November 8 2007
DA 06-0155
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 294
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAN EUGENE HASTINGS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 05-0524
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nancy G. Schwartz, Attorney at Law, Billings, Montana
For Appellee:
The Honorable Mike McGrath, Attorney General; Ali N. Bovingdon,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: February 7, 2007
Decided: November 8, 2007
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Dan Eugene Hastings appeals from the judgment and sentence entered by the
Thirteenth Judicial District Court, Yellowstone County, upon his guilty plea to the felony
offense of failure to register as a sexual offender. We reverse and remand.
¶2 The restated issue on appeal is whether the District Court erred by denying
Hastings’ motion to dismiss.
BACKGROUND
¶3 In 1998, the youth court of the Seventh Judicial District Court, Dawson County,
adjudicated then-16-year-old Hastings as a delinquent youth upon Hastings’ admissions
that he had committed acts which, if committed by an adult, would have constituted five
felony offenses, including one offense of sexual intercourse without consent. The court
committed Hastings to the Department of Corrections (DOC) for placement at the
Threshold Program in Deer Lodge.
¶4 On February 24, 2000, shortly after Hastings turned 18, the youth court transferred
jurisdiction of Hastings to the district court and placed him under adult supervision until
age 25, based on the parties’ stipulation that Hastings had not successfully completed sex
offender treatment at Threshold, had not paid $3,625.52 in restitution and was at high risk
to re-offend. In June of 2000, the district court entered an order revoking Hastings’
“suspended sentence”—apparently referring to the transfer order—upon determining
Hastings had violated conditions set forth in that order by the youth court. Among other
things, the revocation order stated that “for each of the five (5) offenses, DAN
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HASTINGS shall be committed to the [DOC] for a period of five (5) years with
recommendation . . . for commitment to Pre-release if appropriate, upon the Defendant’s
compliance with the following conditions: 1. The Defendant shall be required to register
as a Level II Sex Offender.” The five-year commitments were to run concurrently.
Hastings spent approximately four years in Montana State Prison, and was transferred in
November of 2004 to Alternatives, Inc., a pre-release center in Billings. His commitment
pursuant to the revocation order was entirely discharged on May 8, 2005.
¶5 In June of 2005, the State of Montana charged Hastings by Information in the
Thirteenth Judicial District Court, Yellowstone County, with the felony offense of failure
to register as a sexual offender “on or about May 9, 2005 to May 27, 2005.” According
to the supporting affidavit, Hastings had registered as a sex offender with the
Yellowstone County Sheriff’s Office on or about December 4, 2004, giving his address
as Alternatives, Inc. in Billings. The affidavit further states a detective determined that
after being “completely discharged from the sentence on May 8, 2005,” Hastings had not
returned to live at Alternatives, Inc., and had not changed his address with the
Yellowstone County Sheriff’s Office. In addition, the affidavit states the Billings Police
Department arrested Hastings on May 22, 2005, on a charge of misdemeanor theft, and
he gave the arresting officers an address subsequently learned to have been false. The
detective discovered Hastings’ true address on or about May 27, 2005 and arrested him
there for failure to maintain registration as a sex offender. The supporting affidavit states
that Hastings had been “convicted of sexual intercourse without consent” and “[a]s a
result, the Defendant is required to register as a sexual offender.”
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¶6 Hastings moved to dismiss the charge. He asserted that, because he had not been
convicted of a sexual offense, neither Montana statutes nor the revocation order required
him to register as a sex offender after the discharge of his sentence on May 8, 2005.
After the State responded, the District Court denied Hastings’ motion.
¶7 Hastings then pled guilty to the offense of failure to register as a sex offender,
reserving the right to appeal from the District Court’s denial of his motion to dismiss.
The court entered judgment and sentence, and Hastings appeals.
STANDARD OF REVIEW
¶8 The grant or denial of a motion to dismiss in a criminal case is a question of law.
We review conclusions of law to determine if they are correct. State v. Villanueva, 2005
MT 192, ¶ 9, 328 Mont. 135, ¶ 9, 118 P.3d 179, ¶ 9 (citation omitted).
DISCUSSION
¶9 Did the District Court err in denying Hastings’ motion to dismiss?
¶10 Title 46, chapter 23, part 5, and § 46-18-255, MCA, make up the Sexual or Violent
Offender Registration Act (SVORA). Section 46-23-501, MCA. A “sexual or violent
offender,” defined as “a person who has been convicted of a sexual or violent offense,”
must register with law enforcement—by providing an address and, on some occasions,
other information—at certain times. Sections 46-23-502(7), -504, and -505, MCA. In
imposing a sentence on an offender convicted of a sexual or violent offense, the
sentencing judge may not waive the registration requirements of SVORA. Section 46-
18-201(7), MCA. With exceptions not at issue here, a “sexual offender” must register for
life. Section 46-23-506(1), MCA.
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¶11 Before addressing the District Court’s reasoning regarding the relevant statutes,
we first note that Hastings is not challenging the Seventh Judicial District Court’s
authority to impose the registration requirement in the first instance. Indeed, he could not
do so, since his time to appeal from the order imposing that requirement has long passed.
Hastings’ argument is that he was required to register only during his five-year
commitment, which was discharged on May 8, 2005—before his alleged failure to
register on or about May 9 to May 27, 2005.
¶12 In this respect, Hastings asserts that nothing in the revocation order authorizes a
lifelong registration requirement under SVORA. The State responds that the revocation
order reflects a “clear substantive intent” to impose the SVORA requirement. The
language of the revocation order, as set forth above, reasonably could be interpreted in
two ways: (1) setting forth the registration requirement as a condition for the District
Court’s recommendation to the DOC for prerelease; or (2) recommending Hastings be
released to a prerelease program at the DOC’s discretion, and requiring him to register
during his participation in such a program. In either event, the absence of any mention of
SVORA mandates a conclusion that nothing in the revocation order supports an intent by
the Seventh Judicial District Court to trigger SVORA provisions.
¶13 In denying Hastings’ motion to dismiss, the District Court provided several
statutory and jurisprudential analyses. On appeal, Hastings’ overarching argument is that
the District Court erred in concluding he had been required to register pursuant to
SVORA. We agree.
¶14 The District Court determined that, after Hastings’ transfer to district court in
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2000, the Seventh Judicial District Court had imposed a registration requirement as an
“adult” condition of a new sentence and, therefore, SVORA required him to register for
life. In interpreting a statute to discern legislative intent, we first look to the statute’s
plain language. If that language is clear and unambiguous, no further interpretation is
required. State v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, ¶ 11, 152 P.3d 1288, ¶ 11
(citations omitted).
¶15 Section 46-18-201(7), MCA, and the SVORA statutes require a “conviction”
before SVORA registration requirements may be imposed. The statutes are unambiguous
in that regard. Thus, because it is undisputed that Hastings’ youth court adjudication did
not constitute a “conviction” as contemplated in § 46-23-502(7), MCA, the SVORA
registration requirements could not be imposed by a district court under those statutes.
See also § 41-5-106, MCA.
¶16 The District Court also reasoned, however, that § 41-5-1513(1)(c), MCA, provided
a means to “bypass[]” the conviction requirement so that SVORA could apply to
adjudicated youths. Section 41-5-1513(1)(c), MCA, provides, in part, that “the youth
court may . . . require a youth found to be a delinquent youth, as the result of the
commission of an offense that would be a sexual offense or violent offense, as defined in
46-23-502, if committed by an adult, to register as a sexual or violent offender pursuant
to Title 46, chapter 23, part 5.” This language is unambiguous in vesting a youth court
with the discretion to impose a SVORA registration requirement in an appropriate case.
Here, however, it is undisputed that the youth court did not impose a SVORA registration
requirement. Thus, while the District Court did not err in concluding that § 41-5-
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1513(1)(c), MCA, provides a means for a youth court to “bypass” the general
requirement for a conviction in SVORA, no such “bypass” occurred in this case.
¶17 Citing to statements regarding the purposes of SVORA set forth in State v. Mount,
2003 MT 275, 317 Mont. 481, 78 P.3d 829, the District Court also determined the basic
policy of SVORA, and its incorporation into the Montana Youth Court Act in § 41-5-
1513(1)(c), MCA, reflected the Montana Legislature’s intent to extend the scope of
SVORA to adjudicated youths. With regard to Mount, we need only say that it did not
involve either a juvenile or a youth court adjudication. Thus, it has no application to the
present case.
¶18 Moreover, in construing statutes, the function of the court is simply to ascertain
and declare what is in terms or substance contained therein, not to insert what has been
omitted or to omit what has been inserted. See State v. English, 2006 MT 177, ¶ 61, 333
Mont. 23, ¶ 61, 140 P.3d 454, ¶ 61 (citation omitted); see also Letasky, ¶ 11. Nothing in
§ 41-5-1513(1)(c), MCA, the pertinent language of which is set forth above, even
suggests a wholesale incorporation of SVORA into the Youth Court Act. Consequently,
we conclude the District Court erred in construing the statutes at issue here by looking
beyond their plain, unambiguous language.
¶19 The District Court also reasoned that, because Hastings had not been convicted
and was not ordered to register by a youth court under § 41-5-1513(1)(c), MCA, the
registration requirement condition was the “only method” by which the Seventh Judicial
District Court could have ensured SVORA applied to Hastings. The problem, of course,
is that unless Montana statutes permit the imposition of a SVORA registration
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requirement, a court may not impose one. The District Court’s apparent belief that
SVORA registration was appropriate for Hastings does not translate into statutory
authority for the Seventh Judicial District Court to impose it.
¶20 Finally, we address Villanueva, decided after the District Court denied Hastings’
motion and advanced by both parties as authority for their respective positions. There,
the defendant was adjudicated guilty of first degree rape in a Washington juvenile court
in 1993 and several years later, after moving to Montana, was charged here with—among
other things—failing to register as a sex offender. Villanueva, ¶¶ 3-6. The district court
denied his motion to dismiss the failure to register charge. Villanueva, ¶ 7.
¶21 On appeal, we addressed a legislative amendment to the registration statute,
making it applicable to “sexual offenders” sentenced or, as a result of such a sentence,
under agency supervision in any state on or after July 1, 1989. Villanueva, ¶ 13. We
concluded the defendant could not rely on the Montana Youth Court Act in relation to the
definition of “sexual offenders”—which, as discussed above, does not encompass a youth
adjudicated in a Montana youth court unless the youth court discretionarily imposes a
registration requirement—to avoid registration here. We reasoned that, in the context of
the amendment, a “sexual offender” was defined by Washington law, where his
adjudication had occurred, not by Montana law. See Villanueva, ¶¶ 15-16.
¶22 Hastings asserts that, unlike the defendant in Villanueva, he was adjudicated under
the Montana Youth Court Act and, therefore, may rely on its provisions distinguishing an
adjudication from a conviction and leaving it to the discretion of youth courts to impose
SVORA registration requirements in appropriate cases. See §§ 41-5-106 and -1513(1)(c),
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MCA. In this regard, Hastings observes that Washington law, applicable to the defendant
in Villanueva, mandates registration for all adults or juveniles “found to have committed”
or “convicted of” a sex offense. See Wash. Rev. Code § 9A.44.130(1). The State
responds that Villanueva stands for the proposition that a person’s adjudication—as
opposed to conviction—has no bearing on whether the person has a duty to register under
SVORA, so Hasting’s lack of a conviction is not a controlling factor. The State is wrong.
¶23 The 2001 legislative amendment to the SVORA registration statute discussed in
Villanueva applies SVORA retroactively—to July 1, 1989—to “sexual offenders” as
defined by the law of the state where the proceeding occurred. Only Montana law is at
issue here. As discussed above, Hastings is not a “sexual offender” under Montana law
because he was not “convicted,” and the youth court did not “bypass” the conviction
requirement. Therefore, we conclude SVORA does not attach to the condition in the
revocation order and Hastings was not required to register for life—or at any time after
his commitment was discharged on May 8, 2005.
¶24 We hold the District Court erred by denying Hastings’ motion to dismiss. We
reverse and remand for further proceedings consistent with this Opinion.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
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/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
Justice Jim Rice dissenting.
¶25 The Court has engaged in a hypertechnical reading of the Montana Youth Court
Act and created a loophole between that Act and SVORA where none should exist.
While any lack of clarity in the Act has since been resolved by the Legislature’s
amendment of § 46-23-502(7), MCA,1 I do not believe those statutes ever allowed the
result this Court reaches today.
¶26 The Court observes that “Hastings is not challenging the [District Court’s]
authority to impose the registration requirement in the first instance.” ¶ 11. Oddly, the
Court then addresses that precise issue and holds that the District Court had no such
authority. ¶ 19. The Court’s analysis of the issue, whether appropriate or not, is flawed.
¶27 The Court acknowledges that a youth court can “bypass” SVORA’s general
requirement of a conviction by requiring a youth adjudicated of a sexual offense to
register in accordance with SVORA. However, the Court then reads SVORA in a way
that allows only the youth court to order an adjudicated youth to register. I believe the
District Court stood in the shoes of the youth court when supervisory responsibility was
transferred and could thereby require Hastings to register pursuant to the youth court
1
Section 46-23-502(7), MCA, previously defined a “sexual or violent offender” as
“a person who has been convicted of a sexual or violent offense.” That statute was
amended by the 2007 Montana Legislature and now defines a “sexual or violent
offender,” under § 46-23-502(10), MCA, as “a person who has been convicted of or, in
youth court, found to have committed or been adjudicated for a sexual or violent
offense.”
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statutes, and thus SVORA. I see no basis to prohibit the District Court from ordering the
same disposition allowed in youth court, and thus would hold that the District Court had
authority to order Hastings to register pursuant to SVORA.
¶28 Because I believe the District Court had the authority to require registration, I also
interpret those statutes as necessarily incorporating SVORA, thus requiring anyone
registering under SVORA to do so on a lifetime basis. The sentencing order cannot be
read in a vacuum to require registration only for the period of Hastings’ confinement—by
ordering Hastings to register, the SVORA statutes were incorporated into the sentencing
order and required lifetime registration. Indeed, the registration requirement goes beyond
the length of Hastings’ sentence because it is not a punishment, but rather a regulatory
requirement that is allowed to continue. Mount, ¶ 56. When the District Court required
registration, SVORA applied and lifetime registration was required.
¶29 Hastings is trying to find a loophole between the Montana Youth Court Act and
SVORA where none exists but by the Court’s creation. Although the youth court chose
not to order Hastings to register as a sex offender, when that option was exercised by the
District Court i t incorporated all of the SVORA requirements, including lifetime
registration. Regardless of whether the District Court’s holding is considered to have
occurred under the youth court act or under the adult sex offender statutes, SVORA
applied, and the lifetime registration requirement applied with it.
¶30 I would affirm.
/S/ JIM RICE
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