State v. Holt

March 11 2011

DA 10-0060

IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 42

STATE OF MONTANA,

Plaintiff and Appellee,

v.

BARRY K. HOLT,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DC 09-06
Honorable Blair Jones, 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; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana

Alex Nixon, Carbon County Attorney, Red Lodge, Montana

Submitted on Briefs: December 22, 2010

Decided: March 11, 2011

Filed:

__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Barry Holt appeals from his sentence following his guilty plea to a charge of

burglary under § 45-6-204, MCA. We affirm in part, reverse in part, and remand for

limited resentencing.

BACKGROUND

¶2 In the early morning hours of November 12, 2006, Holt looked into the windows

of a house and saw a 12-year-old girl asleep. He entered the house, went into the girl’s

bedroom, and tried to pull down her pants. The State charged Holt with burglary and

attempted sexual assault and trial on those charges commenced in July, 2009. After

completing the first day of trial, Holt and the State reached a plea agreement in which

Holt agreed to plead guilty to burglary. The State agreed to dismiss the charge of

attempted sexual assault and to withdraw its request that Holt be designated a persistent

felony offender. The parties agreed to recommend a ten-year sentence to the Montana

State Prison with no parole restrictions, to run concurrently with the sentence imposed in

a separate case against Holt in which he was charged with failure to register as a sex

offender. Holt’s attorney explained the agreement:

Our understanding of the agreement is that Mr. Holt will plead guilty in this
matter, DC 09-06, to burglary. And he will admit in his allocution that he
entered the [M] residence without permission with the intent to commit
misdemeanor assault by touching [K. M.] in a provoking or insulting
manner.

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At the change-of-plea hearing Holt testified that he entered the residence without

permission with the intent to commit an assault against the victim K. M. Holt entered a

guilty plea to the burglary charge and the District Court accepted the changed plea.

¶3 In 1992 Holt was convicted of sexual battery of a minor in Louisiana. Like the

2006 incident in Montana, the Louisiana offense involved Holt’s entering a house and

touching a young girl. Holt moved to Montana in 1998 and lived under the alias of Jack

White until he was arrested for the burglary and attempted sexual assault charges in 2006.

He never registered as a sex offender after moving to Montana as required by § 46-23-

504(1)(c), MCA. The State charged him with failure to register, and he was found guilty

after a bench trial. In June, 2009, the District Court ordered a psychosexual evaluation.

¶4 In November, 2009, the District Court conducted a sentencing hearing on both the

burglary conviction and the conviction for failure to register. The District Court first

considered the burglary conviction and informed the parties that it intended to depart

from the plea agreement because the psychosexual evaluation indicated that Holt was a

high risk to re-offend and that he should be designated as Level III sex offender. The

District Court therefore determined that Holt should be required to complete sex offender

treatment in prison as a condition of parole eligibility. Since this was a deviation from

the plea agreement in which the parties had agreed that there would be no restrictions on

parole eligibility, the District Court gave Holt the opportunity to withdraw his guilty plea

to burglary. Holt declined to withdraw the guilty plea to the burglary and expressed his

desire to continue with the sentencing. Accordingly, the District Court sentenced Holt to

ten years at the Montana State Prison for the burglary conviction in accordance with the

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plea agreement. The District Court also designated Holt as a Level III sex offender and

conditioned parole eligibility on the burglary sentence upon completion of sex offender

treatment.

¶5 The District Court then sentenced Holt to five years at Montana State Prison on

the conviction for failure to register as a sex offender, to run concurrently with the

burglary sentence. The District Court’s sentence for failure to register also designated

Holt as a Level III sex offender and conditioned release upon completion of sex offender

treatment.

¶6 On appeal, Holt contends that it was illegal for the District Court to designate him

a Level III sex offender or to condition parole eligibility for the burglary conviction upon

completion of sex offender treatment. Holt does not appeal the Level III sexual offender

designation or the sex offender treatment condition imposed in the sentence for the

failure to register as a sex offender.

STANDARD OF REVIEW

¶7 This Court generally reviews a criminal sentence longer than one year for legality

only; that is, whether it falls within the statutory parameters. State v. Hernandez, 2009

MT 341, ¶ 3, 353 Mont. 111, 220 P.3d 25. We review the reasonableness of conditions

or restrictions imposed in a sentence under § 46-18-202, MCA, for abuse of discretion, if

the conditions are objected to at sentencing. Id.; State v. Hafner, 2010 MT 233, ¶ 13, 358

Mont. 137, 243 P.3d 435.

DISCUSSION

¶8 Holt pled guilty to burglary which is defined by statute:

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 A person commits the offense of burglary if the person knowingly
enters or remains unlawfully in an occupied structure and:
(a) the person has the purpose to commit an offense in the occupied
structure; or
(b) the person knowingly or purposely commits any other offense
within that structure.

Section 45-6-204(1), MCA. In this case, the other offense that Holt committed or

intended to commit during the burglary was an assault on a minor female. Holt and his

attorney represented to the District Court that Holt “entered the [M] residence without

permission with the intent to commit misdemeanor assault by touching [K. M.] in a

provoking or insulting manner.”

¶9 The District Court made the following findings at the November 24, 2009

sentencing hearing:

Now, let me say this then, because there’s additional concern, I have
the presentence report prepared by the Department of Corrections together
with this psychosexual evaluation conducted by Dr. Bakko in this matter.

Based upon that information, the defendant is going—there would
be evidence to suggest that the defendant should be designated a risk Level
III, which is the highest level risk to sexually re-offend. Because of that,
the Court is going to require as a prior condition of parole, that the
defendant undergo sex offender treatment Phases I and II before being
eligible for parole.

. . .

But the psychosexual evaluation, frankly, leaves me no alternative,
in my mind, in protecting the community but to require that treatment as a
necessary part of the sentence in this case.

. . .

All right. As the Court has indicated on the record, it is going to
deviate from the plea agreement in one respect and that’s related to the
requirement for the sexual offender treatment.

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 . . .

I’ll have to say that the psychosexual evaluation that the Court has
received gives me great pause in this case. There’s been a number of
previous instances, as far as criminal conduct in the past, Mr. Holt, that
makes the Court very concerned, especially if you remain untreated, that
you will ever get a handle on the sexual problems that you have. And
clearly, you have them. And, you know, for your own sake, at least, you
need to enroll in and get as much out of these programs as you possibly
can. I hope you will do that out of a sense of common decency and a desire
to benefit yourself in some respects.

. . .

The statute also requires that the Court give reasons for any
restrictions of parole eligibility. The reasons are that pursuant to the
psychosexual evaluation, the defendant is the highest risk level to reoffend
sexually. Therefore, there is a huge need for the defendant to undergo the
sexual offender treatment Phases I and II in order to protect society.
Frankly, if he doesn’t undergo that treatment, there’s little hope that the
Court can protect society once he is out.

Moreover, the defendant’s past criminal conduct would indicate that
parole restriction based upon the need for treatment is wholly consistent
with the protection of society and protecting future, innocent victims.

In addition, it’s important that the defendant undergo this sexual
offender treatment for his own rehabilitative purposes. So not only does
this restriction serve to protect society, but it serves to provide some
rehabilitative treatment for this defendant.

¶10 The record demonstrates that Holt acquiesced in and did not object to the sex

offender treatment condition of his burglary sentence as it was explained by the District

Court. Therefore, Holt cannot complain about that condition on appeal. A condition of a

sentence is reviewed for reasonableness only if the defendant objects at the time of

sentencing. Hernandez, ¶ 3.

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¶11 As noted, Holt entered a guilty plea on the burglary charge, and was separately

convicted after a bench trial of the failure to register charge. At the sentencing hearing

the District Court first considered the sentence on the burglary charge. (“At this time the

Court calls Cause No. DC 09-06.”) The District Court and the parties first resolved

Holt’s prior pro se motion to withdraw the guilty plea to the burglary. Holt was

questioned and withdrew the motion to withdraw the guilty plea so that they could

“proceed with sentencing.” The District Court then informed the parties of the

conclusion that, based upon the psychosexual evaluation completed as part of the

presentence investigation, Holt should be designated a Level III sex offender, and should

be required to successfully complete sexual offender treatment prior to eligibility for

parole. Otherwise the District Court intended to follow the plea agreement.

¶12 The District Court informed Holt that this deviation from the plea agreement

provided him the opportunity to withdraw his guilty plea to the burglary charge. The

Court stated: “So I’ve articulated that so the defendant can know that and if he wishes to

withdraw his plea on that basis, I’m affording him that opportunity at this time. … So if

that is not acceptable I need to know that right now.” Holt’s attorney did not request to

withdraw the guilty plea and did not object to the imposition of the treatment condition.

Holt’s attorney stated that Holt understood that the wording of the condition—whether

sex offender treatment were a condition of release or of a condition for parole

eligibility—would affect how quickly he could enter treatment once in prison.

¶13 There followed an extended discussion of the wording of the sexual offender

treatment condition that ultimately involved the District Court, a probation officer, Holt’s

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attorney, and Holt himself. Holt expressed his belief that the sex offender treatment

condition was beneficial to him because it would lessen the chance of his being “shipped

off to any county lockup with no treatment” instead of remaining in a larger facility like

the Montana State Prison. Holt explained his understanding, based on information from

other inmates at the Yellowstone County Detention Center, that he would be accepted

into the treatment program and could complete it more quickly if the treatment were a

condition of release, not a condition of parole.

¶14 After listening to arguments over whether the wording of the condition affected

how quickly Holt could enter sex offender treatment, the District Court stated:

So it would be my preference I’ll just indicate that he will not be parole
eligible until he’s entered and completed Phases I and II of sexual offender
treatment. That’s what I anticipate doing. So the question for Mr. Holt is
whether he wished to go forward with that understanding.

The Defendant: Yes, your Honor.

There was then additional discussion on the issue of whether the wording of the treatment

condition had any practical effect. At the end of that discussion Holt stated: “Yes, Your

Honor. I’ll bend on that and I’ll say yes. Okay. I will go through the treatment. I want

to have incentive to do it.”

¶15 The District Court then stated once again:

So I guess the question is, do we proceed under the basis that I’m going to
indicate that he’ll have to complete these [sex offender treatment] phases
before he’s eligible for parole. Do you wish to proceed [with sentencing]
Mr. Holt?

The Defendant: Yes, sir.

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It is abundantly clear that Holt declined multiple opportunities to withdraw from the

guilty plea agreement and that he agreed to imposition of the sexual offender treatment as

a condition to the burglary charge.

¶16 Holt argues on appeal that he was confused at the time of sentencing and believed

that the treatment condition would only apply to the conviction for failure to register as a

sex offender. That contention is not supported by the record. The record demonstrates

that the District Court considered the burglary sentence first; that Holt and his attorney

knew that the discussion involved sex offender treatment for the burglary conviction; and

that the District Court moved on to the separate sentence for failure to register only after

the burglary sentence was announced and concluded.

¶17 Holt made no legal objection to the sex offender treatment at sentencing, which

precludes appellate review of whether the condition was improper, unreasonable, or an

abuse of discretion. Hernandez, ¶ 3; State v. Kotwocki, 2007 MT 17, ¶ 8, 335 Mont.

344, 151 P.3d 892; State v. Ashby, 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164;

State v. Stiles, 2008 MT 390, ¶ 14, 347 Mont. 95, 197 P.3d 966. Moreover, Holt did not

simply refrain from objecting, he affirmatively agreed to having the sex offender

treatment condition placed in his sentence for burglary. “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 (defendant agreed to a

condition during sentencing hearing). “Acquiescence in error takes away the right of

objecting to it.” Section 1-3-207, MCA.

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¶18 Holt next argues that the District Court improperly imposed a condition that he

register as a sexual offender as part of the burglary sentence. The District Court did not

impose any registration requirement as part of the burglary sentence. The only reference

to registration is in the District Court’s list of recommendations “[s]hould the Defendant

be released on parole. . . .” A district court may make recommendations to be considered

by the Board of Pardons and Parole if parole is granted. Heafner, ¶ 6.

¶19 The registration requirement was actually only one of the District Court’s

recommendations in this case. The burglary sentence provided: “If the Defendant is

convicted of a crime listed in § 46-23-502(9), MCA, he must register as a sex offender.”

This is nothing more than a true statement of the cited statute, which requires registration

upon conviction of one of the listed crimes. Sections 46-23-503 and -504, MCA. It

would be true whether or not the District Court recommended it. Holt was already

subject to sex offender registration as a matter of law based upon his prior conviction in

Louisiana, his failure to register upon moving to Montana, and his conviction for failure

to register. The sentence was not invalidated in any way by the reference to the

registration requirement.

¶20 Finally, Holt argues that the District Court improperly designated him as a Level

III sex offender. He relies upon § 46-18-207, MCA, which he contends allows a court to

designate a sexual offender level only upon sentencing for “a sexual offense as defined in

46-23-502. . . .” Since burglary is not a defined sexual offense, Holt argues that the

District Court lacked the power to designate an offender level in connection with that

offense. We agree.

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¶21 Prior to sentencing a person convicted of a defined sexual offense, the district

court must receive recommendations from the Department of Corrections or a sexual

offender evaluator of the appropriate sexual offender level designation. Section 46-23-

509(2), MCA. Upon sentencing, the district court must review that recommendation and

other relevant material and designate the offender as Level I, II or III. Section 46-23-

509(3), MCA. Since the burglary conviction under consideration was not a “sexual

offense” as defined in § 46-23-502, MCA, the District Court should not have attached a

sexual offender level designation to Holt as part of the sentence for burglary.

¶22 The sentence imposed by the District Court is affirmed except as to the Level III

sex offender designation in the burglary sentence. This matter is hereby remanded to the

District Court solely for the purpose of striking the Level III sex offender designation in

the sentence for burglary.

/S/ MIKE MCGRATH

We concur:

/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE

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Justice James C. Nelson, concurring in part and dissenting in part.

¶23 I concur with the Court’s conclusion that the District Court’s recommendation to

the parole board, that Holt be required to register as a sexual offender if granted parole, is

legal. Opinion, ¶¶ 18-19. I also concur with the Court’s conclusion that the Level 3

sexual offender designation in Holt’s burglary sentence is illegal. Opinion, ¶¶ 20-21.

¶24 I dissent, however, from the Court’s resolution of Holt’s challenge to the sexual

offender treatment condition on his parole eligibility. Opinion, ¶¶ 10-17. Holt

challenges this condition as illegal; and for the reasons discussed below, I conclude that

he is correct, as there is no statutory authority for it. I therefore would reverse and

remand for resentencing. I dissent from our contrary decision.

I. Whether Holt’s Sentencing Claim May Be Reviewed on Appeal

¶25 At the outset, there is some question as to whether Holt preserved for appellate

review his challenge to the parole-eligibility condition. As a general rule, a party may

raise on appeal only those issues and claims that were properly preserved through timely

objection in the trial court. State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d

683. A review of the November 24, 2009 sentencing hearing transcript reveals that the

District Court first sentenced Holt on the burglary conviction and then sentenced him on

the failure-to-register conviction. The main discussion relating to the sexual offender

treatment condition took place during the first half of the sentencing hearing. And, as the

Court notes, Holt raised no objection to the condition at that time.

¶26 But there are certain other facts which militate against the conclusion that Holt

waived this issue. First, the sexual offender treatment condition was not part of the plea

12
agreement. The District Court decided to add the condition only after receiving the

psychosexual evaluation. Second, at the July 27, 2009 change-of-plea hearing, during the

parties’ verbal explanation of their plea agreement to the District Court, the State made

the following representation:

The only thing I would like to put on the record is that for the failure
to register conviction, it is my understanding that he will undergo a
psychosexual evaluation and the State at the time of sentencing will be
asking that the defendant—that the Court order that the defendant follow all
of those treatment recommendations as part of his judgment in that case.
[Emphases added.]

Third, at the sentencing hearing, the court referred to these “previous discussions” in

explaining why it had decided to impose a sexual offender treatment condition on Holt’s

sentence despite the fact that this condition had not been a part of the plea agreement.

This certainly could lead one to understand that the court intended to place the condition

on the failure-to-register sentence, as opposed to the burglary sentence, in accordance

with the prosecutor’s representation during the “previous discussions.”

¶27 Given these facts, the lack of a contemporaneous objection to the sexual offender

treatment condition is not as clear-cut as the Court implies. On the record before us, and

as a purely factual matter, I am unwilling, as the Court does, to leap to the conclusion that

Holt “acquiesced” in the imposition of the condition on his burglary sentence.

¶28 But more importantly, as a legal matter, I strenuously disagree with this Court’s

continuing policy of allowing the courts of this state to impose unauthorized sentences if

a defendant “acquiesces” in the illegality. See State v. Walker, 2007 MT 205, ¶¶ 30-40,

338 Mont. 529, 167 P.3d 879 (Nelson & Warner, JJ., concurring in part and dissenting in

13
part); State v. Clark, 2008 MT 391, ¶¶ 45-47, 347 Mont. 113, 197 P.3d 977 (Nelson, J.,

specially concurring). This whole line of authority, which started with State v. Micklon,

2003 MT 45, 314 Mont. 291, 65 P.3d 559, is legally untenable, not to mention downright

ridiculous.

¶29 It is one thing to acquiesce in an “error,” which “takes away the right of objecting

to it.” Section 1-3-207, MCA. But it is quite another to acquiesce in an “illegality.” The

Court’s acquiescence policy treats these as the same, but they are not. A party may

acquiesce in a trial court’s misapplication of the hearsay rules, or its provision of flawed

instructions to the jury, or its reliance on misinformation when imposing sentence. But a

party cannot acquiesce in a court’s exercise of power that it does not have.

¶30 This much is clear from our statement, in case after case after case, that a court

which lacks jurisdiction cannot acquire it by consent of the parties. Stanley v. Lemire,

2006 MT 304, ¶ 31, 334 Mont. 489, 148 P.3d 643.1 The reason is that a court’s

jurisdiction—its power and authority to hear and decide the matter before it—is conferred

“only by the Constitution or statutes adopted pursuant to the Constitution.” Stanley,

¶¶ 30, 52; accord Pena v. State, 2004 MT 293, ¶ 21, 323 Mont. 347, 100 P.3d 154.

1
Accord In re Marriage of Miller, 259 Mont. 424, 427, 856 P.2d 1378, 1380
(1993); State v. Tweedy, 277 Mont. 313, 315, 922 P.2d 1134, 1135 (1996); In re
Marriage of Skillen, 1998 MT 43, ¶ 10, 287 Mont. 399, 956 P.2d 1; State v. Boucher,
2002 MT 114, ¶ 12, 309 Mont. 514, 48 P.3d 21; Harris v. Smartt, 2003 MT 135, ¶ 11,
316 Mont. 130, 68 P.3d 889; Noonkester v. Mont. State Fund, 2006 MT 169, ¶ 24, 332
Mont. 528, 140 P.3d 466; Miller v. Eighteenth Jud. Dist. Court, 2007 MT 149, ¶ 44, 337
Mont. 488, 162 P.3d 121; Thompson v. State, 2007 MT 185, ¶ 28, 338 Mont. 511, 167
P.3d 867; Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 16, 340 Mont. 217, 172 P.3d
1273; Indian Health Bd. of Billings v. Dept. of Labor & Indus., 2008 MT 48, ¶ 20, 341
Mont. 411, 177 P.3d 1029; Davis v. State, 2008 MT 226, ¶ 20, 344 Mont. 300, 187 P.3d
654; BNSF Ry. Co. v. Cringle, 2010 MT 290, ¶ 15, 359 Mont. 20, ___ P.3d ___.
14
¶31 Likewise, we have uniformly held that courts “do not have the power to impose a

[criminal] sentence unless authorized by a specific grant of statutory authority.” State v.

Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66; accord State v. White, 2008 MT

464, ¶ 22, 348 Mont. 196, 199 P.3d 274; State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont.

471, 133 P.3d 206; State v. Ruiz, 2005 MT 117, ¶ 12, 327 Mont. 109, 112 P.3d 1001;

Pena, ¶ 24; State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. Indeed, it

is well established that a court’s “authority to impose a criminal sentence is defined and

constrained by statute” and that “[a] sentence not based on specific statutory authority is

an illegal sentence.” White, ¶ 22; accord Hicks, ¶ 41; Ruiz, ¶ 12; Pena, ¶ 24.

¶32 In Pena, we distinguished between an “error” in sentencing and an outright lack of

“power” to impose a sentence. We said: “Whether a district court commits a statutory

error in imposing a sentence must not be confused with the question of whether the court

had the ‘power’ or ‘capacity’ to impose the sentence in the first instance. An error in

sentencing does not divest a district court of subject matter jurisdiction over the case

before it.” Pena, ¶ 22.

¶33 The point is that this whole notion of “acquiescence” in illegal sentences is totally

devoid of any legal foundation. To be sure, a defendant can “acquiesce” in an “error”

committed in the process of imposing sentence, which generally means (absent plain

error review) that he cannot obtain review of it on appeal. But there is no way that a

defendant can “acquiesce” in a sentence which a court does not have legal authority to

impose. A party can no more acquiesce in a court’s exercise of nonexistent sentencing

authority than a party can acquiesce in a court’s exercise of nonexistent jurisdiction. This

15
principle is self-evident and irrefutable, and the Court does not even attempt to refute it.

Rather, the Court simply ignores it.

¶34 In State v. Evert, 2004 MT 178, 322 Mont. 105, 93 P.3d 1254, the prosecutor,

Evert (through counsel), and the district court all agreed to resentence Evert five years

after his original, final, and legal sentence was pronounced—though the court lacked

authority to do so. In going forward with the patently illegal sentencing proceeding, the

prosecutor candidly acknowledged on the record:

“[B]y statute and by numerous rulings by the Supreme Court, . . . a district
court judgment, once it has been passed, is basically set in stone. However,
it’s always been my practice—and also been the practice of this Court—
that if a Defendant who has previously been sentenced appears before either
myself or you and shows good cause as to why his sentence should be
amended, generally mitigated, we don’t object to that. We don’t hold firm
to the technicalities of the statute or the Supreme Court rulings.”

Evert, ¶ 6 (emphasis added). Rightly, the Evert Court was appalled:

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. No court
or officer of the court has the prerogative of circumventing or modifying
the procedures established by law.

Evert, ¶ 19 (emphasis added). We only promote such disregard for the “technicalities” of

the law when we ignore the law ourselves and allow “acquiescence” in an illegal act to

preclude appellate review.

¶35 In State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), this Court observed that

“[t]he sentencing authority of a court exists solely by virtue of a statutory grant of power

16
and therefore cannot be exercised in any manner not specifically authorized.” Id. at 342,

602 P.2d at 1000 (internal quotation marks omitted). We accordingly held that “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.” Id. at 343, 602 P.2d at 1000 (emphasis added); accord West, ¶ 19;

State v. Southwick, 2007 MT 257, ¶¶ 21-23, 339 Mont. 281, 169 P.3d 698; State v.

Kotwicki, 2007 MT 17, ¶ 18, 335 Mont. 344, 151 P.3d 892; State v. Garrymore, 2006 MT

245, ¶¶ 10-15, 334 Mont. 1, 145 P.3d 946.

¶36 For these reasons, the Court’s assertion that Holt’s supposed “acquiescence” in the

sexual offender treatment condition precludes him from raising it on appeal is flat wrong.

Opinion, ¶ 10. It is true that he may not challenge the “reasonableness” of the condition,

Opinion, ¶ 10, or obtain review of whether the condition is “improper, unreasonable, or

an abuse of discretion,” Opinion, ¶ 17. Indeed, our precedents are well settled on this

point: failure to object at sentencing precludes review of the reasonableness of the

sentence. State v. Ashby, 2008 MT 83, ¶¶ 9, 22, 342 Mont. 187, 179 P.3d 1164; State v.

Stiles, 2008 MT 390, ¶ 14, 347 Mont. 95, 197 P.3d 966. But, similar to the distinction we

drew in Pena between an “error” in sentencing and an outright lack of “power” to impose

a sentence, we made clear in Ashby that there is a difference between an objectionable

sentence and an illegal one; and while the former is not reviewable in the absence of a

contemporaneous objection, the latter is. Ashby, ¶ 22 (“[I]n the event an illegal, rather

than objectionable, condition is not challenged contemporaneously, we will continue to

review such challenge on appeal under [Lenihan].”).

17
¶37 Holt is not challenging the reasonableness of the parole-eligibility condition. He

is challenging its legality. See e.g. Br. of Appellant at 4 (“The court erred and exceeded

its statutory authority in sentencing Mr. Holt for burglary by requiring him to . . .

complete sex offender treatment . . . .”); id. at 8 (“The unlawful sentencing provisions on

the burglary conviction that require Mr. Holt to . . . complete sex offender treatment in

MSP . . . must be stricken from the burglary sentence.”). Thus, we should be determining

whether that condition is statutorily authorized. The Court errs in failing to do so.

¶38 My ensuing discussion proceeds as follows. I first review the standards for

determining whether a term or condition of sentence is statutorily authorized. I then

address whether there is statutory authority for the sexual offender treatment condition on

Holt’s parole eligibility. Lastly, I express my concern with the State’s argument in

support of the Level 3 sexual offender designation in Holt’s burglary sentence.

II. Standards for Sentencing Authority

¶39 We have said that district courts are afforded “broad discretion” in criminal

sentencing. State v. Herd, 2004 MT 85, ¶ 18, 320 Mont. 490, 87 P.3d 1017; see also

State v. Hernandez, 2009 MT 341, ¶¶ 14-15, 353 Mont. 111, 220 P.3d 25 (McGrath, C.J.,

specially concurring) (explaining why “[s]entencing discretion by necessity must be very

broad”). However, we have also cautioned that this broad discretion “is not without

limitation.” Herd, ¶ 18; accord State v. Zimmerman, 2010 MT 44, ¶ 17, 355 Mont. 286,

228 P.3d 1109 (“The broad discretion granted to district courts to impose sentencing

conditions is not without limit.”). The reason is that “[a] district court’s authority in

sentencing a criminal defendant is defined and constrained by statute, and the court has

18
no power to impose a sentence in the absence of specific statutory authority.” Hicks,

¶ 41. Hence, while a district court has broad discretion in imposing sentence, that

discretion must first be “conferred by a legislature” and must then be “exercise[d] . . .

within a statutory range.” Garrymore, ¶ 29 (internal quotation marks omitted).

¶40 Authority to impose a particular sentence cannot be inferred. To the contrary, we

have emphasized that a term of sentence must be “specifically and explicitly” authorized

by “a specific grant of statutory authority.” Burch, ¶¶ 23, 36 (emphasis added). Also, we

have acknowledged the fundamental canons of statutory construction which state that

[i]n interpreting such statutes [governing a sentencing judge’s authority to
impose a sentence], our role “is simply to ascertain and declare what is in
terms or in substance contained therein, not to insert what has been omitted
or to omit what has been inserted. Where the plain language of the statute
is clear and unambiguous, no further interpretation is required.”

Burch, ¶ 23 (quoting State v. Kroll, 2004 MT 203, ¶ 17, 322 Mont. 294, 95 P.3d 717).

¶41 Correspondingly, we have rejected the notion of “residual” sentencing authority.

See e.g. Burch, ¶¶ 22-36. Likewise, we have rejected the proposition that sentencing

authority is inherent. In White, for example, we observed that

the State approaches this issue from the wrong perspective, asking whether
the statute “limits” the court’s sentencing authority. District courts do not
have inherent authority to impose criminal sentences except as “limited”
by statute. To the contrary, it is well-established that . . . a district court
has no power to impose a sentence in the absence of specific statutory
authority.

White, ¶ 22 (emphasis added).

¶42 In short, the threshold question in all cases involving a challenge to a term or

condition of sentence is whether that term or condition is “specifically and explicitly”

19
authorized by a “specific grant” of statutory authority. The question whether the district

court abused its discretion, or whether the term or condition is reasonable, does not enter

into the analysis until a specific grant of authority to impose the term or condition has

been located somewhere in the Montana Code Annotated. Cf. Burch, ¶ 29 (“[A] district

court’s authority is determined by statute, not administrative rule.”).

¶43 From the oral pronouncement of sentence, it appears that the District Court relied

on § 46-18-202(2), MCA, as authority for the sexual offender treatment condition. The

State also cites this statute, plus two others: § 46-18-201(4)(o) and § 46-18-202(1)(f),

MCA. None of these statutes, however, contains a “specific grant” of authority for a

sentencing judge to impose conditions on a prisoner’s parole eligibility.

III. Sections 46-18-201(4)(o) and -202(2), MCA

¶44 First, § 46-18-201(4)(o), MCA, states that the sentencing judge may impose upon

the offender any “reasonable restrictions or conditions considered necessary for

rehabilitation or for the protection of the victim or society.” But the statute authorizes

such restrictions or conditions “[w]hen deferring imposition of sentence or suspending all

or a portion of execution of sentence.” Section 46-18-201(4), MCA. And the restrictions

or conditions apply “during the period of the deferred imposition or suspension of

sentence.” Id. (emphasis added). The statute does not grant authority to impose

restrictions or conditions on anything but deferred and suspended sentences.

¶45 Second, § 46-18-202(2), MCA, states:

Whenever the sentencing judge imposes a sentence of imprisonment
in a state prison for a term exceeding 1 year, the sentencing judge may also
impose the restriction that the offender is ineligible for parole and

20
 participation in the supervised release program while serving that term. If
the restriction is to be imposed, the sentencing judge shall state the reasons
for it in writing. If the sentencing judge finds that the restriction is
necessary for the protection of society, the judge shall impose the
restriction as part of the sentence and the judgment must contain a
statement of the reasons for the restriction. [Emphases added.]

¶46 Nothing in this language specifically and explicitly authorizes the imposition of

conditions on parole eligibility. The statute does not say that the sentencing judge may

impose “the restriction that the offender is ineligible for parole unless the offender does

X, Y, and Z.” Nor does the statute permit the sentencing judge to impose restrictions

(plural) on parole eligibility. 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. To

place conditions on that eligibility is to impose a restriction different from the one

restriction that is specifically and explicitly authorized by the statute. It goes further than

the statute allows and impinges upon the authority of the parole board.2 See ¶¶ 34-36,

infra.

¶47 In sum, neither § 46-18-201(4)(o) nor § 46-18-202(2), MCA, contains a specific

grant of authority for judges to impose restrictions or conditions on parole eligibility.

2
I therefore would overrule State v. Bullman, 2009 MT 37, ¶ 34, 349 Mont. 228,
203 P.3d 768, and State v. Kirkbride, 2008 MT 178, ¶ 18, 343 Mont. 409, 185 P.3d 340,
which construed § 46-18-202(2), MCA, contrary to its plain language. Again, the statute
authorizes one, and only one, restriction: “the restriction that the offender is ineligible for
parole . . . while serving that term [of imprisonment].”
21
 IV. Section 46-18-202(1)(f), MCA

¶48 Section 46-18-202(1)(f), MCA, authorizes the sentencing judge to impose on an

offender’s sentence any “limitation reasonably related to the objectives of rehabilitation

and the protection of the victim and society.” In Burch, we held that this statute does not

provide a general authority to impose conditions relating to parole. Reading the statute to

authorize conditions on parole eligibility would thus be contrary to this precedent. It

would also be contrary to the Legislature’s intent that the parole board exercise exclusive

dominion over parole matters except where sentencing judges have been given specific

and explicit authority to intrude into that arena. I address these two points in turn.

A. Burch

¶49 In Burch, we considered whether the district court had authority to impose

conditions on Burch’s parole. Burch argued that sentencing judges are not generally

authorized to impose parole conditions in the absence of express statutory authority.

Burch, ¶ 16. The State, however, argued that conditions on parole are lawful because

parole is statutorily defined as “the release to the community of a prisoner . . . prior to the

expiration of the prisoner’s term.” Section 46-23-1001(3), MCA. In other words, the

State reasoned that because the term of parole is within the sentence originally imposed

by the sentencing judge, the judge has the authority to impose parole conditions on a

defendant who the judge has sentenced. The State cited § 46-18-202(1), MCA, as the

statutory basis for the judge to impose such conditions. Burch, ¶¶ 17-18.

¶50 We rejected this reasoning. We began with the well-established rule that “district

courts do not have the power to impose a sentence unless authorized by a specific grant

22
of statutory authority.” Burch, ¶ 23. We then analyzed the language of § 46-18-202(1),

MCA, and observed that this provision “gives sentencing judges the statutory authority to

impose the restrictions and conditions listed in subsections (1)(a) through (f) of the

statute, ‘on the sentence provided for in 46-18-201 . . . .’ In other words, the sentencing

authority of sentencing judges is constrained and defined by § 46-18-201, MCA.” Burch,

¶ 24 (ellipsis in original, emphasis added, citation omitted). We therefore turned to the

language of § 46-18-201, MCA. We observed that this provision lists the types of

sentence that may be imposed and gives sentencing judges authority to defer imposition

of sentence, to suspend execution of sentence, to impose reasonable restrictions or

conditions on the period of deferment or suspension, to impose restitution, and to suspend

driving privileges. But we further observed that not a single subsection of this statute

authorizes a sentencing judge to impose conditions on parole. Burch, ¶ 25.

¶51 We accordingly rejected the State’s theory that § 46-18-202(1)(f), MCA, provides

a general authority to impose parole conditions. We held that “sentencing judges have

only the power to impose those parole conditions which are specifically and explicitly

authorized by statute. Sentencing judges do not have a residual or inherent authority

under Title 46, Chapter 18, Part 2, to generally impose parole conditions.” Burch, ¶ 36.

Thus, because there was no specific grant of authority for any (except one) of the parole

conditions at issue, we held that those conditions could not be imposed on Burch’s parole

by the district court. Burch, ¶¶ 30-31, 36. We acknowledged this rule and reaffirmed it

in State v. Heafner, 2010 MT 87, ¶¶ 5-6, 356 Mont. 128, 231 P.3d 1087. We stated: “It

is clear that except as to those specific conditions authorized by statute, the District Court

23
did not have the power to impose conditions upon a future parole that might be granted to

Heafner.” Heafner, ¶ 6 (emphasis added).

¶52 Under Burch, then, judges lack authority to impose conditions to be met during

parole, and the question here is whether judges have authority to impose conditions to be

met before parole will be allowed. There is no language in § 46-18-201 or

§ 46-18-202(1), MCA, supporting such a distinction between conditions to be met during

parole and conditions to be met before parole may be granted. The fact is that neither one

of these statutes specifically and explicitly authorizes a judge to impose conditions on

parole—whether the conditions are to be met before parole or during parole.3

¶53 Again, § 46-18-202(1), MCA, “cannot provide any greater sentencing authority

than is provided for in § 46-18-201, MCA.” Burch, ¶ 26. Turning to § 46-18-201, MCA,

there is authority for the sentencing judge to impose a term of incarceration, to defer

imposition of sentence, to suspend execution of sentence, to impose reasonable

restrictions or conditions on the period of deferment or suspension, to impose restitution,

and to suspend driving privileges. But there is no authority anywhere in the statute for

the judge to grant parole, to restrict parole, or to place conditions on parole or parole

eligibility. As a matter of fact, § 46-18-201, MCA, says nothing whatsoever about

parole—as we already determined in Burch, ¶¶ 25-26.

3
Admittedly, this conclusion is in tension with our decision in State v. Marshall,
2007 MT 218, ¶¶ 18-22, 339 Mont. 50, 170 P.3d 923, where we upheld a sexual offender
treatment condition on the defendant’s parole eligibility. However, we did not consider
in that case the question whether sentencing judges have authority to impose conditions
on parole eligibility. We simply assumed that such authority existed under
§ 46-18-202(1)(f), MCA—an invalid assumption after Burch.
24
¶54 While parole may be within (or a part of) a term of incarceration because it occurs

prior to the expiration of the prisoner’s term (as the State argued in Burch), this fact did

not persuade us in Burch that the judge has authority to place conditions on the parole.

Equally so, the fact that parole may be within (or a part of) a term of incarceration does

not mean that the judge has authority to place conditions on the prisoner’s eligibility for

that parole. Sentencing authority must be specifically and explicitly granted; it may not

be inferred. Sections 46-18-201 and -202(1), MCA, do not contain a specific and explicit

grant of authority to sentencing judges to impose conditions on parole eligibility.

B. The Parole Board

¶55 Even assuming, for the sake of argument, that § 46-18-202(1)(f), MCA, could be

construed broadly to grant sentencing judges authority over parole eligibility, doing so

would undermine the Legislature’s delegation of this matter to the parole board.

¶56 It would be one thing if parole was not covered elsewhere in the Montana Code

Annotated. In that situation, one might argue for an expansive construction of

§ 46-18-202(1)(f), MCA. But the reality is that the Legislature has created a Board of

Pardons and Parole, § 2-15-2302, MCA, and has enacted a statutory scheme defining that

agency’s powers, duties, and responsibilities (Title 46, chapter 23, parts 1, 2, 3, 10,

MCA). The Legislature has specifically delegated to the parole board the authority to

decide matters relating to parole, § 46-23-104(1), MCA (“The board of pardons and

parole is responsible for . . . parole as provided in this chapter.”), and that includes parole

eligibility, § 46-23-218(1), MCA (“The board may adopt any rules that it considers

proper or necessary with respect to the eligibility of prisoners for parole . . . .”).

25
¶57 Indeed, the members of the parole board—not sentencing judges—are charged

with determining whether, when, and under what conditions an offender is eligible for

parole. “Parole” is defined as “the release to the community of a prisoner by the decision

of the board prior to the expiration of the prisoner’s term.” Section 46-23-1001(3), MCA

(emphasis added). Release on nonmedical parole is authorized “when the board believes

that the prisoner is able and willing to fulfill the obligations of a law-abiding citizen” and

“when in its opinion [i.e., the board’s opinion] there is reasonable probability that the

prisoner can be released without detriment to the prisoner or to the community.” Section

46-23-201(1), (5), MCA (emphases added). There are express limitations on the board’s

discretion to grant parole. See § 46-23-201(2)-(4), MCA.4 But one, and only one, of

those limitations may be imposed by a sentencing judge—namely, that the offender is

outright ineligible for parole while serving the term of imprisonment. Section

46-23-201(2), MCA (cross-referencing § 46-18-202(2), MCA). The decision to grant

nonmedical parole is otherwise left entirely to the parole board’s discretion.

¶58 Similarly, “[t]he board” is authorized to release on medical parole a prisoner who

has a qualifying medical condition, who is not under a sentence of death or life

imprisonment without possibility of release, and who is unlikely to pose a detriment to

4
Subsection (2) states that persons under sentence of death, persons who have
been placed by the Department of Corrections in prison temporarily for assessment or
sanctioning, persons serving a sentence under § 46-18-219, MCA (life imprisonment
without possibility of release), and persons serving a sentence under § 46-18-202(2),
MCA (deemed by the sentencing judge to be parole ineligible), may not be paroled.
Subsection (3) states that a prisoner serving a time sentence may not be paroled until the
prisoner has served at least one-fourth of the full term. Subsection (4) states that a
prisoner serving a life sentence may not be paroled until the prisoner has served 30 years.
26
himself or herself, the victim, or the community. Section 46-23-210(1), MCA. As with

nonmedical parole, the statute governing medical parole recognizes one, and only one,

situation where a sentencing judge may interfere with the board’s otherwise exclusive

decision-making power: where the sentencing judge designates the offender totally

ineligible for parole under § 46-18-202(2), MCA. In that situation, the prisoner must

obtain “approval of the sentencing judge before being eligible for medical parole.”

Section 46-23-210(2), MCA. But the statute does not reference or even contemplate the

possibility of there being any other restrictions placed on parole eligibility by a

sentencing judge. Aside from the one restriction authorized by § 46-18-202(2), MCA,

the determination whether a prisoner is eligible for medical parole is entirely within the

parole board’s discretion.

¶59 In creating the Board of Pardons and Parole and making that agency “responsible

for . . . parole” (§ 46-23-104(1), MCA), including “the eligibility of prisoners for parole”

(§ 46-23-218(1), MCA), it is clear that the Legislature intended for parole matters to be

handled and decided by the board, not sentencing judges. Significantly, there is no

provision in any of the sentencing statutes (Title 46, chapter 18, MCA) explicitly granting

sentencing judges a general authority to impose conditions on parole or parole eligibility.

Rather, the Legislature has been quite specific about the few instances in which a judge

may intrude upon parole matters.

¶60 For example, a judge sentencing a sexual or violent offender “shall, as a condition

to probation, parole, or deferment or suspension of sentence, impose upon the defendant

reasonable employment or occupational prohibitions and restrictions designed to protect

27
the class or classes of persons containing the likely victims of further offenses by the

defendant.” Section 46-18-255(1), MCA (emphasis added). When sentencing a Level 3

sexual offender, the judge also “shall, as a condition of probation, parole, conditional

release, or deferment or suspension of sentence, require the offender to participate in the

program for the continuous satellite-based monitoring of sexual offenders.” Section

46-18-206, MCA (emphasis added). If a victim has sustained pecuniary loss, the judge

“shall, as part of the sentence, require [the] offender to make full restitution,” which is to

be “a condition of any probation or parole.” Section 46-18-241(1), MCA (emphasis

added). And when an offender is sentenced to imprisonment for a term exceeding one

year, the judge “may also impose the restriction that the offender is ineligible for parole

. . . while serving that term.” Section 46-18-202(2), MCA. As this last statute

demonstrates, the Legislature knows how to grant a sentencing judge authority to impose

restrictions relating to parole eligibility. It simply says so—expressly.

¶61 So, to summarize, the Legislature created the Board of Pardons and Parole. The

Legislature granted that agency authority over parole. And the Legislature provided for a

very few specific and explicit exceptions where a sentencing judge may intrude upon the

parole board’s otherwise exclusive authority over parole matters. In these circumstances,

it would be absurd to conclude that the Legislature intended § 46-18-202(1)(f), MCA, to

be construed as a broad grant of authority to sentencing judges to decide the conditions

under which a prisoner will be eligible for parole. We rejected the notion of “overlapping

authority” in Burch, ¶¶ 21, 29; and such an approach would, in any event, undermine the

Legislature’s clear mandate that parole decisions be made by the parole board, not

28
sentencing judges. It would likewise undermine the Governor’s constitutional power to

grant reprieves, commutations, and pardons by allowing sentencing judges to impose

conditions on an offender’s eligibility for executive clemency—even though that too is a

matter expressly delegated to the board and the Governor, not judges. See Mont. Const.

art. VI, § 12 (“The governor may grant reprieves, commutations and pardons, restore

citizenship, and suspend and remit fines and forfeitures subject to procedures provided by

law.”); § 46-23-104(1), MCA (“The board of pardons and parole is responsible for

executive clemency and parole as provided in this chapter.”).

¶62 “In the construction of a statute, the intention of the legislature is to be pursued if

possible.” Section 1-2-102, MCA. “We interpret a statute to give effect to its purpose

and to avoid absurd results.” In re Marriage of McMichael, 2006 MT 237, ¶ 14, 333

Mont. 517, 143 P.3d 439. But “the office of the judge is simply to ascertain and declare

what is in terms or in substance contained [in the statute], not to insert what has been

omitted or to omit what has been inserted.” Section 1-2-101, MCA. Finally, a specific

legislative directive controls over a general legislative directive to the extent of any

inconsistency between the two. Section 1-2-102, MCA; Mosley v. Am. Express Fin.

Advisors, Inc., 2010 MT 78, ¶ 20, 356 Mont. 27, 230 P.3d 479.

¶63 Here, §§ 46-18-201(3)(a)(iii) and -202(1)(f), MCA, read together, are a general

grant of authority to sentencing judges to impose on an offender’s term of incarceration

any restrictions or conditions that the judge considers necessary to obtain the objectives

of rehabilitation and the protection of the victim and society. However, this authority is

necessarily circumscribed by the Legislature’s specific directive that parole matters are to

29
be decided by the parole board. That specific intent is reflected in the Legislature’s

allocation of responsibility for parole to the parole board and by the fact that the

Legislature has provided for only a few limited situations in which a sentencing judge

may impose restrictions or conditions relating to parole. In essence, the Legislature took

the pie represented by § 46-18-202(1)(f), MCA, carved out the piece relating to parole,

and handed all but a few morsels of it to the parole board.

¶64 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. Thus, when a sentencing judge imposes

conditions on parole eligibility, she or he is interfering with the authority and discretion

that the Legislature specifically delegated to the parole board. Indeed, the judge

effectively deprives the parole board of its ability to exercise its legislatively conferred

powers until the judge’s imposed conditions are met.

¶65 In sum, a construction of § 46-18-202(1)(f), MCA, as granting sentencing judges

authority to decide when a prisoner will be eligible for parole would be contrary to the

statutory scheme, counter to the Legislature’s intent, and violative of our canons of

statutory construction. The exercise of that power is plainly with the board, not judges.

V. The Level 3 Designation

¶66 Lastly, for purposes of future cases, I express my concern with the State’s

argument in support of the Level 3 tier designation in Holt’s burglary sentence.

30
¶67 Section 46-23-509(2), MCA (2005), states: “Prior to sentencing of a person

convicted of a sexual offense, the department or a sexual offender evaluator shall provide

the court with a sexual offender evaluation report recommending one of the following

levels of designation for the offender . . . .” Section 46-23-509(3), MCA, in turn, states:

“Upon sentencing the offender, the court shall . . . review the sexual offender evaluation

report, any statement by a victim, and any statement by the offender; [and] designate the

offender as level 1, 2, or 3 . . . .” As Holt points out, burglary is not a “sexual offense.”

See § 46-23-502(6), MCA. Thus, a tier level designation should not have been included

in his burglary sentence. Opinion, ¶ 21.

¶68 The State’s contrary argument proceeds as follows. First, the State notes that the

definition of “sexual offense” includes “any violation of a law of another state . . . that is

reasonably equivalent to a violation listed in subsection (6)(a).” Section 46-23-502(6)(b),

MCA. The State then points out that Holt was previously convicted of violating a law of

Louisiana that is reasonably equivalent to one of the crimes listed in subsection (6)(a)

(namely, sexual assault on a minor). Consequently, the State reasons that he is “a person

convicted of a sexual offense” for purposes of § 46-23-509(2), MCA. In other words, the

State argues that “whenever ‘a person convicted of a sexual offense’ is sentenced for any

crime” (emphasis added), the judge must impose a tier level designation. Hence, if a

person was convicted of a sexual offense in Kentucky and is now being sentenced for

running a red light in Montana, the judge must order a sexual offender evaluation report

and impose a tier level designation on the defendant’s sentence for the traffic violation.

31
¶69 While this construction of the statutory scheme is certainly inventive, it ultimately

must be rejected. “Statutory construction should not lead to absurd results if a reasonable

interpretation can avoid it.” State v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, 152 P.3d

1288. The notion that sentencing judges are supposed to impose tier level designations

and sexual offender treatment programs upon convictions for speeding, shoplifting,

possession of stolen property, inciting a riot, arson, and the like is, frankly, absurd.

Section 46-23-509(2) and (3), MCA, must be interpreted as applying when the judge is

sentencing an offender upon conviction of a sexual offense. Indeed, the language of

other statutes which cross-reference § 46-23-509, MCA, make it clear that this was the

interpretation intended. See e.g. §§ 46-18-207, -255, MCA (2009).

VI. Conclusion

¶70 In Hernandez, Chief Justice McGrath pointed out that “[t]he Legislature has

created the process to review sentences.” Hernandez, ¶ 16 (McGrath, C.J., specially

concurring). Specifically, “the Legislature has provided the Sentence Review Division

[SRD] for the exclusive review of legally authorized felony sentences.” Hernandez, ¶ 11

(McGrath, C.J., specially concurring). The Chief Justice made the point that, given the

existence of the SRD and the Legislature’s plain intent that sentences be reviewed by that

body, this Court should not impinge upon that delegation of authority by reviewing

sentences for reasonableness. Hernandez, ¶ 12 (McGrath, C.J., specially concurring); but

see Zimmerman, ¶ 24 (McGrath, C.J., specially concurring).

¶71 This same principle, applied here, mandates that sentencing judges refrain from

imposing terms and conditions relating to parole. Parole is a matter delegated exclusively

32
to the Board of Pardons and Parole, except where specific statutory authority allows a

sentencing judge to impose specifically and explicitly enumerated restrictions on parole.

Burch, ¶¶ 14-31, 36. Sentencing judges have attempted to interfere with the parole

process for some time now, but both this Court and the Legislature have consistently

rejected their attempts to do so. The District Court’s sentence here interfered with a

matter that is left solely to the discretion of the parole board. Again, a sentencing judge

has authority to say that an inmate will never become parole eligible, § 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 determination of whether, when, and under what conditions an

inmate becomes eligible for parole is exclusively the prerogative of the parole board.

¶72 It is clear that when the Legislature wants to grant authority to sentencing judges

to restrict parole eligibility, it is capable of doing so—as it did in § 46-18-202(2), MCA.

It is also clear that when the Legislature wants to put a condition on parole eligibility, it is

likewise capable of doing so. In this regard, § 46-18-207(2), MCA (2009), now requires

a sentencing judge to order a sexual offender who is sentenced to imprisonment to enroll

in a treatment program, and subsection (3) of the statute states that the offender is not

eligible for parole unless the program has been successfully completed. In other words,

the Legislature has conditioned parole eligibility on completion of the treatment program,

as the District Court did here. This statute is inapplicable in the present case because it

was enacted in 2007 (after Holt’s offense 5) and because the offense of burglary is not a

5
State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297 (a person has
the right to be sentenced under the statutes which are in effect at the time of the offense).
33
“sexual offense.” But the point is that the Legislature knows how to make specific grants

of authority to sentencing judges to place restrictions on parole eligibility. Courts should

not be inferring the existence of such authority by judicial fiat.

¶73 The State cites, and I have found, no statute (applicable to Holt’s 2006 burglary

offense) specifically and explicitly authorizing a sentencing judge to impose a sexual

offender treatment condition on an offender’s parole eligibility. I accordingly would hold

that this condition on Holt’s burglary sentence is illegal. We should reverse and remand

for resentencing, at which point if the District Court wants to make a recommendation to

the parole board that Holt complete a sexual offender treatment program before being

eligible for parole, the court may do so.

¶74 I concur and dissent.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter joins in the Concurrence and Dissent of Justice James C.
Nelson.

/S/ PATRICIA O. COTTER

34