State v. Legg

No. 02-344

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 26

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHARLES LEGG,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DC 01-03,
Honorable Blair Jones, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Raymond G. Kuntz, Attorney at Law, Red Lodge, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Cregg W. Coughlin,
Assistant Attorney General, Helena, Montana

A.W. Kendall, County Attorney, Red Lodge, Montana

Submitted on Briefs: November 21, 2002

Decided: February 5, 2004

Filed:

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

¶1 The defendant, Charles Legg (Legg), appeals from the sentence imposed by the

Montana Twenty-Second Judicial District Court, Carbon County, following his plea of guilty

to the offense of sexual assault, a felony in violation of § 45-5-502, MCA (2001). We

affirm.

¶2 Legg raises numerous issues on appeal, which we restate as follows:

¶3 1. Did the District Court err in failing to exclude evidence contained in the

presentence investigation report?

¶4 2. Did the District Court adequately state its reasons for Legg’s sentence in its oral

pronouncement of sentence?

¶5 3. Did the District Court adequately state its reasons for Legg’s sentence in its written

judgment?

¶6 4. Did the District Court adequately consider the presentence investigation report’s

recommendations for the least restrictive environment at sentencing?

¶7 5. Did the District Court err in not applying the exceptions to the mandatory minimum

sentence?

¶8 6. Does Legg’s fifty-year sentence violate statutory sentencing policy?

¶9 7. Did the District Court err in failing to designate an offender level?

¶10 8. Did the District Court violate Legg’s substantive due process rights in sentencing

him to fifty years in State prison?

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 FACTUAL AND PROCEDURAL BACKGROUND

¶11 On February 5, 2001, R.G. reported to the Carbon County Sheriff’s Department that

his nine-year-old daughter, N.J.G., had been sexually assaulted by Charles Legg. The

following day, Carbon County Undersheriff Bob Reed (Reed) conducted a videotaped

interview of N.J.G., who reported that Legg had been sexually assaulting her since June

2000. N.J.G. disclosed to Reed that the assaults occurred on the ranch where Legg and she

and her family lived and worked. According to N.J.G., Legg took her to places where they

were alone, including her house, the shop, barn, cookhouse, and a friend’s house. There,

Legg touched her “private parts,” which she identified as her buttocks, breasts, and vaginal

area. N.J.G. additionally reported that Legg kissed her mouth, put his hands under her

clothing, and rubbed her breasts and buttocks.

¶12 On February 9, 2001, Deputy Sheriff Hanly Loyning interviewed Legg concerning

the allegations of sexual assault. Legg confessed that he had, on approximately twenty

different occasions, touched the sexual or other intimate parts of N.J.G. for the purpose of

arousing his or her sexual response or desire. Legg was subsequently arrested and charged

with sexual assault, a felony, in violation of § 45-5-502, MCA.

¶13 After receiving appointed defense counsel, Legg was arraigned and pleaded not guilty

to the charge of sexual assault. At the request of his defense counsel, the District Court

ordered an examination of Legg’s mental condition, pursuant to § 46-14-202, MCA.

¶14 Pursuant to the court’s order, Dee Woolston, Ph.D. (Dr. Woolston), a licensed clinical

psychologist, performed a forensic psychological examination of Legg on June 8, 2001. Dr.

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Woolston diagnosed Legg as suffering from a serious depressive disorder, which he judged

was severe enough to significantly interfere with Legg’s social and occupational functioning

and caused him to suffer suicidal tendencies. Despite this, however, Dr. Woolston

concluded Legg was intellectually competent, understood the nature of the criminal charge

against him, and appreciated the possible consequences of incarceration.

¶15 Shortly thereafter, at the request of Legg’s counsel, Michael D. Sullivan, M.S.W.

(Sullivan), Director of South Central Treatment Associates, performed a psychosexual

evaluation of Legg. Using a number of assessment scales, including the Sex Offender Risk

Appraisal Guide, the Static 99, and the Screening Scale for Pedophilic Interests, Sullivan

categorized Legg as a low risk, or Level I, sexual offender and suggested that a community-

based placement and out-patient sexual offender treatment would be appropriate.

¶16 On November 5, 2001, Legg entered a plea bargain agreement with the State whereby

he agreed to plead guilty to the sexual assault charge. In exchange, the State agreed to

recommend sentencing in accordance with that suggested by the psychological and

psychosexual evaluations. Legg acknowledged in the agreement that such a

recommendation might range from a lengthy suspended sentence to incarceration.

¶17 That same date, in accordance with the plea bargain agreement, Legg appeared before

the District Court and changed his plea to guilty. After due inquiry, the court accepted

Legg’s guilty plea, ordered the preparation of a presentence investigation report (PSI), and

scheduled the matter for sentencing.

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¶18 Probation and Parole Officer Deborah Willis (Willis) was assigned the task of

preparing the PSI. During the course of her investigation, Willis received numerous letters,

both from the victim and her family, as well as from individuals who were either familiar

with the victim and her family, or with Charles Legg. Many of the letters reported their

observations of Legg around children and young adults. Others spoke about being secondary

victims of Legg’s sexual abuse. Willis additionally learned that Legg’s ex-wife had been

awarded exclusive care and custody of the parties’ minor children during their divorce,

which had been entered by default judgment in a Tennessee district court in 1998. Pursuant

to the court decree, Legg was prohibited from visiting his children and was permanently

restricted from the residence of his ex-wife or her workplace. Willis included this

information within the PSI and additionally forwarded it to Michael Sullivan for his review.

¶19 On January 7, 2002, Sullivan submitted an addendum to his earlier psychosexual

evaluation of Legg, reclassifying Legg as a Level II, or moderate risk offender. Based upon

his review of the additional information provided by Willis, Sullivan concluded that Legg

had not been “entirely candid in regards to his self-reports at the time of evaluation.” In

particular, Legg had misrepresented his relationship with his children during the initial

evaluation by leading Sullivan to believe that he had a normal, ongoing relationship with his

children, and failing to disclose that the divorce decree had severed the relationship. It also

appeared that there were additional victims of Legg’s sexual abuse, including Legg’s own

children and ex-wife. Finally, Sullivan noted that Legg was consistently described by others

“as a rather dishonest, manipulative, and irresponsible individual who tends to prey on

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vulnerable people. He [was] also described as a man who tends to feign depression and

suicidal ideation as a way to either gain sympathy or avoid responsibility for his behavior.”

In light of this information, Sullivan concluded that Legg likely presented too great a risk

to the community to be placed in a community-based setting and treated as an out-patient

sexual offender, and suggested that treatment within a penitentiary would be appropriate.

As a minimum level of confinement, Sullivan recommended treatment within a pre-release

center.

¶20 On February 4, 2002, Willis filed the completed PSI with the District Court. In

addition to the psychological evaluation performed by Dr. Woolston and the psychosexual

evaluation and addendum prepared by Sullivan, the PSI included the letters and statements

which had been submitted to Willis during her investigation, as well as the court decree

dissolving Legg’s marriage. After considering Legg’s social and criminal history, the nature

of his offense, and relevant statutes, Willis recommended that Legg be sentenced to a term

of commitment with the Department of Corrections, and left suspension of any part of that

term to the discretion of the District Court.

¶21 In response to the PSI, Legg filed a Motion in Limine and Sentencing Memorandum

requesting the District Court to “exclude from evidence all portions of the Presentence

Investigation and Report based on letters or statements from persons other than [N.J.G.], her

family, or her therapists.” Legg also asked the court to take note of the mitigating factors

set forth at § 46-18-222(2), MCA, as well as to recognize the public policy that sentences

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should be commensurate with the punishment imposed on other persons committing the

same offense.

¶22 A sentencing hearing was held on February 4, 2002. Legg’s motion to exclude the

letters and statements contained in the PSI was not ruled upon by the District Court, and

thus, the challenged evidence was not excluded. The State recommended a thirty-year term

of commitment at the Montana State Prison, with twenty-five years suspended, and Legg

consented to the State’s recommendation. After hearing testimony from the victim’s father,

physician, counselor, and Michael Sullivan, the District Court sentenced Legg to a fifty-year

term in State prison, with no part of the sentence suspended. From this judgment, Legg

appeals.

¶23 On March 6, 2002, Legg applied for sentence review before the Sentence Review

Division of the Montana Supreme Court. Such review has been stayed pending the outcome

of this appeal.

STANDARD OF REVIEW

¶24 This Court reviews a criminal sentence for legality only. Thus, our review is confined

to whether the sentence is within the parameters provided by statute. State v. Scarborough,

2000 MT 301, ¶ 90, 302 Mont. 350, ¶ 90, 14 P.3d 1202, ¶ 90. When the issue on appeal

concerns whether the district court violated the defendant’s constitutional rights at

sentencing, the question is a matter of law which we review de novo to determine whether

the district court’s interpretation of the law is correct. State v. Bedwell, 1999 MT 206, ¶ 4,

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295 Mont. 476, ¶ 4, 985 P.2d 150, ¶ 4; State v. Guillaume, 1999 MT 29, ¶ 7, 293 Mont. 224,

¶ 7, 975 P.2d 312, ¶ 7.

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 DISCUSSION

¶25 1. Did the District Court err in failing to exclude evidence contained in the
presentence investigation report?

¶26 Legg concedes that § 46-18-115(4)(a), MCA, allows the victim to provide the court

with a statement concerning the effects of the crime on the victim, the circumstances

surrounding the crime, the manner in which the crime was perpetrated, and the victim’s

opinion regarding appropriate sentence. Legg argues, however, that the District Court

exceeded its statutory authority in considering statements from individuals other than N.J.G.,

her family, and therapists in imposing sentence. The State responds by citing § 46-18-

115(4)(c), MCA, which commands the court to “consider the victim’s statement along with

other factors.” (Emphasis added.)

¶27 When interpreting statutes, this Court’s only function is to give effect to the intent of

the Legislature. State v. Hamilton, 2002 MT 263, ¶ 14, 312 Mont. 249, ¶ 14, 59 P.3d 387,

¶ 14. While legislative intent must first be determined from the plain meaning of the words

in the statute, when the plain meaning of a statute is subject to more than one reasonable

interpretation, as it is here, we will examine the legislative history to aid our interpretation.

Hamilton, ¶ 14.

¶28 In 1995, § 46-18-115, MCA, was amended to include subsection 4, which, as stated

above, requires the sentencing court to permit the victim to present a statement concerning

the effects of the crime on the victim and to give an opinion regarding appropriate sentence.

Additionally, subsection 4(c) was added, which commands the court to “consider the

victim’s statement along with other factors. However, if the victim’s statement includes new

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material facts upon which the court intends to rely, the court shall allow the defendant

adequate opportunity to respond and may continue the sentencing hearing if necessary.”

¶29 As advocated in hearings before the House and Senate Judiciary Committees during

the 1995 legislative session, one of the primary purposes of the bill amending § 46-18-115,

MCA, was to require consideration of the victim’s interest by the courts and parole board

at the critical stages of the proceedings. In particular, Representative Marjorie Fisher,

sponsor of the legislation, informed the Senate Judiciary Committee that:

[H.B. 69] requires consideration of the protection of the victim by the courts
when imposing restrictions on the offender and by the court before allowing
a sex offender who assaulted a child to be treated in a community setting.

Mont. S. Jud. Comm., Hearing on H.B. 69, 54th Leg., Reg. Sess. 1 (Mar. 1, 1995).

¶30 Given the Legislature’s concern with protecting victims from repeat offenses and the

treatment of child sexual offenders within a community setting, we believe the Legislature

intended to allow the sentencing court wide latitude in considering any information relevant

to the treatment of the offender and the risk he or she poses to the victim or to other children

in a community.

¶31 Further, when the defendant has been convicted of a sex offense, as Legg has, the

presentence investigation must include a psychosexual evaluation of the defendant and a

recommendation as to treatment of the offender in the least restrictive environment,

considering the risk the offender presents to the community. Section 46-18-111(1), MCA.

We also note that under § 46-18-112(1)(e), MCA, the probation officer preparing the PSI

10
must inquire into and report upon such things as “the harm caused, as a result of the offense,

to the victim, the victim’s immediate family, and the community.” (Emphasis added.)

¶32 Here, Sullivan’s consideration of the statements submitted to Probation Officer Willis

as well as the divorce decree terminating Legg’s marriage was in keeping with the statutory

mandate of § 46-18-111(1), MCA. While Sullivan reclassified Legg’s risk designation after

considering this additional information, Sullivan testified at sentencing that he reconsidered

Legg’s risk level only after it became apparent that Legg had not been “entirely candid” with

him during the initial evaluation. In particular, Sullivan noted that Legg’s relationship with

his children had been severed pursuant to a divorce decree, which was contrary to Legg’s

initial report to Sullivan, and that Legg was prohibited from being around his ex-wife and

children. It was also apparent to Sullivan that there may be additional victims of Legg’s

sexual abuse, including his own children, and that Legg was consistently described by others

as “manipulative” and “dishonest.” In light of this information, Sullivan concluded that

Legg posed a greater risk to the community than previously assessed and recommended

placement at a pre-release center as the minimum level of structure and supervision

necessary for treatment.

¶33 As it was required to do by statute, the District Court considered the contents of the

PSI and the recommendations contained therein. See § 46-18-111(1), MCA. This

notwithstanding, it is unclear from the record what specific consideration the District Court

gave to the statements submitted to Willis. Rather, the record shows only that the court was

greatly concerned with the risk Legg posed to the community, particularly minor girls,

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should he receive the minimum level of treatment. Although the court based its

determination of Legg’s risk to the community largely upon the testimony of Michael

Sullivan, who considered the statements and divorce decree in calculating Legg’s risk status,

such consideration was in keeping with the purpose of § 46-18-115(4), MCA, which requires

the court to recognize the importance of protecting the victim, as well as § 46-18-111(1),

MCA, which requires consideration of the risk the offender presents to the community. In

light of these statutory imperatives, we hold the District Court did not exceed its statutory

authority by disregarding Legg’s motion in limine to exclude from the PSI letters and

statements from individuals other than N.J.G.

¶34 2. Did the District Court adequately state its reasons for Legg’s sentence in its
oral pronouncement of sentence?

¶35 Legg contends that the reasons stated in the District Court’s oral pronouncement of

sentence were insufficient as a matter of law and urges this Court to remand for

resentencing. We disagree.

¶36 Section 46-18-115(6), MCA, provides that, “in felony cases, the court shall

specifically state all reasons for the sentence . . . in open court on the record and in the

written judgment.” Nonetheless, we have not required a district court to give an extensive

statement of its sentencing reasons. State v. St. John, 2001 MT 1, ¶ 27, 304 Mont. 47, ¶ 27,

15 P.3d 970, ¶ 27, overruled on other grounds by State v. Brister, 2002 MT 13, 308 Mont.

154, 41 P.3d 314; see also State v. Osterloth, 2000 MT 129, ¶¶ 39-40, 299 Mont. 517, ¶¶ 39-

40, 1 P.3d 946, ¶¶ 39-40 (holding that sentencing court’s oral pronouncement that

defendant’s participation in intensive outpatient sex offender treatment program “didn’t work

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out” and that the court “cannot accept the risk to the other children in this community” met

the requirements under § 46-18-115(6), MCA).

¶37 Here, after rendering judgment against Legg, the District Court stated in open court

the following reasons for its sentence:

Mr. Legg, I don’t want to have another family come before me and say
that their child had to experience what [N.J.G.] has experienced. Therefore,
I’ve given you a 50-year prison term, such that you will be under supervision
until you’re 91 years of age. So even if you are 71, I pray that it would not
occur. There will be under the laws of Montana some eligibility for parole,
but it will be a long time before that eligibility kicks in, Mr. Legg.

The reason for that, quite frankly, is that the law allows the Court to
impose sentences for the purposes of punishment. We should not allow in this
society people to abuse and injure children without extreme consequences.

....

Therefore, this sentence is passed for the reason that I believe society
needs to be protected from Mr. Legg. The injury visited upon the child needs
to be addressed appropriately by the Court. And the psychological and sexual
counseling and criminal thinking counseling can be adequately addressed at
the Montana State Penitentiary.

Thus, as reflected on the record, the District Court imposed a fifty-year sentence on Legg

both to punish Legg for his crime, as well as to protect society from Legg in the future.

¶38 Additionally, the court had questioned Michael Sullivan concerning the duration of

Legg’s required treatment. Sullivan had testified that Legg would always need some sort of

structure to maintain a non-offending status. Thus, the court reasoned that incarceration

presented the most appropriate course for providing the counseling, treatment, and

supervision Legg required. On this record, we hold the District Court’s stated reasons for

Legg’s fifty-year sentence satisfy the requirements of § 46-18-115(6), MCA.

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¶39 3. Did the District Court adequately state its reasons for Legg’s sentence in its
written judgment?

¶40 As in the previous issue, Legg argues that the District Court’s statement of reasons

for sentence in its written judgment was inadequate under § 46-18-115(6), MCA. The State

counters, however, that Legg has waived this issue on appeal. We agree with the State.

¶41 The sentence orally pronounced from the bench in the presence of the defendant is

the legally effective sentence and valid, final judgment. Osterloth, ¶ 40; see also State v.

Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40. When there is a conflict

between the oral pronouncement of sentence and the written judgment, § 46-18-116(2),

MCA, permits the defendant to request the sentencing court to “modify the written judgment

to conform to the oral pronouncement” of sentence. However, the defendant “waive[s] the

right to request modification of the written judgment if a request for modification of the

written judgment is not filed within 120 days after the filing of the written judgment of the

sentencing court.”

¶42 Here, after receiving the written judgment, Legg moved to amend or correct the

judgment to include a designation of his offender status and consideration of mitigating

factors. Although Legg made his motion pursuant to § 46-18-116, MCA, Legg failed to

establish, or even discuss, the existence of a conflict between the oral pronouncement of

sentence and the written judgment. Thereafter, Legg made no motion to conform the written

judgment to the oral pronouncement of sentence. Because the prescribed time period for

doing so has now elapsed, Legg has waived his right to request modification of the written

judgment. His request for remand and resentencing on this issue is therefore denied.

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¶43 4. Did the District Court adequately consider the presentence investigation
report’s recommendations for the least restrictive environment at sentencing?

¶44 Legg argues that the District Court erred by failing to consider Sullivan’s

recommendations for the least restrictive environment at sentencing. Legg notes that, in

State v. Alexander (1994), 265 Mont. 192, 203, 875 P.2d 345, 352, we held that a district

court must consider a completed PSI prior to sentencing a defendant. Based upon our

holding in Alexander, Legg argues that the District Court must review and analyze each of

the PSI’s recommendations for sentence, so that a defendant may receive treatment in the

“least restrictive environment.” Legg concludes that since neither the oral pronouncement

of sentence nor the written judgment contained any analysis or consideration of Sullivan’s

recommendation, the District Court failed to consider such recommendations and, thus, erred

in rendering sentence.

¶45 As Legg correctly points out, § 46-18-111(1), MCA, requires the PSI to include a

psychosexual evaluation of the defendant when the defendant has been convicted of sexual

assault. According to § 46-18-111(1), MCA, the evaluation must be completed by a

qualified sexual offender therapist and must include a recommendation as to treatment of the

defendant in the least restrictive environment, considering the risk the defendant presents to

the community.

¶46 In this case, Michael Sullivan, a qualified sexual therapist, completed the

psychosexual evaluation of Legg. While it is true the District Court did not explicitly state

that it had considered Sullivan’s recommendations at sentencing, Legg provides no authority

requiring the court to “itemize each piece of evidence presented and either accept or reject

15
it.” See State v. Gordon, 1999 MT 169, ¶ 49, 295 Mont. 183, ¶ 49, 983 P.2d 377, ¶ 49.

Furthermore, from the record, it appears the District Court did consider Sullivan’s

recommendations for sentencing. At the sentencing hearing, the District Court questioned

Michael Sullivan at length concerning possible treatment of Legg at a community or prison

setting, and inquired about Legg’s prognosis for success in both. Additionally, the PSI bears

the court’s handwritten notes and highlighted marks, which, while not conclusive evidence,

suggest the court considered the PSI before sentencing the defendant. Finally, the District

Court stated in its written judgment that it had “considered the Pre-Sentence Investigation,

the psychosexual evaluation, the testimony of Michael Sullivan and the recommendation of

the County Attorney and of the defendant’s attorney” in imposing sentence. From this

record, we hold the District Court adequately considered the PSI’s recommendations for the

least restrictive environment at sentencing, and, therefore, affirm the District Court on this

issue.

¶47 5. Did the District Court err in not applying the exceptions to the mandatory
minimum sentence?

¶48 Legg argues that, pursuant to § 46-18-222(2), MCA, the District Court should have

considered Dr. Woolston’s evaluation in imposing sentence. Section 46-18-222(2), MCA,

provides that a district court may sentence a criminal defendant to less than the statutory

mandatory minimum sentence when “the offender’s mental capacity, at the time of the

commission of the offense for which the offender is to be sentenced, was significantly

impaired, although not so impaired as to constitute a defense to the prosecution.”

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¶49 However, we have consistently held that the exceptions set forth at § 46-18-222,

MCA, do not apply in cases in which the district court sentences the offender to more than

the minimum sentence. State v. Zabawa (1996), 279 Mont. 307, 317, 928 P.2d 151, 157,

followed in State v. Keith, 2000 MT 23, ¶ 23, 298 Mont. 165, ¶ 23, 995 P.2d 966, ¶ 23. See

also State v. Graveley (1996), 275 Mont. 519, 524, 915 P.2d 184, 188, overruled on other

grounds by State v. Lane, 1998 MT 76, ¶ 41, 288 Mont. 286, ¶ 41, 957 P.2d 9, ¶ 41; State

v. Nichols (1986), 222 Mont. 71, 82, 720 P.2d 1157, 1164; and State v. DeSalvo (1995), 273

Mont. 343, 348, 903 P.2d 202, 205. Furthermore, there is no requirement that the District

Court make findings on why it did not apply the exceptions. Zabawa, 279 Mont. at 317, 928

P.2d at 158.

¶50 Here, Legg conceded before the District Court at sentencing that the mitigating

factors set forth at § 46-18-222, MCA, did not apply as he had agreed to the State’s

recommended sentence of thirty years, which exceeded the mandatory minimum sentence

for his sexual assault of a victim under sixteen years of age. See § 45-5-502(3), MCA.

Accordingly, we need not address the merits of Legg’s argument because the exceptions

found at § 46-18-222, MCA, do not apply.

¶51 6. Does Legg’s fifty-year sentence violate statutory sentencing policy?

¶52 Legg claims that his fifty-year sentence, which is one-half the maximum allowed

under law, violates public policy that sentences should be commensurate with the

punishment imposed on other persons committing the same offense. Section 46-18-

101(3)(b), MCA.

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¶53 The State responds, and we agree, that this is an issue concerning the equity of Legg’s

sentence, which properly lies with the Sentence Review Division. This Court does not

review a sentence on appeal for mere inequity or disparity. DeSalvo, 273 Mont. at 350, 903

P.2d at 207. Rather, “the proper channel for a challenge to the equity of a sentence as

opposed to its legality is through the Sentence Review Division.” DeSalvo, 273 Mont. at

350, 903 P.2d at 207. Accordingly, we hold that further review of Legg’s sentence for any

alleged inequity properly lies with the Sentence Review Division.

¶54 7. Did the District Court err in failing to designate an offender level?

¶55 Legg correctly argues that § 46-23-509(3), MCA, commands the District Court to

designate the sexual offender’s risk level at the time of sentencing. However, the statute

further provides that “if, at the time of sentencing, the sentencing judge did not apply a level

designation to a sexual offender who is required to register under this part, the department

shall designate the offender as level 1, 2, or 3 when the offender is released from

confinement.” Section 46-23-509(5), MCA.

¶56 Here, the District Court failed to designate Legg’s risk level, despite the fact that

Legg brought this omission to the court’s attention by motion. To this extent, we conclude

the District Court erred. However, our conclusion does not require this case to be remanded

for resentencing because the statute contemplates that the Department of Corrections may

designate an offender level at the time of the offender’s release from confinement, if the

district court has failed to do so. Section 46-23-509(5), MCA. In other words, the statute

18
provides its own remedy. Because the sentence imposed on Legg did not result in prejudice,

we hold the District Court’s failure to designate Legg’s offender level was harmless error.

¶57 8. Did the District Court violate Legg’s substantive due process rights in
sentencing him to fifty-years in State prison?

¶58 Legg challenges his fifty-year sentence as a violation of substantive due process,

arguing that the District Court acted arbitrarily in imposing sentence because it failed to

consider the mitigating factors referenced in Dr. Woolston’s psychological evaluation, or

make a finding of aggravating circumstances. Although Legg did not challenge his sentence

on this basis in District Court, he urges this Court to nonetheless review his claim under the

common law “plain error” doctrine. The State responds by arguing that the plain error

exception does not apply in this case as plain error review is reserved for exceptional cases

in which the claimed errors implicate a criminal defendant’s fundamental constitutional

rights. In this case, the State argues, Legg has not demonstrated that his constitutional rights

were violated by the District Court’s alleged error.

¶59 We agree with the State that the plain error exception does not apply in this case. In

order to invoke our power of common law plain error review, the criminal defendant must

“initially demonstrate that a fundamental right constitutionally guaranteed to him was

implicated by the plain error which he now claims.” State v. Hart, 2000 MT 332, ¶ 49, 303

Mont. 71, ¶ 49, 15 P.3d 917, ¶ 49 (quoting State v. Pizzichiello, 1999 MT 123, ¶ 11, 294

Mont. 436, ¶ 11, 983 P.2d 888, ¶ 11). Although Legg claims his constitutional right to due

process was implicated by the District Court’s failure to consider the mitigating factors set

forth in Dr. Woolston’s evaluation or enter findings of aggravating circumstances, Legg has

19
failed to demonstrate how such inaction amounted to any error, much less fundamental

unfairness amounting to plain error. Nor does a review of the record convince us that

neglecting to review Legg’s claimed error will result in a manifest miscarriage of justice,

leave unsettled the question of fundamental fairness of the proceedings, or compromise the

integrity of the judicial process. State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, ¶ 20,

77 P.3d 224, ¶ 20; State v. Brown, 1999 MT 31, ¶ 9, 293 Mont. 268, ¶ 9, 975 P.2d 321, ¶ 9

(citing State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215). Because we will not

“set a precedent of presenting full analysis whenever a party asserts that an issue not

properly preserved for appeal constitutes plain error,” Daniels, ¶ 28, and Legg does not meet

the narrow criteria required to invoke our discretionary plain error review, we decline to

address the merits of Legg’s argument under plain error review.

¶60 However, under our holding in State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997,

we may review a sentence that is alleged to be illegal or exceeding statutory limits, even if

no objection was made at the time of sentencing. Lenihan, 184 Mont. at 343, 602 P.2d at

1000. While Legg has failed to meet the requirements for plain error review, he has

challenged the legal validity of his sentence by alleging that it was issued without regard to

the mitigating factors identified in Dr. Woolston’s evaluation, thus violating his due process

rights in the Fourteenth Amendment of the United States Constitution and Article II, Section

17, of the Montana Constitution. Such a claim is reviewable on appeal. However, in this

case, Legg has failed to cite any authority in support of his argument or otherwise

demonstrate how the District Court’s alleged actions or inactions violated his constitutional

20
rights. We have repeatedly stated that we will not consider arguments on appeal that are

unsupported by authority. State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, ¶ 24, 44

P.3d 499, ¶ 24 (citing State ex. rel. Booth v. Mont. Twenty-First Jud. Dist. , 1998 MT 344,

¶ 35, 292 Mont. 371, ¶ 35, 972 P.2d 325, ¶ 35).

¶61 Rather, after an extensive review of Legg’s argument concerning this issue, we

conclude that Legg has cloaked an equitable challenge of his sentence in the vestiges of a

constitutional argument. Essentially, Legg contends that the fifty-year sentence imposed

upon him so exceeds the recommendations in the PSI and the recommendations made by

counsel as to be fundamentally unfair. Given the lack of authority, this is an argument

concerning the equity of Legg’s sentence, not its legality. As we have already stated, issues

of equity are matters which are proper for the Sentence Review Division, and are not

considered on appeal by this Court. Accordingly, we decline to address the merits of Legg’s

argument.

¶62 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER

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Justice W. William Leaphart specially concurring.

¶63 I concur in the opinion with the caveat that the statement in ¶ 30 that a sentencing

court has latitude to consider “any information relevant to the treatment of the offender” is

subject to the concerns I expressed in my dissent in State v. Mason, 2003 MT 371, 319 Mont.

117, ___ P.3d ___.

/S/ W. WILLIAM LEAPHART

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