State v. Hamilton

• Citation: 393 Mont. 102,428 P.3d 849,2018 MT 253
• Decision Date: 16 October 2018
• Docket Number: DA 15-0253
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jeffery Elec HAMILTON, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

393 Mont. 102

428 P.3d 849

2018 MT 253

STATE of Montana, Plaintiff and Appellee,

v.Jeffery Elec HAMILTON, Defendant and Appellant.

DA 15-0253

Supreme Court of Montana.

Submitted on Briefs: August 15, 2018

Decided: October 16, 2018

For Appellant: Chad Wright, Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Daniel Guzynski, Special Deputy County Attorney, Helena, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury convicted Jeffery Elec Hamilton (Hamilton) of two counts of incest. The Eighth Judicial District Court, Cascade County, sentenced Hamilton to 100 years imprisonment with 75 years suspended and 25 years of parole ineligibility on each count. Hamilton appeals, and we address the following issues:

1. Did Hamilton waive his statutory vagueness claims by failing to raise them before trial?

2. Did Hamilton waive his objections to the District Court’s sentence by failing to raise them below?

3. Did the District Court err when it issued a written judgment that conflicted with its oral pronouncement of the sentence?

¶2 We affirm in part and reverse and remand in part. On remand, we instruct the District Court to correct its written judgment to reflect that Hamilton’s sentences are to run concurrently.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 2, 2014, Hamilton pleaded not guilty to charges of incest against his daughter in violation of § 45-5-507, MCA. That day, the District Court signed an order scheduling an omnibus hearing for February 19, 2014, and notifying Hamilton that "[p]re-trial motions not noticed at the omnibus hearing will be allowed only for good cause and reasonable diligence shown." When the District Court held Hamilton’s omnibus hearing the following month, Hamilton listed the motions he planned to file. Although he reserved the right to file a general motion "to dismiss," he did not state that he planned to challenge the constitutionality of Montana’s statute defining "sexual contact." In March 2014, the State filed an Amended Information charging Hamilton with two counts of sexual intercourse without consent and two counts of incest. The District Court arraigned Hamilton on the Amended Information on April 24, 2014. Between his arraignment and the first day of trial on October 6, 2014, Hamilton filed numerous motions with the District Court in anticipation of trial, but none of them challenged the constitutionality of Montana’s statute defining "sexual contact."

¶4 Before trial, when Hamilton and the State settled jury instructions, Hamilton did not object to the District Court’s instruction on the definition of "sexual contact," which was identical to the definition found in § 45-2-101(67), MCA. Moreover, Hamilton did not argue that the statutory definition of "sexual contact" was unconstitutionally vague.

¶5 Beginning October 6, 2014, the District Court held a three-day jury trial. Late in the evening on the final day of trial, the jury informed the District Court that it could not reach a consensus on two of Hamilton’s charges. The District Court then gave the jury a Norquay instruction—an instruction given to deadlocked juries that we adopted in State v. Norquay , 2011 MT 34, ¶ 43, 359 Mont. 257, 248 P.3d 817. After further deliberation, the jury found Hamilton guilty on both counts of incest and not guilty on both counts of sexual intercourse without consent.

¶6 On October 10, 2014, a juror contacted Hamilton’s defense counsel. She told him that in retrospect, she believed the jury instruction defining "sexual contact" was misleading. Based on the juror’s statements, Hamilton filed a motion to dismiss on November 14, 2014, arguing for the first time that the definition of "sexual contact" found in § 45-2-101(67)(a), MCA, was unconstitutionally vague. The State responded to Hamilton’s motion to dismiss by arguing that it was time-barred and that the definition of "sexual contact" was constitutional. The State also objected to allowing Hamilton to call a juror to testify at a hearing on the motion.

¶7 The District Court conducted a hearing to rule on Hamilton’s motion to dismiss in March 2015. Over the State’s continued objections, the District Court heard testimony from Hamilton’s former juror. Ultimately, the District Court denied Hamilton’s motion to dismiss. It found that Hamilton’s motion was untimely and that there were no deficiencies in the jury instructions based on the juror’s testimony.

¶8 After denying Hamilton’s motion to dismiss, the District Court immediately moved on to his sentencing hearing. During Hamilton’s sentencing hearing, the State called Probation and Parole Officer Tim Hides, and Hamilton called Dr. Michael Scolatti, who had performed a psychosexual evaluation of Hamilton. The District Court also allowed Hamilton’s victim to give a statement.

¶9 At the time of Hamilton’s offense, § 45-5-507(5)(a), MCA (2009 and 2011), set a mandatory minimum sentence of 100 years imprisonment with 25 years of parole ineligibility for the crime of incest when the victim was 12 years of age or younger and the offender was 18 years of age or older. The statute allowed for an exception to the mandatory minimum through § 46-6-222(6), MCA (2009 and 2011), if a district court determined, based on a psychosexual evaluation of the defendant, that an alternative sentence afforded a better opportunity for the defendant’s rehabilitation and "for the ultimate protection of the victim and society...."

¶10 During Hamilton’s sentencing hearing, both parties argued extensively about whether the above exception applied. After considering the testimony and arguments, the District Court found that the exception was inapplicable and sentenced Hamilton:

I'm going to give you the 100 years for both counts. I'm going to suspend 75 years of each of the counts and make you ineligible for parole for the 25 years on the Count III because that’s what the legislature said. I don't quite see the exception.

¶11 At the end of the hearing, the District Court asked both parties whether they had any questions. Hamilton asked for clarification on whether his sentences would run consecutively or concurrently. The District Court stated they would run concurrently. Hamilton raised no other issues at the time, and the sentencing hearing concluded.

¶12 On March 15, 2015, the District Court issued its judgment of conviction and sentencing order. The sentencing order did not restate the District Court’s prior oral pronouncement that Hamilton’s sentences would run concurrently. The order also omitted any reasoning for why the District Court declined to apply the exception from § 46-6-222(6), MCA (2009 and 2011), to Hamilton’s mandatory minimum sentence, as required by § 46-6-223, MCA. After receiving the order, Hamilton raised no further issues with the District Court.

STANDARD OF REVIEW

¶13 The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Robison , 2003 MT 198, ¶ 6, 317 Mont. 19, 75 P.3d 301.

¶14 "We review criminal sentences that include at least one year of actual incarceration to determine whether they are legal." State v. Garrymore , 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946. A sentence is legal when it is within the statutory parameters. Therefore, the legality of a sentence is a question of law which we review de novo. Garrymore , ¶ 9. We review the district court’s findings of fact on which its sentence is based to determine whether they are clearly erroneous. State v. Shults , 2006 MT 100, ¶ 34, 332 Mont. 130, 136 P.3d 507.

¶15 In Montana, exceptions to mandatory minimum sentences—much like sentencing alternatives—are strictly a matter of statute. Compare § 46-18-222, MCAwith § 46-18-225, MCA ; see Shults , ¶ 34. Our review of mandatory minimum sentence exceptions requires us to analyze whether the district court correctly applied the statute. See Shults , ¶ 34. Sections 46-18-222 and -223, MCA, require a district court judge to determine whether to apply a mandatory minimum sentence exception based on "a preponderance of the information, including information submitted during the trial, during the sentencing hearing, and in so much of the presentence report as the court relies on." Section 46-18-223(3), MCA. Thus, a district court’s application of the statute requires it to make findings of fact, which we review to determine whether they are clearly erroneous. Shults , ¶ 34. Findings of fact are clearly erroneous "if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been made."

State v. Warclub , 2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d 254 (citing State v. Eixenberger , 2004 MT 127, ¶ 13, 321 Mont. 298, 90 P.3d 453 ).

DISCUSSION

¶16 1. Did Hamilton waive his statutory vagueness claims by failing to raise them before trial?

¶17 Under § 46-13-101(1), MCA, a party must raise "any defense, objection, or request that is capable of determination without trial of the general issue" at or before the omnibus hearing unless good cause is shown. Failure to do so constitutes a waiver of the defense, objection, or request. Section 46-13-101(2), MCA. Similarly, a party generally must timely raise "[a] claim alleging an error affecting jurisdictional or constitutional rights," like an objection to jury instructions, or else the party waives the claim. Sections 46-20-104 and -701, MCA ; State v. Baker , 2000 MT 307, ¶¶ 29-30, 302 Mont. 408, 15 P.3d 379. We have previously stated that, above all else, "the rationale underlying the timely-objection rule is judicial economy and ‘bringing alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.’ " State v. West , 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d...