November 6 2007
DA 06-0648
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 281
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TANNER PATRICK ANDERSEN-CONWAY,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-05-495
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nancy G. Schwartz, Attorney at Law, Billings, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney
General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Corbit S. Harrington, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: September 19, 2007
Decided: November 6, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Tanner Andersen-Conway appeals from the denial of his motion to dismiss and the
revocation of his probation by the Thirteenth Judicial District, Yellowstone County.
¶2 Andersen-Conway raises two issues for our consideration. He argues that his right to
due process was violated because he was not advised of the maximum sentence he could be
subject to when he admitted to the offense of sexual assault. He also alleges that the
imposition of an adult sentence after his case was transferred from Youth Court to District
Court violated his right to be free from double jeopardy.
¶3 However, we conclude that the dispositive issue is whether the District Court erred in
revoking Andersen-Conway’s probation and committing him to the Department of
Corrections (DOC) based on a violation of conditions not contained in the court-approved
stipulation which transferred this case from Youth Court to the District Court.
¶4 On March 15, 2000, the State filed a formal petition in the Yellowstone County Youth
Court alleging Andersen-Conway, who was thirteen years old at the time, was a delinquent
youth because he had committed the offense of sexual assault. Andersen-Conway
subsequently admitted the allegations in the petition. On October 12, 2000, the Youth Court
adjudicated him a delinquent youth and placed him on probation, with the requirement that
he complete outpatient sexual offender treatment.
¶5 Andersen-Conway did not complete treatment as ordered. In 2002, the State filed a
petition to revoke his probation. Andersen-Conway admitted to the violations alleged in the
petition, and on July 18, 2002, the Youth Court held a dispositional hearing. The Youth
Court ordered that Andersen-Conway be committed to the DOC until he was 18,
recommended placement at Pine Hills Youth Correctional Facility until successful
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completion of its sex offender program, and ordered that if Andersen-Conway failed to
complete the treatment program, he would be required to register in the sexual offender
registry.
¶6 Andersen-Conway was placed at Pine Hills. He was making progress in the sex
offender treatment program there; however, he was unable to complete the program before
reaching age 18. On May 6, 2004, his eighteenth birthday, he was released from Pine Hills
because he had “aged out” of the facility.1
¶7 The State and Andersen-Conway entered into a stipulation to transfer supervisory
authority over him from Youth Court to District Court, pursuant to § 41-5-208, MCA. The
stipulation, dated May 13, 2004, states that the District Court retains jurisdiction over
Andersen-Conway until he reaches age 25. It also provides that:
[T]he purpose for this transfer of supervisory responsibility is to successfully
complete an approved course of sex offender treatment, and that supervision
may be discontinued upon successful completion. Further, that the Youth does
not have to register as a sex offender for the period of time the Youth is in an
approved sex offender treatment program. The original order to register will
become effective if the Youth fails to successfully complete a sex offender
treatment program prior to his twenty-fifth birthday.
The stipulation placed no other conditions or restrictions on Andersen-Conway. The
District Court added to the bottom of the stipulation the words “APPROVED and
ORDERED this 17th day of May, 2004,” and the District Court judge signed it.
¶8 On June 3, 2004, Andersen-Conway signed a form containing the standard conditions
of probation adopted by the DOC. The form also listed other conditions of probation that
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were purportedly ordered by the District Court. However, as noted above, the District Court
had not placed any conditions on Andersen-Conway’s probation other than requiring that he
complete treatment before age 25.
¶9 On April 26, 2005, the State filed a petition to revoke Andersen-Conway’s probation,
alleging that he had been terminated from sex offender treatment and was violating other
conditions of probation, including the requirements to seek and maintain employment and
obey all laws. Later, the State filed an additional petition to revoke based on continuing and
additional violations of the standard conditions of probation.
¶10 On January 4, 2006, Andersen-Conway filed a motion to dismiss the revocation
petition, arguing that the District Court’s jurisdiction over him ended when he turned 19 in
May 2005, the extension of supervision until age 25 constituted double jeopardy, the transfer
to District Court violated his right to a jury trial, and the transfer stipulation was valid only
until his nineteenth birthday. In April 2006, the State filed a third petition to revoke, alleging
on-going violations of the DOC’s standard conditions of probation. On May 2, 2006, the
District Court denied his motion to dismiss. On June 1, 2006, Andersen-Conway appeared
before the District Court and admitted to the alleged violations of his probation.
¶11 At the dispositional hearing, held July 20, 2006, Andersen-Conway’s counsel noted in
passing that the stipulation transferring authority to the District Court included “no terms of a
suspended sentence or a commitment to DOC.” Nevertheless, the District Court committed
Andersen-Conway to the DOC until May 5, 2011 (the day before he turns 25), for placement
1
Youth correctional facilities such as Pine Hills only have statutory authority to provide
services to youth who are age 10 or older, but younger than age 18. Section 52-5-101(1),
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in an appropriate facility or program. He now appeals from the denial of his motion to
dismiss and the imposition of an adult sentence following the revocation of his probation.
¶12 We review a sentence for legality. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont.
288, ¶ 15, 983 P.2d 937, ¶ 15.
¶13 The dispositive issue before the Court is whether the District Court erred in revoking
Andersen-Conway’s probation and committing him to DOC based upon conditions not
ordered by the District Court in its order of May 17, 2004.
¶14 Generally, this Court will not address arguments not raised or supported by the parties
themselves. In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d
1266, ¶ 6. However, we have “h[e]ld that a serious error which appears on the face of [the]
record is reviewable, although not presented by the parties” if ignoring the error would cause
substantial injustice. Kudrna v. Comet Corp., 175 Mont. 29, 51, 572 P.2d 183, 195 (1977).
We have also noted that, “‘[c]onventional notions of finality of litigation have no place
where life or liberty is at stake and infringement of constitutional rights is alleged.’” Kills
On Top v. State, 279 Mont. 384, 400, 928 P.2d 182, 192 (1996) (quoting Sanders v. U.S., 373
U.S. 1, 8, 83 S. Ct. 1068, 1073 (1963)). Andersen-Conway is subject to incarceration as a
result of the District Court’s order revoking his probationary sentence and committing him to
the DOC. We have held that incarceration of an individual pursuant to a facially invalid
sentence represents a grievous wrong, and a miscarriage of justice that warrants relief even if
the defendant is otherwise procedurally barred. Lott v. State, 2006 MT 279, ¶ 22, 334 Mont.
270, ¶ 22, 150 P.3d 337, ¶ 22. Because we must conclude that the District Court erred in
MCA. 5
revoking Andersen-Conway’s probation and, most importantly, in committing him to the
DOC until he is 25 years of age, we raise and decide the dispositive issue sua sponte.
¶15 The Montana Youth Court Act provides that youth courts have original jurisdiction
over cases involving persons under the age of 18. Section 41-5-203(1), MCA. A youth
court may, on motion by the youth or the county attorney, transfer its supervisory authority
over a case to district court. Section 41-5-208(1), MCA. Such a transfer terminates the
youth court’s jurisdiction and confers jurisdiction on a district court until the youth reaches
age 25. Sections 41-5-205(2)(a), 41-5-208(6), MCA.
¶16 The parties to a youth court case may also stipulate to the transfer of a case to district
court, and the district court judge may approve and incorporate the stipulation into an order.
If the parties stipulate to the transfer approved by the court, both the State and the youth are
bound by the terms of the stipulation. In re H.C.R., 2007 MT 64, ¶¶ 18-19, 336 Mont. 369,
¶¶ 18-19, 155 P.3d 1221, ¶¶ 18-19. Further, a district court errs if it does not require the
State to abide by the conditions of such a stipulation and if it does not sentence a youth in
accordance with the stipulation. H.C.R., ¶ 19.
¶17 In this case, as in H.C.R., the parties stipulated to the transfer of the case from the
Youth Court to the District Court pursuant to § 41-5-208, MCA, and the District Court
approved and ordered the probationary sentence contained in the stipulation. The stipulation
referred back to the July 18, 2002 disposition, which committed the youth only until age 18
and ordered that the only consequence of failing to complete treatment was the requirement
to register as a sex offender. The District Court order, which is in effect a sentence, provides
that “the original order to register will become effective if the Youth fails to successfully
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complete a sex offender treatment program prior to his twenty-fifth birthday.” Plainly, the
stipulation placed only one condition on Andersen-Conway. That is, he is required to
complete sex offender treatment before he turns 25, and if he does not, the sanction is that he
will be required to register as a sex offender.
¶18 Because Andersen-Conway is not yet 25, he has not violated the condition of his
probation that he complete sex offender treatment. The standard conditions of probation
promulgated by the DOC were imposed here not by the District Court, but by the DOC. The
Department cannot add conditions to those articulated in a district court’s judgment. State v.
Field, 2000 MT 268, ¶ 15, 302 Mont. 62, ¶ 15, 11 P.3d 1203, ¶ 15. The District Court did
not have the authority to revoke Andersen-Conway’s probation because he did not abide by
the conditions of probation added by the DOC after the sentence. In addition, the District
Court had no authority to commit Andersen-Conway to the DOC, which resulted in his
incarceration. By the District Court’s own order, it had only the authority to require him to
register as a sex offender if he does not complete treatment. Thus, we conclude that the
District Court erred when it revoked Andersen-Conway’s probation and committed him to
the Department of Corrections.
¶19 The District Court’s judgment revoking Andersen-Conway’s probation and
committing him to the Department of Corrections is reversed.
/S/ JOHN WARNER
We Concur:
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/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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