DA 08-0631

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 355

IN THE MATTER OF:

Appeal of Cascade County District Court

Cause No. CDJ 08-0133(A)

Involving a Youth Under the Age of Eighteen.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDJ 08-133(A)

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Kelli S. Sather, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss

Assistant Attorney General, Helena, Montana

John Parker, Cascade County Attorney; Matthew S. Robertson,

Deputy County Attorney, Great Falls, Montana

Submitted on Briefs: September 3, 2009

Decided: October 27, 2009

Filed:

__________________________________________

Clerk

October 27 2009
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Appellant Youth D.W.B. appeals from the denial of his motion to dismiss and

dispositional order of the Youth Court of the Eighth Judicial District Court, Cascade

County. We affirm.

¶2 After unsuccessfully attempting to withdraw from a consent adjustment without

petition (consent adjustment) before the Youth Court, D.W.B. raises the following issues:

¶3 Whether § 41-5-1512, MCA, is unconstitutional on its face and as applied.

¶4 Whether the Youth Court lacked jurisdiction to revoke D.W.B.’s consent 

adjustment and order disposition.

¶5 Whether D.W.B. should be allowed to withdraw his consent adjustment at any

time.

BACKGROUND

¶6 Appellant Youth D.W.B. was cited for misdemeanor criminal trespass to property

and minor in possession of alcohol (MIP) on June 10, 2007. D.W.B. pled guilty to the

MIP in justice court. For the criminal trespass citation, D.W.B. entered into a consent

adjustment, signed by D.W.B., his parent, the deputy and chief probation officers, a

deputy county attorney, and the youth court judge. On October 4, 2007, the Youth Court

approved the consent adjustment and ordered “informal probation” for approximately

nine months with conditions.

¶7 The State filed a petition to revoke the consent adjustment on June 17, 2008, based

on a Youth Court Services report of violation alleging that D.W.B. had violated four
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conditions of his consent adjustment and probation. D.W.B. objected to the proceeding

to revoke the consent adjustment and filed a motion to dismiss, challenging the

constitutionality of § 41-5-1512, MCA, on due process grounds. Counsel for D.W.B.

informed the court that the Youth and his mother were confused when they signed the

consent adjustment, and D.W.B. would have denied the trespass claim and demanded a

trial had he known the details of the complaint. The court denied the motion to dismiss

on September 26, 2008, concluding the statute was constitutional.

¶8 At the evidentiary hearing on the petition to revoke the consent adjustment,

D.W.B. moved for reconsideration of the motion to dismiss, which the court denied.

D.W.B. pled “true” that he had violated two conditions of his consent adjustment

probation (skipping school, and consuming alcohol or drugs). The court revoked the

previous conditions of probation imposed by the consent adjustment and extended

D.W.B.’s probation until January 31, 2009, with conditions attached and incorporated

into the order. D.W.B. now appeals.

STANDARD OF REVIEW

¶9 Statutes enjoy a presumption of constitutionality and the person challenging a

statute’s constitutionality bears the burden of proving it unconstitutional beyond a

reasonable doubt. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469.

The constitutionality of a statute is a question of law. Knudson, ¶ 12. This Court

exercises plenary review of questions of constitutional law, and reviews a district court’s

application of the Constitution to determine if it is correct. Knudson, ¶ 12.
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¶10 This Court reviews a youth court’s interpretation and application of the Youth

Court Act for correctness. In re K.D.K., 2006 MT 187, ¶ 15, 333 Mont. 100, 141 P.3d

1212.

DISCUSSION

¶11 Whether § 41-5-1512, MCA, is unconstitutional on its face and as applied. 

¶12 A consent adjustment without petition is an informal tool used by a probation

officer when a youth is alleged to have violated the law but the probation officer does not

believe it would be in the best interests of the youth, the family, and the public to file a

formal petition. A consent adjustment allows the State to rehabilitate the youth through

probation or other dispositions without charging the youth formally. See Youth Court

Act, Title 41, Chapter 5, Part 13 Informal Proceeding. Section 41-5-1512(1), MCA,

regarding the disposition of youths who violate consent adjustments, provides in relevant

part: “[i]f a youth is found . . . to have violated a consent adjustment, the youth court

may enter its judgment making one or more of the following dispositions: (a) place the

youth on probation. The youth court shall retain jurisdiction in a disposition under this

subsection.”

¶13 D.W.B. argues that § 41-5-1512, MCA, is unconstitutional because it allows the

State and the youth court to proceed from an informal consent adjustment, in which the

youth makes admissions and agrees to conditions without the advice of counsel, to a

formal revocation and disposition without requiring the State to formally charge the

youth. In particular, D.W.B. claims that § 41-5-1512, MCA, permits the youth court to

accept the consent adjustment “admission” as an admission of “true” to a criminal
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offense and proceed to formal disposition without assurances that the admission was

voluntary, knowing, and intelligent. D.W.B. argues that § 41-5-1512, MCA, allows the

State to use a consent adjustment as an admission of a crime and bypass requirements to

prove the underlying offense and grant certain constitutional protections.

¶14 D.W.B. misses the critical distinction implicit in informal proceedings, which

precludes adjudication of the youth as either a delinquent youth or a youth in need of

intervention and any resulting commitment to Department of Corrections’ facilities.

Compare §§ 41-5-1304 and -1512, MCA, with § 41-5-1513(1)(b), MCA. Montana

recognizes that youths are to be given special treatment by the courts. The youth court

system is designed to promote individual rehabilitation and allow young people to learn

positive lessons from their transgressions. In youth court, these young people are not

subject to the same criminal sanctions as are adults. An express legislative purpose of the

Montana Youth Court Act is “to prevent and reduce youth delinquency through a system

that does not seek retribution but that provides: (a) immediate, consistent, enforceable,

and avoidable consequences of youths’ actions; (b) a program of supervision, care,

rehabilitation, detention, competency development, and community protection for youth

before they become adult offenders[.]” Section 41-5-102(2), MCA; In re D.A.S., 2008

MT 168, ¶ 11, 343 Mont. 360, 184 P.3d 349; Matter of S.L.M., 287 Mont. 23, 35-36, 951

P.2d 1365, 1373 (1997).

¶15 Due process guarantees of right to counsel generally attach when an individual is

charged with a criminal offense that could result in the individual being incarcerated. See
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Lassiter v. Dept. of Soc. Servs. of Durham Co., N.C., 452 U.S. 18, 25-27, 101 S. Ct. 2153,

2158-59 (1981); In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451 (1967); State v. Buck, 

2006 MT 81, ¶ 33, 331 Mont. 517, 134 P.3d 53. Incarceration is not authorized under the

informal proceedings of the Youth Court Act. Moreover, there were no violations of due

process here. The consent adjustment was signed both by the youth and his parent and it

was approved by the judge. The consent adjustment advised D.W.B. of his basic legal

rights guaranteed by law and that violations might result in a formal dispositional hearing 

resulting in any disposition contained in § 41-5-1512, MCA. The Youth Court held

hearings at which D.W.B. was represented by counsel and entitled to contest the

allegations that he violated his probation. Furthermore, by admitting to violations of the 

consent adjustment, D.W.B. waived any claim that the State failed to bear its burden of 

proof. 

¶16 By permitting the youth court to enforce the violation of informal consent

adjustments without requiring a petition or finding that a youth is delinquent or in need of

intervention, § 41-5-1512, MCA, has a reasonable and rational relation to the express

statutory purposes of the Youth Court Act. When D.W.B. violated the consent

adjustment, the State did not seek retribution and punishment for the underlying criminal

trespass, nor for D.W.B.’s underage drinking, but instead sought a continuation of

D.W.B.’s probation to provide immediate, consistent, enforceable, and avoidable

consequences of the youth’s actions and a program of supervision, care, rehabilitation,

competency development, and community protection. See § 41-5-102(2), MCA.
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D.W.B.’s approach would elevate every violation of an informal consent adjustment to

delinquency proceedings.

¶17 We agree with the District Court’s reasoning that § 41-5-1512, MCA, is

constitutional as drafted:

[T]he plain meaning of the statute allows a court to impose a disposition

upon a youth who is found to have violated the terms of a consent

adjustment without going through the formal proceedings as the

dispositions provided for under the act are designed to promote the welfare

of the youth and uphold the purposes of the Montana Youth Court Act and

they are not punitive, but are consistent, enforceable, and avoidable

consequences of the youth’s failure to comply with the terms of his

agreement with the State.

D.W.B. fails to prove § 41-5-1512, MCA, unconstitutional beyond a reasonable doubt

and the District Court was correct in finding the statute constitutional.

¶18 Whether the Youth Court lacked jurisdiction to revoke D.W.B.’s consent 

adjustment and order disposition.

¶19 D.W.B. argues that the Youth Court lacked jurisdiction to revoke the consent

adjustment between the probation officer and the youth and his family. D.W.B. argues

that § 41-5-203(1), MCA, does not confer jurisdiction upon a youth court to determine

matters pertaining to a consent adjustment. The statute provides:

[T]he court has exclusive original jurisdiction of all proceedings under the

Montana Youth Court Act in which a youth is alleged to be a delinquent

youth or a youth in need of intervention or concerning any person under 21

years of age charged with having violated any law of the state or any

ordinance of a city or town other than a traffic or fish and game law prior to

having become 18 years of age.

Section 41-5-203(1), MCA (emphasis added.) D.W.B. notes that a consent adjustment

does not invoke a youth court “proceeding,” nor does it “charge” a youth with a criminal
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offense or allege that a youth is delinquent or a youth in need of intervention.

Furthermore, D.W.B. argues that because no complaint or petition was filed against the

youth, and because the probation officer and the youth were in agreement, then there was

no pending controversy between adverse parties for the Youth Court to decide and render

judgment. Without a controversy, D.W.B. claims there is no jurisdiction.

¶20 The Youth Court Act expressly confers jurisdiction on the youth court over all

matters involving offenses committed by youth, whether disposed of through formal or

informal proceedings. Section 41-5-203(1), MCA, provides original jurisdiction over

cases involving persons under the age of 18. State v. Andersen-Conway, 2007 MT 281,

¶ 15, 339 Mont. 439, 171 P.3d 678. Section 41-5-1205, MCA, expressly provides for

informal dispositions (i.e. consent adjustments) in youth court, in addition to formal

dispositions. More specifically, § 41-5-1301(2), MCA, provides for

treatment or adjustment involving probation or other disposition authorized

under 41-5-1302 through 41-5-1304 if the treatment or adjustment is 

voluntarily accepted by the youth’s parents or guardian and the youth, if the

matter is referred immediately to the county attorney for review, and if the

probation officer or assessment officer proceeds no further unless

authorized by the county attorney.

Additionally, the Youth Court Act expressly provides jurisdiction to the youth court to

order disposition when a youth violates a consent adjustment. Section 41-5-1512(1),

MCA. Finally, the Youth Court approved the consent adjustment here with specific 

language that made its jurisdiction clear: “FOR GOOD CAUSE SHOWN, THE

FOREGOING CONSENT ADJUSTMENT AND ORDER IS APPROVED BY THE
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COURT AND HENCEFORTH SHALL BE ENFORCEABLE AS AN ORDER OF THE 

COURT.” 

¶21 Whether D.W.B. should be allowed to withdraw his consent adjustment at any

time.

¶22 D.W.B. argues that the voluntary, informal nature of the consent adjustment

proceedings requires that a youth be allowed to withdraw his acceptance of the agreement

at any time. However, nothing in the record shows that D.W.B. ever requested

permission from the Youth Court to withdraw his consent adjustment. “As a general rule,

a party may raise on direct appeal only those issues and claims that were properly

preserved.” State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683. We

therefore decline to address this issue since it was not raised in the District Court.

¶23 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ PATRICIA O. COTTER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

Justice James C. Nelson, specially concurring.

¶24 I concur in the Court’s Opinion based on the facts at issue here and the procedural

posture of this case.

/S/ JAMES C. NELSON