State v. Garrymore

Decision Date02 October 2006
Docket NumberNo. 04-644.,04-644.
Citation145 P.3d 946,334 Mont. 1,2006 MT 245
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jason Lucas GARRYMORE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: William F. Hooks (argued), Attorney at Law, Helena, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Mark E. Mattioli (argued), Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, County Attorney; Suzy Boylan-Moore and Andrew Paul, Deputy County Attorneys, Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 A jury convicted Appellant Jason Lucas Garrymore of deliberate homicide on February 27, 2004. Thereafter, the Fourth Judicial District Court sentenced him to life imprisonment without the possibility of parole. Garrymore challenges the parole restriction and urges us to vacate his sentence. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 (1) Does Garrymore's failure to object to the District Court's imposition of sentence preclude our review on appeal?

¶ 4 (2) Did the District Court's imposition of the parole eligibility restriction pursuant to § 46-18-202(2), MCA (2001), violate Garrymore's federal and state constitutional and statutory rights to jury trial and due process?

BACKGROUND

¶ 5 After an incident on January 2, 2003, left nearly two-year-old Tylin Garrymore dead, the State charged her father, Appellant Jason Lucas Garrymore (Garrymore), with deliberate homicide in violation of § 45-5-102, MCA (2001). Garrymore pleaded not guilty to the charge on February 4, 2003, and the case proceeded to trial by jury. The jury convicted Garrymore of deliberate homicide on February 27, 2004.

¶ 6 After completion of a pre-sentence report, Garrymore's case proceeded to sentencing on May 6, 2004. At the hearing, both Garrymore and the State presented evidence of Garrymore's past conduct and character, and each side argued for a different sentence. The State adopted the recommendation of Mr. Sonju, the probation/parole officer who had prepared the pre-sentence report. Relying on considerable evidence, Mr. Sonju concluded that Garrymore could not be rehabilitated, and recommended that Garrymore be given a life sentence without the possibility of parole. Conversely, Garrymore argued that he was never given an opportunity to properly rehabilitate, especially when his mental health issues were considered, and urged the court not to impose a parole eligibility restriction.

¶ 7 Notwithstanding Garrymore's arguments to the contrary, the District Court adjudged Garrymore a violent offender and sentenced him to life imprisonment without the possibility of parole. The court provided the following basis for its decision:

Now, this defendant has three convictions for domestic abuse and unlawful restraint. He was arrested on the same type of charges in Utah and California but moved out of their jurisdiction so the charges were dismissed. In addition, he was on probation when this offense was committed.

....

Now, throughout the trial and these proceedings, contrary to the testimony, I have not seen any remorse from this defendant. And I'm going to adopt some of Mr. Sonju's reasons as my reasons. Mr. Sonju quite candidly, said, I have been looking for all mitigating factors in this case. What is most disturbing is that I have been unable to find any.

Further, I agree with Mr. Sonju, especially after viewing the photographs, that I do not believe Tylin's death was caused by a tragic culmination of accidents.

Though he may not have actively planned this death, his behavior, sadistic or otherwise, certainly caused it. He has a record of being mean and abusive to women.

As a result of his delay, the child died a violent, slow, painful death. She could have been taken to the hospital and possibly saved. He talked the mother out of that, and it appears that he would rather save his own neck from child abuse charges than save his two-year-old adopted daughter.

Finally, in our society, and I think we all realize it, even total strangers rush to assist a child in distress. But you, her adoptive father, chose to abuse and, from the pictures, torture this little girl and let her die.

So it's now the judgment of this Court that you be sentenced to life imprisonment in the Montana State Prison without eligibility for parole.

(Emphasis added.) Garrymore did not object to the sentence at the time of its pronouncement by the District Court.

¶ 8 Garrymore appeals, asserting that the District Court imposed the parole eligibility restriction in violation of his federal and state constitutional and statutory rights.

STANDARD OF REVIEW

¶ 9 We review criminal sentences that include at least one year of actual incarceration to determine whether they are legal. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017, ¶ 22. "[A] sentence is not illegal when it is within the parameters provided by statute." State v. Montoya, 1999 MT 180, ¶ 11, 295 Mont. 288, ¶ 11, 983 P.2d 937, ¶ 11 (quoting State v. Gunderson, 282 Mont. 183, 187, 936 P.2d 804, 806, (1997) (overruled on other grounds)). We review questions of law de novo. Wadsworth v. State, 275 Mont. 287, 298, 911 P.2d 1165, 1171 (1996).

DISCUSSION
Issue 1: Does Garrymore's failure to object to the District Court's imposition of sentence preclude our review on appeal?

¶ 10 Noting that "the defense did not assert a state or federal constitutional objection to the sentencing court's statutory authority to restrict parole," the State offers a brief argument that the merits of Garrymore's claim should not be reviewed on appeal. The State acknowledges the exception to the contemporaneous objection rule we adopted for sentencing purposes in State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), but offers "three reasons why Lenihan jurisdiction should not be invoked."1

¶ 11 Initially, we observe that the State's "three reason" argument is very brief and is not supported by reference to any case from our Lenihan jurisprudence, but, rather, by citations, without analysis, to a state civil case and a federal case addressing the exercise of plain error review, a separate doctrine not at issue herein.2 Therefore, a comprehensive response to the State's Lenihan arguments is not necessary. The Lenihan rule states as follows:

It appears to be the better rule to allow an appellate court to 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.

Lenihan, 184 Mont. at 343, 602 P.2d at 1000.

¶ 12 First, the State offers that Lenihan does not apply because "neither party recommended a deferred or suspended sentence in this case." Although the Lenihan case involved the imposition of a deferred sentence, the rule we adopted therein was not limited to probationary sentences, and we have undertaken, pursuant to Lenihan, appellate review of sentences which had no deferred or suspended portions. See State v. Honey, 2005 MT 107, ¶ 35, 327 Mont. 49, ¶ 35, 112 P.3d 983, ¶ 35, and State v. Stone, 2004 MT 151, ¶ 45, 321 Mont. 489, ¶ 45, 92 P.3d 1178, ¶ 45.

¶ 13 Secondly, noting that the parole ineligibility condition Garrymore challenges on appeal was raised during the sentencing hearing by the prosecution, the State contends that the Lenihan rule is inapplicable because an objection by Garrymore "would not have provoked judicial vindictiveness which Lenihan fears," and that Garrymore's appellate challenge is nothing more than an impermissible change of theories on appeal. Though judicial vindictiveness was a concern addressed in Lenihan, our holding therein was not limited to such circumstances, and we have since explained that the risk of judicial vindictiveness is only "part" of the rationale underpinning the Lenihan rule. See State v. Micklon, 2003 MT 45, ¶ 9, 314 Mont. 291, ¶ 9, 65 P.3d 559, ¶ 9. Further, the general rule governing a change of theories on appeal necessarily presupposes that a "theory" or argument was first advanced in the district court, a circumstance inherently inconsistent with Lenihan, which applies, in the sentencing context, when the defendant remains silent and offers no argument in the district court, and, thus, is an exception to the general rule. More importantly, however, it would ultimately undermine the efficacy of the sentencing process to reject appellate review of sentences where the defendant objected in the district court and changed his theory on appeal, yet allow appellate review of sentences where no objection is made, thereby creating an institutional incentive for defendants to remain silent during sentencing.

¶ 14 Thirdly, the State contends that Garrymore's sentence "was not, as Garrymore now contends, unconstitutional." We presume from this statement the State means that, because of the State's confidence in the constitutionality of the sentence, Garrymore's sentence cannot be "illegal" for purposes of applying the Lenihan rule. However, the Lenihan rule allows "an appellate court to review" certain sentences, on their substantive merits, which are "alleged" to be illegal, Lenihan, 184 Mont. at 343, 602 P.2d at 1000, and is not limited to those appeals in which the defendant prevails on the merits. Rather, the Lenihan rule is a procedural mechanism whereby appellate review of certain allegedly illegal sentences, which would be procedurally barred for lack of objection, may nonetheless be obtained. After undertaking appellate review of the sentence by way of the Lenihan rule, the Court then takes up the merits. See State v. Vernes, 2006 MT 32, ¶ ¶ 26-30, 331 Mont. 129, ¶ ¶ 26-30, 130 P.3d 169, ¶ ¶ 26-30.

¶ 15 Lastly, the State suggests that, because Garrymore's sentence is within statutory parameters, we "should refrain from invoking Lenihan to address a constitutional challenge to §...

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