IN RE KMG, DA 09-0336.

CourtUnited States State Supreme Court of Montana
Citation229 P.3d 1227,2010 MT 81
Docket NumberNo. DA 09-0336.,DA 09-0336.
PartiesIn the Matter of K.M.G., A Youth Under the Age of Eighteen.
Decision Date20 April 2010

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

For Appellee: Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General; Helena, Montana, Fred Van Valkenburg, Missoula County Attorney; Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 K.M.G. appeals from the Youth Court's disposition adjudging him a Delinquent Youth and sentencing him to the Department of Corrections for placement at the Pine Hills Youth Correctional Facility (Pine Hills). We affirm.

¶ 2 We state the issues as follows:

¶ 3 1. Did the Youth Court err by committing K.M.G. to the Department of Corrections for placement at Pine Hills pursuant to § 41-5-1513, MCA (2007)?

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

¶ 5 3. Did the Youth Court err by finding that K.M.G. admitted to failing to attend school in violation of his probation?


¶ 6 Appellant K.M.G. is a fourteen-year-old boy currently placed at Pine Hills for committing a string of misdemeanor crimes, including assault, disorderly conduct, resisting arrest and two counts of theft. K.M.G. also admitted to violations of probation previously imposed by the Youth Court.

¶ 7 On January 8, 2008, 12-year-old K.M.G. approached a fellow student at Meadow Hill School from behind and punched him in the back. The victim suffered discomfort and redness in his middle spine area and could not walk for some time without pain. When the responding officer called K.M.G.'s mother to set up a meeting regarding the assault, she yelled at the officer and eventually hung up on him. When the principal called K.M.G. into his office, K.M.G. was rude and refused to sit down as requested. K.M.G.'s mother displayed similar verbally-assaultive behavior to the principal as K.M.G.

¶ 8 On January 21, 2008, K.M.G.'s mother contacted law enforcement to report that K.M.G. had called her demeaning names and had left the residence without her permission, a problem she described as on-going. On January 28, 2008, security officers caught K.M.G. stealing two laser pointers from a store in Southgate Mall.

¶ 9 Citing these incidents, the State filed a Petition to declare K.M.G. a Delinquent Youth. Before the Petition was served, K.M.G. committed additional crimes. The State subsequently amended the petition to allege another assault, sexual intercourse without consent, misdemeanor sexual assault, criminal mischief, and disorderly conduct.

¶ 10 On April 9, 2008, K.M.G. admitted to the theft and assault charges alleged in the original petition. On July 16, 2008, K.M.G. admitted to the disorderly conduct charge as part of a deferred prosecution agreement under which the State agreed to dismiss, without prejudice, the remaining counts of the amended petition, which were then dismissed by the Youth Court.

¶ 11 The Youth Court held a dispositional hearing on November 12, 2008. The court assumed jurisdiction over K.M.G. until his eighteenth birthday, and ordered out-of-home placement for K.M.G. at the Dennis Radtke Home for Boys (Radtke Home) for treatment, followed by six months of formal probation. The court imposed probation conditions, including that K.M.G. obey all laws, attend school regularly, reside at the Radtke Home and keep the Home advised of his whereabouts at all times. After K.M.G. was taken to the Radtke Home, he immediately ran from the home without permission, violating his probation.

¶ 12 The next day, November 18, 2008, law enforcement responded to a report of a shoplifting in progress at a Shopko store. K.M.G. and another individual had been temporarily detained by Shopko store security for theft of a backpack, but had fled. Law enforcement officers located the juveniles behind a shed, and detained them. Missoula Police Officer Erbacher instructed K.M.G. to sit on the ground while he gathered information. He learned that K.M.G. had run from the group home, and that the Youth Court had ordered that K.M.G. be detained. Officer Erbacher became concerned with K.M.G.'s behavior, believing that K.M.G. intended to run. Officer Erbacher instructed K.M.G. to stand up and place his hands behind his back. K.M.G. did so, but when Officer Erbacher attempted to grab his wrist, K.M.G. bolted and attempted to escape by running down an alley. Officer Erbacher stopped K.M.G., but K.M.G. resisted and caused injury to Officer Erbacher.

¶ 13 In response to this criminal activity, the State filed a second petition to declare K.M.G. a Delinquent Youth. The Youth Court set a bond for detaining K.M.G., which K.M.G.'s mother posted. The release conditions required K.M.G. to abide by the previously imposed conditions, which he failed to do. Between his release on December 1, 2008, and December 11, 2008, K.M.G. failed to attend school, was allowed to remain unsupervised at home for several days, and tested positive for prescription narcotic benzodiazepines after a mandatory probationary urinalysis. School officials observed minor injuries on K.M.G., which they surmised were caused from a fight. The State also filed a petition to revoke K.M.G.'s probation.

¶ 14 On January 9, 2009, K.M.G. admitted the second theft and resisting arrest charges and admitted leaving the Radtke Home without permission in violation of his probation. The Youth Court entered K.M.G.'s admissions, and scheduled a dispositional hearing. In the interim, K.M.G. continued to violate his probationary conditions. Instead of residing with his aunt in Helena, as ordered by the Youth Court, K.M.G. returned to his mother's home in Missoula. K.M.G.'s juvenile probation officer learned of his whereabouts when K.M.G.'s mother called three days before the disposition hearing to advise that K.M.G. was "out in the alley ... intoxicated." The next day, after the juvenile probation officer told K.M.G. that he must remain with his mother at all times until the court hearing, K.M.G. told his mother he "didn't like those rules," and left home.

¶ 15 K.M.G. was subsequently evaluated by Eileen C. Robbins, an Advanced Practice Registered Nurse with the Western Montana Mental Health Center, Child and Family Service Network. Robbins recommended that K.M.G. "attend treatment at a facility where he can receive long-term intensive treatment...." However, due to funding limitations, it became clear that out-of-home community placement for K.M.G. was not an option, and that he would either be placed at Pine Hills or returned to his mother's home. In light of this development, Robbins filed an addendum to her report, stating "if treatment could be provided to K.M.G. while at Pine Hills Correctional Facility, that would be an option which could be helpful to K.M.G., certainly more helpful than returning him to his mother's home."

¶ 16 On April 8, 2009, the Youth Court held a dispositional hearing on K.M.G.'s probation violations and the new theft and resisting arrest charges. The State recommended the Youth Court commit K.M.G. to the Department of Corrections for placement at Pine Hills. Defense counsel recommended that the court place K.M.G. on probation, and return him to his mother's care on the condition that he "complete counseling with Eileen Robbins." Defense counsel stated that he understood Robbins's recommendation was to "send K.M.G. straight to Pine Hills" but, noting Robbins's willingness to treat K.M.G. if he was in Missoula, argued for probation, given that K.M.G. "would be under the understanding that if he is given probation, he is on a no-tolerance release. Any violation is going to send him to Pine Hills."

¶ 17 The Youth Court adjudicated K.M.G. a Delinquent Youth. Concluding that the commitment requirements of § 41-5-1513(1)(b), MCA, had been satisfied, the court ordered K.M.G. "committed to the custody of the Department of Corrections until he reaches the age of 18 years or sooner released by the Department of Corrections." Addressing K.M.G., the court stated that the

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

¶ 18 K.M.G. appeals.


¶ 19 We conduct de novo review of the youth court's conclusions of law to determine whether those conclusions are correct. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126 (citing LHC, Inc. v. Alvarez, 2007 MT 123, ¶ 13, 337 Mont. 294, 160 P.3d 502; State v. Hastings, 2007 MT 294, ¶ 8, 340 Mont. 1, 171 P.3d 726). We generally will not review an issue to which the appealing party failed to object in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892 (citing State v. Lenihan, 184 Mont. 338, 341, 602 P.2d 997, 999 (1979)). However, an exception to the rule "allows appellate review of a criminal sentence that is alleged to be illegal or in excess of statutory mandates, even if the defendant raised no objection in the trial court." Kotwicki, ¶ 8 (citing Lenihan, 184 Mont. at 343, 602 P.2d at 1000). Generally, we review a sentence's legality to determine "whether it is within the statutory parameters." State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188...

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