State v. Hameline, DA 06-0664.

• Citation: 188 P.3d 1052, 2008 MT 241
• Case Date: July 08, 2008
• Court: United States State Supreme Court of Montana

188 P.3d 1052 2008 MT 241 STATE of Montana, Plaintiff and Appellee,
v.
Sylvester Wayne HAMELINE, Defendant and Appellant. No. DA 06-0664. Supreme Court of Montana. Submitted on Briefs February 20, 2008. Decided July 8, 2008.

[188 P.3d 1053]

For Appellant: Jim Wheelis, Chief Appellate Defender; Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney; Joel Thompson, Deputy County Attorney, Great Falls, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Sylvester Wayne Hameline (Hameline) appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, on his conviction and sentence for the offense of sexual intercourse without consent. We affirm.

188 P.3d 1054

¶ 2 Hameline raises the following issues on appeal:

¶ 3 1. Did the District Court err in imposing conditions on Hameline's sentence restricting his contact with children under the age of 18 and his access to pornographic materials?

¶ 4 2. Did the District Court err in imposing an annual polygraph testing condition on Hameline's sentence?

BACKGROUND

¶ 5 In September of 2005, the State of Montana (State) charged Hameline by information with the felony offenses of sexual intercourse without consent and aggravated burglary. Hameline subsequently appeared in the District Court to plead guilty to the sexual intercourse without consent charge pursuant to a plea agreement with the State. In exchange for Hameline's guilty plea, the State agreed to recommend a 40-year sentence at the Montana State Prison (MSP), with 25 years suspended, and to dismiss the aggravated burglary count. The District Court accepted Hameline's guilty plea, granted the State's motion to dismiss the aggravated burglary charge, ordered that a presentence investigation be conducted and scheduled a sentencing hearing.

¶ 6 The presentence investigation report (PSI) concurred in the State's recommendation that Hameline be sentenced to a term of 40 years with 25 years suspended. Appended to the PSI was a psychological/psychosexual evaluation report regarding Hameline completed in February of 2006. The evaluation report included 11 sentence and treatment recommendations, including that Hameline be required to complete chemical dependency and sexual offender treatment programs, be restricted from unsupervised contact with children under the age of 18, not possess or have access to pornography, and "submit to a treatment polygraph examination upon the request of his probation officer or therapist." The PSI's 37 recommended conditions of sentence incorporated the sentence and treatment recommendations outlined in the psychological/psychosexual evaluation report, including that Hameline "submit to annual polygraph testing."

¶ 7 At the sentencing hearing, Hameline presented testimony from the psychologist who conducted the psychological/psychosexual evaluation, and the District Court heard sentencing recommendations from both parties. Hameline also acknowledged that he received and reviewed the PSI, but he made no objections to its contents. The court then sentenced Hameline to a 40-year term at the MSP, with 20 years suspended, and imposed the 37 recommended conditions on the suspended portion of the sentence. The District Court subsequently entered its written sentence and judgment, and Hameline appeals.

STANDARD OF REVIEW

¶ 8 Hameline challenges the District Court's imposition of various conditions on the suspended portion of his sentence. We review a sentencing condition for legality, determining whether the condition is within statutory parameters. State v. Ashby, 2008 MT 83, ¶¶ 8-9, 342 Mont. 187, ¶¶ 8-9, 179 P.3d 1164, ¶¶ 8-9. If the condition falls within statutory parameters, we then review the reasonableness of the condition to determine whether the sentencing court abused its discretion in imposing it. Ashby, ¶ 9.

DISCUSSION

¶ 9 1. Did the District Court err in imposing conditions on Hameline's sentence restricting his contact with children under the age of 18 and his access to pornographic materials?

¶ 10 Hameline challenges 10 of the sentencing conditions imposed by the District Court which restrict his contact with children under the age of 18 and his access to pornographic materials. Hameline does not assert that the District Court was without statutory authority to impose these conditions. Rather, he contends there is no evidence of record to support imposition of the conditions in this case. In other words, Hameline argues that the District Court abused its discretion in imposing the conditions. He does not contend that the conditions are illegal.

188 P.3d 1055

¶ 11 In response, the State first argues that Hameline is barred from challenging the propriety of these sentencing conditions on appeal because he failed to challenge the conditions in the District Court. We agree.

¶ 12 We generally refuse to review issues on appeal where the party failed to object in the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, ¶ 8, 151 P.3d 892, ¶ 8. We have created an exception to this general rule which allows appellate review of a criminal sentence which is alleged to be illegal, or in excess of statutory mandates, even where the defendant failed to object to the sentence in the trial court. See State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). However, "a sentencing court's failure to abide by a statutory requirement rises to an objectionable sentence, not necessarily an illegal one that would invoke the Lenihan exception." Kotwicki, ¶ 13

¶ 13 When a sentencing court suspends all or a...