussing the Almendarez-Torres decision in detail). While this holding

“represents at best an exceptional departure from the historic practice” described above,

Apprendi, 530 U.S. at 487, 120 S.Ct. at 2361, the Court found it unnecessary to revisit the

precedent for purposes of deciding Apprendi’s claim, since he had not contested the

decision’s validity, Apprendi, 530 U.S. at 489-90, 120 S.Ct. at 2362. Instead, the Court

distinguished Almendarez-Torres as “a narrow exception to the general rule.” Apprendi,

530 U.S. at 490, 120 S.Ct. at 2362.

68
¶119 Lastly, with respect to the burden necessary to prove the facts which expose an

accused to a particular punishment, the Court reaffirmed the rationales undergirding the

right to have the jury verdict based on proof “beyond a reasonable doubt.”

As we made clear in Winship, the “reasonable doubt” requirement “has [a]
vital role in our criminal procedure for cogent reasons.” Prosecution
subjects the criminal defendant both to “the possibility that he may lose his
liberty upon conviction and . . . the certainty that he would be stigmatized
by the conviction.” We thus require this, among other, procedural
protections in order to “provid[e] concrete substance for the presumption of
innocence,” and to reduce the risk of imposing such deprivations
erroneously.

Apprendi, 530 U.S. at 484, 120 S.Ct. at 2359 (alterations and ellipsis in original, citations

omitted) (quoting Winship, 397 U.S. at 363, 90 S.Ct. at 1072).

¶120 Hence, given the foregoing history of the jury trial right, the bounded discretion

judges had in imposing sentences, and the heightened degree of persuasion required in

criminal trials, the Court concluded that, except for the fact of recidivism, “it is

unconstitutional for a legislature to remove from the jury the assessment of facts that

increase the prescribed range of penalties to which a criminal defendant is exposed.”

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363 (alteration omitted). “Other than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63; see also Apprendi, 530 U.S. at 499, 120

S.Ct. at 2367 (Scalia, J., concurring) (“[A]ll the facts which must exist in order to subject

the defendant to a legally prescribed punishment must be found by the jury.”). This

inquiry “is one not of form, but of effect—does the required finding expose the defendant
69
to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi, 530

U.S. at 494, 120 S.Ct. at 2365. For this reason, as stated earlier, the “elusive distinction

between ‘elements’ and ‘sentencing factors’ ” is immaterial. Apprendi, 530 U.S. at 494,

120 S.Ct. at 2365. 23

¶121 In light of this constitutional rule, the Court concluded that New Jersey’s statutory

scheme could not stand. Pursuant to that scheme, the trial judge in Apprendi’s case had

been allowed to impose a punishment greater than the maximum punishment authorized

for the crime of unlawfully possessing a firearm, based on the judge’s finding by a

preponderance of the evidence that Apprendi’s purpose for unlawfully possessing a

firearm was to intimidate his victim on the basis of a particular characteristic the victim

possessed. Apprendi, 530 U.S. at 491, 120 S.Ct. at 2363. By “remov[ing] the jury from

the determination of a fact that, if found, exposes the criminal defendant to a penalty

exceeding the maximum he would receive if punished according to the facts reflected in

the jury verdict alone,” this scheme ignores “[t]he historic link between verdict and

judgment and the consistent limitation on judges’ discretion to operate within the limits

23
The Court clarified that the term “sentencing factor” is not “devoid of meaning.”
Rather, the term
appropriately describes a circumstance, which may be either aggravating or
mitigating in character, that supports a specific sentence within the range
authorized by the jury’s finding that the defendant is guilty of a particular offense.
On the other hand, when the term “sentence enhancement” is used to describe an
increase beyond the maximum authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than the one covered by the jury’s
guilty verdict. Indeed, it fits squarely within the usual definition of an “element”
of the offense.
Apprendi, 530 U.S. at 494 n.19, 120 S.Ct. at 2365 n.19.
70
of the legal penalties provided.” Apprendi, 530 U.S. at 482-83, 120 S.Ct. at 2359. The

Sixth Amendment prohibits such a practice. Apprendi, 530 U.S. at 491-92, 120 S.Ct. at

2363.

¶122 Applying these principles to the case at hand, the sentence range authorized by the

jury’s verdict—which reflected its finding, beyond a reasonable doubt, that Garrymore

had “purposely or knowingly cause[d] the death of another human being,” § 45-5-

102(1)(a), MCA—was “life imprisonment” or “imprisonment in the state prison for a

term of not less than 10 years or more than 100 years,” § 45-5-102(2), MCA. (As noted

above, neither the death penalty nor the exceptions listed in §§ 46-18-219 and -222 are at

issue here.) The question to be answered is whether the restriction “without possibility of

parole” exceeded this range. In other words, were the reasons stated by the District Court

for imposing the parole eligibility restriction, in substance, factual findings that exposed

Garrymore to a punishment greater than the punishment authorized by the jury’s guilty

verdict alone? See Apprendi, 530 U.S. at 482-83, 494, 120 S.Ct. at 2359, 2365. 24

¶123 Section 46-18-202(2) provides that “[w]henever 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

24
Of course, a jury verdict is not required with respect to facts a defendant has
admitted—for instance, pursuant to a guilty plea. See United States v. Booker, 543 U.S. 220,
232, 125 S.Ct. 738, 749 (2005) (“[T]he defendant’s right to have the jury find the existence of
any particular fact that the law makes essential to his punishment . . . is implicated whenever a
judge seeks to impose a sentence that is not solely based on facts reflected in the jury verdict or
admitted by the defendant.” (emphasis added, citation and internal quotation marks omitted)). In
the case at hand, Garrymore did not admit any of the facts on which his sentence of life
imprisonment without possibility of parole is based.
71
participation in the supervised release program while serving that term” (emphasis

added). By virtue of the word “may,” it is clear that imposing a parole eligibility

restriction is a sentencing option available to a sentencing judge to be exercised at his or

her discretion whenever the sentence at issue exceeds one year. In other words, the

restriction falls within the sentencing range prescribed by the legislature for offenses

which, upon conviction, carry a sentence of imprisonment in a state prison for a term

exceeding one year. This includes Garrymore’s life sentence.

¶124 Indeed, in Cavanaugh v. Crist, 189 Mont. 274, 615 P.2d 890 (1980), on which the

State relies heavily, we stated that “[§ 46-18-202(2)] does not permit district judges to

add any time beyond the statutory maximum for the underlying offense.” Cavanaugh,

189 Mont. at 278, 615 P.2d at 893. Rather, it “insures that the length of the penalty

enacted by the legislature and imposed by the court is carried out.” Cavanaugh, 189

Mont. at 278, 615 P.2d at 893. We further explained that

[t]he restriction of parole and furlough program eligibility . . . represents
one option, among others, the legislature has made available to district
judges in the course of ordinary sentencing. The full restriction on parole
and furlough eligibility permitted by section 46-18-202(2) has no existence
apart from the sentence imposed for the underlying offense.

Cavanaugh, 189 Mont. at 278, 615 P.2d at 893. Thus, Cavanaugh makes it clear that a

restriction on parole eligibility is within the range of punishments authorized by § 45-5-

102(2).

¶125 However, while the foregoing language of Cavanaugh remains true today, it does

not fully answer the question at hand, which depends on the technical meaning of

72
“statutory maximum.” See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63 (“Other than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” (emphasis added)). The Court did not define this term in great detail

in Apprendi, but it did so in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), and

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).

¶126 In Ring, the Court confronted Arizona’s capital sentencing scheme. Under

Arizona law, the statutory maximum penalty for first-degree murder was death, Ring, 536

U.S. at 592, 122 S.Ct. 2434; however, “death” was not the “statutory maximum” for

Apprendi purposes. This was so because upon a defendant’s conviction of this offense,

the trial judge was required to conduct a separate sentencing hearing “before the court

alone” to determine “the existence or nonexistence of [certain enumerated] circumstances

. . . for the purpose of determining the sentence to be imposed.” Ring, 536 U.S. at 592,

122 S.Ct. at 2434 (alteration and ellipsis in original, internal quotation marks omitted).

Unless at least one aggravating circumstance was found by the judge to exist beyond a

reasonable doubt, a death sentence could not legally be imposed. Ring, 536 U.S. at 597,

122 S.Ct. at 2437. In other words, “[b]ased solely on the jury’s verdict finding Ring

guilty of first-degree felony murder, the maximum punishment he could have received

was life imprisonment.” Ring, 536 U.S. at 597, 122 S.Ct. at 2437.

¶127 This scheme contradicted the holding of Apprendi. “If a State makes an increase

in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no

73
matter how the State labels it—must be found by a jury beyond a reasonable doubt.”

Ring, 536 U.S. at 602, 122 S.Ct. at 2439; see also Ring, 536 U.S. at 610, 122 S.Ct. at

2444 (Scalia, J., concurring) (“[T]he fundamental meaning of the jury-trial guarantee of

the Sixth Amendment is that all facts essential to imposition of the level of punishment

that the defendant receives—whether the statute calls them elements of the offense,

sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable

doubt.”). It did not matter that the maximum penalty for first-degree murder under

Arizona law was death. “The Arizona first-degree murder statute ‘authorizes a maximum

penalty of death only in a formal sense,’ for it explicitly cross-references the statutory

provision requiring the finding of an aggravating circumstance [by the trial judge alone]

before imposition of the death penalty.” Ring, 536 U.S. at 604, 122 S.Ct. at 2440

(citation omitted).

¶128 In Blakely, the Court dealt with Washington’s determinate sentencing scheme.

Pursuant to a plea agreement, Blakely pleaded guilty to second-degree kidnapping, which

as a class B felony carried a maximum term of 10 years. Blakely, 542 U.S. at 298-99,

124 S.Ct. at 2534-35. However, other provisions of state law mandated a “standard

range” sentence of 49 to 53 months for Blakely’s offense. Blakely, 542 U.S. at 299, 124

S.Ct. at 2535. A judge could impose a sentence above the standard range if he found

“substantial and compelling reasons justifying an exceptional sentence.” Blakely, 542

U.S. at 299, 124 S.Ct. at 2535 (internal quotation marks omitted). However, “[a] reason

offered to justify an exceptional sentence [could] be considered only if it [took] into

74
account factors other than those which [were] used in computing the standard range

sentence for the offense.” Blakely, 542 U.S. at 299, 124 S.Ct. at 2535 (first alteration in

original, emphasis added, internal quotation marks omitted). The trial court found that

Blakely had acted with “deliberate cruelty” in committing the kidnapping and imposed an

exceptional sentence of 90 months, which was 37 months beyond the statutory maximum

of the standard range. Blakely, 542 U.S. at 300, 124 S.Ct. at 2535.

¶129 On appeal, the state argued that the 90-month sentence did not violate Apprendi

“because the relevant ‘statutory maximum’ is not 53 months, but the 10-year maximum

for class B felonies.” Blakely, 542 U.S. at 303, 124 S.Ct. at 2537. The Court rejected

this argument outright:

Our precedents make clear . . . that the “statutory maximum” for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant. In
other words, the relevant “statutory maximum” is not the maximum
sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. When a judge
inflicts punishment that the jury’s verdict alone does not allow, the jury has
not found all the facts “which the law makes essential to the punishment,”
and the judge exceeds his proper authority.

Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537 (citations omitted). Thus, the Court

concluded, “[t]he ‘maximum sentence’ is no more 10 years here than it was 20 years in

Apprendi (because that is what the judge could have imposed upon finding a hate crime)

or death in Ring (because that is what the judge could have imposed upon finding an

aggravator).” Blakely, 542 U.S. at 304, 124 S.Ct. at 2538. A jury “could not function as

circuitbreaker in the State’s machinery of justice if it were relegated to making a

75
determination that the defendant at some point did something wrong, a mere preliminary

to a judicial inquisition into the facts of the crime the State actually seeks to punish.”

Blakely, 542 U.S. at 306-07, 124 S.Ct. at 2539.

¶130 Thus, as Ring and Blakely make clear, the “statutory maximum” for Apprendi

purposes is not the maximum possible sentence provided in the criminal code for a given

offense. Rather, it is the maximum sentence the defendant may receive “on the basis of

the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at

303, 124 S.Ct. at 2537 (emphasis omitted). For this reason, Garrymore’s challenge

cannot be answered simply by pointing out that § 45-5-102(2) authorizes a sentence of

“life imprisonment” and § 46-18-202(2) permits a district judge to restrict parole

eligibility. Cavanaugh, a pre-Apprendi case, did not answer the question clarified by

Ring and Blakely: whether, in order to impose the “without possibility of parole”

restriction pursuant to § 46-18-202(2), a district court first must find additional facts—

i.e., facts not already admitted by the defendant or found by the jury and reflected in its

verdict.

¶131 In this regard, Garrymore argues that while the maximum sentence authorized by

the statute may be “life imprisonment” or “imprisonment in the state prison for a term of

not . . . more than 100 years” without the possibility of parole, the maximum sentence

authorized by the jury’s verdict in his case was “life imprisonment” or “imprisonment in

the state prison for a term of not . . . more than 100 years” with the possibility of parole.

Thus, “[t]he verdict alone did not authorize the parole restriction imposed by the judge.

76
That enhancement required additional findings of fact.” He acknowledges that § 45-5-

102(2) does not state explicitly whether or not the punishments set forth therein include

eligibility for parole; however, § 46-23-201(1) provides that “the board [of pardons and

parole] may release on nonmedical parole by appropriate order any person confined in a

state prison, except . . . persons serving sentences imposed under 46-18-202(2) . . . , when

in its opinion there is reasonable probability that the prisoner can be released without

detriment to the prisoner or to the community.”

¶132 Accordingly, Garrymore submits, a person convicted of deliberate homicide is

eligible for parole (subject to the timing requirements of § 46-23-201(2)-(3)), unless that

eligibility is restricted after further fact-finding under § 46-18-202(2). In other words,

“[a] ‘life sentence’ [does] not mean the offender’s natural life.” Rather, the terms “life

imprisonment” and “imprisonment in the state prison for a term of not less than 10 years

or more than 100 years” include an implicit presumption of parole eligibility which may

be overcome only upon additional, post-verdict findings of fact. Therefore, he maintains,

“[t]he effect of the [District Court’s] post-verdict fact-finding . . . was to increase a

sentence from 30 years’ actual time before parole eligibility, to a literal life-time term of

imprisonment.” 25

25
For purposes of the ensuing discussion, while there is no guarantee that a prisoner who
is eligible for parole will in fact be paroled, the imposition of a parole eligibility restriction
makes for a greater restriction on the prisoner’s liberty and, thus, a harsher sentence. See
Cavanaugh, 189 Mont. at 276, 615 P.2d at 892 (“The clear effect of section 46-18-202(2) is to
permit a district judge to close one avenue for escaping the full force of a sentence.”). The
sentencing scheme, in fact, contemplates this characterization. See, e.g., § 46-18-219 (mandating
a life sentence without possibility of parole for specified recidivists).
77
¶133 Garrymore’s interpretation of the interplay between §§ 45-5-102(2), 46-23-201,

and 46-18-202(2) is incorrect. To be sure, a prisoner is parole eligible pursuant to § 46-

23-201 unless designated otherwise pursuant to § 46-18-202(2) (or § 46-18-219, which is

not at issue here). However, this scheme does not create the Apprendi violation

Garrymore perceives. For one thing, the placement of § 46-23-201 in the Code does not

support the conclusion that parole eligibility is a presumption, implicit in sentences

imposed under § 45-5-102(2), that must be overcome through additional judicial fact-

finding. Whereas § 46-18-202(2) appears in the “Sentence and Judgment” chapter of

Title 46, follows a provision outlining “[s]entences that may be imposed,” and itself

outlines “[a]dditional restrictions on sentences,” § 46-23-201, by contrast, appears in a

separate chapter of Title 46 concerning the granting of probation, parole, and clemency.

In the absence of explicit language to the contrary, this organization suggests that the

provision on granting nonmedical parole (§ 46-23-201) yields to the provision on

restricting an offender’s parole eligibility (§ 46-18-202(2)), not vice versa. 26

¶134 Furthermore, as discussed above, § 46-18-202(2) provides that “[w]henever 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.” Such an unqualified grant of authority to the sentencing judge, conditioned

26
In the same vein, the State’s suggestion that “life imprisonment” means “life
imprisonment without possibility of parole” must be rejected. If that were the meaning intended
by the Legislature, then § 46-18-202(2) would be a waste of print.
78
only upon the term’s exceeding one year, contradicts the notion that there is a

presumption of parole eligibility to be overcome. Indeed, if § 46-18-202(2) were setting

forth the method for overcoming such a presumption, one would expect to see language

to that effect—e.g., “if the court finds ‘X’ then it may restrict parole eligibility

notwithstanding 46-23-201.”

¶135 To be sure, the second sentence of § 46-18-202(2) mandates that “[i]f the

restriction [that the offender is ineligible for parole and participation in the supervised

release program while serving his term] is to be imposed, the sentencing judge shall state

the reasons for it in writing.” 27 Yet, while this provision, which imposes a specific

requirement on a judge who restricts a defendant’s parole eligibility, undoubtedly

contemplates fact-finding on the part of the sentencing court in order to substantiate its

27
In the case at hand, the District Judge’s written reasons were as follows: “[t]he
Defendant has three prior convictions of abuse and unlawful restraint”; “[t]he Defendant was
arrested on the same type of charges in the States of Utah and California but moved from their
jurisdiction and charges were dismissed”; “[t]he Defendant was on probation when this offense
was committed”; and “[f]urther, the Court adopts a portion of Mr. Sonju’s reasons.” These
reasons are consistent with the reasons given by the judge orally at the sentencing hearing. See
¶ 7 of the Court’s Opinion.
The Court notes that another factor considered by the District Judge in pronouncing
sentence was Garrymore’s lack of remorse. See ¶¶ 7, 31. Specifically, the judge stated during
the sentencing hearing that “throughout the trial and these proceedings, contrary to the
testimony, I have not seen any remorse from this defendant.” However, subsequent to
Garrymore’s sentencing, we decided State v. Cesnik, 2005 MT 257, 329 Mont. 63, 122 P.3d 456,
in which we held that a sentencing court may not punish a defendant or augment his sentence for
refusing or failing to accept responsibility or show remorse for the offense of which he has been
convicted when he has a right to appeal the conviction and has invoked his right to remain silent
at the sentencing hearing or expressly maintained his innocence throughout the proceedings.
Cesnik, ¶¶ 18-25; see also State v. Shreves, 2002 MT 333, ¶¶ 20-23, 313 Mont. 252, ¶¶ 20-23, 60
P.3d 991, ¶¶ 20-23. In the case at hand, Garrymore does not allege that his state or federal
constitutional protections against self incrimination were violated when the District Judge based
the sentence in part on Garrymore’s failure to demonstrate sufficient remorse; thus, for purposes
of this discussion, this factor was an otherwise valid sentencing consideration.
79
imposition of the restriction, such a requirement does not necessarily place the resulting

sentence beyond Apprendi’s “statutory maximum.”

¶136 First, the Supreme Court has rejected the argument “that every fact with a bearing

on sentencing must be found by a jury.” Jones v. United States, 526 U.S. 227, 248, 119

S.Ct. 1215, 1226 (1999). Indeed, the Court has “never doubted the authority of a judge to

exercise broad discretion in imposing a sentence within a statutory range.” United States

v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 750 (2005) (emphasis added). The exercise

of this discretion will often, if not invariably, necessitate implicit or explicit findings of

fact that the judge deems important or relevant in selecting a particular sentence. See

Blakely, 542 U.S. at 309, 124 S.Ct. at 2540. However, “the defendant has no [Sixth

Amendment] right to a jury determination of [these] facts.” Booker, 543 U.S. at 233, 125

S.Ct. at 750. As the Court explained in Blakely,

the Sixth Amendment by its terms is not a limitation on judicial power, but
a reservation of jury power. It limits judicial power only to the extent that
the claimed judicial power infringes on the province of the jury.
Indeterminate sentencing does not do so. It increases judicial discretion, to
be sure, but not at the expense of the jury’s traditional function of finding
the facts essential to lawful imposition of the penalty. Of course
indeterminate schemes involve judicial factfinding, in that a judge (like a
parole board) may implicitly rule on those facts he deems important to the
exercise of his sentencing discretion. But the facts do not pertain to
whether the defendant has a legal right to a lesser sentence—and that
makes all the difference insofar as judicial impingement upon the
traditional role of the jury is concerned. In a system that says the judge
may punish burglary with 10 to 40 years, every burglar knows he is risking
40 years in jail. In a system that punishes burglary with a 10-year sentence,
with another 30 added for use of a gun, the burglar who enters a home
unarmed is entitled to no more than a 10-year sentence—and by reason of
the Sixth Amendment the facts bearing upon that entitlement must be found
by a jury.
80
Blakely, 542 U.S. at 308-09, 124 S.Ct. at 2540.

¶137 Second, the second sentence of § 46-18-202(2) does not mandate as a condition

for imposing a parole eligibility restriction that the sentencing judge find a particular fact.

Rather, it requires only that the judge “state the reasons for [imposing the restriction] in

writing.” Section 46-18-202(2), MCA. Washington’s sentencing scheme, as it existed at

the time of Blakely’s sentencing, is useful for illustrating this crucial distinction. That

scheme did not permit the sentencing judge to enhance Blakely’s sentence on the basis of

the facts already used in computing the standard range sentence—i.e., on the basis of the

facts admitted in Blakely’s guilty plea. Rather, “ ‘[a] reason offered to justify an

exceptional sentence can be considered only if it takes into account factors other than

those which are used in computing the standard range sentence for the offense.’ ”

Blakely, 542 U.S. at 304, 124 S.Ct. at 2537 (alteration in original, emphasis added).

Thus, the judge had to find additional facts—facts not already admitted by Blakely—in

order to impose the enhanced sentence. By contrast, pursuant to the first and second

sentences of § 46-18-202(2), a sentencing judge’s reasons for imposing a parole

eligibility restriction may take into account facts reflected in the jury’s verdict, as well as

other facts not reflected in that verdict; but no particular finding is mandated before the

restriction may be imposed. 28

28
In Cavanaugh, we stated that “District Courts are required to determine whether the
full restriction on parole and furlough eligibility is necessary for ‘the protection of society’ when
a person is sentenced after conviction.” Cavanaugh, 189 Mont. at 279, 615 P.2d at 893. In view
of Apprendi and Blakely, such an interpretation of § 46-18-202(2) would render the statute
unconstitutional. For this reason, this portion of Cavanaugh, to the extent it may be read as
81
¶138 Construing a sentencing scheme similar in operation to §§ 45-5-102(2) and 46-18-

202(2), the Arizona Supreme Court found no Apprendi violation. Under the statutory

provision at issue in State v. Fell, 115 P.3d 594 (Ariz. 2005), if the death penalty is not

imposed for first-degree murder the only other possible sentences are life with the

possibility of release after a specified period (“life”) or life with no possibility of eventual

release (“natural life”). See Fell, ¶ 1. Although “nothing in [the statutory provision]

required that any specific fact be found before a natural life sentence could be imposed,”

the defendant nonetheless argued that “life is the ‘presumptive’ sentence for first degree

murder and that natural life is an ‘aggravated’ sentence.” Fell, ¶¶ 12-13. The court

rejected this contention:

The statute does not provide that a defendant “shall” receive life unless
certain facts are found. To the contrary, the statute provides that “[i]f the
court imposes a life sentence, the court may order that the defendant not be
released on any basis for the remainder of the defendant’s natural life.”
A.R.S. § 13-703(A) (emphasis added). Had the legislature intended to
require a specific finding be made before a natural life sentence could be

making imposition of a parole eligibility restriction contingent on a finding by the sentencing
court that it is necessary for the protection of society, is no longer good law. As explained
above, the first and second sentences of § 46-18-202(2) leave imposition of a restriction on
parole eligibility to the discretion of the sentencing court; they do not require such a finding.
The third sentence of § 46-18-202(2), however, is another matter. It provides that “[i]f
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” (emphasis added). In other words, if the judge “finds that the
restriction is necessary for the protection of society,” the judge not only may make the defendant
ineligible for parole, the judge must do so (whether or not the judge would have imposed the
restriction in the absence of the third sentence’s mandate). Because the District Court did not
impose the parole eligibility restriction on Garrymore’s life sentence on the ground that it was
necessary for the protection of society, we need not decide in this case whether the third sentence
of § 46-18-202(2) constitutes an Apprendi violation.
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 imposed, it surely would have said so specifically, as it did in the statutes
governing sentencing for felonies other than first degree murder.

. . . In this area, the legislature has concluded that the trial court can
appropriately exercise its discretion to determine whether future release is
possible (although not assured) or whether the defendant must instead
spend the rest of his or her life in prison.

Fell, ¶¶ 14-15 (alteration in original).

¶139 This reasoning is equally applicable to §§ 45-5-102(2) and 46-18-202(2). As

explained above, nothing in § 46-18-202(2) requires a district court to make a particular

finding before it restricts a defendant’s parole eligibility. The Montana Legislature did

not make an increase in a defendant’s punishment to exclude the possibility of parole

“contingent on the finding of a fact,” Booker, 543 U.S. at 231, 125 S.Ct. at 749 (internal

quotation marks omitted). Rather, § 46-18-202(2) permits the court to impose the

restriction in its discretion: “the sentencing judge may also impose the restriction that the

offender is ineligible for parole” (emphasis added).

¶140 Garrymore cites a number of cases in his briefs and his notices of supplemental

authority that reach a contrary result. These decisions, however, are distinguishable from

the case at hand. State v. Provost, 896 A.2d 55 (Vt. 2005), provides a typical example.

In Provost, the statute at issue stated, in relevant part:

The punishment for murder in the first degree shall be imprisonment for life
and for a minimum term of 35 years unless the court finds that there are
aggravating or mitigating factors which justify a different minimum term.
If the court finds that the aggravating factors outweigh any mitigating
factors, the minimum term may be longer than 35 years, up to and
including life without parole. If the court finds that the mitigating factors
outweigh any aggravating factors the minimum term may be set at less than
35 years but not less than 15 years.
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Provost, ¶ 14 (emphasis added, internal quotation marks omitted).

¶141 Interpreting this provision, the Vermont Supreme Court stated that “[t]he

maximum sentence the court may impose . . . without finding any facts in addition to the

jury’s verdict is life imprisonment with a minimum term of thirty-five years.” Provost,

¶ 15. The court reasoned that the Vermont Legislature had intended “to attach

significance to the difference between minimum terms accompanying sentences of life

imprisonment.” Provost, ¶ 17. It is not surprising, therefore, that the court ultimately

concluded that the statute “violates the rule in Apprendi and Blakely because it requires

the sentencing court to weigh specific aggravating and mitigating factors not found by a

jury beyond a reasonable doubt before imposing a sentence of life without parole.”

Provost, ¶ 17 (emphasis added); cf. State v. Leake, 699 N.W.2d 312, 321, 323 (Minn.

2005) (also cited by Garrymore, and holding that “a judge’s finding that a prior

conviction constitutes a ‘heinous crime’ affects the ‘statutory maximum’ ” because a

sentence of life imprisonment without the possibility of release cannot be imposed until

such a finding is made).

¶142 In light of the foregoing discussion, the punishments provided in § 45-5-102(2) do

not contain a presumption of parole eligibility which must be overcome by post-verdict

fact-finding before a sentencing court may impose the restriction in § 46-18-202(2) that

the offender is ineligible for parole. Rather, the maximum sentence the jury’s guilty

verdict authorized the District Court to impose in this case was “life imprisonment” or

“imprisonment in the state prison for a term of not . . . more than 100 years,” without the

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possibility of parole. For this reason, application of § 46-18-202(2) to Garrymore’s

sentence of life imprisonment was not unconstitutional under Apprendi and its progeny,

and Garrymore’s sentence, therefore, is not illegal under the Sixth and Fourteenth

Amendments.

B. State Statutory Claim

¶143 The basis for Garrymore’s state statutory claim is § 46-1-401, MCA (2001),29

which was enacted in response to Apprendi. It provides, in pertinent part, as follows:

(1) A court may not impose an incarceration penalty enhancement
specified in Title 45, Title 46, or any other provision of law unless:

(a) the enhancing act, omission, or fact was charged in the
information, complaint, or indictment, with a reference to the statute or
statutes containing the enhancing act, omission, or fact and the penalty for
the enhancing act, omission, or fact; [and]

(b) if the case was tried before a jury, the jury unanimously found in
a separate finding that the enhancing act, omission, or fact occurred beyond
a reasonable doubt; . . .

....

(3) An enhancing act, omission, or fact is an act, omission, or fact,
whether stated in the statute defining the charged offense or stated in
another statute, that is not included in the statutory definition of the
elements of the charged offense and that allows or requires a sentencing
court to add to, as provided by statute, an incarceration period provided by
statute for the charged offense or to impose the death penalty instead of a
statutory incarceration period provided by statute for the charged offense.

29
In his brief, Garrymore cites the 2001 version of § 46-1-401(3), but he quotes the 2003
version of this statute. The differences between these two versions have no substantive effect on
Garrymore’s claim; however, for the sake of accuracy, I note that the 2001 version controls, see
¶ 107 n.21.
85
 (4) Use of the fact of one or more prior convictions for the same type
of offense or for one or more other types of offenses to enhance the
incarceration penalty for a charged offense is not subject to the
requirements of this section.

Garrymore suggests that §§ 46-18-202(2) and 46-1-401 conflict with each other to the

extent that the former authorizes a sentencing judge to restrict an offender’s parole

eligibility based on facts not found by a jury beyond a reasonable doubt; that § 46-1-401

prevails over § 46-18-202(2); and that the District Court, therefore, was without authority

to impose the parole eligibility restriction on his sentence. (This argument is analogous

to the scenario discussed above in ¶ 86 n.13.)

¶144 Garrymore is incorrect. Sections 46-18-202(2) and 46-1-401 are not in conflict.

Rather, § 46-1-401 merely codifies the mandates of the Sixth and Fourteenth

Amendments, as construed by the Supreme Court in Apprendi and its progeny. Thus, the

disposition of Garrymore’s claim based on this statute is identical to the disposition of his

federal constitutional claim under Part III.A. above. For the reasons just discussed, the

District Court’s stated reasons for imposing the parole eligibility restriction on

Garrymore’s sentence were not facts “that allow[ed] or require[d] [the] . . . court to add

to, as provided by statute, an incarceration period provided by [§ 45-5-102(2)] for

[deliberate homicide],” as contemplated by § 46-1-401(3). To the contrary, the jury’s

guilty verdict on the charge of deliberate homicide authorized the District Court to

impose a sentence of “life imprisonment” or “imprisonment in the state prison for a term

of not less than 10 years or more than 100 years,” without the possibility of parole. Thus,

Garrymore’s sentence does not contravene § 46-1-401.
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 C. State Constitutional Claim

¶145 Lastly, Garrymore argues that his rights under Article II, Sections 24 and 26, of

the Montana Constitution were violated when the District Court deemed him ineligible

for parole under § 46-18-202(2) based on facts not found by the jury beyond a reasonable

doubt. Section 24 guarantees an accused the right to “trial by an impartial jury,” while

Section 26 provides that “[t]he right of trial by jury is secured to all and shall remain

inviolate” and that “[i]n all criminal actions, the verdict shall be unanimous.”

¶146 Garrymore points out, correctly, that we have “refused to ‘march lock-step’ with

the United States Supreme Court’s interpretation of corresponding provisions in the

federal constitution,” particularly where, as in this case, “the language of the Montana

Constitution setting forth the rights guaranteed is not identical to the language used in the

federal Constitution.” Woirhaye v. Fourth Judicial Dist. Court, 1998 MT 320, ¶ 14, 292

Mont. 185, ¶ 14, 972 P.2d 800, ¶ 14. Thus, in Woirhaye, we construed Sections 24 and

26 as affording a greater jury trial right than does the Sixth Amendment, and we

invalidated former § 46-17-201(3) because it allowed a misdemeanor criminal defendant

to exercise his right to a jury trial only once—either in justice court or in district court on

trial de novo. See Woirhaye, ¶¶ 6, 12-19, 25-26.

¶147 Yet, while we have interpreted some of our state constitutional provisions as

providing more protection than do their federal counterparts, Garrymore has not

explained, with respect to his specific sentence, why Sections 24 and 26 dictate a result

87
contrary to the result reached above under Apprendi. Woirhaye, which applied the jury

trial right in an entirely different context, does not afford an answer.

¶148 As explained in detail above, pursuant to the first two sentences of § 46-18-202(2)

a sentencing judge is authorized upon a conviction of deliberate homicide to restrict the

defendant’s parole eligibility without first having to find a particular fact. This scheme

satisfies the dictates of the Sixth Amendment and Apprendi; whether it violates Sections

24 and 26, however, is not something we can address based on the undeveloped assertion

that “the increased protection afforded criminal defendants under Montana’s

constitutional jury trial guarantees[] establish[es] that the parole restriction imposed in

this case violated Jason’s rights, and is illegal.” Accordingly, Garrymore is not entitled

to relief on his state constitutional claim.

CONCLUSION

¶149 Although Garrymore did not object during the sentencing proceeding to the

District Court’s authority to impose the parole eligibility restriction on his life sentence,

his allegation on appeal that the court lacked such authority (because § 46-18-202(2) is

invalid on constitutional and statutory grounds) satisfies the requisites for invoking the

Lenihan exception, meaning that he may obtain review of his allegedly illegal sentence,

notwithstanding his failure to object.

¶150 With respect to the merits of Garrymore’s arguments under Apprendi and § 46-1-

401, MCA, the maximum sentence the jury’s verdict authorized the District Court to

impose in this case was “life imprisonment” or “imprisonment in the state prison for a

88
term of not . . . more than 100 years,” without the possibility of parole. For this reason,

the court had authority to impose the parole eligibility restriction, and Garrymore’s

sentence is not illegal.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter, specially concurring.

¶151 I concur in Justice Nelson’s conclusion that now, rather than later, is an

appropriate time to clear up the inconsistencies in our Lenihan jurisprudence. Therefore,

I join in the discussion and proposed resolution set forth in ¶¶ 45-106 of Justice Nelson’s

Special Concurrence. I write separately to note that I concurred with the Court’s

resolution in State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559, on the grounds

that since it was Micklon who initiated the request for leniency as to the restitution

requirements, he should not now be heard to quarrel with the result. I still believe this is

so. However, to the extent that our decision in Micklon might be construed to preclude a

Lenihan challenge under other circumstances, I would agree that the conclusion reached

by Justice Nelson in ¶ 101 is legally correct.

/S/ PATRICIA COTTER

89