State v. Olivares–coster

• Decision Date: 16 August 2011
• Docket Number: No. DA 10–0429.,DA 10–0429.
• Citation: 2011 MT 196,361 Mont. 380,259 P.3d 760
• Parties: STATE of Montana, Plaintiff and Appellee,v.Sebastian Walter OLIVARES–COSTER, Defendant and Appellant.
• Court: Montana Supreme Court

361 Mont. 380

259 P.3d 760

2011 MT 196

STATE of Montana, Plaintiff and Appellee,

v.Sebastian Walter OLIVARES–COSTER, Defendant and Appellant.

No. DA 10–0429.

Supreme Court of Montana.

Submitted on Briefs Aug. 10, 2011.Decided Aug. 16, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana.Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[361 Mont. 381] ¶ 1 Sebastian Olivares–Coster appeals from a sentence imposed by the District Court, First Judicial District, Lewis and Clark County. We affirm in part, reverse in part and remand for further proceedings.

ISSUE

¶ 2 The issue on appeal is whether the District Court erred when it concluded that State law imposes a 60–year restriction on Olivares–Coster's parole eligibility.

BACKGROUND

¶ 3 On June 4, 2009, Olivares–Coster was charged with one count of Deliberate Homicide, § 45–5–102(1)(a), MCA, and two counts of Attempted Deliberate Homicide, §§ 45–5–102(1)(a) and 45–4–103(1), MCA. He was seventeen years old at the time of the alleged offenses. On November 19, 2009, represented by counsel, Olivares–Coster pled guilty to all counts. As part of the plea agreement, the State agreed to refrain from taking any position regarding Olivares–Coster's parole eligibility, leaving that issue to the discretion of the District Court.

¶ 4 A sentencing hearing was held on April 2, 2010. At the close of the hearing, the District Court pronounced three life-sentences on Olivares–Coster, one for each count. The two life-sentences for the attempted deliberate homicide counts were to run concurrent with each other but consecutive to the life-sentence for the deliberate homicide count. The District Court did not impose any parole restrictions, but concluded “Defendant will be parole eligible in 60 years, if my math is correct.” Later, the District Court explained, “the reason why I'm not restricting his parole eligibility, first of all, 60 years down the road is a long time.” She further stated, “I'm considering his youth, the fact that he was under the age of 18 ... I also believe that having parole eligibility in the future will facilitate any possible rehabilitation that he could have.... Just knowing that there's a light at the end of the tunnel, that will give him hope, and that will make him a better prison inmate.”

¶ 5 On July 16, 2010, the District Court issued a written Judgment and Commitment. The Judgment provided that the “defendant shall be parole eligible after sixty (60) years of incarceration.” Additionally, the Judgment reconfirmed that Olivares–Coster would not receive a discretionary restriction on parole eligibility “in light of the defendant's youth, to facilitate his rehabilitation and to help effect positive conduct by him in prison.” Olivares–Coster filed a timely appeal.

STANDARD OF REVIEW

¶ 6 “Where a defendant was sentenced to more than one year of actual incarceration, and therefore is eligible for sentence review, we review the sentence for legality only.” State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114.

DISCUSSION

¶ 7 Whether the District Court erred when it concluded that State law imposes a 60–year restriction on Olivares–Coster's parole eligibility.

¶ 8 Olivares–Coster asserts that the District Court incorrectly concluded that his parole eligibility would automatically be restricted for 60 years, because such a restriction is precluded by § 46–18–222(1), MCA. He concedes no objection was raised at the trial level, but asserts that this Court can review his claim under State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). Under Lenihan, an appellate court may “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; accord State v. Holt, 2011 MT 42, ¶ 35, 359 Mont. 308, 249 P.3d 470. The State agrees that Lenihan applies here. We will review Olivares–Coster's claim despite his failure to raise it at sentencing.

¶ 9 At the outset, the District Court's oral pronouncement of sentence is inconsistent with the written Judgment and Commitment. At sentencing, the District Court did not orally impose a 60–year restriction on Olivares–Coster's parole eligibility. Rather, the District Court presumed that such a restriction automatically applied. Probation Officer Lori Moore had testified at the sentencing hearing that if the District Court imposed a life-sentence without any discretionary parole restriction, Olivares–Coster would be eligible for parole in 30 years. Moore's testimony was premised on § 46–23–201(4), MCA, which provides, “[a] prisoner serving a life sentence may not be paroled under this section until the prisoner has served 30 years.” The District Court, after discussing whether the sentences on the three counts were to be consecutive or concurrent, concluded, “and the result of that is the Defendant will be parole eligible in 60 years, if my math is correct.” The District Court later explained, “the reason why I'm not restricting his parole eligibility, first of all, 60 years down the road is a long time.”

¶ 10 In conflict, the District Court's written Judgment and Commitment explicitly states, “defendant shall be parole eligible after sixty (60) years of incarceration.” Where there is a discrepancy between the oral pronouncement of sentence and the written judgment, the oral pronouncement controls. State v. Duncan, 2008 MT 148, ¶ 51, 343 Mont. 220, 183 P.3d 111; State v. Rennaker, 2007 MT 10, ¶ 48, 335 Mont. 274, 150 P.3d 960. Thus, the District Court's oral pronouncement of sentence controls in this case.

¶ 11 The issue here is whether the District Court correctly concluded that Olivares–Coster's parole would be automatically restricted for 60 years. A district court's sentencing authority is constrained by statute. State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d 206. A district court does “not have the power to impose a sentence unless authorized by a specific grant of statutory authority.” State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66.

¶ 12 The District Court concluded that § 46–23–201(4), MCA, automatically restricted Olivares–Coster's parole. However, as Olivares–Coster points out, § 46–23–201(4), MCA, conflicts with § 46–18–222(1), MCA. That section provides:

Exceptions to mandatory minimum sentences, restrictions on deferred imposition and suspended execution of sentence, and restrictions on parole eligibility. Mandatory minimum sentences prescribed by the laws of this state, mandatory life sentences prescribed by 46–18–219, the restrictions on deferred imposition and suspended execution of sentence prescribed by 46–18–201(1)(b), 46–18–205, 46–18–221(3), 46–18–224, and 46–18–502(3), and restrictions on parole eligibility do not apply if:

(1) the offender was less than 18 years of age at the time of the commission of the offense for which the offender is to be sentenced[.]

(Emphasis added.) Olivares–Coster was 17 years old at the time he committed the offenses. Section 46–23–201(4), MCA, constitutes a restriction on parole eligibility. As applied to juveniles, the statutes conflict. Section 46–23–201(4), MCA, generally applies a 30–year restriction on parole eligibility for a life sentence, but § 46–18–222(1), MCA, denies the application of such a restriction to offenders under the age of 18.

¶ 13 The State argues § 46–18–222(1), MCA, should be interpreted based upon the statutory scheme and legislative history. However, the language of § 46–18–222(1), MCA is clear and unambiguous, and requires no further interpretation. Burch, ¶ 23.

¶ 14 We conclude that § 46–18–222(1), MCA, is more specific than § 46–23–201(4), MCA, and controls in this case. “In situations where general and specific statutes exist and the two cannot be harmonized to give effect to both, the specific statute controls.” State v. Brendal, 2009 MT 236, ¶ 18, 351 Mont. 395, 213 P.3d 448; see Holt, ¶ 62; § 1–2–102, MCA. Here, the specific language of § 46–18–222(1), MCA, referring to offenders who are less than 18 years of age when their offenses are committed, takes precedence over the general restriction on parole eligibility of § 46–23–201(4), MCA, rendering the 30–year restriction inapplicable to Olivares–Coster. Consequently, the District Court was incorrect when it concluded that Olivares–Coster's parole eligibility would be automatically restricted pursuant to § 46–23–201(4), MCA. As there is no statutory authority for the District Court's conclusion that “[t]he defendant will be parole eligible in 60 years,” this portion of Olivares–Coster's sentence is illegal.

¶ 15 We next turn to the question of the proper remedy. In the past, this Court did not employ a single rule “regarding the appropriate remedy for a partially illegal sentence....” State v. Heafner, 2010 MT 87, ¶ 9, 356 Mont. 128, 231 P.3d 1087. Rather, the Court examined the “sentence and record to determine the appropriate remedy.” State v. Heath, 2004 MT 58, ¶ 49, 320 Mont. 211, 89 P.3d 947. The Court generally “vacated or remanded with instructions to strike when the illegal portion of a sentence was a condition of a suspended sentence or a sentence enhancement.” Heath, ¶ 49. On the other hand, “remand for re-sentencing was the general practice where an illegal sentencing provision ‘affected the entire sentence, or where we were unable to determine what sentence the district court would have adopted had it correctly followed the law.’ ” Heafner, ¶ 10 (quoting Heath, ¶ 49). These were hardly hard-and-fast rules, and the disparate approaches resulted in unpredictable and inconsistent dispositions. Heafner, ¶¶ 9–10.

¶ 16 In Heafner, we “determined that a consistent approach...