State v. Lane

• Citation: 957 P.2d 9,1998 MT 76
• Decision Date: 07 April 1998
• Docket Number: No. 96-514,96-514
• Parties: STATE of Montana, Plaintiff and Respondent, v. James LANE, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 9

957 P.2d 9

1998 MT 76

STATE of Montana, Plaintiff and Respondent, v. James LANE, Defendant and Appellant.

No. 96-514.

Supreme Court of Montana.

Submitted on Briefs Oct. 30, 1997.

Decided April 7, 1998.

William F. Hooks, Appellate Defender Office, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney, Billings, for Respondent.

REGNIER, Justice.

¶1 James Lane appeals from the entry of a nunc pro tunc order entered by the Thirteenth Judicial District Court, Yellowstone County, correcting the written judgment and commitment to conform to the sentence as orally pronounced. For the reasons stated below, we affirm.

¶2 The dispositive issues on appeal are:

¶3 1. Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane's sentencing hearing?

¶4 2. Did entry of the nunc pro tunc order to correct Lane's sentence violate Lane's rights to due process?

¶5 3. Did entry of the nunc pro tunc order to correct Lane's sentence constitute double jeopardy?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 James Lane was charged by information in the Thirteenth Judicial District Court, Yellowstone County, with the felony offense of sexual intercourse without consent on March 4, 1994. Lane appeared with counsel and pled guilty to the offense on November 3, 1994.

¶7 On February 15, 1995, Lane appeared with counsel in District Court for his sentencing hearing. After sentencing recommendations from both parties, the District Court stated:

It is the Order and Judgment of this Court that you serve ten years in the Montana State Prison. It will be a Special Order of this Court that you will not be paroled until Sexual Offender Program Phases I and II are completed.

The Court believes in this case [ ], based on the testing results and the evaluation that has been done, that there appears to be a high risk of reoffending, which you have verified to the Court by your lack of recognition of the seriousness of this offense this morning.

The Court bases this sentence on the psychological evaluation, the pre-sentence report and the special circumstances and nature of this offense.

(Emphasis added.)

¶8 A minute entry filed on February 15, 1995, by the clerk of the District Court regarding Lane's sentence, provides as follows:

The Court's sentence is that the defendant be imprisoned for a term of 10 years in the Montana State Prison. It is a further order of the Court, that the defendant not be eligible for parole until after he completes Phases I and II of the Sexual Offender Treatment Program.

¶9 Although the transcript and minute entry from the sentencing unquestionably indicate that the District Court required that Lane complete sexual offender treatment before parole, the written judgment filed on February 21, 1995, provided:

IT IS THE RECOMMENDATION OF THIS COURT that the defendant not be eligible for Parole, pursuant to Section 46-18-202, Montana Code Annotated, until said defendant has completed both Phases I & II of the Sex Offender Treatment Program.

(Emphasis added.)

¶10 A year later, on March 6, 1996, the court entered a nunc pro tunc order regarding Lane's sentence. The nunc pro tunc order provides, in its entirety:

It appearing to the Court that the Judgment heretofore entered by the Clerk in [Lane's case] is not a correct memorial of the Judgment as rendered and announced by this Court in the particulars hereinafter set forth, in that through inadvertence and clerical error the Judgment is not a correct memorial as rendered and announced by the Court is hereby corrected to conform to the actual Judgment intended, announced and rendered by the Court:

IT IS ORDERED that JAMES LANE not be eligible for parole until the defendant has successfully enrolled in and completed the Montana Sex Offender Treatment Program, Phases I and II.

In all other respects the Judgment and Order Suspending Sentence entered on the 15th day of February, 1995, shall remain unchanged.

¶11 In April 1996, Lane was scheduled to have parole considered in his case. However, the parole board informed him that he would not be considered for parole. Upon Lane's request for a reason why he would not be considered for parole, an officer from the parole board told Lane by letter of the District Court's nunc pro tunc order. Before this, Lane had not received any notice of the nunc pro tunc order.

¶12 On July 18, 1996, the clerk of the District Court filed a notice received from Lane indicating that he was appealing the decision in "State v. Lane, decided Feb. 15th, 1995." On August 5, 1996, the State filed a response to Lane's notice of appeal, arguing that his appeal was untimely made.

¶13 On September 16, 1996, this Court received Lane's request for court-appointed counsel to represent him in his appeal. Lane also moved for bond pending appeal. On September 27, 1996, we remanded to the District Court for a ruling on Lane's motions for appointment of new counsel and for bail pending appeal. We also granted Lane's request for a continuance for purposes of transmission of the transcript and filing an appeal brief until the State had an opportunity to respond to Lane's motions and the District Court ruled on said motions.

¶14 Upon receipt of our order, the District Court notified the State and Lane's trial counsel, the Yellowstone County Public Defender's office, and asked both to file responses. Both parties filed responses that suggested they were unaware of what Lane was actually appealing. The Public Defender's office asked the District Court to appoint the State Appellate Defender to represent Lane with his appeal in order to avoid any conflict of interest claim because the office had represented Lane during trial. On November 26, 1996, the District Court appointed the State Appellate Defender to represent Lane and set bail at $50,000 pending appeal.

¶15 On April 3, 1997, Lane filed a motion with this Court pursuant to Rule 3, M.R.App.P., to suspend the application of the Rules of Appellate Procedure relative to the time for filing an appeal. Under Rule 5, M.R.App.P., an appeal in a criminal case must be taken in sixty days. Lane sought to appeal the entry of the nunc pro tunc order filed by the District Court more than a year after the court had imposed sentence. However, Lane's pro se notice of appeal was not filed within sixty days of entry of the nunc pro tunc order. On April 16, 1997, the State filed a response objecting to the appeal on the grounds that this Court lacks jurisdiction where a notice of appeal has not been timely filed.

¶16 On May 1, 1997, we granted Lane's motion to suspend the sixty-day filing requirement of Rule 5(b), M.R.App.P., and permitted Lane to file a notice of appeal of the District Court's nunc pro tunc order.

¶17 Lane now appeals, arguing that the District Court, by way of its nunc pro tunc order, erroneously modified his sentence and violated a number of his rights.

ISSUE 1

¶18 Did the District Court err in correcting the written judgment by nunc pro tunc order to conform with its oral pronouncement of sentence at Lane's sentencing hearing?

¶19 At the sentencing hearing, the District Court clearly imposed a condition of ineligibility for parole until Lane had completed both phases of sexual offender treatment at prison. However, the written judgment made this condition a recommendation. Over a year later, this conflict between the oral pronouncement of sentence and the written judgment was called to the District Court's attention. By entry of a nunc pro tunc order, the District Court stated that its written judgment was in error and corrected it to conform to the oral pronouncement.

¶20 Lane, relying on precedent established by this Court in State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170, argues that the written version is the final, valid judgment that can not be amended by means of a nunc pro tunc order. Moreover, Lane contends that the District Court's amendment of the sentence in the written judgment and commitment constituted double jeopardy and violated his constitutional and statutory rights to be present at any sentencing proceeding and be represented by counsel. Furthermore, Lane argues, the entry of the nunc pro tunc order violated his right to due process.

¶21 The State counters that it is within the District Court's inherent power to correct an error in the record at any time by entry of a nunc pro tunc order. The State also asserts that the District Court has authority under § 46-18-117, MCA, to correct an erroneous sentence at any time. However, the State, ignoring the precedent established by Enfinger, states that the oral sentence, not the written judgment, controls. The State cites other jurisdictions for this proposition, but fails to offer any reason why this Court should overrule Enfinger and its progeny and hold that the oral pronouncement of sentence should constitute the final, valid judgment.

Oral Pronouncement v. Written Judgment

¶22 We begin by focusing on the conflict that existed between the District Court's oral pronouncement at the sentencing hearing on February 15, 1995, and the written judgment filed on February 21, 1995. Lane and the State disagree as to what constitutes a final valid, judgment--the terms and conditions as orally announced by the sentencing court, or the final, written judgment filed with the clerk of court.

¶23 In Enfinger, the defendant was convicted of mitigated deliberate homicide at trial. The defendant was sentenced and remanded to the sheriff for delivery to Montana State Prison. Later that same day, the court brought Enfinger back into court for further proceedings because the judge had earlier failed to state his reasons for imposing sentence and it was necessary for him to do so. In the second hearing, the judge designated the defendant a...