September 14 2010
DA 10-0106
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 199N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GEORGE NOEL,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 02-25
Honorable Michael C. Prezeau, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Ben Kolter, Smith & Stephens, P.C.,
Missoula, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: August 31, 2010
Decided: September 14, 2010
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court, and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 George Noel appeals from the Modified Judgment and Sentence entered by the
Nineteenth Judicial District Court, Lincoln County, for the offense of bail jumping,
following a revocation proceeding. Judgment was originally imposed upon Noel’s guilty
plea in October 2002, along with a judgment imposed upon Noel’s Alford plea in a
companion case charging him with sexual assault. In both judgments, the District Court
imposed Condition 21, which required Noel to complete sex offender treatment “while on
parole,” and Condition 22, which required Noel to “follow all treatment plans
recommended by counselors or psychologists.” While incarcerated, Noel completed two
phases of sex offender treatment.
¶3 Following Noel’s release from incarceration to serve the suspended portion of his
sentences, the State filed revocation petitions in both cases, alleging that Noel had
engaged in inappropriate sexual contact with two developmentally disabled women. The
District Court granted Noel’s motion to dismiss the petition in the bail jumping matter,
and the revocation proceeding continued in the companion sexual assault matter.
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Following hearing, the District Court revoked Noel’s sexual assault sentence, and that
judgment is not challenged on appeal. However, as it did for Noel’s sexual assault
sentence, the District Court modified Condition 21 in Noel’s bail jumping sentence to
state that Noel was required to participate in sex offender treatment “while on probation
or parole.” (Emphasis added.) The District Court noted this was the original intent and
that the modification would correct a “typographical error.”
¶4 Noel challenges this modification on appeal, arguing the District Court was
without authority to modify Condition 21 of his bail jumping sentence following the
dismissal of the revocation petition in that matter. The State argues that Noel waived the
argument by failing to make a specific objection, but, following the imposition of
sentence, Noel’s counsel stated in open court that “I do object to amending [the bail
jumping matter],” and thus preserved the issue. The State further argues that the District
Court had statutory authority to modify the bail jumping sentence and, in any event, sex
offender treatment could have been required under Condition 22 of Noel’s sentence as
originally imposed.
¶5 We agree with the State and have determined it is appropriate to decide this case
pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended
in 2006, which provides for memorandum opinions. It is manifest on the face of the
briefs and the record before us that the findings of fact are supported by substantial
evidence and the legal issues are controlled by settled Montana law which the District
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Court correctly interpreted, including statutory authority to modify the sentencing
condition.
¶6 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART
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