Opinion
DA 22-0210
12-03-2024
STATE OF MONTANA, Plaintiff and Appellee, v. RYAN HILL, Defendant and Appellant.
For Appellant: Penelope S. Strong, Attorney at Law, Billings, Montana For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Lacey Lincoln, Hill County Attorney, Havre, Montana
Submitted on Briefs: April 10, 2024
APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC-06-84 Honorable Kaydee Snipes Ruiz, Presiding Judge
For Appellant: Penelope S. Strong, Attorney at Law, Billings, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Lacey Lincoln, Hill County Attorney, Havre, Montana
DIRK M. SANDEFUR JUSTICE
Opinion
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and has no precedential value. The case title, cause number, and disposition shall be included in our quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Ryan M. Hill appeals from the February 2022 Order of the Montana Twelfth Judicial District Court, Hill County, revoking his suspended sentence and sentencing him to the Montana State Prison for a period of forty-five years with none suspended due to violation of the terms and conditions of his 2007 suspended sentence. Hill asserts that the District Court failed to follow the administrative intervention procedure outlined in § 4618-203(8), MCA, specifically that the court failed to find that Hill would not be responsive to further efforts under the Montana Incentive and Interventions Grid (MIIG). We affirm.
¶3 In June, 2006, Hill committed the offense of felony sexual assault when he subjected his three-year old niece to sexual contact without consent. Hill lived at his grandparents' house at the time the incident occurred, where his niece would stay when her parents were unable to watch her. The sexual assault was discovered on June 10, 2006, through comments made by Hill's niece to her mother, Jennifer. During an online chat with Jennifer, Hill confessed to sexual contact with his niece, which Jennifer used to further police investigation on Hill. On June 12, police went to Hill's residence and asked him to come to the police department to speak with Lt. Oswalt about the incident. Almost immediately upon arrival, Hill indicated that he knew why he had been summoned to the police department and elected to waive his Miranda Rights, choosing to freely speak with police about the situation. When asked about why he believed he was at the police department, Hill said it was for "something" he did to his niece, further detailing that he "did molest" her in his bedroom approximately 11/2 to 2 months prior. Hill was subsequently charged with, inter alia, felony sexual assault, to which he pleaded guilty on October 26, 2006. After reaching a plea agreement with the State, the District Court designated Hill a level 3 offender and sentenced him to 60 years at Montana State Prison with all but 15 years suspended.
¶4 On November 14, 2021, Hill was released from incarceration on parole subject to numerous conditions including, inter alia, restrictions on his ability to: (1) possess a cell phone or other technology or device with photo, video, and internet capabilities; (2) access the internet without permission from his parole officer; (3) possess or use any computer or other device with internet access; and (4) access or possess any material that describes or depicts human nudity, the exploitation of children, or various types of sexual acts. Two days after his release, Hill requested permission to obtain a smartphone, which was denied. On December 28, 2021, Probation &Parole received information relating to Hill's possible internet activity, as various accounts were discovered that appeared to have been created by Hill on websites such as YouTube, Instagram, and Twitter. This led to a search of Hill's residence, at which point he admitted to unauthorized internet access and use. Aside from possessing multiple internet accessible devices, Hill downloaded various pornographic images found on one or more his devices, as well as hard-copy printouts thereof in a locked safe in his home. Upon revocation petition and evidentiary hearing, the District Court adjudicated Hill in violation of corresponding probation condition prohibitions, revoked his suspended sentence, and resentenced him to an unsuspended 45-year prison term with a 15-year parole restriction. The Court made no findings of fact regarding Hill's prior administrative intervention history, but did find that a prison commitment would provide him "opportunity to reengage in sex offender programming before he reenters the community a second time." The District Court further found that its ultimate "disposition" of the case was "appropriate" based on his "immediate failure" to comply with the subject sex offense probation conditions, and the gravity of the "nature of" those "violations" and the public risk posed thereby.
¶5 We generally review district court probation revocations, and resentencing on revocation, for an abuse of discretion. State v. Johnson, 2022 MT 216, ¶ 12, 410 Mont. 391, 519 P.3d 804. Hill asserts that the District Court erroneously revoked his prior suspended sentence, and resentenced him, without consideration or exhaustion of the administrative intervention process requirements applicable to mere probation compliance violations under § 46-18-203(8), MCA. As we have recently summarized:
As a general rule, issues not preserved by contemporaneous objection are waived, and therefore not subject to review on subsequent appeal. Section 46-20-104(2), MCA; State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244; Ashby, ¶ 22; State v. Kotwicki, 2007 MT 17, ¶¶ 8 and 22, 335 Mont. 344, 151 P.3d 892. However, under our narrow sentence-specific exception to the contemporaneous objection/waiver rule first recognized in State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 999-1000 (1979), unpreserved assertions of error that a particular sentence or sentencing condition was either facially illegal (i.e., of a type or character not authorized by statute or otherwise in excess of the statutorily authorized range or limit
for that type of sentence or condition), or facially legal but authorized by a facially unconstitutional statute, are subject to review for the first time on appeal. State v. Coleman, 2018 MT 290, ¶¶ 7-11, 393 Mont. 375, 431 P.3d 26 (analyzing general objection/waiver rule, Lenihan exception, and inapplicability of Lenihan exception to unpreserved as-applied constitutional sentencing challenges); Parkhill, ¶ 16 (Lenihan exception inapplicable to unpreserved as-applied constitutional challenge to no-contact condition of probation on PFMA sentence); State v. Strong, 2009 MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848 (applying Lenihan exception to facial equal protection challenge of sentencing statute but not as-applied challenge); Kotwicki, ¶¶ 6-22 (Lenihan exception not applicable to unpreserved statutory non-compliance and as-applied due process challenge that court illegally imposed statutorily authorized fine without complying with statutory requirement for consideration/determination in re ability to pay); State v. Garrymore, 2006 MT 245, ¶¶ 9-15, 17, and 35, 334 Mont. 1, 145 P.3d 946 (applying Lenihan exception to unpreserved objection that statutorily authorized parole restriction violated § 46-1-401, MCA, and related federal and state constitutional rights); Lenihan, 184 Mont. at 343, 602 P.2d at 1000 (unpreserved objection to sentence reviewable on appeal upon allegation that sentence "is illegal or exceeds statutory mandates").State v. Thibeault, 2021 MT 162, ¶ 9, 404 Mont. 476, 490 P.3d 105.
¶6 Here, Hill was represented by counsel regarding his revocation and resentencing proceedings below, but did not contemporaneously make or raise the objection at issue. He has not demonstrated that his unpreserved assertion of error nonetheless qualifies for review under our narrow Lenihan exception for facially illegal sentences, or sentences imposed pursuant to a facially illegal statute. Nor has he alternatively demonstrated that his assertion of error qualifies as non-sentencing plain error. See State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79 (noting common law plain error exception to contemporaneous objection/waiver rule on demonstration of error that prejudicially affected fundamental constitutional rights and that adherence to waiver rule would result in a manifest miscarriage of justice, compromise the fundamental fairness of the subject proceeding, or otherwise compromise the judicial process).
¶7 Without prejudice to his independent collateral postconviction review remedy under Title 46, ch. 21, MCA, Hill waived his right to review of his asserted district court error on direct appeal. AFFIRMED.
¶8 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules.
We Concur: MIKE McGRATH, JAMES JEREMIAH SHEA, LAURIE McKINNON, INGRID GUSTAFSON