State v. Bull, DA 16-0266.

• Decision Date: 10 October 2017
• Docket Number: DA 16-0266.
• Citation: 403 P.3d 670,389 Mont. 56,2017 MT 247
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kerstyn Jade OLD BULL, Defendant and Appellant.
• Court: Montana Supreme Court

389 Mont. 56

403 P.3d 670

2017 MT 247

STATE of Montana, Plaintiff and Appellee,

v.Kerstyn Jade OLD BULL, Defendant and Appellant.

DA 16-0266.

Supreme Court of Montana.

Submitted on Briefs: August 9, 2017

Decided: October 10, 2017

For Appellant: Craig Kevin Shannon, Attorney at Law, Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Gerald "Jay" Harris, Big Horn County Attorney, Hardin, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶ 1 Defendant Kerstyn Jade Old Bull appeals from the sentence and judgment of the Twenty-Second Judicial District Court, Big Horn County. The District Court sentenced Old Bull to ten years in the Montana Women's Prison (MWP), parole restricted for the entire term, on her conviction for criminal endangerment in violation of § 45-5-207, MCA ; and ten years in MWP, parole restricted for seven and one-half years, on her conviction for obstructing justice in violation of § 45-7-303, MCA, to be served consecutively to her criminal endangerment sentence.

¶ 2 We address the following issues:

Issue One: Whether the District Court erred by imposing a parole eligibility restriction on Old Bull's sentence for obstructing justice.

Issue Two: Whether the District Court erred by requiring Old Bull to register as a violent offender.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On March 2, 2015, Old Bull and her boyfriend Clint Hogan took Hogan's unresponsive six-year-old daughter, K.H., to Hardin Hospital. K.H. was then transported to Denver Children's Hospital where she died from her injuries. When interviewed separately, Hogan and Old Bull independently reported that K.H. was in good health when Hogan left to go to the store, that she was unresponsive when Hogan returned, and that she never regained consciousness. According to the Presentence Investigation Report (PSI) ordered by the District Court, Old Bull and Hogan waited roughly two hours before seeking medical attention for K.H. During the State's investigation into K.H.'s death, Old Bull told law enforcement that K.H. fell in the shower, which led to her injury. This account conflicted with the treating hospital assessment that K.H.'s injuries resulted from a traumatic forceful blow to the head and blunt force trauma that could not have been caused by an accidental fall. K.H. also "had evidence of both fresh and historical bruising over her entire body, consistent with habitual abuse." Old Bull later admitted that she provided false information to law enforcement regarding Hogan's involvement in the crime because she was scared to stand up to Hogan.

¶ 4 The State initially charged Old Bull with deliberate homicide of K.H. On November 13, 2015, the State amended these charges, pursuant to a plea agreement, to criminal endangerment and obstructing justice. Old Bull pled guilty to these charges. As part of the plea agreement, Old Bull admitted that she "engaged in conduct that created a substantial risk of death or serious bodily injury to another, specifically [K.H]." She also admitted to providing the police with false information regarding Hogan's role in K.H.'s death. At sentencing, Old Bull never disputed that K.H. died due to blunt force trauma; however, Old Bull did dispute whether she had been the cause of K.H.'s injury.

¶ 5 Due to what the District Court characterized as Old Bull's "heinous" conduct that resulted in K.H.'s death, the Court restricted Old Bull's parole eligibility for the entire ten-year sentence for criminal endangerment and for seven and one-half years of the consecutive ten-year sentence for obstructing justice. Hogan received a ten-year suspended sentence for obstructing justice during the investigation into K.H.'s death.

¶ 6 At Old Bull's sentencing, the District Court stated on the record—without distinguishing between the criminal endangerment charge and the obstructing justice charge—its rationale for the parole restrictions. The Court stated: "You have a child who is dead here; [she] has passed away. And there is evidence that this child endured habitual abuse. The Court will not turn a blind eye to that." The Court further stated that it could see no "justification for treating a child the way this child was treated or engaging in conduct that would allow for such treatment" and found it "appropriate ... [to] impose an equally severe sentence." The Court also emphasized the lasting trauma to the family and community caused by K.H.'s death. Further, the District Court stated that the parole restrictions would ensure that Old Bull have access to programs while in MWP to help address anger and emotional issues and, therefore, have a chance at rehabilitation. The District Court specified that the rationale for imposition of the sentence and judgment were also "the reasons for ineligibility for parole," reemphasizing that the death of K.H., a young child, required a "sufficient level of punishment and accountability."

¶ 7 Old Bull argued against any parole restriction on the basis that it would limit the Parole Board's exercise of authority and discretion. Old Bull made no other specific objections to the parole restrictions.

¶ 8 In its written judgment, the District Court enumerated thirty-three recommended terms and conditions for "any period of community based supervision" for the felony obstructing justice conviction, including the requirement that Old Bull register as a violent offender. The Court also restated its reasons for restricting Old Bull's parole; specifically, the "heinous nature" of Old Bull's criminal conduct that "resulted in severe bodily injury to the child victim, [K.H.], from which the child ultimately died," evidence in the PSI indicating habitual abuse of K.H., justice for the horrific circumstances of the crime, and, finally, that sufficient time, in confinement would allow Old Bull to engage in rehabilitative programming. Old Bull appeals the District Court's parole eligibility restriction on her sentence for obstructing justice and the parole condition that she register as a violent offender.

STANDARDS OF REVIEW

¶ 9 We review for legality a district court's restrictions on parole eligibility and sentencing on criminal sentences that include at least one year of incarceration.

State v. Ariegwe , 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815. Whether a restriction or sentence is legal is a question of law, and our review is de novo. Ariegwe , ¶¶ 174–75 ; see also State v. Ashby , 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164 ; State v. Paulsrud , 2012 MT 180, ¶ 9, 366 Mont. 62, 285 P.3d 505. If a sentencing condition is legal, we then review the challenged condition for abuse of discretion. City of Bozeman v. Cantu , 2013 MT 40, ¶ 11, 369 Mont. 81, 296 P.3d 461 ; State v. Blake , 274 Mont. 349, 908 P.2d 676, 677 (1995).

DISCUSSION

¶ 10 Issue One: Whether the District Court erred by imposing a parole eligibility restriction on Old Bull's sentence for obstructing justice.

¶ 11 Generally, we will not review on appeal an issue that a party failed to preserve through objection at trial. State v. Kotwicki , 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892 ; see also Ashby , ¶ 22 (explicitly refusing to review an unchallenged condition in light of a defendant's failure to object in district court). We will, however, review a criminal sentence alleged to be illegal or in excess of statutory mandates even absent a defendant's raised objection in district court. State v. Lenihan , 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). A sentencing condition is illegal "if the sentencing court lacked statutory authority to impose it, if the condition falls outside the parameters set by applicable sentencing statutes, or if the court did not adhere to the affirmative mandates of the applicable sentencing statutes. " State v. Heddings , 2008 MT 402, ¶ 11, 347 Mont. 169, 198 P.3d 242 (citing State v. Stephenson , 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502 ) (internal citations omitted). Conversely, a sentence that is merely disparate does not rise to the level of illegality. State v. Webb , 2005 MT 5, ¶ 8, 325 Mont. 317, 106 P.3d 521 ; see also State ex rel. Greely v. District Court , 180 Mont. 317, 327, 590 P.2d 1104, 1109–10 (1979) (holding that a defendant has the right to have a sentence reviewed for equality or disparity by the Sentence Review Board and citing §§ 46-18-901–905, MCA ); see also State v. Simtob , 154 Mont. 286, 288, 462 P.2d 873, 874 (1969) (clarifying that sentence disparity and equality should be reviewed by a sentencing board, whereas this Court reviews a sentence to determine legality). A district court's failure to abide by a statutory requirement may rise to an objectionable sentence, though not necessarily an illegal one. Kotwicki , ¶ 13 ; see also State v. Bullplume , 2013 MT 169, ¶ 17, 370 Mont. 453, 305 P.3d 753. Thus, when a district court, "if provided the opportunity to consider the error now asserted on appeal, could nevertheless have imposed the same sentence, the illegality requirement of the Lenihan exception has not been met." Bullplume , ¶ 17.

¶ 12 Old Bull argues that her parole restriction of seven and one-half years for obstructing justice is illegal, and therefore reviewable by this Court under Lenihan because: (1) it led to an unreasonably disparate sentence as compared to Hogan's sentence; (2) the District Court failed to orally pronounce the reasons for the parole restriction specifically as to the obstructing justice conviction as required by § 46-18-115(6), MCA ; and (3) the District Court exceeded its statutory authority under § 46-18-202(2), MCA, when it restricted parole as to obstructing justice based on conduct punished by Old Bull's criminal endangerment sentence. The State counters that the District Court legally imposed parole restrictions on the obstructing justice sentence, and that Old Bull waived any other challenges as to the reasonableness of the...