August 16 2011
DA 10-0429
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 196
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SEBASTIAN WALTER OLIVARES-COSTER,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADC 2009-201
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Eileen A. Larkin,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Mardell Ployhar,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
Submitted on Briefs: August 10, 2011
Decided: August 16, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Sebastian Olivares-Coster appeals from a sentence imposed by the District Court,
First Judicial District, Lewis and Clark County. We affirm in part, reverse in part and
remand for further proceedings.
ISSUE
¶2 The issue on appeal is whether the District Court erred when it concluded that
State law imposes a 60-year restriction on Olivares-Coster’s parole eligibility.
BACKGROUND
¶3 On June 4, 2009, Olivares-Coster was charged with one count of Deliberate
Homicide, § 45-5-102(1)(a), MCA, and two counts of Attempted Deliberate Homicide,
§§ 45-5-102(1)(a) and 45-4-103(1), MCA. He was seventeen years old at the time of the
alleged offenses. On November 19, 2009, represented by counsel, Olivares-Coster pled
guilty to all counts. As part of the plea agreement, the State agreed to refrain from taking
any position regarding Olivares-Coster’s parole eligibility, leaving that issue to the
discretion of the District Court.
¶4 A sentencing hearing was held on April 2, 2010. At the close of the hearing, the
District Court pronounced three life-sentences on Olivares-Coster, one for each count.
The two life-sentences for the attempted deliberate homicide counts were to run
concurrent with each other but consecutive to the life-sentence for the deliberate
homicide count. The District Court did not impose any parole restrictions, but concluded
“Defendant will be parole eligible in 60 years, if my math is correct.” Later, the District
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Court explained, “the reason why I’m not restricting his parole eligibility, first of all, 60
years down the road is a long time.” She further stated, “I’m considering his youth, the
fact that he was under the age of 18 . . . I also believe that having parole eligibility in the
future will facilitate any possible rehabilitation that he could have . . . . Just knowing that
there’s a light at the end of the tunnel, that will give him hope, and that will make him a
better prison inmate.”
¶5 On July 16, 2010, the District Court issued a written Judgment and Commitment.
The Judgment provided that the “defendant shall be parole eligible after sixty (60) years
of incarceration.” Additionally, the Judgment reconfirmed that Olivares-Coster would
not receive a discretionary restriction on parole eligibility “in light of the defendant’s
youth, to facilitate his rehabilitation and to help effect positive conduct by him in prison.”
Olivares-Coster filed a timely appeal.
STANDARD OF REVIEW
¶6 “Where a defendant was sentenced to more than one year of actual incarceration,
and therefore is eligible for sentence review, we review the sentence for legality only.”
State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114.
DISCUSSION
¶7 Whether the District Court erred when it concluded that State law imposes a 60-
year restriction on Olivares-Coster’s parole eligibility.
¶8 Olivares-Coster asserts that the District Court incorrectly concluded that his parole
eligibility would automatically be restricted for 60 years, because such a restriction is
precluded by § 46-18-222(1), MCA. He concedes no objection was raised at the trial
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level, but asserts that this Court can review his claim under State v. Lenihan, 184 Mont.
338, 602 P.2d 997 (1979). Under Lenihan, an appellate court may “review any sentence
imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds
statutory mandates, even if no objection is made at the time of sentencing.” Lenihan, 184
Mont. at 343, 602 P.2d at 1000; accord State v. Holt, 2011 MT 42, ¶ 35, 359 Mont. 308,
249 P.3d 470. The State agrees that Lenihan applies here. We will review Olivares-
Coster’s claim despite his failure to raise it at sentencing.
¶9 At the outset, the District Court’s oral pronouncement of sentence is inconsistent
with the written Judgment and Commitment. At sentencing, the District Court did not
orally impose a 60-year restriction on Olivares-Coster’s parole eligibility. Rather, the
District Court presumed that such a restriction automatically applied. Probation Officer
Lori Moore had testified at the sentencing hearing that if the District Court imposed a
life-sentence without any discretionary parole restriction, Olivares-Coster would be
eligible for parole in 30 years. Moore’s testimony was premised on § 46-23-201(4),
MCA, which provides, “[a] prisoner serving a life sentence may not be paroled under this
section until the prisoner has served 30 years.” The District Court, after discussing
whether the sentences on the three counts were to be consecutive or concurrent,
concluded, “and the result of that is the Defendant will be parole eligible in 60 years, if
my math is correct.” The District Court later explained, “the reason why I’m not
restricting his parole eligibility, first of all, 60 years down the road is a long time.”
¶10 In conflict, the District Court’s written Judgment and Commitment explicitly
states, “defendant shall be parole eligible after sixty (60) years of incarceration.” Where
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there is a discrepancy between the oral pronouncement of sentence and the written
judgment, the oral pronouncement controls. State v. Duncan, 2008 MT 148, ¶ 51, 343
Mont. 220, 183 P.3d 111; State v. Rennaker, 2007 MT 10, ¶ 48, 335 Mont. 274, 150 P.3d
960. Thus, the District Court’s oral pronouncement of sentence controls in this case.
¶11 The issue here is whether the District Court correctly concluded that Olivares-
Coster’s parole would be automatically restricted for 60 years. A district court’s
sentencing authority is constrained by statute. State v. Hicks, 2006 MT 71, ¶ 41, 331
Mont. 471, 133 P.3d 206. A district court does “not have the power to impose a sentence
unless authorized by a specific grant of statutory authority.” State v. Burch, 2008 MT
118, ¶ 23, 342 Mont. 499, 182 P.3d 66.
¶12 The District Court concluded that § 46-23-201(4), MCA, automatically restricted
Olivares-Coster’s parole. However, as Olivares-Coster points out, § 46-23-201(4), MCA,
conflicts with § 46-18-222(1), MCA. That section provides:
Exceptions to mandatory minimum sentences, restrictions on deferred
imposition and suspended execution of sentence, and restrictions on
parole eligibility. Mandatory minimum sentences prescribed by the laws
of this state, mandatory life sentences prescribed by 46-18-219, the
restrictions on deferred imposition and suspended execution of sentence
prescribed by 46-18-201(1)(b), 46-18-205, 46-18-221(3), 46-18-224, and
46-18-502(3), and restrictions on parole eligibility do not apply if:
(1) the offender was less than 18 years of age at the time of the commission
of the offense for which the offender is to be sentenced[.]
(Emphasis added.) Olivares-Coster was 17 years old at the time he committed the
offenses. Section 46-23-201(4), MCA, constitutes a restriction on parole eligibility. As
applied to juveniles, the statutes conflict. Section 46-23-201(4), MCA, generally applies
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a 30-year restriction on parole eligibility for a life sentence, but § 46-18-222(1), MCA,
denies the application of such a restriction to offenders under the age of 18.
¶13 The State argues § 46-18-222(1), MCA, should be interpreted based upon the
statutory scheme and legislative history. However, the language of § 46-18-222(1),
MCA is clear and unambiguous, and requires no further interpretation. Burch, ¶ 23.
¶14 We conclude that § 46-18-222(1), MCA, is more specific than § 46-23-201(4),
MCA, and controls in this case. “In situations where general and specific statutes exist
and the two cannot be harmonized to give effect to both, the specific statute controls.”
State v. Brendal, 2009 MT 236, ¶ 18, 351 Mont. 395, 213 P.3d 448; see Holt, ¶ 62; § 1-2-
102, MCA. Here, the specific language of § 46-18-222(1), MCA, referring to offenders
who are less than 18 years of age when their offenses are committed, takes precedence
over the general restriction on parole eligibility of § 46-23-201(4), MCA, rendering the
30-year restriction inapplicable to Olivares-Coster. Consequently, the District Court was
incorrect when it concluded that Olivares-Coster’s parole eligibility would be
automatically restricted pursuant to § 46-23-201(4), MCA. As there is no statutory
authority for the District Court’s conclusion that “[t]he defendant will be parole eligible
in 60 years,” this portion of Olivares-Coster’s sentence is illegal.
¶15 We next turn to the question of the proper remedy. In the past, this Court did not
employ a single rule “regarding the appropriate remedy for a partially illegal sentence. . .
.” State v. Heafner, 2010 MT 87, ¶ 9, 356 Mont. 128, 231 P.3d 1087. Rather, the Court
examined the “sentence and record to determine the appropriate remedy.” State v. Heath
2004 MT 58, ¶ 49, 320 Mont. 211, 89 P.3d 947. The Court generally “vacated or
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remanded with instructions to strike when the illegal portion of a sentence was a
condition of a suspended sentence or a sentence enhancement.” Heath, ¶ 49. On the
other hand, “remand for re-sentencing was the general practice where an illegal
sentencing provision ‘affected the entire sentence, or where we were unable to determine
what sentence the district court would have adopted had it correctly followed the law.’”
Heafner, ¶ 10 (quoting Heath, ¶ 49). These were hardly hard-and-fast rules, and the
disparate approaches resulted in unpredictable and inconsistent dispositions. Heafner, ¶¶
9-10.
¶16 In Heafner, we “determined that a consistent approach should be utilized” and
articulated a new standard:
[W]hen a portion of a sentence is illegal, the better result is to remand to the
district court to correct the illegal provision. Remand to give the district
court the opportunity to correct the illegal provision should be ordered
unless, under the particular circumstances of the case, the illegal portion of
the sentence cannot be corrected. If so, the case should be remanded to the
district court with instructions to strike the illegal conditions.
Heafner, ¶ 11; accord State v. Petersen, 2011 MT 22, ¶ 15, 359 Mont. 200, 247 P.3d 731.
This new standard strives for consistency, ultimately asking whether the illegal condition
is correctable, without recourse to the more amorphous approaches previously applied.
Olivares-Coster argues we should remand with an order to strike the offending language
in his written sentence. We agree.
¶17 In Heafner, the district court imposed parole conditions without statutory
authority. Heafner, ¶ 6. This Court remanded with an order to strike the illegal
conditions. Heafner, ¶ 13. In Petersen, the district court imposed an unlawful 10-year
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weapon enhancement. Petersen, ¶¶ 13, 16. This Court remanded with an order to strike,
concluding “we cannot remand for ‘correction’ of the court’s sentence enhancement, as
the enhancement was unlawful under the governing statutes.” Petersen, ¶ 16. Thus, the
determinative factor was that it was impossible to correct a sentence enhancement done
in the absence of statutory authority. Petersen, ¶¶ 13, 16.
¶18 Regarding, the dissent’s citation to State v. Guill, 2011 MT 32, 359 Mont. 225,
248 P.3d 826, the district court had imposed restitution, as authorized by § 46-18-201(5),
MCA, but failed to “specify the total amount of restitution that the offender shall pay.”
Guill, ¶ 52; § 46-18-244(1), MCA. While the district court had the authority to order
restitution, this Court remanded for correction so that the district court could hold further
proceedings to reach a specific dollar amount. Guill, ¶ 52. In contrast, here the District
Court lacked statutory authority to apply § 46-23-201(4), MCA, to Olivares-Coster.
Thus, Guill has no application here.
¶19 The dissent equates “correction” with allowing the District Court to consider
whether to impose discretionary parole eligibility restrictions. However, the District
Court explicitly declined to exercise such discretion. Section 46-18-202(2), MCA. We
should not speculate whether the District Court would have imposed a discretionary
parole restriction when in fact the District Court explicitly declined to do so in the oral
pronouncement of sentence.
¶20 Here, a 60-year restriction on Olivares-Coster’s parole eligibility pursuant to § 46-
23-201(4), MCA, was expressly prohibited by § 46-18-222(1), MCA. As in Heafner and
Petersen, remand for correction would be futile, as there is no way to correct
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unauthorized reliance on § 46-23-201(4), MCA. The proper remedy is remand to the
District Court with an order to strike the illegal restriction on Olivares-Coster’s parole
eligibility. Heafner, ¶ 11. Additionally, we decline the State’s invitation to remand for
re-sentencing so “the district court can decide whether to impose a discretionary parole
eligibility requirement.” The District Court already explicitly declined to impose any
discretionary parole eligibility restriction “in light of the defendant’s youth, to facilitate
his rehabilitation and to help effect positive conduct by him in prison.”
¶21 As we have held that the 60-year parole eligibility restriction, pursuant to § 46-23-
201(4), MCA, does not apply, there is no need to address Olivares-Coster’s other
arguments.
¶22 The Judgment and Commitment of the District Court is reversed to the extent it
provides that the “defendant shall be parole eligible after sixty (60) years of
incarceration.” Upon remand, the District Court shall strike this provision. In all other
respects, the sentence is affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
Justice James C. Nelson, specially concurring.
¶23 I join the Court’s Opinion, with the following caveat.
¶24 Underlying the District Court’s sentencing decision, and implicit in the arguments
in this appeal, is the assumption that the District Court had statutory authority to place a
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partial parole-eligibility restriction on Olivares-Coster’s sentence. In my view, this
assumption is mistaken.
¶25 As the Court states, a district court does not have the power to impose a sentence
unless authorized by a specific grant of statutory authority. Opinion, ¶ 11. As I have
argued previously, § 46-18-202(2), MCA, does not specifically grant a district court
authority to place conditions on parole eligibility or, more relevant to the present case, to
impose a partial restriction on parole eligibility. State v. Holt, 2011 MT 42, ¶¶ 45-46,
359 Mont. 308, 249 P.3d 470 (Nelson & Cotter, JJ., concurring in part and dissenting in
part). There is one—and only one—restriction authorized by this statute, as evidenced by
the statute’s repeated references to “the restriction.” And “the restriction” which the
statute authorizes is “the restriction that the offender is ineligible for parole . . . while
serving that term [of imprisonment]”—period. Either the offender is deemed ineligible
for parole while serving the term of imprisonment, or he is not. For this reason, I would
overrule State v. Kirkbride, 2008 MT 178, ¶ 18, 343 Mont. 409, 185 P.3d 340, and State
v. Bullman, 2009 MT 37, ¶ 34, 349 Mont. 228, 203 P.3d 768, both of which construed
§ 46-18-202(2), MCA, contrary to its plain language. Holt, ¶ 46 n. 2 (Nelson & Cotter,
JJ., concurring in part and dissenting in part).
¶26 In the present case, Olivares-Coster was less than 18 years of age at the time he
committed the offenses. As such, he is not subject to restrictions on parole eligibility.
Opinion, ¶ 12; § 46-18-222(1), MCA. Had Olivares-Coster been 18 years of age or older
at the time, then the District Court could have imposed the restriction that he would be
ineligible for parole for the entire term of his imprisonment. Section 46-18-202(2),
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MCA. But regardless of Olivares-Coster’s age, the District Court never had express
statutory authority to place a partial, 60-year restriction on Olivares-Coster’s parole
eligibility. Under the statutory scheme, a sentencing judge has express authority to say
that an inmate will never be parole eligible. Section 46-18-202(2), MCA. But that is the
extent of the judge’s authority. If the judge does not impose that restriction, then the
decision as to whether, when, and under what conditions an inmate becomes eligible for
parole is exclusively the prerogative of the parole board. Holt, ¶ 64 (Nelson & Cotter,
JJ., concurring in part and dissenting in part). Any suggestion to the contrary is, in my
view, incorrect.
¶27 With the foregoing caveat, I concur.
/S/ JAMES C. NELSON
Justice Patricia O. Cotter joins the Concurrence of Justice James C. Nelson.
/S/ PATRICIA COTTER
Justice Beth Baker, concurring in part and dissenting in part.
¶28 I concur with the Court’s conclusion that the thirty-year parole eligibility
restriction for life sentences contained in § 46-23-201(4), MCA, does not apply in this
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case because Olivares-Coster was less than eighteen years of age at the time the offense
was committed. Section 46-18-222(1), MCA, creates an explicit exception to statutory
restrictions on parole eligibility for offenders under eighteen at the time of the offense.
See Graham v. Florida, 130 S. Ct. 2011, 2036 (Appendix) and 2049 n. 6 (Thomas, J.,
dissenting) (2010) (both opinions pointing out that the Montana statute forbids life
without parole for juvenile offenders). In my view, the statutes do not conflict; rather,
§ 46-18-222(1), MCA, creates an explicit and unambiguous exception from § 46-23-
201(4), MCA. It is therefore unnecessary to apply the rules of statutory interpretation
under which a specific provision controls over a general provision where the two are
inconsistent. See Opinion, ¶ 14; § 1-2-102, MCA.
¶29 While I agree the District Court mistakenly assumed the statute requires a sixty-
year parole eligibility restriction in this case, I disagree with the remedy chosen by the
Court to correct the error. Consistent with Heafner, I would remand to the District Court
to correct the illegal provision of the sentence rather than simply to strike the illegal
condition.
¶30 In cases decided since Heafner, we have followed “the better result” of remanding
for the district court to “correct the illegal provision” of the sentence. In State v. Guill,
2011 MT 32, 359 Mont. 225, 248 P.3d 826, for example, we reversed the court’s
imposition of restitution where it had not reduced the obligation to a stated amount and
remanded for correction of “this illegal provision.” We allowed the court, on remand, to
conduct “such further proceedings as it deems appropriate” and to consider the relevant
facts and circumstances in determining a specified amount of restitution. Guill, ¶¶ 52-53.
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In State v. Lambert, 2010 MT 287, 359 Mont. 8, 248 P.3d 295, we noted that remand for
resentencing was appropriate because “[s]triking or vacating illegal conditions of a
sentence when they could be corrected on remand could eliminate conditions that support
important public policies such as protecting crime victims or rehabilitating the criminal.”
Lambert, ¶ 14, quoting Heafner, ¶ 12. Peterson, in contrast, involved an illegal
imposition of a ten-year weapon enhancement, when the State had not included the
weapon enhancement charge in the Information. Peterson, ¶ 13. Because the district
court had expressly accepted the parties’ plea agreement, but then erroneously appended
the ten-year enhancement, we remanded with instructions to strike the illegal portion of
the sentence. Peterson, ¶ 16.
¶31 In this case, the District Court undoubtedly had authority to impose a parole
eligibility restriction. See § 46-18-202(2), MCA; State v. Kirkbride, 2008 MT 178,
¶¶ 16-21, 343 Mont. 409, 185 P.3d 340. The restriction the court imposed is illegal
because of the court’s erroneous application of § 46-23-201(4), MCA. That is a
provision of the sentence that can be corrected. Heafner, ¶ 11.
¶32 As the Court observes, the sentencing court’s oral pronouncements control over
any discrepancy in the written judgment. See Duncan, ¶ 51. In explaining its reasons for
declining to impose any discretionary restriction on Olivares-Coster’s eligibility for
parole, the District Court assumed the statutory parole restriction would apply, stating,
“60 years down the road is a long time.” Given this explanation, I believe the sentencing
court should be given the opportunity to consider whether to impose any parole eligibility
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restriction at all. To the extent the Court limits the District Court to merely striking the
parole eligibility restriction on remand, I respectfully dissent.
/S/ BETH BAKER
Justice Jim Rice joins in the concurring and dissenting opinion of Justice Beth Baker.
/S/ JIM RICE
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