In Re Kmg

April 20 2010

DA 09-0336

IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 81

IN THE MATTER OF

K.M.G.,

A Youth Under the Age of Eighteen.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DJ 08-20
Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn M. Hunt, Chief Appellate Defender; Tammy A. Hinderman,
Jennifer A. Hurley, Assistant Appellate Defenders; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General; Helena, Montana

Fred Van Valkenburg, Missoula County Attorney; Missoula, Montana

Submitted on Briefs: February 17, 2010

Decided: April 20, 2010

Filed:

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

¶1 K.M.G. appeals from the Youth Court’s disposition adjudging him a Delinquent

Youth and sentencing him to the Department of Corrections for placement at the Pine

Hills Youth Correctional Facility (Pine Hills). We affirm.

¶2 We state the issues as follows:

¶3 1. Did the Youth Court err by committing K.M.G. to the Department of

Corrections for placement at Pine Hills pursuant to § 41-5-1513, MCA (2007)?

¶4 2. Did the Youth Court err by failing to specify how long K.M.G. could be placed

at Pine Hills?

¶5 3. Did the Youth Court err by finding that K.M.G. admitted to failing to attend

school in violation of his probation?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Appellant K.M.G. is a fourteen-year-old boy currently placed at Pine Hills for

committing a string of misdemeanor crimes, including assault, disorderly conduct,

resisting arrest and two counts of theft. K.M.G. also admitted to violations of probation

previously imposed by the Youth Court.

¶7 On January 8, 2008, 12-year-old K.M.G. approached a fellow student at Meadow

Hill School from behind and punched him in the back. The victim suffered discomfort

and redness in his middle spine area and could not walk for some time without pain.

When the responding officer called K.M.G.’s mother to set up a meeting regarding the

assault, she yelled at the officer and eventually hung up on him. When the principal

called K.M.G. into his office, K.M.G. was rude and refused to sit down as requested.

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K.M.G.’s mother displayed similar verbally-assaultive behavior to the principal as

K.M.G.

¶8 On January 21, 2008, K.M.G.’s mother contacted law enforcement to report that

K.M.G. had called her demeaning names and had left the residence without her

permission, a problem she described as on-going. On January 28, 2008, security officers

caught K.M.G. stealing two laser pointers from a store in Southgate Mall.

¶9 Citing these incidents, the State filed a Petition to declare K.M.G. a Delinquent

Youth. Before the Petition was served, K.M.G. committed additional crimes. The State

subsequently amended the petition to allege another assault, sexual intercourse without

consent, misdemeanor sexual assault, criminal mischief, and disorderly conduct.

¶10 On April 9, 2008, K.M.G. admitted to the theft and assault charges alleged in the

original petition. On July 16, 2008, K.M.G. admitted to the disorderly conduct charge as

part of a deferred prosecution agreement under which the State agreed to dismiss, without

prejudice, the remaining counts of the amended petition, which were then dismissed by

the Youth Court.

¶11 The Youth Court held a dispositional hearing on November 12, 2008. The court

assumed jurisdiction over K.M.G. until his eighteenth birthday, and ordered out-of-home

placement for K.M.G. at the Dennis Radtke Home for Boys (Radtke Home) for

treatment, followed by six months of formal probation. The court imposed probation

conditions, including that K.M.G. obey all laws, attend school regularly, reside at the

Radtke Home and keep the Home advised of his whereabouts at all times. After K.M.G.

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was taken to the Radtke Home, he immediately ran from the home without permission,

violating his probation.

¶12 The next day, November 18, 2008, law enforcement responded to a report of a

shoplifting in progress at a Shopko store. K.M.G. and another individual had been

temporarily detained by Shopko store security for theft of a backpack, but had fled. Law

enforcement officers located the juveniles behind a shed, and detained them. Missoula

Police Officer Erbacher instructed K.M.G. to sit on the ground while he gathered

information. He learned that K.M.G. had run from the group home, and that the Youth

Court had ordered that K.M.G. be detained. Officer Erbacher became concerned with

K.M.G.’s behavior, believing that K.M.G. intended to run. Officer Erbacher instructed

K.M.G. to stand up and place his hands behind his back. K.M.G. did so, but when

Officer Erbacher attempted to grab his wrist, K.M.G. bolted and attempted to escape by

running down an alley. Officer Erbacher stopped K.M.G., but K.M.G. resisted and

caused injury to Officer Erbacher.

¶13 In response to this criminal activity, the State filed a second petition to declare

K.M.G. a Delinquent Youth. The Youth Court set a bond for detaining K.M.G., which

K.M.G.’s mother posted. The release conditions required K.M.G. to abide by the

previously imposed conditions, which he failed to do. Between his release on December

1, 2008, and December 11, 2008, K.M.G. failed to attend school, was allowed to remain

unsupervised at home for several days, and tested positive for prescription narcotic

benzodiazepines after a mandatory probationary urinalysis. School officials observed

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minor injuries on K.M.G., which they surmised were caused from a fight. The State also

filed a petition to revoke K.M.G.’s probation.

¶14 On January 9, 2009, K.M.G. admitted the second theft and resisting arrest charges

and admitted leaving the Radtke Home without permission in violation of his probation.

The Youth Court entered K.M.G.’s admissions, and scheduled a dispositional hearing. In

the interim, K.M.G. continued to violate his probationary conditions. Instead of residing

with his aunt in Helena, as ordered by the Youth Court, K.M.G. returned to his mother’s

home in Missoula. K.M.G.’s juvenile probation officer learned of his whereabouts when

K.M.G.’s mother called three days before the disposition hearing to advise that K.M.G.

was “out in the alley . . . intoxicated.” The next day, after the juvenile probation officer

told K.M.G. that he must remain with his mother at all times until the court hearing,

K.M.G. told his mother he “didn’t like those rules,” and left home.

¶15 K.M.G. was subsequently evaluated by Eileen C. Robbins, an Advanced Practice

Registered Nurse with the Western Montana Mental Health Center, Child and Family

Service Network. Robbins recommended that K.M.G. “attend treatment at a facility

where he can receive long-term intensive treatment . . . .” However, due to funding

limitations, it became clear that out-of-home community placement for K.M.G. was not

an option, and that he would either be placed at Pine Hills or returned to his mother’s

home. In light of this development, Robbins filed an addendum to her report, stating “[if]

treatment could be provided to [K.M.G.] while at Pine Hills Correctional Facility, that

would be an option which could be helpful to [K.M.G.], certainly more helpful than

returning him to his mother’s home.”

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¶16 On April 8, 2009, the Youth Court held a dispositional hearing on K.M.G.’s

probation violations and the new theft and resisting arrest charges. The State

recommended the Youth Court commit K.M.G. to the Department of Corrections for

placement at Pine Hills. Defense counsel recommended that the court place K.M.G. on

probation, and return him to his mother’s care on the condition that he “complete

counseling with Eileen Robbins.” Defense counsel stated that he understood Robbins’s

recommendation was to “send [K.M.G.] straight to Pine Hills” but, noting Robbins’s

willingness to treat K.M.G. if he was in Missoula, argued for probation, given that

K.M.G. “would be under the understanding that if he is given probation, he is on a

no-tolerance release. Any violation is going to send him to Pine Hills.”

¶17 The Youth Court adjudicated K.M.G. a Delinquent Youth. Concluding that the

commitment requirements of § 41-5-1513(1)(b), MCA, had been satisfied, the court

ordered K.M.G. “committed to the custody of the Department of Corrections until he

reaches the age of 18 years or sooner released by the Department of Corrections.”

Addressing K.M.G., the court stated that the

reason for the judgment is that you have demonstrated, from your prior
behavior, that you cannot reside in the community while on a probationary
status. You refuse to abide by the conditions of probation. Your mother
refuses to make you abide by the rules of probation. We’ve tried you with
your aunt in Helena. She cannot be relied upon to have you under her
control. There, virtually, is no further placement for you in the Missoula
community. It’s necessary that you be removed from the community, and
placed at a secure facility for treatment. And, in that way, it’s hopeful that
you’ll acquire some of the means necessary for your rehabilitation.

¶18 K.M.G. appeals.

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 STANDARDS OF REVIEW

¶19 We conduct de novo review of the youth court’s conclusions of law to determine

whether those conclusions are correct. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201

P.3d 126 (citing LHC, Inc. v. Alvarez, 2007 MT 123, ¶ 13, 337 Mont. 294, 160 P.3d 502;

State v. Hastings, 2007 MT 294, ¶ 8, 340 Mont. 1, 171 P.3d 726). We generally will not

review an issue to which the appealing party failed to object in the trial court. State v.

Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892 (citing State v. Lenihan, 184

Mont. 338, 341, 602 P.2d 997, 999 (1979)). However, an exception to the rule “allows

appellate review of a criminal sentence that is alleged to be illegal or in excess of

statutory mandates, even if the defendant raised no objection in the trial court.” Kotwicki,

¶ 8 (citing Lenihan, 184 Mont. at 343, 602 P.2d at 1000). Generally, we review a

sentence’s legality to determine “whether it is within the statutory parameters.” State v.

Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978 (citations omitted). A

sentencing court’s failure to abide by a statutory requirement may constitute an

objectionable sentence, but not necessarily an illegal one permitting the Lenihan

exception to be invoked on appeal. Kotwicki, ¶ 13 (citing State v. Nelson, 274 Mont. 11,

20, 906 P.2d 663, 668 (1995); State v. Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298

(1996)).

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 DISCUSSION

¶20 1. Did the Youth Court err by committing K.M.G. to the Department of
Corrections for placement at Pine Hills pursuant to § 41-5-1513, MCA?

¶21 K.M.G. contends that the Youth Court did not have statutory authority to commit

him to the Department of Corrections, for placement at Pine Hills, because none of the

three statutory criteria for such placements were satisfied in his case. Section 41-5-

1513(1)(b)(i)-(iii), MCA, provides:

The court may not place a youth adjudicated to be a delinquent youth in a
state youth correctional facility for an act that would be a misdemeanor if
committed by an adult unless:
(i) the youth committed four or more misdemeanors in the prior 12
months;
(ii) a psychiatrist or a psychologist licensed by the state or a licensed
clinical professional counselor or a licensed clinical social worker
has evaluated the youth and recommends placement in a state youth
correctional facility; and
(iii) the court finds that the youth will present a danger to the public
if the youth is not placed in a state youth correctional facility.

¶22 We address K.M.G.’s arguments under each of the three criteria in turn.

¶23 a. Did K.M.G. commit “four or more misdemeanors in the prior 12 months”
under subsection 1513(1)(b)(i)?

¶24 K.M.G. contends that he did not commit the requisite four misdemeanors “in the

prior 12 months.” He argues that, under the language of the statute, the 12-month period

“runs from the date of the disposition hearing or the time at which the youth court

commits the youth to the Department of Corrections.” The Youth Court’s disposition

was not made until April 8, 2009, and K.M.G. thus argues that he cannot be placed at

Pine Hills because he did not commit four misdemeanors during the 12 months preceding

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that date.1 K.M.G. also contends that his interpretation is consistent with the legislative

intention to limit, not expand, the youth court’s ability to incarcerate delinquent youth.

¶25 The State responds that K.M.G.’s interpretation of the statute is “patently absurd”

because “[i]t would allow a youth to control the disposition options available to the youth

court by deliberately delaying the disposition of his case.” The State offers that the “prior

12 months” requirement must be interpreted to mean the 12-month period prior to the

State’s filing of the adjudication petition charging the youth with committing the

misdemeanors. Under this interpretation, the State argues that all five of K.M.G.’s

misdemeanor crimes counted for purposes of § 41-5-1513(1)(b)(i), MCA, because

K.M.G. committed them within the 12 months preceding the State’s filing of the

delinquency petition on November 26, 2008.

¶26 When interpreting a statute, we seek to implement the intention of the legislature.

Section 1-2-102, MCA; Mont. Vending, Inc. v. Coca-Cola Bottling Co., 2003 MT 282,

¶ 21, 318 Mont. 1, 78 P.3d 499 (citations omitted). To determine legislative intent, we

look first to the plain meaning of the words of the statute. State v. Trull, 2006 MT 119,

¶ 32, 332 Mont. 233, 136 P.3d 551 (citations omitted). We are to neither insert that

which has been omitted, nor omit that which has been inserted. Section 1-2-101, MCA;

Druffel v. Bd. of Adjustment, 2007 MT 220, ¶ 16, 339 Mont. 57, 168 P.3d 640. Statutory

construction should not lead to an absurd result if a reasonable interpretation can avoid it.

Van Der Hule v. Mukasey, 2009 MT 20, ¶ 10, 349 Mont. 88, 217 P.3d 1019 (citing State

1
Again, K.M.G.’s misdemeanors were committed on January 8, 2008; January 26, 2008;
March 5, 2008; and two on November 18, 2008.

9
v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, 152 P.3d 1288). When the intent of the

legislature cannot be determined from the plain language of the statute, we examine the

statute’s legislative history to determine its correct interpretation. State v. Merry, 2008

MT 288, ¶ 17, 345 Mont. 390, 191 P.3d 428 (citing Stockman Bank of Mont. v.

Mon-Kota, Inc., 2008 MT 74, ¶ 17, 342 Mont. 115, 180 P.3d 1125); see Montanans for

Justice v. State, 2006 MT 277, ¶ 60, 334 Mont. 237, 146 P.3d 759, (“When the legislative

intent cannot be readily derived from the plain language, we review the legislative history

and abide by the intentions reflected therein.”).

¶27 Section 41-5-1513(1)(b)(i), MCA, provides that the youth court “may not place a

youth adjudicated to be a delinquent youth in a state youth correctional facility for an act

that would be a misdemeanor . . . unless: (i) the youth committed four or more

misdemeanors in the prior 12 months.” K.M.G. reads this provision as requiring “four or

more misdemeanors in the prior 12 months preceding the final disposition.” The State

reads it as requiring “four or more misdemeanors in the prior 12 months preceding the

filing of the delinquency petition.” Both suggestions, however, raise the specter of adding

language to the statute. The provision raises further ambiguity: did the legislature intend

to authorize facility placement of delinquent youth who commit at least four

misdemeanors in a 12 month period, or only when youth commit at least four

misdemeanors in the 12-month period “prior to” the current misdemeanor for which he is

being disposed—in other words, requiring at least five misdemeanors?

¶28 Because the provision is “reasonably susceptible” to more than one interpretation,

Gannett Satellite Info. Network, Inc. v. State, 2009 MT 5, ¶ 27, 348 Mont. 333, 201 P.3d

10
132, we conclude that it is ambiguous and turn to the legislative history for assistance in

determining the legislature’s intent. Mont. Vending, ¶ 21 (citations omitted). In the 2003

Legislative session, Representative Gary Matthews introduced H.B. 156 to amend § 41-5-

1513, MCA, and the original intent, as explained by Representative Matthews, was to

prevent the placement of youths who had committed a misdemeanor in a correctional

facility. Matthews explained to the House Judiciary Committee that the bill’s purpose

was to “eliminate a court’s ability to place a youth adjudicated delinquent, for an act that

would be a misdemeanor if committed by an adult, in a state youth correctional facility.”

He stated that “once a juvenile gets into the system, it is hard for them to get out of the

system.” Mont. H. Jud. Comm., Hearing on HB 156, 58th Leg., Reg. Sess. 2 (Jan. 15,

2003).

¶29 However, Representative Bob Clark inquired about what options would be

available “for youths who commit many misdemeanors.” Steve Gibson, the Juvenile

Probation Officer Division Administrator, suggested an amendment be made to the bill

“for multiple misdemeanor offenders.” Mont. H. Jud. Comm., Hearing on HB 156, at

3-4. Thereafter, the language which would become subsection 1513(1)(b)(i) was first

added to the bill by the House Judiciary Committee.

¶30 There was lively discussion about the multiple misdemeanor provision of the bill

during the sessions of the Senate Judiciary Committee. Senator Jerry O’Neil questioned

the propriety of incarcerating juvenile offenders who had committed “multiple shoplifting

offenses.” Representative Matthews responded that such minor offenders should not be

placed in a facility, and suggested that Pine Hills be limited to juveniles such as “sex

11
offenders, gang members,” and youths that had committed “many felonies.” He further

explained that “placement dollars are available for shoplifters” and juveniles committing

minor offenses. Dick Meeker, of the Montana Juvenile Probation Officers Association,

wrote that the “Association originally opposed this legislation because it left the youth

court with no discretion in dealing with multiple misdemeanor offenders.” He

commended the multiple misdemeanor amendment, noting that “Youth Courts go to great

lengths to keep juveniles from ever reaching a correctional facility but there are times

when it is necessary because the community needs to be protected and the youth has not

responded to other options.”

¶31 About the number of misdemeanors necessary to authorize facility placement,

Committee Chairman Duane Grimes observed that “[i]f a youth committed four

misdemeanors, it may be necessary to have the youth sent to Pine Hills.” Senator Dan

McGee inquired whether “a fifth misdemeanor in a 12 month period” would “result in the

youth being sent to Pine Hills.” To this inquiry, Senator Mike Wheat stated his belief

that “this could take place with the fourth misdemeanor” in a 12 month period. Sen.

McGee then noted that there are youth who offend routinely and regularly and it is

necessary the state have a hammer to address this situation. The Committee subsequently

approved the language. Mont. Sen. Jud. Comm., Hearing on HB 156, 58th Leg., Reg.

Sess. 6-14 (Mar. 10, 2003).

¶32 K.M.G. is correct that the legislative history reveals an intention by the Legislature

to limit the number of juvenile offenders committed to Pine Hills for petty offenses.

However, the history also clearly reveals that an exception to this general goal was

12
intended for juveniles who were multiple offenders—allowing facility placement, in the

words of Senator Wheat, “with the fourth misdemeanor.” This history reveals an intent

to authorize, within the youth court’s dispositional discretion, a facility placement of a

juvenile brought before the court having committed four or more misdemeanors within a

12 month period of time. K.M.G. was brought before the Youth Court for disposition

having committed his fourth and fifth misdemeanors within 12 months. As such, the

Youth Court correctly determined that it was authorized, assuming the other criteria were

met, to place K.M.G. within a youth facility for these offenses under subsection

1513(1)(b)(i).

¶33 b. Was K.M.G. evaluated by an appropriate professional under subsection
1513(1)(b)(ii)?

¶34 K.M.G. asserts that the second prong of the statute has not been met because he

was not evaluated by the proper mental health professional. The statute states that a

youth is to be evaluated by “a psychiatrist or a psychologist licensed by the state or a

licensed clinical professional counselor or a licensed clinical social worker” who must

“recommend[] placement in a state youth correctional facility.” Section 41-5-

1513(1)(b)(ii), MCA. K.M.G. was evaluated by Eileen C. Robbins, an Advanced

Practice Registered Nurse, who provided the following recommendations:

Specifically, the likely placement options for [K.M.G.] include Pine Hills
Correctional Facility or return to his mother’s home. I feel strongly that
[K.M.G.] needs treatment rather than simply correctional intervention. If
treatment could be provided to [K.M.G.] while at Pine Hills Correctional
Facility, that would be an option which could be helpful to [K.M.G.],
certainly more helpful than returning him to his mother’s home.

13
K.M.G. contends that Robbins does not satisfy the occupational requirements of the

statute and, further, that she did not actually “recommend” K.M.G.’s placement at Pine

Hills.

¶35 The State responds that K.M.G. waived these arguments by failing to object before

the Youth Court, and in fact specifically acquiesced to the violations he now challenges.

The State further argues that K.M.G.’s objections do not satisfy the Lenihan exception for

raising issues on appeal without objection.

¶36 We generally will not review an issue to which a party has failed to object or

otherwise preserve for appeal in the district court. The rationale is that the objecting

party must give the trial court the opportunity to address and correct any perceived errors.

We recognized an exception to this general rule in Lenihan, allowing appellate review of

a criminal sentence that is alleged to be illegal or in excess of statutory mandates, even if

the defendant raised no objection in the district court at the time of sentencing. Lenihan,

184 Mont. at 343, 602 P.2d at 1000. We have explained that the Lenihan exception

allows appellate review of a criminal sentence “that is alleged to be illegal or in excess of

statutory mandates.” Kotwicki, ¶ 8. A criminal sentence is not illegal for purposes of the

Lenihan exception “if it falls within statutory parameters.” Kotwicki, ¶ 13 (citing State v.

Garrymore, 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946). Thus, “a sentencing court’s

failure to abide by a statutory requirement rises to an objectionable sentence, not

necessarily an illegal one that would invoke the Lenihan exception.” Kotwicki, ¶ 13

(citing Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482, 918 P.2d at

298).

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¶37 K.M.G. asserts that his claim that the Youth Court failed to have him evaluated by

a proper mental health professional under § 41-5-1513(1)(b)(ii), MCA, is a statutory

violation which renders his disposition illegal and appealable despite having failed to

object, pursuant to the Lenihan exception. However, K.M.G.’s argument runs counter to

the parameters of the Lenihan exception explained above, because his disposition fell

within statutory parameters, as we have held in several similar cases. In Nelson, the

defendant claimed that the district court failed to follow the mandates of §§ 46-18-

201(10), -225, MCA, before sentencing him to prison, and that his sentence was thus

illegal and appealable under Lenihan. Nelson, 274 Mont. at 17-18, 906 P.2d at 666-67.

The statute required a sentencing court, prior to ordering incarceration, to first consider

alternative placements. It provided that sentencing courts “shall first consider

alternatives to imprisonment of the offender in the state prison,” “shall examine” the

statutory criteria for sentencing nonviolent offenders, and “shall state its reasons” for

rejecting alternatives to imprisonment. Section 46-18-201(11), MCA (1995) (emphasis

added). We rejected Nelson’s Lenihan argument, reasoning that the district court’s

failure to satisfy the prerequisites to incarceration made the sentence “subject to

challenge or objection,” but did not render the sentence illegal because it was “not in

excess of the maximum statutorily authorized.” Nelson, 274 Mont. at 20, 906 P.2d at

668. We reached the same conclusion on a claim under the same statute in Swoboda, 276

Mont. at 482, 918 P.2d at 298.

¶38 In Kotwicki, we relied upon Nelson and Swoboda to reject a broader application of

the Lenihan rule we had approved, without analysis, in State v. McLeod, 2002 MT 348,

15
313 Mont. 358, 61 P.3d 126. Kotwicki, ¶¶ 12-16. The statute at issue in Kotwicki

mandated that the district court “may not sentence an offender to pay a fine” unless the

court determined the offender had the financial ability to do so. Section 46-18-231(3),

MCA (emphasis added). Though failing to object, Kotwicki argued his fine was illegal

and appealable because of the sentencing court’s failure to comply with this statutory

requirement. However, we held that the issue was not reviewable under the Lenihan rule,

reasoning that “Kotwicki’s fine of $25,000 falls within the parameters of that statute, and

thus Kotwicki’s sentence is not an illegal sentence for the purposes of invoking the

Lenihan rule.” Kotwicki, ¶ 16.

¶39 K.M.G.’s argument that the Youth Court could not place him in Pine Hills because

it failed to obtain an evaluation by the proper professional under the statute, thus

rendering his sentence illegal and appealable, is similar to Kotwicki’s argument that his

sentence was illegal because the court could not impose a fine upon him without

determining he had the ability to pay as required by statute. It is also similar to Nelson

and Swoboda’s arguments that their sentences were illegal because the courts could not

incarcerate them without considering alternatives as required by statute. While the Youth

Court’s failure to comply with a statutory procedural requirement “rises to an

objectionable sentence,” it does not constitute an illegal sentence for purposes of

Lenihan. Kotwicki, ¶ 13.

¶40 Beyond K.M.G.’s failure to object is his active acquiescence in the error during

the sentencing hearing. K.M.G. understood Robbins’s credentials, as well as her ultimate

recommendation of placement and treatment at Pine Hills. Not only did he fail to object

16
to Robbins’s involvement, he embraced it, arguing that the Youth Court should grant him

probation and order him to undergo treatment with Robbins. K.M.G.’s counsel stated “I,

also, note in Ms. Robbins’ report, that she’s willing to treat [K.M.G.] if he is out, and

here in Missoula” and argued for the probationary treatment approach Robbins had

initially recommended, prior to her learning that the approach would not be possible.

“We will not put a district court in error for an action in which the appealing party

acquiesced or actively participated.” State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291,

65 P.3d 559 (citations omitted); see also § 1-3-207, MCA (“Acquiescence in error takes

away the right of objecting to it.”). This case well illustrates the reason for this rule.

Allowing K.M.G. to challenge Robbins’s involvement on appeal, after he had

affirmatively embraced it before the Youth Court to tactically support his argument for

probation, would sanction gamesmanship of the judicial system. A litigant could pursue

one strategy in the trial court, only, if unsuccessful, to reverse course on appeal and

challenge the court’s failure to follow the very statute he had ignored as part of his trial

strategy. K.M.G.’s actions constituted a waiver of that issue, and we decline to reach it.

¶41 c. Was K.M.G. properly found to be a danger to the public under subsection
1513(1)(b)(iii)?

¶42 K.M.G. acknowledges that the Youth Court found that he would present a danger

to society in its written order, but contends that it did not discuss the evidence which

supports this finding and, in fact, insufficient evidence existed to support the finding.

The State again argues that K.M.G. waived this argument by failing to object and that,

17
even assuming arguendo the issue is properly before this Court, that substantial evidence

supports the Youth Court’s determination that K.M.G. was a danger to the public.

¶43 Even assuming no objection was necessary to preserve K.M.G.’s arguments, we

believe the Youth Court’s order was supported by sufficient evidence and adequately

demonstrated K.M.G.’s dangerousness for purposes of the statute. When sentencing

K.M.G., the Youth Court stated it was “necessary that [K.M.G.] be removed from the

community, and placed at a secure facility for treatment.” The Youth Court’s amended

dispositional order stated that the court had heard and considered the “recommendations

for disposition from the Youth Court’s Report to the Court, the Deputy County Attorney,

the Youth’s attorney and the Youth” and that it had “specifically reviewed the Report to

the Court and attached Psychiatric Evaluation and Addendum to Psychiatric Evaluation”

as the bases for its determination to place K.M.G. in a secure facility. This evidence

revealed that K.M.G. had a history of non-compliance with parental, school, law

enforcement and probationary rules and authority and had exhibited criminal and violent

behaviors. The Youth Court’s finding that K.M.G was “a danger to the public if not

placed in a state youth correctional facility” was supported by substantial evidence and

adequately discussed.

¶44 2. Did the Youth Court err by failing to specify how long K.M.G. could be held
at Pine Hills?

¶45 The Youth Court committed K.M.G. “to the custody of the Department of

Corrections until he reaches the age of 18 years or sooner released by the Department of

Corrections.” The Youth Court recommended that K.M.G. “be placed at Pine Hills

18
School for Boys.” K.M.G. argues that the disposition was illegal because it failed to limit

the maximum period of time he could be placed in Pine Hills. Because K.M.G. can only

be incarcerated for the maximum period that could be imposed upon an adult convicted

of the same offenses, pursuant to § 41-5-1522(1), MCA, he argues that the court’s

disposition is illegal and must be reversed. The State agrees that K.M.G. cannot be held

by the Department of Corrections beyond the period of time an adult could serve for the

same offenses, but argues that there was nothing illegal in leaving the specific

determination of how long K.M.G. would be placed to the Department of Corrections.

¶46 K.M.G.’s placement to the Department of Corrections is indeed subject to the

limitation that he “may not be held . . . for a period of time in excess of the maximum

period of imprisonment that could be imposed on an adult convicted of the offense or

offenses that brought the youth under the jurisdiction of the youth court.” Section 41-5-

1522(1), MCA. Procedurally, pursuant to § 41-5-1522, MCA, “[w]hen a youth is

committed to the department [of corrections], the department shall determine the

appropriate placement and rehabilitation program for the youth after considering the

recommendations made by the youth placement committee.” The Department of

Corrections’s Length of Stay Committee establishes a youth’s “length of stay within 30

days of a youth’s arrival at the facility.” Admin. R. M. 20.9.703(1)(a) (2007). The

committee determines the length of stay based upon several criteria, including the

“delinquency history of the youthful offender; the severity and chronicity of the offenses

committed by the youthful offender within the past 12 months; and mitigating or

19
aggravating circumstances surrounding the act for which the youth has been adjudicated.”

Admin. R. M. 20.9.704(1)(a)-(c). Then, a youth must be discharged from a facility when:

(a) the youth [has] attained age 18;
(b) the court order committing the youth to the department has
expired;
(c) the youth is being prosecuted in criminal court as an adult; or
(d) the youth has served the maximum period of confinement
pursuant to 41-5-1522, MCA.

Admin. R. M. 20.9.707(2)(a)-(d) (underlining in original, emphasis added).

¶47 As evident from these provisions, the Department of Corrections may not detain a

youth beyond the maximum period of confinement of the offenses he has committed.

The Department of Corrections may not hold K.M.G. at Pine Hills Correctional Facility

beyond the period of time an adult could serve for committing the same misdemeanor

offenses for which he was disposed.

¶48 The Youth Court’s disposition order was consistent with both § 41-5-1522, MCA,

and Admin. R. M. 20.9.703, 704, 707, and did not err by leaving the specific calculation

of K.M.G.’s placement time to the Department of Corrections under these provisions.

¶49 3. Did the Youth Court err by finding that K.M.G. admitted to not attending
school in violation of his probation?

¶50 The Youth Court’s disposition order states that K.M.G. admitted the allegations in

the State’s Amended Petition to Revoke, including that he violated the condition that he

attend school on a regular basis. K.M.G. argues that he only admitted to running away

from the Radtke Home, not that he failed to attend school regularly. K.M.G. directs our

attention to the January 9, 2009 hearing, where he orally admitted running from the

Radtke Home, in violation of his probation, and notes the Youth Court did not address

20
the school attendance violation. The State contends that K.M.G. admitted to the truancy

violation by way of the Juvenile Admission and Waiver of Rights form filed with the

Youth Court.

¶51 K.M.G.’s signed Juvenile Admission and Waiver Form indicates that K.M.G.

admitted to violating the condition that he attend school. K.M.G. initialed every line of

the document, indicating he understood his rights and making his admissions to the

alleged probation violations. In open court, K.M.G.’s counsel presented the signed

Admission and Waiver Form, as evidenced by the record: “We’re prepared to enter

admissions, today—both to two new charges filed against [K.M.G.], as well as the

Petition to Revoke . . . . If I can approach, I have a Waiver of Rights for both matters.”

K.M.G.’s written, voluntary acknowledgement of his rights and his admission, presented

to the Youth Court during the disposition hearing, that he was admitting to the probation

violations alleged in the Petition to Revoke, are sufficient bases for an admission in this

case, and properly considered by the Youth Court.

¶52 Affirmed.

/S/ JIM RICE

We concur:

/S/ PATRICIA O. COTTER
/S/ MICHAEL E WHEAT
/S/ W. WILLIAM LEAPHART

21
Justice James C. Nelson, dissenting.

¶53 I dissent.

¶54 As noted, § 41-5-1513(1)(b), MCA (2007), provides that:

The court may not place a youth adjudicated to be a delinquent youth in a
state youth correctional facility for an act that would be a misdemeanor if
committed by an adult unless:

. . .

(ii) a psychiatrist or a psychologist licensed by the state or a licensed
clinical professional counselor or a licensed clinical social worker has
evaluated the youth and recommends placement in a state youth
correctional facility . . . . [Emphases added.]

In this case, the use of the phrase may not is mandatory. Van Der Hule v. Mukasey, 2009

MT 20, ¶ 11, 349 Mont. 88, 217 P.3d 1019 (“[C]ourts that have construed legislative use

of the phrase ‘may not’ have consistently held that the phrase is mandatory.”). In other

words, under the plain language of the statute, the youth court had no authority to place

K.M.G. in a state youth correctional facility for the commission of a misdemeanor absent

compliance with § 41-5-1513(1)(b)(ii), MCA.

¶55 It is undisputed here that Eileen C. Robbins was not “a psychiatrist or a

psychologist licensed by the state or a licensed clinical professional counselor or a

licensed clinical social worker.”1 Hence, it follows that the plain and unambiguous

statutory preconditions were not met in order to place K.M.G. in Pine Hills. In short, the

court’s sentence was illegal because the court exceeded its statutory authority to sentence.

Pena v. State, 2004 MT 293, ¶ 24, 323 Mont. 347, 100 P.3d 154 (A district court “has no

1
It is also undisputed that she did not make an unqualified recommendation that
K.M.G. be placed at Pine Hills.

22
power to impose a sentence in the absence of specific statutory authority,” its authority to

impose sentences in criminal cases “is defined and constrained by statute,” and a sentence

that exceeds statutory authority or parameters is, therefore, “illegal.” (internal quotation

marks omitted)), overruled on other grounds, Davis v. State, 2008 MT 226, ¶ 23, 344

Mont. 300, 187 P.3d 654.

¶56 The court’s sentence being an illegal sentence, the Lenihan exception applies and

we may review the sentence even in the absence of an objection by the defendant—or, in

this case, the youth. State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979);

State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. The youth, therefore,

did not waive objection to the sentence.

¶57 As for the Court’s reliance on State v. Micklon, 2003 MT 45, 314 Mont. 291, 65

P.3d 559, for the proposition that “ ‘[a]cquiescence in error takes away the right of

objecting to it’ ” (Opinion ¶ 40), I have and will continue to dissent from the use of the

Micklon line of cases. See State v. Clark, 2008 MT 391, ¶ 45, 347 Mont. 113, 197 P.3d

977 (Nelson, J., specially concurring). This doctrine is more about soothing the hurt

feelings of sentencing courts—whose own seeming inability or refusal to follow the law

is the cause of the problem in the first place—than it is about following the law, requiring

sentencing courts to follow the law, and doing justice for the defendant (youth).

¶58 More to the point, the sentence at issue here is illegal because it is not statutorily

authorized. As pointed out above, the statute clearly and unambiguously provides that

the court “may not” (i.e., lacks authority to) place a youth in a state youth correctional

facility for commission of a misdemeanor unless “a psychiatrist or a psychologist

23
licensed by the state or a licensed clinical professional counselor or a licensed clinical

social worker has evaluated the youth and recommends placement in a state youth

correctional facility.” Section 41-5-1513(1)(b)(ii), MCA. It is undisputed that this

blackletter requirement of the law was not followed. Thus, absent compliance with the

law, the District Court did not have authority—judicial power—to place K.M.G. in a

state youth correctional facility.

¶59 Ignoring this, however, our decision here takes our Lenihan jurisprudence from

the sublime to the ridiculous. Now, if the defendant “embraces” (Opinion, ¶ 40) the trial

court’s refusal to follow the law—i.e., the illegality—then we pass the sentencing court’s

dereliction with a wink and a nod. Our rationale is that we prevent the defendant from

“gaming” the system.

¶60 The point missed in this silliness, though, is that if the District Court—which,

theoretically, is in the business of making sure the law is followed2—would simply do its

job in the first instance, and enforce the law as written, then any “gamesmanship” would

be nipped in the bud. Every criminal “embraces” the illegality of his conduct; and every

defendant,3 if given a chance, will attempt to “game” the system to his or her advantage.

2
There was a time when this Court recognized this principle. See State ex rel.
Bennett v. Bonner, 123 Mont. 414, 425, 214 P.2d 747, 753 (1950) (“Judicial power as
contra-distinguished from the power of the law has no existence. . . . The law precedes
the courts. The law governs the courts. Thus it is the function of the courts to expound
and administer law in those causes properly brought before them in course of legal
procedure. . . . [Judicial power] is always exercised for the purpose of giving effect to the
will of the people as that will is expressed in the law.”). “Blind justice” is not supposed
to mean that trial judges wear blinders to the laws that control their authority to act.
3
And prosecutor.

24
Trial courts and this Court should, however, be something more than co-conspirators in

that effort.

¶61 Indeed, when confronted with a situation in which not only the defendant, but also

the prosecutor and the trial court, decided to “game” the system—where the prosecutor

actually stated on the record, “We don’t hold firm to the technicalities of the statute or the

Supreme Court rulings”—this Court responded:

The laws of the State of Montana are written to ensure that justice is served
and the well-being of society and individuals is safe-guarded. Contrary to
the County Attorney’s pronouncement to the District Court that “we don’t
hold firm to the technicalities of the statute or the Supreme Court rulings,”
adherence to the legislative enactments and the decisions of this Court is
not a matter of convenience or prosecutorial preference [or, for that matter,
the preference of the defendant or the trial court]. No court or officer of the
court has the prerogative of circumventing or modifying the procedures
established by law.

State v. Evert, 2004 MT 178, ¶¶ 6, 19, 322 Mont. 105, 93 P.3d 1254.

¶62 The Court’s contrary approach in the present case is a reprehensible approach to

appellate review, and I categorically reject it.

¶63 I dissent.

/S/ JAMES C. NELSON

25