State v. Fox
| Citation | 2012 MT 172,285 P.3d 454,366 Mont. 10 |
| Decision Date | 10 August 2012 |
| Docket Number | No. DA 11–0444.,DA 11–0444. |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Ralph Leon FOX, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
OPINION TEXT STARTS HERE
For Appellant: Colin M. Stephens, Jordan Kilby, Smith & Stephens, P.C., Missoula, Montana.
For Appellee: Steve Bullock, Montana Attorney General, Matthew T. Cochenour, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Travis Ahner, Lori Adams, Deputy County Attorneys, Kalispell, Montana.
¶ 1 In January 2007, Ralph Fox was charged in the Montana Eleventh Judicial District Court with two counts of felony sexualassault against minor females, CS (Count I) and HS (Count II). In July 2007, a federal grand jury handed down an indictment in the United States District Court charging Fox with three felony offenses: sexual exploitation of children, receipt of child pornography and possession of child pornography. Fox was convicted of all charges, and in October 2008, he was sentenced to federal prison for 110 years. Subsequently, Fox moved to dismiss the State action against him on the ground of double jeopardy.
¶ 2 The District Court dismissed one count of sexual assault against Fox, and he was convicted of the remaining count. Nevertheless, the court sentenced Fox to two fifty-year sentences—one for each count of sexual assault—and five years for failing to register as a sex offender. The fifty-year sentences were to run concurrently with each other and with the federal sentence. The five-year sentence was to run consecutively to the fifty-year sentences for assault but concurrently with the federal sentence. Fox appeals, arguing the District Court erred when it sentenced him to a term of fifty years for the dismissed assault charge. He also claims the court erred when it denied his motion to dismiss the remaining assault charge. We affirm in part and remand in part.
¶ 3 A restatement of the issues on appeal is:
¶ 4 Did the District Court illegally sentence Fox to fifty years for a dismissed sexual assault charge?
¶ 5 Did the District Court err in denying Fox's motion to dismiss the remaining sexual assault count?
¶ 6 Following an approximate eleven-year incarceration in California after being convicted of committing lewd and lascivious acts upon a seven-year-old female, Fox was discharged in July 1996 and, shortly thereafter, he and his wife moved to Flathead County, Montana. Fox did not register as a sexual offender as required by law.
¶ 7 Fox met the children involved in this case at some time between mid–2004 and early 2005, and quickly ingratiated himself with the family. CS and HS's parents, who met Fox through a trusted friend and childcare provider, believed that Fox had been physically abused as a child and, as a result, was childlike with the mentality of a fourteen-year old. They allowed their daughters to spend time with him and his wife at Fox's home and on outings away from home. The parents frequently were not present during these visits.
¶ 8 The record reflects that during 2005 and 2006, while HS was between six and eight years old, Fox showed her pornographic images of children on his computer. Additionally, he took photographs of her in various stages of undress and while nude. Fox instructed HS not to tell anyone about the pictures. When the girls were questioned by their mother in early January 2007, HS told her mother about the computer pictures, the photographs Fox had taken of her, and the physical contact she had with Fox. She described performing oral sex on Fox and Fox kissing her on her lips and rubbing his finger “through her privates.”
¶ 9 CS, who was 10 when she met Fox, told her mother that on numerous occasions Fox had squeezed, patted and slapped her buttocks outside of her clothing and that he had “cupped her naked breasts with his hands.” She also revealed that he had shown her pornographic pictures of children on his computer and encouraged her to pose the way the children in the pictures posed. The girls' mother immediately contacted Flathead County law enforcement. The Flathead County Sheriff's Department arrested Fox on January 5, 2007, and charged him with two counts of felony sexual assault—one count for assault of CS, and one for assault of HS. In a separate criminal action, Fox was charged with failure to register as a sex offender. Fox was appointed defense counsel and at arraignment on January 25, 2007, Fox entered a plea of not guilty to both counts of sexual assault.
¶ 10 On July 19, 2007, a federal grand jury in Montana handed down a three-count indictmentcharging Fox with sexual exploitation of children, and receipt and possession of child pornography. Following a March 10, 2008 bench trial, Fox was found guilty of all counts. On October 3, 2008, Fox was sentenced to fifty years on the exploitation charge, forty years for receipt of child pornography, and twenty years for possession of child pornography. These sentences were ordered to run consecutively and totaled 110 years in federal prison.
¶ 11 On January 29, 2009, Fox moved to dismiss his State criminal charges. He argued that the federal prosecution involved the same victims and the same conduct; therefore, § 46–11–504, MCA, the “double jeopardy statute,” barred State prosecution for the same offenses. Initially, the District Court denied Fox's motion to dismiss. Fox promptly filed a correction and clarification of his position. He also changed his plea and entered into a plea agreement whereby he pled guilty to the failure to register charge and to Count II, the sexual assault charge pertaining to HS. He pled guilty by way of an Alford plea 1 to sexual assault against CS.
¶ 12 After reviewing Fox's clarification of position, the District Court concluded the federal exploitation conviction paralleled the State sexual assault charge involving HS, raising double jeopardy concerns. The court therefore dismissed Count II. However, the District Court concluded that the federal exploitation charge did not arise out of any transaction involving CS. The District Court therefore denied Fox's request to dismiss the sexual assault charge pertaining to CS. Fox subsequently moved to withdraw his guilty pleas.
¶ 13 Before ruling on Fox's motion to withdraw his guilty pleas, the District Court conducted a hearing, issued judgment and pronounced sentence. In its February 1, 2010 Judgment and Sentence, the District Court sentenced Fox to fifty years for Count I, fifty years for Count II, and five years for failing to register. The fifty-year sentences were to run concurrently with each other and with the federal sentence. The five-year sentence was to run consecutively to the fifty-year sentences and concurrently with the federal sentence. As a result, Fox was sentenced to serve fifty-five years in State prison followed by the remainder of his federal sentence to be served in a federal facility.
¶ 14 Fox appeals the District Court's judgment and sentence. He argues that the District Court erred by not dismissing Count I. He maintains that the charges in Count I were incorporated into his federal charges and therefore jeopardy had attached with the federal conviction and the State charges should have been dismissed. Fox also asserts that the District Court pronounced an illegal sentence when it sentenced him to fifty years for Count II which the court had previously dismissed.
¶ 15 We review criminal sentences longer than one year for legality only. State v. Holt, 2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470. The Court reviews the denial of a motion to dismiss in criminal cases de novo to determine whether the district court's conclusions of law are correct. State v. Sidmore, 286 Mont. 218, 223, 951 P.2d 558, 562 (1997).
¶ 16 Did the District Court illegally sentence Fox to fifty years for a dismissed sexual assault charge?
¶ 17 In its October 19, 2009 Order and Rationale on Reconsideration of Motion to Dismiss, the court, relying upon State v. Neufeld, 2009 MT 235, 351 Mont. 389, 212 P.3d 1063, indisputably dismissed Count II. The District Court therefore erred in imposing a sentence on this dismissed criminal charge. Accordingly, we remand to the District Court for correction of the illegal provision. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087 ().
¶ 18 Did the District Court err in denying Fox's motion to dismiss the remaining sexual assault count?
¶ 19 Fox argues that because he was convicted in federal court of sexual exploitation of children and possession of child pornography, jeopardy attached as a result of his federal conviction, and the State could not prosecute him under § 46–11–504, MCA, for the same behavior. Section 46–11–504, MCA, provides, in relevant part:
When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if:
(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction....
Thus, under this statute, Fox's State prosecution is barred if:
(1) his conduct constitutes an offense within the federal jurisdiction where his first prosecution occurred and it constitutes an offense in the State jurisdiction where his second prosecution was pursued;
(2) he was convicted or acquitted in the federal prosecution; and
(3) his State prosecution is based on an offense arising out of the same transaction.
See State v. Tadewaldt, 277 Mont. 261, 922 P.2d 463 (1996), superseded by statute as stated in Heddings v. State, 2011 MT 228, 362 Mont. 90, 265 P.3d 600. All three...
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