April 8 2008
DA 07-0328
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 112
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHARLES RONALD CLARK,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 06-206(C),
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Shannon McDonald,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General; Jesse A. Laslovich,
Assistant Attorney General, Helena, Montana
Ed Corrigan, County Attorney; Tammi E. Fisher, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: February 27, 2008
Decided: April 8, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Charles Ronald Clark (Clark) appeals from his sentence in the Eleventh Judicial
District, Flathead County, for aggravated assault. We affirm.
¶2 We restate the issues as follows:
¶3 Did Clark file an untimely notice of appeal?
¶4 Did the District Court impose an illegal sentence when it failed to award credit for
time spent on house arrest?
¶5 Did the District Court impose unreasonable conditions on Clark’s bond?
BACKGROUND
¶6 The State charged Clark with aggravated assault, a felony, on April 27, 2006. The
District Court set Clark’s bail at fifty thousand dollars, and Clark was incarcerated at the
Flathead County Detention Center (FCDC). Following his arrest, Clark moved the
District Court to authorize a chemical dependency evaluation and to set a hearing to
consider whether to release Clark on his own recognizance. The District Court granted
both motions. The State and Clark then submitted several stipulations to the District
Court to allow Clark to await trial on formal house arrest, rather than at FCDC. The
stipulations required, among other things, that Clark observe a curfew, enroll in and
complete a chemical dependency treatment program, submit to the control of a detective
agency, refrain from consuming alcohol or controlled substances, and maintain no
contact with the victim or witnesses. The District Court adopted the State’s and Clark’s
stipulations and ordered that Clark be released to formal house arrest. In total, Clark
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remained incarcerated at FCDC for a total of forty-one days, from April 27, 2006, until
June 6, 2006.
¶7 On January 18, 2007, Clark pleaded nolo contendere to aggravated assault,
pursuant to a plea agreement. The District Court conducted a sentencing hearing on
March 8, 2007, and, after reviewing the pre-sentence investigation report and hearing
testimony, sentenced Clark to fifteen years, with ten years suspended, at Montana State
Prison. The District Court’s Judgment and Sentence was filed with the clerk of court on
March 27, 2007. In addition to the prison term, the District Court ordered Clark to pay
surcharges, costs associated with the pre-sentence investigation, restitution, and a fine.
The District Court credited Clark fifty dollars for each of the forty-one days that Clark
spent incarcerated at FCDC. The District Court awarded Clark no credit for the time
spent on formal house arrest. Clark appeals.
STANDARD OF REVIEW
¶8 We review a criminal sentence for legality only; that is, whether the sentence falls
within the statutory parameters. State v. Mingus, 2004 MT 24, ¶ 10, 319 Mont. 349, ¶ 10,
84 P.3d 658, ¶ 10. A sentence that falls within the statutory parameters constitutes a legal
sentence. Mingus, ¶ 10.
DISCUSSION
¶9 I Did Clark file an untimely notice of appeal?
¶10 As an initial matter, the State asserts that Clark failed to file his notices of appeal
within the time allotted under the Montana Rules of Appellate Procedure. In criminal
cases, a party must appeal from a judgment entered pursuant to § 46-18-116, MCA,
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within sixty days following the entry of judgment. M. R. App. P. 4(5)(b). Absent
extraordinary circumstances that amount to a “gross miscarriage of justice,” we refuse to
grant out-of-time appeals. M. R. App. P. 4(6).
¶11 The District Court issued a written judgment that described the details of Clark’s
sentence and granted Clark credit for the time he served at FCDC prior to his nolo
contendere plea. The written judgment was dated March 23, 2007, and it was filed with
the clerk of court on March 27, 2007. Clark filed a notice of appeal on May 23, 2007,
and an amended notice of appeal on May 25, 2007.
¶12 The State maintains that both of Clark’s notices of appeal are untimely because
they were filed more than sixty days after the March 23, 2007, entry of judgment. We
disagree. Although the District Court signed the written judgment on March 23, 2007,
the judgment actually was entered on March 27, 2007, when the clerk of court filed the
judgment and entered it into the record. Thus, Clark filed his first notice of appeal fifty-
seven days after the District Court’s entry of judgment and his amended notice of appeal
fifty-nine days after the District Court’s entry of judgment. We conclude that Clark’s
appeal properly is before us because Clark’s notices of appeal fall within the sixty-day
timeframe allotted under the rules of appellate procedure. M. R. App. P. 4(5)(b).
¶13 II Did the District Court impose an illegal sentence when it failed to
award credit for time spent on house arrest?
¶14 Clark argues that § 46-18-203(7)(b), MCA, requires the District Court to credit
Clark for the time he spent on house arrest and that the District Court’s failure to do so
amounts to an illegal sentence. Clark acknowledges that he failed to “specifically object”
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regarding house-arrest credit, but claims that he “implicitly raised the issue” through
testimony at the sentencing hearing. Additionally, Clark asserts that he may challenge
his sentence for the first time on appeal based on our decision in State v. Lenihan, 184
Mont. 338, 602 P.2d 997 (1979).
¶15 We generally refuse to address issues raised for the first time on appeal. State v.
McCaslin, 2004 MT 212, ¶ 49, 322 Mont. 350, ¶ 49, 96 P.3d 722, ¶ 49. The Lenihan
decision, however, provides an exception to our well-established rule and permits
appellate review of a criminal sentence that is allegedly illegal or that exceeds statutory
mandates, even if the defendant failed to object at the district court. Lenihan, 184 Mont.
at 343, 602 P.2d at 1000.
¶16 A sentence that falls within the statutory parameters constitutes a legal sentence.
Mingus, ¶ 10. For example, in State v. Swoboda, we concluded that a fifteen-year
sentence was neither illegal nor in excess of the statutory mandates because the offense
carried a maximum punishment of fifty years imprisonment and a $10,000 fine. 276
Mont. 479, 482, 918 P.2d 296, 298 (1996). In this case, the State charged Clark with
aggravated assault under § 45-5-202(1), MCA. Aggravated assault carries a maximum
sentence of twenty years in state prison and a fine of $50,000. Section 45-5-202(2),
MCA. Clark pleaded nolo contendere to aggravated assault, and the District Court
sentenced him to Montana State Prison for fifteen years, with ten years suspended and
credit for time served while incarcerated. Clark’s sentence falls within the statutory
parameters of § 45-5-202(2), MCA, and thus, his sentence constitutes a legal sentence.
Swoboda, 276 Mont. at 482, 918 P.2d at 298.
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¶17 Nonetheless, Clark argues that § 46-18-203(7)(b), MCA, statutorily requires the
District Court to award him credit for the time he served on house arrest prior to
sentencing and that the District Court’s failure to award him this credit amounts to an
illegal sentence. A sentencing court’s failure to abide by certain statutory requirements
may result in an objectionable sentence; however, an objectionable sentence is not
necessarily an illegal sentence. State v. Nelson, 274 Mont. 11, 20, 906 P.2d 663, 668
(1995). In this case, Clark’s sentence does not even amount to an objectionable sentence
because § 46-18-203(7)(b), MCA, does not require the courts to award credit for house
arrest served while released on bond. We previously addressed this issue in State v.
Gulbranson, 2003 MT 139, 316 Mont. 163, 69 P.3d 1187.
¶18 In Gulbranson, we held that § 46-18-203(7)(b), MCA, did not require the district
court to credit Gulbranson’s sentences for time spent on house arrest and that the district
court acted within its discretion when it elected not to award credit for time served on
house arrest. Gulbranson, ¶¶ 12-13. In Gulbranson, the district court granted
Gulbranson’s motion for bond reduction and release provided that he remained on
“‘informal’ house arrest” while awaiting a revocation hearing. Gulbranson, ¶ 12. Like
Clark, Gulbranson asserted that § 46-18-203(7)(b), MCA, required the district court to
award credit for his house arrest. We observed that Gulbranson’s motion for bail
reduction was not a petition requesting that he be sentenced to house arrest and that
Gulbranson’s informal house arrest was a condition of his bond release, not a condition
of his suspended sentences. Gulbranson, ¶ 12. We further stated that Gulbranson’s
informal house arrest did not amount to “house arrest” as contemplated under Title 46,
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Chapter 18, Part 10 of the Montana Code Annotated, the section which allows an
offender to petition the court for house arrest. Gulbranson, ¶ 12.
¶19 Clark maintains that the formality of his house arrest distinguishes his case from
Gulbranson and that his formal house arrest rises to the level governed by statute.
Consequently, Clark argues, the District Court was required to award him credit for the
time he served on house arrest awaiting trial, under § 46-18-203(7)(b), MCA. We
disagree.
¶20 Section 46-18-203(7)(b), MCA, provides:
If a suspended or deferred sentence is revoked, the judge shall consider any
elapsed time and either expressly allow all or part of the time as a credit
against the sentence or reject all or part of the time as a credit. The judge
shall state the reasons for the judge’s determination in the order. Credit
must be allowed for time served in a detention center or home arrest time
already served.
(Emphasis added.) The defendant in Gulbranson had his suspended sentences revoked
and was placed on informal house arrest while awaiting his revocation hearing. Thus, we
examined the nature of Gulbranson’s motion and subsequent house arrest because the
revocation of Gulbranson’s suspended sentences potentially implicated § 46-18-
203(7)(b), MCA. We determined that Gulbranson’s house arrest fell short of “house
arrest” as contemplated in Title 46, Chapter 18, Part 10 of the Montana Code Annotated
because it was a condition of his release on bond and because the district court entered no
order for house arrest as detailed in § 46-18-1002(3), MCA. Gulbranson, ¶ 12.
¶21 Although we agree that Clark’s house arrest was more formal than that presented
in Gulbranson, no statute requires or authorizes a district court to award credit for time
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served on house arrest prior to conviction or while released on bond, regardless of the
formal nature of the house arrest. Clark was conditionally released to house arrest to
await trial for an offense, not as a condition of a suspended or deferred sentence; thus,
§ 46-18-203(7)(b), MCA, which requires courts to credit time for house arrest already
served, is inapplicable to Clark’s sentence under the plain language of the statute.
Moreover, Montana law specifically provides that a person convicted of aggravated
assault is not eligible for house arrest. Accordingly, Clark is ineligible to serve any
portion of his sentence on house arrest. Sections 46-18-1004 and 46-18-1001(5), MCA.
The District Court was not statutorily required to award Clark credit for time served on
house arrest. Clark’s sentence falls within the statutory parameters for aggravated
assault, and thus, the District Court did not impose an illegal sentence. Mingus, ¶ 10.
¶22 III Did the District Court impose unreasonable conditions on Clark’s
bond?
¶23 Clark argues that if he was not entitled to credit for time served on house arrest
then the conditions that the District Court imposed on Clark’s bond were unreasonable.
Specifically, Clark challenges the condition requiring that he complete a chemical
dependency treatment program and the condition requiring that he be supervised by a
detective agency. Clark asserts that the District Court exceeded its statutory authority
when it imposed these conditions and that these conditions are unconstitutional. Clark
acknowledges that he agreed to these conditions, but argues that he did so because he
believed he would receive credit for time served on house arrest. Clark argues that the
lack of credit, in part, makes these conditions unreasonable for bond purposes.
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¶24 Clark challenges the bond conditions for the first time on appeal. We refuse to
consider issues raised for the first time on appeal because it is fundamentally unfair to
fault the district court for failing to rule correctly on an issue it never had the opportunity
to consider. McCaslin, ¶ 49.
¶25 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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