State v. Hill

• Decision Date: 15 April 2009
• Docket Number: No. DA 07-0400.,DA 07-0400.
• Citation: 350 Mont. 296,207 P.3d 307,2009 MT 134
• Parties: STATE of Montana, Plaintiff and Appellee, v. Ryan M. HILL, Defendant and Appellant.
• Court: Montana Supreme Court

207 P.3d 307

2009 MT 134

350 Mont. 296

STATE of Montana, Plaintiff and Appellee, v. Ryan M. HILL, Defendant and Appellant.

No. DA 07-0400.

Supreme Court of Montana.

Argued and Submitted September 17, 2008.

Decided April 15, 2009.

Rehearing Denied May 19, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski (argued), Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; J. Stuart Segrest (argued), Assistant Attorney General, Helena, Montana. Cyndee L. Peterson, Hill County Attorney; Gina Bishop, Deputy County Attorney, Havre, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Pursuant to a plea agreement, Ryan Michael Hill pled guilty to attempted sexual intercourse without consent. In exchange for his guilty plea, the State dismissed one count of sexual intercourse without consent and a separate charge of sexual abuse of children. The Twelfth Judicial District Court, Hill County, sentenced Hill to 60 years at Montana State Prison, with all but 15 years suspended. Hill appeals.

¶ 2 Hill raises the following issues on appeal:

¶ 3 Issue 1: Must Hill's conviction be reversed because the State violated the plea agreement by asking the District Court to sentence him more severely based on a dismissed charge?

¶ 4 Issue 2: Did the District Court violate Hill's due process and Fifth Amendment rights by considering acts which Hill reported while he was in a sexual offender treatment program?

¶ 5 Issue 3: Did the District Court err by designating Hill a Level 3 sex offender?

BACKGROUND

¶ 6 In November 2000, the State filed a petition to declare Hill a delinquent youth in the Twelfth Judicial District Youth Court, alleging he committed the offense of sexual assault. The petition alleged that in 1999, when Hill was a juvenile, he forced a 14-year-old boy and his 10-year-old sister to simulate sexual intercourse while he videotaped them and the reports state he fondled the girl and forced the boy to perform oral sex on him. The record and reports reflect Hill admitted these offenses, which would have been crimes if Hill was an adult. Hill and the State entered into a consent decree, which provided if Hill successfully completed treatment at Yellowstone Treatment Center (YTC), the State would dismiss the petition. The consent decree also provided that if Hill violated any of its terms, he could, at the discretion of the juvenile probation officer, be placed in detention for up to ten days. The Youth Court accepted the consent decree.

¶ 7 The record contains reports indicating that while at YTC, Hill sexually offended against three younger children when he exposed himself, forced oral sex on a boy, and fondled a girl. YTC terminated Hill and he was subsequently admitted to Brown School, Thresholds for Change (Brown School)—another youth sexual offender treatment program. The court granted the State's petition to extend Hill's probation an extra year and again required Hill to successfully complete sex offender treatment at Brown School.

¶ 8 Brown School discharged Hill. Hill's case manager strongly recommended he not be released into the community and not be placed in a less restrictive program than Brown School because she considered him an extremely high risk to reoffend. She recommended he be transferred to the Juvenile Sex Offender Treatment Program at the Pine Hills Juvenile Detention Facility in Miles City. However, Hill was returned home.

¶ 9 Hill's family placed him at a private sexual offender treatment center, but removed him because they did not like how he was being treated.

¶ 10 In June 2006, in Count I of the information filed in this case, the State charged Hill with attempted sexual intercourse without consent, alleging he tried to have intercourse with his 3 ½-year-old niece, N.T. About a month later, the State amended its information to add Count II, sexual intercourse without consent, alleging that Hill forced N.T. to perform oral sex on him. At about the same time, in a separate case, the State charged Hill with sexual abuse of children, alleging he solicited sex over the internet from a 14-year-old girl, K.S.

¶ 11 In October 2006, Hill and the State entered into a plea agreement. Hill agreed to plead guilty to Count I. The State agreed to dismiss Count II of the information as well as the information alleging he was guilty of the offense of sexual abuse of children. As a part of the plea agreement, Hill agreed to complete a psychosexual evaluation. The plea agreement also provided that a pre-sentence investigation would be conducted by a probation officer and a pre-sentence investigation report (PSI) would be prepared and filed. Hill acknowledged that the sentencing judge would not be bound by the recommendations of either party, or of the probation officer, and that he could be sentenced up to the maximum penalty provided by law.

¶ 12 Unknown to the State, Hill hired Dr. Donna Zook to conduct a sex offender evaluation weeks before he signed the plea agreement. Dr. Zook performed the typical tests associated with a psychosexual evaluation. However, she was not provided with information concerning Hill's prior offenses or of his treatment at YTC and Brown School. Dr. Zook prepared a report in which she concluded Hill needed intense, lifetime supervision and recommended he be designated a Level 2 sex offender; a moderate risk to reoffend. Later, at the sentencing hearing, Dr. Zook acknowledged she lacked complete information when preparing her report, but she did not change her recommendation that Hill be designated a Level 2 offender.

¶ 13 In January 2002, years before Hill's offense against N.T. and after he failed the programs at YTC and Brown School, Dr. Marla North conducted a psychosexual evaluation of Hill. At the sentencing hearing, Dr. North testified and updated her knowledge. As a part of her 2002 evaluation, Dr. North reviewed records from YTC and Brown School, stating Hill reported he had sexual contact with other children while in treatment. In answer to questions concerning his sexual history, Hill told Dr. North he had sexual contact with 13 different children, and he entered the details of such contacts in a log he completed at Brown School. Hill told Dr. North he had sexual contact with a 5-year-old boy when he was 13, had oral and anal sex with a 7- or 8-year-old boy when he was 12, had sexual contact with at least five boys younger than himself, and had sexual contact with a 14-year-old girl when he was six or seven, which was his idea.

¶ 14 A probation officer conducted a pre-sentence investigation and filed a PSI report with the District Court. A copy was provided to both the prosecutor and Hill. As is required by § 46-18-112(1)(a), (b), (e), MCA, the report included information about Hill's prior offenses and prior supervision. The PSI mentioned the other offenses noted in Dr. North's evaluation. Dr. North's and Dr. Zook's written reports were attached. The PSI also included information the probation officer discovered regarding another incident where Hill "cornered" his 16-year-old cousin and tried to have sexual intercourse but she locked herself in a bathroom until Hill left.

¶ 15 Also attached to the PSI were police reports and victim impact statements regarding the dismissed information charging sexual abuse of K.S. The PSI recommended Hill be sentenced to 60 years in Montana State Prison with all but 20 years suspended, and that he be designated a Level 3 sex offender.

¶ 16 Prior to the sentencing hearing, the State filed a sentencing memorandum in which it asked the District Court to consider not only the charge to which Hill pled guilty, but to consider his entire pattern of behavior, which included information from the dismissed charge.

¶ 17 At the sentencing hearing, Hill objected to the District Court considering the information from the dismissed sexual abuse of children charge and the sexual acts he admitted to while at Brown School. The details of the objections are discussed below. The District Court sentenced Hill to 60 years with all but 15 years suspended. The District Court designated Hill a Level 3 sex offender and a sexually violent predator.

¶ 18 Hill does not dispute he needs to be supervised for the remainder of his life. Hill appeals the District Court's designation of a Level 3 offender and in his brief on appeal asks that the District Court's "decision overruling Hill's objection[s]" be reversed. In response to a question from the Court at oral argument asking what remedy Hill sought, his counsel responded that she sought remand so Hill could decide whether to move to withdraw his guilty plea or to move for specific performance of the plea agreement.

STANDARDS OF REVIEW

¶ 19 We review a criminal sentence for legality. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937.

¶ 20 The rules of evidence do not apply to sentencing hearings. State v. Walker, 2007 MT 205, ¶ 21, 338 Mont. 529, 167 P.3d 879. Nevertheless, a defendant may not be sentenced based upon misinformation. Bauer v. State, 1999 MT 185, ¶ 21, 295 Mont. 306, 983 P.2d 955. When the issue on appeal is whether the district court violated the defendant's constitutional rights at sentencing, the question is a matter of law which is reviewed de novo. State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648.

¶ 21 Whether or not a defendant's privilege against self-incrimination is triggered is a conclusion of law. Our standard of review of a district court's conclusions of law is plenary. We determine whether the district court's conclusions are correct. State v. Fuller, 276 Mont. 155, 159, 915 P.2d 809, 811 (1996).

¶ 22 This Court has not previously discussed the standard of review of a district court's designation of a sex offender level pursuant to § 46-23-509(3), MCA. As a district court must exercise considerable discretion in designating a sex offender...