No. 04-644
IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 245

STATE OF MONTANA, Plaintiff and Respondent,

v. JASON LUCAS GARRYMORE, Defendant and Appellant.

APPEAL FROM: The District Court of the Fourth Judi cial District, In and For the County of Missoula, Cause No. DC-2003-37, Honorable John S. Henson, Presiding Judge COUNSEL OF RECORD: For Appellant: William F. Hooks (argued), Attorney at Law, Helena, Montana For Respondent: Honorable Mike McGrath, Attorney Ge neral; Mark E. Mattioli (argued), Assistant Attorney Genera l, Helena, Montana Fred Van Valkenburg, County A ttorney; Suzy Boylan-Moore and Andrew Paul, Deputy County Attorneys, Missoula, Montana

Heard: November 30, 2005 Submitted: June 6, 2006 Decided: October 2, 2006 Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered th e Opinion of the Court. ¶1 A jury convicted Appellant Jason Luca s Garrymore of deliberate homicide on February 27, 2004. Thereafte r, the Fourth Judicial District Court sentenced him to life imprisonment without the possibility of parole. Garrymore challenges the parole restriction and urges us to vaca te his sentence. We affirm. ¶2 We consider the following issues on appeal: ¶3 (1) Does Garrymore’s failu re to object to the Dist rict Court’s imposition of sentence preclude our review on appeal? ¶4 (2) Did the District Court’s imposition of the parole eligibility restriction pursuant to § 46-18-202(2), MCA (2001) , violate Garrymore’s federa l and state constitutional and statutory rights to jury trial and due process? BACKGROUND ¶5 After an incident on January 2, 2003, le ft nearly two-year-o ld Tylin Garrymore dead, the State charged her father, Appellant Jason Lucas Garrymore (Garrymore), with deliberate homicide in violation of § 45-5- 102, MCA (2001). Garrymore pleaded not guilty to the charge on February 4, 2003, and the case proc eeded to trial by jury. The jury convicted Garrymore of deliber ate homicide on February 27, 2004. ¶6 After completion of a pre-sentence repo rt, Garrymore’s case proceeded to sentencing on May 6, 2004. At the hearing, both Garrymo re and the State presented evidence of Garrymore’s past conduct and char acter, and each side argued for a different sentence. The State adopte d the recommendation of Mr. So nju, the probation/parole3 officer who had prepared the pr e-sentence report. Relying on considerable evidence, Mr. Sonju concluded that Garrymore could not be rehabilitated, and recommended that Garrymore be given a life se ntence without the possibility of parole. Conversely, Garrymore argued that he wa s never given an opportunity to properly rehabilitate, especially when his mental he alth issues were considered , and urged the court not to impose a parole eligibility restriction. ¶7 Notwithstanding Garrymore’s arguments to the contrary, the District Court adjudged Garrymore a violent offender and se ntenced him to life imprisonment without the possibility of parole. The court pr ovided the following basis for its decision: Now, this defendant has three co nvictions for domestic abuse and unlawful restraint. He was arrested on the same type of charges in Utah and California but moved out of thei r jurisdiction so the charges were dismissed. In addition, he was on probation when this offense was committed.

. . . . Now, throughout the trial and th ese proceedings, contrary to the testimony, I have not seen any remors e from this defendant. And I’m going to adopt some of Mr. Sonju’s reasons as my reasons. Mr. Sonju, quite candidly, said, I have been looking for all mitigating factors in this case. What is most disturbing is that I have been unable to find any. Further, I agree with Mr. Sonju, especially after viewing the photographs, that I do not believe Ty lin’s death was caused by a tragic culmination of accidents. Though he may not have actively planned this deat h, his behavior, sadistic or otherwise, certainly caused it. He has a record of being mean and abusive to women. As a result of his delay, the child di ed a violent, slow, painful death. She could have been taken to the hosp ital and possibly save d. He talked4 the mother out of that, and it appears that he would rather save his own neck from child abus e charges than save his two-year-old adopted daughter. Finally, in our society, and I th ink we all realize it, even total strangers rush to assist a child in di stress. But you, her adoptive father, chose to abuse and, from the pictures, to rture this little girl and let her die. So it’s now the judgment of this Court that you be sentenced to life imprisonment in the M ontana State Pris on without eligibility for parole

. (Emphasis added.) Garrymore did not objec t to the sentence at the time of its pronouncement by the District Court. ¶8 Garrymore appeals, asserting that the District Court imposed th e parole eligibility restriction in violation of his federal and state constitu tional and statutory rights. STANDARD OF REVIEW ¶9 We review criminal sentences that include at least one ye ar of actual incarceration to determine whether they are legal. State v. Herd , 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017, ¶ 22. “[ A] sentence is not illegal when it is within the parameters provided by statute.” State v. Montoya , 1999 MT 180, ¶ 11, 29 5 Mont. 288, ¶ 11, 983 P.2d 937, ¶ 11 (quoting State v. Gunderson , 282 Mont. 183, 187, 936 P.2d 804, 806, (1997) (overruled on other grounds)). We review que stions of law de novo

. Wadsworth
v. State , 275 Mont. 287, 298, 911 P. 2d 1165, 1171 (1996). DISCUSSION Issue 1: Does Garrymore’s fa ilure to object to the Dist rict Court’s imposition of sentence preclude our review on appeal? ¶10 Noting that “the defense did not assert a state or federal constitutional objection to the sentencing court’s statutory authority to restrict parole,” the State offers a brief5 argument that the merits of Garrymore’s clai m should not be reviewed on appeal. The State acknowledges the exception to the contem poraneous objection rule we adopted for sentencing purposes in State v. Lenihan , 184 Mont. 338, 60 2 P.2d 997 (1979), but offers “three reasons why Lenihan jurisdiction should not be invoked.” 1 ¶11 Initially, we observe that the State’s “three reason” argument is very brief and is not supported by reference to any case from our Lenihan jurisprudence, but, rather, by citations, without analysis, to a state civil ca se and a federal case addressing the exercise of plain error review, a separate doctrine not at issue herein. 2 Therefore, a comprehensive respons e to the State’s Lenihan arguments is not necessary. The Lenihan rule states as follows: It appears to be the better rule to allow an appellate court to 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.

1 The State’s use of the term “ Lenihan jurisdiction” echoes our own frequent misuse of the term. As a technical matter, a court cannot create its own jurisdiction. “Jurisdiction as applied to courts is the power or capacity given by law to a court to entertain, hear and determine the particular case or matter.” Peña v. State , 2004 MT 293, ¶ 21, 323 Mont. 347, ¶ 21, 100 P.3d 154, ¶ 21. This Court’ s jurisdiction is granted by Article VII, Section 2, Montana Constitution. The Lenihan rule is a judicial creation whereby this Court accepts certain sentence s for appellate review. The rule is not “jurisdictional” in the sense th at the Court is with or withou t power to hear such claims. We recognize that terms such as “ Lenihan jurisdiction” are commonly used to refer generally to a body of law or ju risprudence, but the better pr actice is to avoid such uses so that clarity of the actual meaning of “jurisdiction” can be promoted.

2 See State v. Brister , 2002 MT 13, ¶ 17, 308 Mont. 154, ¶ 17, 41 P.3d 314, ¶ 17, which distinguished th ese two doctrines.6 ¶12 First, the State offers that Lenihan does not apply because “neither party recommended a deferred or suspended sent ence in this case.” Although the Lenihan case involved the imposition of a deferred senten ce, the rule we adopted therein was not limited to probationary sentences, and we have undertaken, pursuant to Lenihan , appellate review of sentences which ha d no deferred or suspended portions. See State v. Honey , 2005 MT 107, ¶ 35, 327 Mont. 49 , ¶ 35, 112 P.3d 983, ¶ 35, and State v. Stone , 2004 MT 151, ¶ 45, 321 Mont. 489, ¶ 45, 92 P.3d 1178, ¶ 45. ¶13 Secondly, noting that the parole ineligibility conditi on Garrymore challenges on appeal was raised during the sentencing hear ing by the prosecution, the State contends that the Lenihan rule is inapplicable because an obj ection by Garrymore “would not have provoked judicial vindictiveness which Lenihan fears,” and that Garrymore’s appellate challenge is nothing more than an impermissible change of theories on appeal. Though judicial vindictiveness was a concern addressed in Lenihan , our holding therein was not limited to such circumstances, and we have si nce explained that the risk of judicial vindictiveness is only “part” of the rationale underpinning the Lenihan rule. See State v. Micklon , 2003 MT 45, ¶ 9, 314 Mont. 291, ¶ 9, 65 P.3d 559, ¶ 9. Further, the general rule governing a change of theories on appeal necessarily presupposes that a “theory” or argument was first advanced in the district court, a circumst ance inherently inconsistent with Lenihan , which applies, in the sentencing cont ext, when the defenda nt remains silent and offers no argument in the district court, and, thus, is an exception to the general rule. More importantly, however, it w ould ultimately undermine the ef ficacy of the sentencing7 process to reject appellate review of sent ences where the defend ant objected in the district court and changed his theory on app eal, yet allow appellate review of sentences where no objection is made, thereby creating an institutiona l incentive for defendants to remain silent during sentencing. ¶14 Thirdly, the State contends that Garrymo re’s sentence “was not, as Garrymore now contends, unconstitutional.” We presume from this stat ement the State means that, because of the State’s confidence in the constitutionality of the sentence, Garrymore’s sentence cannot be “illegal” for purposes of applying the Lenihan rule. However, the Lenihan rule allows “an appellate court to revi ew” certain sentences, on their substantive merits, which are “alleged” to be illegal, Lenihan , 184 Mont. at 343, 602 P.2d at 1000, and is not limited to those appeals in which the defendant prevails on the merits. Rather, the Lenihan rule is a procedural mechanism whereb y appellate review of certain allegedly illegal sentences, which would be procedurally barred for lack of objection, may nonetheless be obtained. Afte r undertaking appellate review of the sentence by way of the Lenihan rule, the Court then takes up the merits. See State v. Vernes , 2006 MT 32, ¶¶ 26-30, 331 Mont. 129, ¶¶ 26-3 0, 130 P.3d 169, ¶¶ 26-30. ¶15 Lastly, the State suggests that, because Garrymore’s sentence is within statutory parameters, we “should refrain from invoking Lenihan to address a constitutional challenge to § 46-18-2 02(2),” citing only to United States v. Cotton , 535 U.S. 625, 122 S. Ct. 1781 (2002), which addressed plain error review, which, we again note, is a separate doctrine. The Stat e offers no analysis from our Lenihan jurisprudence in support8 of its “statutory parameters” argument or why Lenihan should not apply to Garrymore’s particular constitutional challe nge. Therefore, we decline to address the issue further. 3 We therefore undertake appellate review of the sentencing issue raised herein. Issue 2: Did the District Court’s impos ition of the parole e ligibility restriction pursuant to § 46-18-202(2), MCA (2001), violate Garrymore’s federal and state constitutional and statutory rights to jury trial and due process? ¶16 Convicted of deliberate homicide pursuant to § 45-5-102(1)(a), MCA, Garrymore received a life sentence without the possibility of parole from the District Court. On appeal, Garrymore argues that the District Court’s imposition of the parole eligibility restriction was unconstitutional. Specifica lly, he argues that th e parole eligibility restriction constitutes a sent ence enhancement which was ba sed on facts not found by a jury. Accordingly, Garrymo re argues that the imposition of the parole eligibility restriction by the District Court violated his rights to trial by jury and due process guaranteed by both the M ontana and United States Constitutions, as well as commensurate state statutory right s provided by § 46-1-401, MCA. Federal Constitutional Claim ¶17 Garrymore’s federal constitutional claim is predicated on the United States Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348

3 We have decided a number of cases addres sing or touching on the meaning of an “illegal” sentence for purposes of the Lenihan rule: see, for example , State v. Nelson , 274 Mont. 11, 906 P.2d 663 (1995); State v. Lafley , 1998 MT 21, 287 Mont. 276, 954 P.2d 1112; and State v. Legg , 2004 MT 26, 319 Mont. 362, 84 P.3d 64 8, but have not fully addressed the contours of the term. Further development of this issue, and reconciliation of inconsistencies in these and other cases, may be necessary. However, neither of the parties has cited to any of these cases or offered such argument, and we thus deem it inappropriate to undertake such issues until they have been properly raised and briefed.9 (2000), a case which focused on the interplay between senten ce enhancement statutes, a sentencing judge’s discretion, and the Sixth and Fourteenth Amendm ents to the United States Constitution. Apprendi and its progeny have impa cted sentencing statutes, sentencing guidelines, and criminal sentences throughout the country, and according to Garrymore, lead to the inexor able conclusion that the Di strict Court unconstitutionally imposed the parole eligibility restriction upon him. ¶18 In Apprendi , a defendant pled guilty in New Jers ey state court to three offenses, one of which was possession of a fi rearm for an unlawful purpose. Apprendi , 530 U.S. at 469-70, 120 S. Ct. at 2352. Classified as a second-degree offense by New Jersey law, possession of a firearm for an unlawful purpose carried a pena lty range of five to ten years. After a plea hearing at which the tria l judge heard sufficient evidence to establish the defendant’s guilt on a ll three offenses, the court accepted the guilty plea. ¶19 However, the defendant in Apprendi did not receive a sentence between five and ten years, as authorized for second degree of fenses in New Jersey. Rather, pursuant to a New Jersey hate crime enhancement statute, the trial judge found by a preponderance of the evidence that the defendant was motivated by racial bias, and as such, imposed an additional two years of incarceration. Apprendi , 530 U.S. at 471, 120 S. Ct. at 2352. ¶20 On appeal, the Supreme Court reversed , holding “it is unconstitutional for a legislature to remove from the jury the assessment of facts th at increase the prescribed range of penalties to which a crim inal defendant is exposed.” Apprendi , 530 U.S. at 490, 120 S. Ct. at 2363. The Cour t formulated the following rule:10 Other than the fact of a prior convicti on, any fact that increases the penalty for a crime beyond the prescribed st atutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi , 530 U.S. at 490, 120 S. Ct. at 2362-6 3. Applying the ru le to the facts in Apprendi , the Court determined that New Jersey’s sentencing scheme was unconstitutional, because factfindi ng by the sentencing judge, not the jury, und er the hate crime statute had increased the maximum punishment to which the defendant was exposed. Apprendi , 530 U.S. at 497, 120 S. Ct. at 236 6-67. Therefore, the statutory scheme constituted a “departure from the jury tr adition that is an indispensable part of our criminal justice system” and vi olated the Sixth Amendment. Apprendi , 530 U.S. at 497,
120 S. Ct. at 2366. ¶21 Though Apprendi demonstrated the Sixth Ame ndment’s application to the sentencing process, an issue of practic al importance remained; namely, what did “statutory maximum” mean for the purposes of Apprendi ’s requirement that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”? Apprendi , 530 U.S. at 490, 120 S. Ct. at 2362-63. This question was critical because any judicially imposed sentence which exceeded “the prescribed statutory maximum” was violative of a defendant’s rights under Apprendi

. ¶22 Accordingly, the Supreme Court pr ovided further clarification in Ring v. Arizona , 536 U.S. 584, 122 S. Ct. 2428 (2002), and Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004). In Ring , the Court considered Arizona’s capital sentencing statutes,11 which provided that a death sentence could no t be imposed unless, following a sentencing hearing conducted by the trial judge, one aggravating circumstance was found by the judge. Ring , 536 U.S. at 597, 122 S. Ct. at 2437. In Blakely , the Court considered Washington’s determinate sentencing scheme , which provided a mandatory sentencing range for Blakely’s crime, and authorized a judge to impose a sentence above the range if he found “compelling reasons jus tifying an exceptional sentence.” Blakely , 542 U.S. at 299, 124 S. Ct. at 2535. In concluding that these sentencing statutes violated the holding
in Apprendi , the Court explained that, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose sole ly on the basis of the facts reflected in the jury verdict or adm itted by the defendant.” Blakely , 542 U.S. at 303, 124 S. Ct. at 2537. In other words: [T]he relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely , 542 U.S. at 303-04, 124 S. Ct. at 2537. A subtle distinction thus emerged: the “statutory maximum” is not the maximum possi ble sentence authorized by statute, but, rather, the maximum sentence for which a defenda nt is eligible “on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely , 542 U.S. at 303, 124 S. Ct. at 2537. ¶23 Garrymore compares his cause to that of the defendant in Apprendi . Specifically, Garrymore characterizes the parole eligibility restriction as a sentence enhancement, and asserts that the parole elig ibility restriction increased his penalty beyond the statutory12 maximum authorized by the jury verdict. Accordingly, we take up the Montana statutes at issue. ¶24 Conviction of the offense of deliberat e homicide, § 45-5-102(1)(a), MCA, is punishable as follows: (2) A person convicted of the offense of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, unless the person is less than 18 years of age at the tim e of the commission of the offense, by life imprisonment, or by im prisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-219 and 46-18-222. Section 45-5-102(2), MCA. B ecause the State did not seek the death penalty, and since neither § 46-18-219, MCA, nor § 46-18-222, MCA, is applic able to Garrymore’s case, the maximum sentence which could have been imposed upon Garrymore pursuant to the language of the statute was “life imprisonm ent.” However, Garrymore argues that the parole eligibility restriction, although plai nly authorized by anot her statute (§ 46-18- 202(2), MCA), operates to allow the impositi on of a sentence which improperly exceeds the range authorized by § 45- 5-102(2), MCA. He argues th at the “life sentences” authorized by § 45-5-102(2), MC A, contain a presumption of parole eligibility which can be overcome only by additional factfinding pursuant to § 46 -18-202(2), MCA, and that because such factfinding was no t reflected by the jury’s verdic t, but was conducted by the sentencing judge, the parole eligibility restriction viol ates the Sixth Amendment. ¶25 Section 46-18-202(2), MCA, wh ich authorizes restricti ons on parole eligibility, provides as follows:13 Whenever the sentenci ng judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offend er is ineligible for parole and participation in the supervised release program while servin g that term. If the restriction is to be imposed, the se ntencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is necessary for the protection of so ciety, the judge shall impose the restriction as part of the senten ce and the judgment must contain a statement of the reasons for the restriction. It is clear from the language of the statut e that a sentencing judge, when imposing a prison term exceeding one year, may also impose a parole elig ibility restriction in the judge’s sole discretion. This provision evidence s a legislative intent to authorize, but not require, sentencing judges to restrict parole whenever they impose prison terms exceeding one year. A ccordingly, it is evid ent that the parole eligibility restriction imposed upon Garrymore fell within the statutory range for his offense. Indeed, we held
in Cavanaugh v. Crist , 189 Mont. 274, 278, 615 P.2d 890, 893 (1980), that “[§ 46-18- 202(2), MCA] does not permit district ju dges to add any time beyond the statutory maximum for the underlying offense,” thus esta blishing that the restriction falls within the statutory range of punishments for offenses exceeding one year in the state prison. However, Cavanaugh did not address the subtle di stinction later advanced by Ring and Blakely , and discussed above: whether Garrymor e was eligible to receive imposition of the parole eligibility restriction under § 46-18-202(2), MCA, ba sed upon the facts reflected in the jury’s verdict. ¶26 It is for this reason Garrymore’s asserti on that § 45-5-102(2), MCA, contains an implicit “presumption of parole eligibility” is critical to his argument. He seeks to14 demonstrate that under the penalty statute, standing alone and without the operation of § 46-18-202(2), MCA, he was entitled to a parole-eligible sentence (subject to the requirements of the parole statute, § 46-23 -201, MCA), which was then taken away from him by the sentencing judge. However, we reject Garrymore’s ar gument that such a presumption exists. ¶27 We find no indicia in the sentencing statut es of a legislative intent to create a presumption in favor of paro le eligibility which must be overcome in order for a sentencing judge to impose a parole restri ction. The broad gr ant of discretionary authority—clearly indicated by the term “may also impose”—given to sentencing judges under § 46-18-202(2), MCA, to impose parole eligibility re strictions on the enormous class of sentences which ex ceed a one-year term of im prisonment belies such an assertion. With regard to these sentences, no limitation has been placed upon the exercise of this grant of authority by the legislature. Thus, a parole-eligible sentence was not taken away from Garrymore beca use he was not entitled to such a sentence to begin with. There is no implicit presump tion of parole eligibility. ¶28 Of course, we acknowledge that a paro le eligibility restriction must be accompanied by reasons stated in writing pu rsuant to § 46-18-2 02(2), MCA. We disagree, however, with Garrymore’s contentio n that the implicit fact-finding embodied within § 46-18-202(2), MCA, places the restri ction beyond the “statutory maximum” for the purposes of Apprendi . We initially note that the Su preme Court has rejected the15 argument that “every fact with a bearing on sentencing must be found by a ju ry . . . .” Jones v. United States , 526 U.S. 227, 248, 119 S. Ct. 1215, 1226 (1999). ¶29 As the Supreme Court noted in Blakely and United States v. Booker , 543 U.S. 220, 125 S.Ct. 738 (2005), though the exercise of a judge’s discreti on often necessitates findings of fact to support a particular sent ence, a defendant does not necessarily have a right to have those facts found by a jury in all instances. Booker , 543 U.S. at 233, 125 S. Ct. at 750; Blakely , 542 U.S. at 309, 124 S. Ct. at 254 0. Instead, where it is conferred by a legislature, a judge can exercise “broad discretion in imposing a sentence within a statutory range.” Booker , 543 U.S. at 233, 125 S. Ct. at 750. Thus, while a judge may not find facts which, once found, increase th e defendant’s exposure to punishment, a judge may find facts to support the exercise of discretion in imposing a sentence which falls within the statutory maximum. As explained in Blakely : [T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It lim its judicial power only to the extent that the claimed judicial power infri nges on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of th e jury’s traditional function of finding the facts essential to lawful im position of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bear ing upon that entitlement must be found by a jury.16 Blakely , 542 U.S. at 308-09, 124 S. Ct. at 2540. ¶30 Applying this reasoning to Garrymore’s sentence demonstrates his argument is without merit. First, as no ted above, a plain reading of the statutes evidences the legislature’s intent to make life imprison ment without the possibility of parole an authorized sentence for deliberate homicide. See §§ 45-5-102(2) an d 46-18-202(2), MCA. Second, although § 46-18-202(2), MCA, requires written reasons to support imposition of parole eligibility restriction, th ose reasons need not go beyond those facts found by the jury. Indeed, the factfinding requirem ent embodied in § 46-18-202(2), MCA, simply requires a judge to support his discretion with reasons, but does not tie the parole eligibility restriction to any particular facts or findings whatsoever. Instead, under the plain language of the statute, it is entirel y possible for a judge to restrict parole based solely upon facts found by the jury. ¶31 Further, imposition of a parole restrictio n is not necessarily improper merely because the sentencing judge finds facts, to ai d in the exercise of his discretion, not found by the jury. Here, the senten cing judge noted Garrymore’s pr ior convictions and his lack of remorse among the factors he considered in pronouncing sentence. Of course, as noted above, a prior conviction is a specific exception to the Apprendi rule, but, critical to this discussion, lack of remorse is an example of a fact “important to the exercise” of the sentencing discretion which doe s not “pertain to whether the defendant has a legal right to a lesser sentence . . . .” Blakely , 542 U.S. at 309, 124 S. Ct . at 2540. In other words, finding a “lack of remorse” does not trigger the imposition of the paro le restriction under17 the statutes nor endue the Dist rict Court with additional stat utory authority to impose the restriction. Imposition of the restriction re mains within the sentencing judge’s discretion and a part of indeterminate sentencing. Thus , the “lack of remorse” finding was merely one which the sentencing judge found useful in guiding the exercise of his discretion, along with others. ¶32 Under Blakely , this sort of indeterminate sent encing scheme—i.e., leaving parole eligibility restrictions to the discretion of sentencing judges—is constitutional. Accordingly, and because § 46-18-202(2), MCA, does not remove from the jury a determination of facts necessary to restrict parole, we conclude that the statutory maximum punishment for the crime of deliber ate homicide when the death penalty is not sought, for the purposes of Apprendi , is life imprisonment without the possibility of parole. ¶33 Faced with an almost identi cal issue, the Arizona Suprem e Court came to the same conclusion. In State v. Fell , 115 P.3d 594, ¶¶ 8-19 (Ariz. 2005), the defendant argued, based on Apprendi , that a statutory sentencing scheme surrounding a deliberate homicide statute created a presumptive sentence of lif e with the possibility of parole, in part because the statute authorizing parole re strictions called for findings of fact. Fell , ¶¶ 13, 18. The court, however, rejected the defendant ’s argument, and held that (a) there was no presumption of parole eligib ility for deliberate homicide, a nd (b) because the legislature had not required a sentencing court to find specific facts before restricting parole, the factfinding requirement did not in crease the statutory maximum for Apprendi purposes.18 Fell , ¶¶ 14-18; see also Booker , 543 U.S. at 233, 125 S. Ct . at 750. As the court noted, “[a] statutory requirement that a judge make findings . . . does not me an that any specific finding is necessary for imposition of the sentence.” Fell , ¶ 18. ¶34 Section 46-18-202(2), MCA, permits a se ntencing judge to impose a parole eligibility restriction whenever the judge imposes a sent ence that exceeds one year. Further, while a judge must state the reasons for the restriction if it is imposed, no particular finding of fact need be includedamong those reasons. For that reason, and because we conclude that the legislatur e intended the statutory maximum for § 45-5- 102(1)(a), MCA, to be life im prisonment without the possibility of parole, we conclude that the District Court restriction of Garrymore’s parole eligibility did not violate Garrymore’s federal constitutional rights. State Statutory Claim ¶35 Mirroring his federal constitutional clai m above, Garrymore argues that the District Court’s restriction on his parole eligibility pursua nt to § 46-18 -202(2), MCA, violated his statutory rights under § 46-1-401 , MCA (2001), a statute enacted in response

to Apprendi . Again, we must disagree. ¶36 Section 46-1-401, MCA (2001), provides in pertinent part: (1) A court may not impose an in carceration penalty enhancement specified in Title 45, Title 46, or any other provision of law unless: (a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment , with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact;19 (b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt; and

. . . . (2) The enhancement issue may be submitted to a jury on a form separate from the verdict form or may be separately stated on the verdict form. The jury must be in structed that it is to re ach a verdict on the offense charged in the information, complaint, or indictment before the jury can consider whether the enhancing ac t, omission, or fact occurred. (3) An enhancing act, omission, or fact is an act, omission, or fact, whether stated in the statute defini ng the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and th at allows or requires a sentencing court to add to, as provided by statut e, an incarceration period provided by statute for the charged offe nse or to impose the de ath penalty instead of a statutory incarceration period provided by statute for the charged offense. Codifying Apprendi , § 46-1-401, MCA, essentially requi res a jury determination of the facts necessary to impose an additional sent ence pursuant to a sentence enhancement statute. Because we see no substantive dis tinction between the principles enunciated in Apprendi and its progeny and this statutory rendering thereof, our disposition of Garrymore’s claim under the statute is also the same as our dis position of his federal constitutional claims. ¶37 As he did above, Garrymore argues that the application of § 46-18-202(2), MCA, “allowe[ed]” or “require[ed]” the District Co urt to add on to the sentence authorized by § 45-5-102(2), MCA. However, as men tioned previously, § 45-5-102(2), MCA, authorizes a district court to impose both life imprisonment and life imprisonment without the possibility of parole. Thus, § 46-18-202(2), MC A, does not, vis-à-vis an “act, omission, or fact,” allow or require a se ntencing court to increase punishment for a20 charged offense. Accordingly, we conclude that the Distri ct Court’s sentence did not violate § 46-1-401, MCA. State Constitutional Claim ¶38 Finally, Garrymore argues that the District Court violated his rights under Article II, Sections 24 and 26, of the Montana Co nstitution when it restricted his parole eligibility pursuant to § 46-18 -202(2), MCA. Specifica lly, Garrymore argues that because the Montana Constitution is more protec tive of the right to jury trial than the United States Constitution, he should prevail on state constitutional grounds regardless of our disposition of his case unde r the federal constitution and Apprendi . Unfortunately, we find this argument too undeveloped to un dertake a distinctive application of state constitutional principles. ¶39 Garrymore correctly notes that we have in terpreted Article II, Sections 24 and 26 of the Montana Constitution as affording a greater jury tria l right than does the Sixth Amendment to the United States Constitution. See Woirhaye v. Fourth Judicial Dist.
Court , 1998 MT 320, 292 Mont. 18 5, 972 P.2d 800. However, Garrymore fails to offer a compelling reason why the greater jury trial right in Montana dictates a different result in his case. Accordingly, we will no t further consider the argument. ¶40 Affirmed.

/S/ JIM RICE21 We concur:
/S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS
Chief Justice Karla M. Gray specially concurring. ¶41 I concur in the Court’s opinion on both i ssues. I write separately to caution criminal defense attorneys—public defenders , appellate public defenders and privately retained counsel—that I, at least, will expect more from them in fu ture cases asserting Lenihan

. ¶42 As is apparent from the Court’s disc ussion of the State’s arguments about Lenihan ’s applicability, the application of that case is far from au tomatic. Not every sentence to which no objection is made at the time of sentencing may successfully be appealed under Lenihan . Thus, it is my view that the party asserting the “ Lenihan exception” bears the burd en of establishing her or his en titlement to that exception. A mere reference and citation to Lenihan will not suffice in the fu ture, at least for me. ¶43 Here, in the standard of review secti on of Garrymore’s opening brief, counsel merely cited to Lenihan and its progeny for the propositi on that a “criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates.” Counsel then stated, without analysis, that “[a] failure to raise a contemporaneous objection to an illegal sentence at the time of hearing does not result in a waiver of the defendant’s objection[,]” and cited to four of our cases for that pr oposition. The problem22 with this approach is that we ha ve other cases refusing to apply the Lenihan exception. It is my view that counsel must present mo re in the way of di scussion and analysis regarding entitlement to the exception. ¶44 When appellate counsel fails to do so, th e result is a discussion such as that contained in our opinion here: the burden of es tablishing an appellant’s entitlement to the Lenihan exception improperly shifts. Under this shift, the State becomes responsible for establishing why Lenihan does not—or should not—apply in a given case. While this has been our approach in the pa st, it is an approach I am unw illing to continue to follow. Therefore, I encourage criminal defense couns el to clearly establish entitlement to the exception in their opening brief, or risk a dete rmination that—because they have not done so—they have not met their burden on appeal.

/S/ KARLA M. GRAY
Justice James C. Nelson, specially concurring. I. Introduction ¶45 I concur in the result of the Court’s Opin ion; however, I do not agree with the lack of detail in the Court’s reasoning. I therefore write separately to se t forth an independent analysis of the important issues raised in this appeal. ¶46 In particular, with respect to Issue 1, I agree with the Cour t that, notwithstanding Garrymore’s failure to raise his sentencing cl aims in the first inst ance in the District Court, we nevertheless may reach the merits of those cl aims by way of the Lenihan23 exception to the timely objection rule. See State v. Lenihan , 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). In arriving at this conclusion, I also agree with the Court’s rejection of each of the State’s “three reasons” why Lenihan should not be available to Garrymore. ¶47 I find it insufficient, however, to end th e discussion there and not explain why Garrymore has, in fact, satisfied the requisites for invoking the Lenihan exception. Indeed, the Court’s truncated analysis implie s that unless the State demonstrates in a given case that the Lenihan exception is not available, the appealing defendant may, by default, invoke it. This is not the case, as explained below, though the Court’s treatment of Issue 1 could lead one to believe otherwise. ¶48 Furthermore, we stated in Lenihan that “[i]t appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory ma ndates, even if no objection is made at the time of sentencing.” Lenihan , 184 Mont. at 343, 602 P.2d at 1000. Yet, in the 27 years since adopting this exception, we have ne ver defined “illegal or exceeds statutory mandates.” Rather, we have simply allowed defendants to invoke th e exception when it seemed right to do so—and vice versa. And in most of these case s, we provided little or no insight into our reasoning. The unfortunate result of our proceeding in this manner is, as the Court implies in footnote 3 of its Opinion, that our cases have not been consistent with respect to any one concei vable definition of “ illegal or exceeds statutory mandates.”24 Because these inconsistencies will only prol iferate—and at an in creasingly rapid pace 1

— until we explicitly articul ate the contours of the Lenihan exception, I do not agree with the Court’s conclusion in ¶ 11 that a comp rehensive response to the State’s (and Garrymore’s) Lenihan arguments is “not necessary” here. ¶49 To the contrary, it is necessary not onl y that we articulate the contours of Lenihan , but also that, for at least three reasons, the exception be crafted as narrowly as possible. First, in basic fairness to defendants, the practicing prosecution an d defense bars, and the
courts, our Lenihan rule must be clear, unambiguous, a nd predictable in its application. Second, as mentioned above, Lenihan is an exception to the timely objection rule, which is set forth in §§ 46-20-104(2) and -701(2), MCA. While this Court has the inherent power to protect the statutory and constitu tional rights of criminal defendants, see , e.g. , State v. Finley , 276 Mont. 126, 132-38, 915 P.2d 208, 212-15 (1996), overruled in part on other grounds , State v. Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215 , ¶ 21, 19 P.3d 817, ¶ 21, we are not privilege d to simply ignore lawful statutory mandates in order to achieve a particular result for the sake of eith er palatability or expedi ency. Third, by not articulating a clear and narrow Lenihan rule, we are, implicitly, maintaining an approach that relies less on careful, comprehensive, reco rd-based legal analysis and more on ad hoc decision-making, which serves neither the litiga nts nor the courts, not to mention the law.

1 Lenihan has been cited as an exception to the tim e objection rule in thirty cases since it was decided on November 21, 1979. All but eight of those cases have been handed down during the last seven years.25 ¶50 In assuming that we ultim ately will develop a narrow an d focused definition of the Lenihan exception on a case-by-case basis, prompt ed by and as a consequence of the Court’s Opinion and this Special Concurrence, we are, in truth, to quote Oliver Wendell Holmes, Jr., “spend[ing] a great deal of . . . time shoveling smoke.” Notably, we already have been presented with arguments to limit the ex ception’s availability. See , e.g. , Brief of Respondent at 6-9, State v. Ironmaker , 2005 MT 226N , 328 Mont. 522 (Table), 120 P.3d 811 (Table) (No. 04-610) (arguing that “ Lenihan should be limited to facially invalid sentences which the lower court ha s no authority to impose”); Brief of Respondent at 7-11, State v. Johnson , 2005 MT 48, 326 Mont. 161, 108 P.3d 485 (No. 04-002) (suggesting that a defendant may not invoke the Lenihan exception where his sentence is within the range authorized by statut e and he is not alleging that the statute is unconstitutional). Yet, we have chosen to ignore these argum ents and persist in an ad hoc approach. Moreover, experience teache s that, not surprisingly, prosecutors and criminal defense attorneys each will argue whatever version of Lenihan in our existing jurisprudence best serves their particular th eory in the given case . Unfortunately, as explained below, our present jurisprudential cafeteria offers up a precedent for nearly every theory. Thus, there simply is no t the incentive the Court presumes for the practicing bar to seek a narrow and focused Lenihan rule. That obliga tion falls solely on this Court. ¶51 Indeed, it is our obligation to articulate the Lenihan exception as clearly as possible, and it is our responsibility to clean up our case law and, thereby, take some of26 the offerings off the steam table. I am conv inced that the Court’s unwillingness here to shoulder this oblig ation and to address forthrig htly the complexities of the Lenihan exception in its present and unstructured st ate in our case law w ill simply encourage— rather than constrain—muddled , ad hoc, and unpredictable de cision-making. Again, such an approach serves no one. ¶52 For these reasons, I am proceeding beyond the Court’s discussion under Issue 1 by providing a comprehensive analys is of the foundation for the Lenihan exception, addressing the inconsistencies in our jurisp rudence, and articulating a narrow and concise Lenihan rule—specifically, the ex ception may be invoked on ly by a defendant who alleges a colorable claim that the sentencing court lacked statutory authority to impose the challenged sentence. I then explain, based on this articulati on, why Garrymore may invoke Lenihan in this case. ¶53 With respect to Issue 2, I agree with the Court that application of § 46-18-202(2), MCA (2001) (the parole eligibility statute) to Garrymore’s sentence of life imprisonment was not unconstitutional under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348 (2000), and did not contravene § 46-1-401, MCA (2001). And I fu rther agree that Garrymore did not adequately develop his cl aim under Article II, Sections 24 and 26, of the Montana Constitution. However, these issu es are indisputably complex. And while the Court’s discussion under Issue 2 supplies a measure of insight into our reasoning, I believe it is necessary and appropriate to expl ain in further detail, for the benefit of the parties, the practicing bar, and the lower courts, the intricacies of Apprendi ’s application27 to our parole eligibility statute. Accordingly, I am providin g an independent analysis of Garrymore’s Sixth Amendmen t and statutory claims. II. Issue 1: Does Garrymo re’s failure to object in the District Court to its imposition of the parole eligibility re striction preclude our considering his challenges thereto on appeal? A. Background ¶54 Garrymore did not object during the senten cing proceeding to the District Court’s restricting his parole eligibility . Nor did he raise the constitu tional and statutory issues he now pursues on appeal. He did suggest a le sser sentence of 40 years and argued against restricting his parole eligibility. Specific ally, defense counsel recommended as follows: I believe it’s appropriate for the Court to sentence Mr. Garrymore to a term of years, a specific term of years, and I would suggest the number 40.

. . . . . . . And we would urge upon you to give Mr. Garrymore the possibility of parole afte r whatever period of time this Court thinks is appropriate as a sentence in this case. However, a defendant’s request at the sentenci ng hearing for a particular sentence does not constitute an objection to th e sentence actually imposed. State v. Nelson , 274 Mont. 11, 18, 906 P.2d 663, 667 (1995). Thus, we must dete rmine, as a threshold matter, whether Garrymore’s failure to object in the District Court to its imposition of the parole eligibility restriction on his life sentence precludes our cons idering his challenges thereto on appeal. ¶55 Generally, this Court may not consider an issue to which a timely objection was not made in the district court. See §§ 46-20-104(2), -701(2), MCA; State v. Brister , 200228 MT 13, ¶ 15, 308 Mont. 154, ¶ 15, 41 P.3d 314, ¶ 15. However, a longstanding exception to this rule exists in the cont ext of sentencing. Specifically , as mentioned above, we held
in State v. Lenihan , 184 Mont. 338, 602 P.2d 997 (1979), that we will “review any sentence imposed in a criminal case, if it is alleged that such se ntence is illegal or exceeds statutory mandates, even if no objecti on [was] made at the time of sentencing.” Lenihan , 184 Mont. at 343, 602 P.2d at 1000; see also Brister , ¶ 16. 2 The precise

2 As the Court notes in footnote 1 of its Opinion, the State refers to this exception to the timely objection rule as Lenihan “jurisdiction.” This is not su rprising, given that we have, on occasion, used the term “jurisdiction” w ith respect to our application of the Lenihan exception. See , e.g. , Lenihan , 184 Mont. at 343, 602 P.2d at 1000 (“We, th erefore, accept jurisdiction in this matter.”); State v. Honey , 2005 MT 107, ¶ 35, 327 Mont. 49, ¶ 35, 112 P.3d 983, ¶ 35 (“[E]ven if a defendant fails to contemporaneously object at sentencing, we will accept jurisdiction of an appeal that has been timely filed which alleges that a sentence is illegal or exceeds statutory authority.”); State v. Kroll , 2004 MT 203, ¶ 19, 322 Mont. 294, ¶ 19, 95 P.3d 717, ¶ 19 (same); State v. Muhammad , 2002 MT 47, ¶ 23, 309 Mont. 1, ¶ 23, 43 P.3d 318, ¶ 23 (same); Brister , ¶ 16 (same). Our occasional use of this term is a misnomer. A court does not establish its own jurisdiction. Rather, “[j]uris diction as applied to courts is the power or capacity given by law to a court to entertain, hear and determin e the particular case or matter.” State ex rel. Johnson v. District Court of Eighteenth Judicial Dist. , 147 Mont. 263, 267, 410 P.2d 933, 935 (1966) (internal quotation marks omitted); see also Eberhart v. United States , ___ U.S. ___, ___, 126 S.Ct. 403, 405 (2005) (per curiam) (equating “jurisdi ctional” with “prescriptions delineating the classes of cases . . . falling within a court’s adjudicator y authority” (emphasis added, internal quotation marks omitted)). Once it is determined that a court lacks subject matter jurisdiction, the only further action the court can take is to dismiss the case. In re Marriage of Miller , 259 Mont. 424, 427, 856 P.2d 1378, 1380 (1993); see also Arbaugh v. Y & H Corp. , ___ U.S. ___, ___, 126 S.Ct. 1235, 1244 (2006) (“[S]ubject-matter ju risdiction, because it involves the court’s power to hear a case, can never be forfeited or waived.” (internal quotation marks omitted)). Thus, given “the morass into which one is led . . . by l oose talk about jurisdiction,” City of Yonkers v. United States , 320 U.S. 685, 695, 64 S.Ct. 327, 333 (1944) (Frankfurter, J., dissenting), it is important to clarify that the Lenihan exception is not a sour ce of “jurisdiction” by which we consider an appellant’s otherwise pr ocedurally barred challenge to his sentence. Rather, this Court’s jurisdiction derives from Ar ticle VII, Section 2, of the Montana Constitution, which includes “general supervisory control over all other courts,” and Lenihan , correspondingly, is a judici ally-created exception to the timely objection rule.29 question at hand, therefore, is whether Garry more may invoke this ex ception in order to have his otherwise procedurally barred ch allenge to his sentence heard on appeal. B. The State’s Three Lenihan Arguments ¶56 The State advances “three reasons” why the Lenihan exception is not available to Garrymore in this case: (1) “the Lenihan rationale does not apply” because “neither party recommended a deferred or su spended sentence in this case” and because “a contemporaneous Apprendi objection would not have provoked the judicial vindictiveness that Lenihan fears”; (2) “appellants are not pe rmitted to change theories on appeal”; and (3) “the sentence Garrymore rece ived was within statutory parameters and it was not . . . unconstitutional.” As stated earlie r, I agree with the Court’s rejection of each of these assertions. 3 i. The State’s First Argument

3 The State has also suggested, in pr evious cases, that we “cabin” the Lenihan exception, Brief of Respondent at 9, State v. Ironmaker , 2005 MT 226N, 328 Mont. 522 (Table), 120 P.3d 811 (Table) (No. 04-610), or simply overru le it, Brief of Respondent at 8, State v. Micklon , 2003 MT 45, 314 Mont. 291, 65 P.3d 559 (No. 02-415) (“Mo ntana is hopeful that this Court will someday reject the rationale underlying Lenihan , at least to the extent it permits convicted persons to remain silent with respect to the conditions a sentencing court deems necessary to suspend a given sentence.”). However, the State recently retreated from this position and argued a more favorable view of Lenihan . Specifically, during oral arguments in Gratzer v. Mahoney (No. 05-075) on November 9, 2005, in the context of di scussing the remedies available to a prisoner challenging the legality of his sentence, counsel asserted that Lenihan is integral to the adequacy of the remedy of direct appeal: “[B]ecause of this Court’s decision in Lenihan , in particular, the scope of review on direct appeal is much broader than it was previously. . . . [T]hat makes the remedy very adequate and e ffective.” Counsel acknowledged that he has “quibbled with Lenihan in many briefs” and “tried to undermine Lenihan ”; but “in preparation for this case, I have become a Lenihan convert, because I think it really does . . . support the adequacy and effectiveness of direct appeal.” Gi ven this about-face, as well as our reaffirmation of Lenihan in Brister , ¶ 21, Lenihan ’s continued vitality is not an issue, and we therefore need only address whether the exception app lies on the given facts of the case.30 ¶57 As the Court states in ¶ 12, it is not a prerequisite to invoking Lenihan that the sentence at issue be one that the sentencing c ourt deferred or suspende d. The language of Lenihan does not carry such an implic ation. Rather, we stated th at “[i]t appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is ille gal 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 (emphasis added). Accordingly, in State v. Honey , 2005 MT 107, 327 Mont. 49, 112 P.3d 983, we concluded th at Honey could invoke the Lenihan exception, notwithstanding the fact that the district c ourt had not suspended or deferred any portion of his sentence. See Honey , ¶¶ 34-35. On numerous other occasions, we have queried whether, pursuant to Lenihan , we could review an appella nt’s challenge to a sentence which had been neither su spended nor deferred. See Nelson , 274 Mont. at 18-20, 906 P.2d at 667-68; State v. Swoboda , 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v. Lafley , 1998 MT 21, ¶¶ 26-27, 287 Mont. 276 , ¶¶ 26-27, 954 P.2d 1112, ¶¶ 26-27; State v. McLeod , 2002 MT 348, ¶¶ 11, 15, 313 Mont. 35 8, ¶¶ 11, 15, 61 P.3d 126, ¶¶ 11, 15; State v. Legg , 2004 MT 26, ¶¶ 22, 60, 319 Mont. 362, ¶¶ 22, 60, 84 P.3d 648, ¶¶ 22, 60. And, in State v. Stone , 2004 MT 151, 321 Mo nt. 489, 92 P.3d 1178, the State conceded, and we agreed, that the Lenihan exception applied to Stone, who had been given a nondeferred, non-suspended sentence. See Stone , ¶¶ 45, 47. Thus, Lenihan is not limited to deferred and suspended sentences.31 ¶58 Likewise, the State’s an alogous suggestion that Lenihan applies only to cases in which there was a risk of judicial vindictiv eness or retaliation at the sentencing hearing must be rejected as well. As we explained in Lenihan , this risk is of particular concern in the context of a deferred (and, for the same reasons, a suspended) sentence: As a practical matter, [appellate revi ew of the allegedl y illegal sentence] may be a defendant’s onl y hope in cases involv ing deferred imposition of sentence. If a defendant objects to one of the conditions, the sentencing judge could very well decide to fore go the deferred sentence and send him to prison. To guard against this po ssibility, a defendant often times must remain silent even in the face of invalid conditions. Lenihan , 184 Mont. at 343, 602 P.2d at 1000. 4 ¶59 Our acknowledgement of the risk of ju dicial vindictiveness or retaliation, however, was not meant as a li mitation on the availability of Lenihan to situations in which such risk was present. To the contrary, in adopting the Lenihan exception, our primary reasoning was as follows: The sentencing authority of a court exis ts solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized[.] . . . Where, as in this case, it is alleged that a sentencing court has exceeded its statut ory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing order alle ged to be void. Lenihan , 184 Mont. at 342, 602 P. 2d at 1000 (ellipsis in or iginal, internal quotation marks omitted) (quoting State v. Braughton , 561 P.2d 1040, 1041 n.2 (Or.App. 1977)).

4 A recent example of this risk occurred in State v. Erickson , 2005 MT 276, 329 Mont. 192, 124 P.3d 119. The district cour t told Erickson that, but for the plea agreement, it likely would have given him the maximum sentence a nd that, if Erickson objected to the court’s sentencing order, his case could go to trial. See Erickson , ¶ 33. Given these statements by the court, we observed that “it is understandable wh y Erickson did not object to his sentence for fear of receiving a harsher sentence.” Erickson , ¶ 33.32 ¶60 Thus, our discussion of a defe ndant’s incentive to remain silent in the face of an invalid condition placed on his deferred (o r suspended) sentence was simply an additional rationale for our decision to allow partic ular sentencing challenges to be raised for the first time on appeal. Indeed, as the C ourt notes in ¶ 13, we have characterized the risk of judicial vindictiveness as “p art”—not “all”—of the rationale behind Lenihan

. See State v. Micklon , 2003 MT 45, ¶ 9, 314 Mont. 291, ¶ 9, 65 P.3d 559, ¶ 9. And we have applied Lenihan in at least one situation where the defendant arguably had an incentive to speak up, not remain silent. See Stone , ¶¶ 44-47 (the court sentenced Stone to three years more than was statutorily authorized). Thus, Lenihan is not limited to cases in which there was a risk of judicial vindictivene ss or retaliation at the sentencing hearing. ii. The State’s Second Argument ¶61 With respect to the St ate’s contention that Lenihan should not be available to Garrymore because “appellants ar e not permitted to change theo ries on appeal,” the State is correct that, as a general rule, “[a] part y may not raise new arguments or change his legal theory on appeal,” State v. Heath , 2004 MT 58, ¶ 39, 320 Mont. 211, ¶ 39, 89 P.3d 947, ¶ 39. However, underlyi ng the State’s argument is th e premise that an objection was made to the particular sentencing term or condition that the ap pellant challenges on appeal and the appellant has since changed the legal theory advanced in support of that objection. Yet, if an objectio n was in fact made to the particular sentencing term or condition, it would be unnecessary for the appellant to invoke Lenihan , as his claim33 would be properly preserved. The only question would be wh ether we must nevertheless refuse to consider it becau se the legal theory behind the objection has changed. ¶62 We have long held that “a party compla ining of error must stand or fall upon the ground relied on in the trial court.” Bower v. Tebbs , 132 Mont. 146, 160, 314 P.2d 731, 739 (1957). The rationale underlying this rule is that it is fundamen tally unfair to fault the trial court for failing to rule correctly on an i ssue it was never given the opportunity to consider. See Day v. Payne , 280 Mont. 273, 276-77, 929 P.2d 864, 866 (1996); State v. Martinez , 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. But this is the same rationale underlying the timely objection rule, to which Lenihan is an exception. ¶63 Indeed, if a challenge to a senten ce comes within the meaning of Lenihan ’s “illegal or exceeds statutory mandates” concept, then it would be coun terintuitive for us to refuse to consider that challenge on the ground that the appellant objected in the district court under one legal theory but now (on appeal) advances a different legal theory. Such a rule would reward appellant s who made no objection whatsoever to the alleged sentencing error (and, th us, gave the sentencing court no opportunity to remedy the alleged error) and punish those who did obj ect but then changed their legal theories. Moreover, as the Court aptly obs erves in ¶ 13, this approach ultimately would create an institutional incentive for defe ndants not to object dur ing sentencing and thereby undermine the efficacy of the sentencing proc ess. Accordingly, the State’s change-oflegal-theories argument must be rejected. iii. The State’s Third Argument34 ¶64 The State argues that “this Cour t should refrain from invoking Lenihan to address a constitutional challenge to § 46-18-202(2)” because “the sentence Garrymore received was within statutory parameters and it wa s not . . . unconstitutional.” Garrymore responds that “the Court cannot make this . . . determination without considering the substantive merits of the issue to begin with.” In other words, Garrymore contends that since this Court will not reach the merits of a sentencing claim to which a timely objection was not made in th e district court unless the Lenihan exception applies, application of Lenihan cannot depend on whether the defe ndant ultimately will prevail on his underlying claim. ¶65 Garrymore is correct. To say that the Lenihan exception may be invoked only when the contested sentence is in fact illegal or in excess of statutory mandates puts the proverbial cart before the horse. By virtue of the timely ob jection rule, we will not reach the merits and make that determination with out first deciding that the defendant may invoke Lenihan . For this reason, Lenihan is more properly vi ewed as a “gateway” through which a defendant must pass in order to have his otherwise procedurally barred sentencing claim considered on the merits. As stated above, the question here is whether Garrymore may pass through this gatewa y. I now turn to that question. C. Definition of the Lenihan Exception ¶66 In Lenihan , we stated that an appellate court may review any sentence imposed in a criminal case if (1) it is “alle ged” (2) that such sentence is “illegal or exceeds statutory35 mandates.” Lenihan , 184 Mont. at 343, 60 2 P.2d at 1000. Thus, a mere allegation is sufficient to pass through the Lenihan gateway. 5 ¶67 However, while this standard is minimal— requiring only an allegation—it is also specific. By “illegal or exceeds statutory ma ndates,” we did not mean that the sentencing court simply imposed an objectionable se ntence. Such an in terpretation of the Lenihan exception would render the timely objection ru le a practical nullity in the sentencing context. Rather, as discussed already, the basis for our adopting th is exception to the timely objection rule in the sentencing contex t was the principle that a sentencing court’s purported exercise of power not granted to it by law is subject to appellate review. 6 Specifically, we stated that [t]he sentencing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not

5 The allegation must, of course, conform to our rules and precedents requiring proper argument and citation. See M. R. App. P. 23(a)(4); In re Marriage of McMahon , 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6 (“[W]e will not consider unsupported issues or arguments. Similarly, this Court is under no ob ligation to locate authorities or formulate arguments for a party in support of positions taken on appeal.” (citation omitted)); State v. Holt , 2006 MT 151, ¶ 70, 332 Mont. 426, ¶ 70, 139 P.3d 819, ¶ 70 (Nelson, J., concurring) (“Holt did not articulate a persuasive argument on appeal wh ich would demonstrate that his sentence in this case falls within the seminal rule set forth in Lenihan .”). Furthermore, the allegation must be filed within the time limitations for direct appeals. See M. R. App. P. 5(b); State v. Muhammad , 2002 MT 47, ¶¶ 22-23, 309 Mont. 1, ¶¶ 22-23, 43 P.3d 318, ¶¶ 22-23; Brister , ¶ 16. 6 Our cases are legion and our law well-settle d that a sentencing c ourt’s authority to impose a criminal sentence derives from the law; it is not inherent. Thus , a court’s authority to sentence exists only to the extent authorized by sent encing statutes. See State v. Hicks , 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (“A di strict court’s author ity in sentencing a criminal defendant is defined and constrained by statute, and the court has no power to impose a sentence in the absence of speci fic statutory authority.” (citing State v. Ruiz , 2005 MT 117, ¶ 12, 327 Mont. 109, ¶ 12, 112 P.3d 1001, ¶ 12)); State v. Hatfield , 256 Mont. 340, 346, 846 P.2d 1025, 1029 (1993) (“We have long held that a district court has no power to impose a sentence in the absence of specific statutory authority.” (citing State v. Stone , 40 Mont. 88, 105 P. 89 (1909), and State v. Openshaw , 172 Mont. 511, 565 P.2d 319 (1977))).36 specifically authorized[.] . . . Where, as in this case, it is alleged that a sentencing court has exceeded its statut ory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing order alle ged to be void. Lenihan , 184 Mont. at 342, 602 P. 2d at 1000 (ellipsis in or iginal, internal quotation marks omitted) (quoting Braughton , 561 P.2d at 1041 n.2); see also Commonwealth v.
Lane , 345 A.2d 233, 234 n.5 (P a.Super. 1975) (“[A] sentence that exceeds the statutory maximum is not subject to waiver.”), cited in Lenihan , 184 Mont. at 342, 602 P.2d at 1000; State v. Swoboda , 276 Mont. 479, 482, 918 P.2d 296, 298 (1996) (explaining that the sentence in Lenihan was illegal or in excess of statut ory mandates because the district court lacked the specific statutory authority to impose the sentence); State v. Nelson , 274 Mont. 11, 19, 906 P.2d 663, 668 (1995) (same). ¶68 Thus, “illegal or exceeds statutory mandat es” reflects a narrow concern: whether the challenged sentence was statutorily author ized. Given this pr ecise focus, only a defendant who alleges a colorabl e claim that his sentence wa s imposed in the absence of statutory authority may pass through the Lenihan gateway and have his otherwise procedurally barred sentencing claim considered on the merits. ¶69 For instance, the defendant may allege that the sentencing court imposed a sentence that is outside the range provided by the relevant sentencing statute. See , e.g. , State v. Stone , 2004 MT 151, ¶ 44, 321 Mont. 489, ¶ 44, 92 P.3d 1178, ¶ 44 (alleging that his five-year sentence exceeds the two-yearmaximum sentence authorized by the applicable statute). Or, the defendant may alle ge that the court imposed a sentence that is not authorized by any statute. See , e.g. , Lenihan , 184 Mont. at 339-40 , 602 P.2d at 99837 (alleging that the district judge did not have statutory authority to impose a condition on his sentence requiring him to reimburse the county for his appointed counsel’s attorney fees); State v. Hatfield , 256 Mont. 340, 345- 46, 846 P.2d 1025, 10 28-29 (1993) (alleging that the district court was wit hout authority to impose a senten ce of 210 days in jail, 180 of which would be served at the discreti on of the supervising probation officer); State v. Honey , 2005 MT 107, ¶ 34, 327 Mont. 49, ¶ 34, 112 P.3d 983, ¶ 34 (alleging that the district court was without authority to impose a restitution obligation). ¶70 Our decision in State v. Nelson , 274 Mont. 11, 906 P.2d 66 3 (1995), illustrates this narrow focus on statutory authority. In Nelson , the defendant argued on appeal that because he qualified as a nonviolent fe lony offender, Mont ana law required the sentencing court to consider alternatives to incarceration when sentencing him. However, he had not raised this issue in the district court; ther efore, we stated, this Court would not review his sentencing challenge unless he could invoke Lenihan

. See Nelson , 274 Mont. at 17-18, 9 06 P.2d at 666-67. ¶71 In addressing Lenihan ’s applicability, we first emphasi zed that “an appellate court may review any sentence imposed in a criminal cas e, if it is alleged th at such sentence is illegal or exceeds statutory mandates , even if no objection is made at the time of sentencing.” Nelson , 274 Mont. at 18, 90 6 P.2d at 667 (citing Lenihan , 184 Mont. at 343, 602 P.2d at 1000, and Hatfield , 256 Mont. at 346, 846 P.2d at 1029). We then reasoned as follows: Sections 46-18-201(11) and 46-18-225, MCA, do not preclude a court from sentencing a nonviolent felony offende r to prison. . . . Although these38 statutes require consideration of a lternatives to imprisonment, such consideration would not have necessar ily changed the court’s final sentence for Nelson. Nelson’s sentence of ten years is not in excess of the maximum statutorily authorized by § 45-5-202(3), MCA. Sections 46-18-201(11) and 46-18-22 5, MCA, impose an affirmative duty upon the court to take certain matters into consideration in sentencing. If the court fails to abide by this requirement, the sentence is subject to challenge or objection. That does not mean, however, that in the absence of an objection, the sentence is thereby illegal . The District Court, after considering the criteria in § 46-18-225 , MCA, and stating its reasons why alternatives to imprisonment were not selected as required by § 46-18- 201(11), MCA, could still have legally senten ced Nelson to ten years in prison . Thus, Nelson’s sentence does not come within the exception found in Lenihan and Hatfield

. Nelson , 274 Mont. at 19-20, 906 P.2d at 668 (emphases added). 7 ¶72 As the foregoing reasoning in Nelson makes clear, an allegation that the sentencing court did not impose a particular sentence within the range authorized by the applicable punishment statutes is not the kind of error for which the Lenihan exception may be invoked. Nelson alleged that he might have been given an alternative to imprisonment had the district court abided by its “affirmative duty”; yet, his sentence of ten years was authorized by § 45-5-202(3), MCA. T hus, his allegation, in substance, was that the court erred in its de termination of which sentence within the statutorily authorized range was appropriate for Nelson, not th at it imposed a sentence for which there was no statutory authority. For th is reason, he could not invoke the Lenihan exception. See also Swoboda , 276 Mont. at 482, 918 P.2d at 298 (reaching the same

7 Had Nelson properly preserve d his claim by making a timely objection in the district court, we most likely would have remanded the case for resentencing. See Nelson , 274 Mont. at 17, 906 P.2d at 666 (“In three recent cases in wh ich the district courts failed to consider alternatives to incarcerati on for nonviolent offenders, we re manded for resentencing.”).39 conclusion concerning Swoboda’s allegation); State v. Goulet , 277 Mont. 308, 312, 921 P.2d 1245, 1247 (1996) (same). 8
D. Further Clarification of the Lenihan Exception ¶73 Our applications of the Lenihan exception over the past 27 years have, for the most part, conformed with the foregoing prin ciples; however, there have been a number of cases in which we diverged from the original meaning of “illegal or exceeds statutory mandates.” As discussed earlier, these in consistencies in our jurisprudence have rendered our precedents irreconcilable with any one conceivable definition of the Lenihan exception. Thus, for the sake of clarity and uniformity in this and future cases, it is necessary to revisit some of our preceden ts and resolve the inconsistencies, which I group below into three lines of cases. As a preliminary matter, however, I pause to explain why doing so at this juncture is appropriate. i. The Necessity and Appropriaten ess of Resolving Inconsistencies in our Lenihan Jurisprudence at this Juncture

8 Incidentally, the Indiana courts ha ve construed their version of the Lenihan exception similarly. In Kleinrichert v. State , 297 N.E.2d 822 (Ind. 1973), cited in Lenihan , 184 Mont. at 342, 602 P.2d at 1000, the Supreme Court of Indian a stated: “Normally, this Court will not consider an issue which is fi rst raised on appeal, but a cour t of review cannot ignore a fundamental error which is apparenton the face of the record, such as an incorrect sentence.” Kleinrichert , 297 N.E.2d at 826. Subsequently, the court cl arified that “to be fundamental error, the error must go to the substa nce of the sentence itself—i.e . an illegal sentence—not the procedures upon arriving at the sentence.” Ellis v. State , 567 N.E.2d 1142, 1145 (Ind. 1991); see also Carman v. State , 473 N.E.2d 618, 620 (Ind. 1985) ( Kleinrichert “concerned [a] sentence[] which [was] imposed outside the statutory authority of the trial judge. . . . In the instant case, on the other hand, the sentence was imposed consistently with the statutory di scretion vested in the trial judge. The statute providing the penalty for a class B felony permits a sentence of twenty years, the sentence imposed here.”).40 ¶74 At present, anyone attempting to ascertain the meaning of Lenihan ’s “illegal or exceeds statutory mandates” concept is doomed to failure due to the fact that, as just noted, we diverged in a number of cases fro m our original statutory authority approach and thereby created inconsistencies in our Lenihan jurisprudence (which are identified and analyzed in detail below ). Notably, the uncertainty an d confusion engendered by our seemingly arbitrary applications of Lenihan is evident from some of the arguments made to this Court over the years and has led to conflicting views over whether criminal defendants have been “abusing” the exce ption and whether it is broad or narrow. 9 ¶75 Tellingly, both arguments concerning Lenihan ’s scope are incorrect. The assertion that we have progressively narrowed the Lenihan exception over the years is belied by cases such as State v. McLeod , 2002 MT 348, 313 Mont . 358, 61 P.3d 126, and State v. Legg , 2004 MT 26, 319 Mont. 362, 84 P.3d 648, which stand for the proposition that any alleged sentencing error may be re viewed on appeal (by way of Lenihan ) if the error is simply framed as a “due process” violation. See McLeod , ¶¶ 15-16; Legg , ¶¶ 58, 60. Conversely, the suggestion that we have made the Lenihan exception broad is belied by

9 See , e.g. , Brief of Respondent at 10, State v. Kotwicki (No. 05-178) (“Kotwicki is abusing this Court’s Lenihan jurisdiction by changing theories on appeal to obtain review of an alleged sentencing irregularity rather than a truly unauthorized or illegal sentence. . . . Lenihan is not a license to sandbag . . . .”); Brief of Respondent at 6, State v. Ironmaker , 2005 MT 226N, 328 Mont. 522 (Table), 120 P.3d 811 (Table) (No. 04-610) (“Although this Court has repeatedly emphasized that Lenihan is a narrow exception, it is not treated as such by defense counsel.”); Brief of Karl Eric Gratzer in Support of Petition for Wr it of Habeas Corpus at 20, Gratzer v. Mahoney (No. 05-075) (“[T]his Court has recently show n an inclination to restrict the already narrow Lenihan exception.” (citing State v. McLeod , 2002 MT 348, 313 Mont. 358, 61 P.3d 126, and State v. Micklon , 2003 MT 45, 314 Mont. 291, 65 P.3d 559)); Counsel for the State, Oral Arguments, Gratzer v. Mahoney (No. 05-075) (November 9, 2005) (“ Lenihan in itself is very broad. It applies to sentencing. The Court calls it ‘narrow,’ but I think wh en it says ‘narrow,’ it means it only applies to sentencing.”).41 cases such as State v. Lafley , 1998 MT 21, 287 Mont. 276, 954 P.2d 1112, and Nelson , supra , which stand for the propositi on that any sentence falling w ithin the parameters of a sentencing statute—irrespective of the statute’s constitutionality—does not qualify under Lenihan for our review. See Lafley , ¶¶ 26-27; Nelson , 274 Mont. at 19-20, 906 P.2d at 668. Until we reconcile this case law, no one can reasonably predict whether the Lenihan exception will be available to a given defendant who failed to object to some aspect of his or her sentence in the lower court. ¶76 The Court states that “neith er of the parties has cited to any of these cases or offered such argument.” Thus, the Court “d eem[s] it inappropriat e to undertake such issues until they have been properly raised and briefed.” ¶ 15 n.3. To be sure, neither the State nor Garrymore asserts in their br iefs, “This Court’s applications of Lenihan over the years have been confusing and unpredictable. Please clarify the exception! Here’s how. . . .”—a request that certainly would have been warranted. However, they do, in fact, cite an array of cases from our Lenihan jurisprudence, including Lenihan ; State v. Hatfield , 256 Mont. 340, 84 6 P.2d 1025 (1993); State v. Brewer , 1999 MT 269, 296 Mont. 453, 989 P.2d 407; State v. Brister , 2002 MT 13, 308 Mont . 154, 41 P.3d 314; State v. Legg , 2004 MT 26, 319 Mont . 362, 84 P.3d 648; State v. Stone , 2004 MT 151, 321 Mont. 489, 92 P.3d 1178; State v. Eaton , 2004 MT 283, 323 Mont. 287, 99 P.3d 661; State v. Muhammad , 2002 MT 47, 309 Mont. 1, 43 P.3d 318; and State v. Honey , 2005 MT 107, 327 Mont. 49, 112 P.3d 983. See Appellant’s Brief at 9-10 (March 4, 2005); Brief of Respondent at 14-15 (May 20, 2005); Appellant’s Reply Brief at 1-5 (June 6,42 2005). Even a cursory re view of these precedents , in the context of the Lenihan issue presented by Garrymore, disclose s glaring inconsistencies in our applications of the exception and consequent inequitable treatment of numerous defendants. ¶77 When faced with similar situ ations in the past, our appr oach has been to clear up the inconsistencies in our jurisprudence, even if the parties did not cite the conflicting cases and offer corresponding argument. For instance, in State v. Montoya , 1999 MT 180, 295 Mont. 288, 983 P.2d 937, we observed as follows: Although not put at issue by the parties, we note at the outset that there is a rather prevalent inconsiste ncy in this Court’s case law regarding the appropriate standard of re view of criminal sentences. Montoya , ¶ 11. We therefore “[took] [that] opport unity to clarify the proper standard.” Montoya , ¶ 13. After tracing back through our ca se law to the source of the confusion, see Montoya , ¶¶ 13-14, we held that [t]his Court reviews a crim inal sentence only for legality . . . . To the extent that Davison , White , Gunderson , and any other decisions from this Court suggest that we also review criminal sentences for an abuse of discretion, they are overruled. Montoya , ¶ 15. 10

10 Incidentally, although we made abundantly clear in Montoya that “[a] question of legality . . . implies de novo review,” Montoya , ¶ 12, and, in the process, overruled any prior decisions that held otherwise, we have si nce reinstated the st andard disapproved in Montoya

. See State v. Leitheiser , 2006 MT 70, ¶ 13, 331 Mont. 46 4, ¶ 13, 133 P.3d 185, ¶ 13 (“The standard of review of the legality of a sentence is whether the sentencing court abused its discretion .” (emphasis added)); State v. Setters , 2001 MT 101, ¶ 16, 305 Mont. 253, ¶ 16, 25 P.3d 893, ¶ 16 (same). As a result, we even tually will need to overrule either Leitheiser and Setters (and their progeny) or Montoya (and its progeny), notwithstandi ng our effort seven years ago to clarify the standard once and for all.43 ¶78 We have taken this approach in a number of other cases. See In re Estate of Bradshaw , 2001 MT 92, ¶¶ 13-16, 305 Mont. 17 8, ¶¶ 13-16, 24 P.3d 211, ¶¶ 13-16 (identifying discrepancies in our applications of the five criteria for assessing undue influence and overruling nine cases that stoo d for the “erroneous” approach, although the parties had not raised and argued the “muddled” nature of our precedents); State v. Van Kirk , 2001 MT 184, ¶¶ 29-47, 30 6 Mont. 215, ¶¶ 29-47, 32 P. 3d 735, ¶¶ 29-47 (resolving the “inconsistency and confusion” over the prope r test to be applied in a harmless error analysis, although the partie s had not identified this in consistency and confusion and requested clarification); Gliko v. Permann , 2006 MT 30, ¶¶ 15-24, 331 Mont. 112, ¶¶ 15- 24, 130 P.3d 155, ¶¶ 15-24 (concluding that we “must” resolve two inconsistent lines of authority pertaining to whethe r the existence of a special relationship giving rise to a fiduciary duty is a question of fact or a question of law, even though the parties had merely cited some of the inconsistent cases and not specifically ar gued the inconsistency issue); State v. Brister , 2002 MT 13, ¶ 21, 308 Mont. 154, ¶ 21, 41 P.3d 314, ¶ 21 (overruling three precedents—a lthough neither of the parties had cited to any of these cases or offered such argument—to the exte nt they held that failure to raise a contemporaneous objection to an illegal sent ence at the time of hearing results in a waiver of the defendant’s objection). ¶79 Notwithstanding, the Court, it seems, give n its refusal in the case at hand to confront the inconsistencies in our Lenihan jurisprudence, would henceforth passively permit the continuation of a dich otomy in our case law until a party cites to the cases and44 specifically argues for a resolutio n. (Paradoxically, as noted earlier, there is an incentive for the parties not to request such resolution, since the existence of conflicting parallel standards gives each side hope that we w ill employ the standard favorable to their position in the given case.) I do not believe that we should adopt such a limitation on our ability to clean up our ow n messes. To be sure, I do not dispute the principle that we do not address issues not presented to us or not properly briefed. However, this principle is not absolute. 11 When, in the course of resolving a particular case, we become aware of inconsistent case law or parallel lines of authority standing fo r two irreconcilable standards, we have a duty to re medy the conflict if for no othe r reason than to ensure that similarly situated litigants are, in the par ticular case and thereafter, treated equally— which is the fundamental rationale on wh ich the constitutional guarantee of equal protection of the law is based.

11 See Arrowhead Sch. Dist. #75, Park Co. v. Klyap , 2003 MT 294, ¶ 79, 318 Mont. 103, ¶ 79, 79 P.3d 250, ¶ 79 (Gray, C.J., concurring in part and dissenting in part) (“I fully support this Court’s efforts in recent y ears to ‘square away’ inconsistentor parallel lines of authority which cause ongoing difficulties for practitioners and trial courts. We generally, and properly, do so by analyzing why one line of authority is pr eferable and overruling othe r cases, in whole or in part, which are inconsistent therewith. See , e.g. , Quantum Elec., Inc. v. Schaeffer , 2003 MT 29, 314 Mont. 193, 64 P.3d 1026; State v. Hardaway , 2001 MT 252, 307 Mont. 139, 36 P.3d 900; In re Estate of Bradshaw , 2001 MT 92, 305 Mont. 178, 24 P.3d 211; State v. Montoya , 1999 MT 180, 295 Mont. 288, 983 P.2d 937. In my view, we should continue that approach in the present case.”); Leichtfuss v. Dabney , 2005 MT 271, ¶ 37 n.8, 329 Mont. 129, ¶ 37 n.8, 122 P.3d 1220, ¶ 37 n.8 (observing that “a court may consider an issue antecedent to . . . and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief,” and that “[i]f the court were limited to the argume nts and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court” (ellipsis in original, internal quotation marks omitted)).45 ¶80 Accordingly, while it might be ideal to wait for the perfect case—complete with model briefing and an all-inclus ive list of the cases which cite Lenihan and its progeny— in which to address and resolve our inconsistent applications of the Lenihan exception, the vastly increased reliance on Lenihan in recent years ( see ¶ 48 n.1, supra ) necessitates action on our part forthwith. And I cannot ac cept refraining from undertaking this issue now on the ground that the State’s and Garrymore’s briefing is inadequate, as such condition is largely due to th e parties’ misconceptions of Lenihan created by our own confusing applications. ¶81 In this regard, the Chief Justice’s Special Concurren ce criticizes Garrymore for “merely cit[ing] to Lenihan and its progeny” for the pro position that a criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates and then “stat[ing], without an alysis,” that a failure to ra ise a contemporaneous objection to an illegal sentence at the time of sentenci ng does not result in a waiver of the defendant’s objection. ¶ 43. Yet, while Garrymore’s Lenihan discussion in his opening brief indeed leaves much to be desired (he later develops his Lenihan arguments in greater detail in his reply brief), the superfic iality of his analysis , notably, mirrors our own in a number of cases. For instance, the full extent of our Lenihan discussion in State
v. Vernes , 2006 MT 32, 331 Mont. 129, 130 P.3d 169, is as follows: Vernes also appeals from the por tion of her sentence imposing restitution costs. Vernes failed to raise an objection at the time of sentencing, but this Court will consid er an appeal from an alleged illegal sentence in a criminal cas e, even when the defendant did not raise a timely objection in the district court. See State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997.46 Vernes , ¶ 26. We then proceeded to set forth th e relevant standard of review and address the merits of Vernes’s claim. See Vernes , ¶¶ 27-30. Similarly, in State v. Gallagher , 2005 MT 336, 330 Mont. 65, 125 P.3d 1141, we provided th e following brief explanation for why Gallagher could invoke the exception: Gallagher now challenges his sentence on appeal, and, consistent with our rule in State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997, we will review his challenge to the illegality of the sentence, desp ite no objection in the trial court. Lenihan , 184 Mont. at 343, 602 P.2d at 1000; see also State v. Brister , 2002 MT 13, ¶ 16, 308 Mont. 1 54, ¶ 16, 41 P.3d 314, ¶ 16. Gallagher , ¶ 30. And in the case at hand, for th at matter, the Court never explains why Garrymore’s sentencing claims sa tisfy the requisites for invoking Lenihan

. ¶82 Thus, while the Chief Justice’s admonition th at “counsel must present more in the way of discussion and analysis regarding entitlement to the ex ception” is well-taken, it is also precisely why we must ar ticulate the contours of the Lenihan exception and resolve the inconsistencies in our case law now . Otherwise, we impose on counsel the hopeless task of deciphering—in the face of our s uperficial and conflicting applications of Lenihan —why the requisites for invoking the excep tion were satisfied in some cases and not in others, though the facts of the cases are materially indistinguishable. ¶83 We have been presented with a variety of arguments by the State and by criminal defendants in this case as well as in previous cases. 12 In my view, we have been

12 See , e.g. , Brief of Respondent at 6-9, State v. Ironmaker , 2005 MT 226N, 328 Mont. 522 (Table), 120 P.3d 811 (Table) (No. 04-610) (arguing that “ Lenihan should be limited to facially invalid sentences which the lower c ourt has no authority to impose”); Brief of Respondent at 9-10, State v. Kotwicki (No. 05-178) (asserting that “[t]he purpose of the Lenihan47 sufficiently apprised of the i ssue and the competing interests. Therefore, while I might otherwise agree with the Court that “it [is] inappropriate to undert ake such issues until they have been properly raised and briefed,” ¶ 15 n.3, I conclude that this is one of those rare instances in which we must undert ake review of our case law to resolve inconsistencies therein, notwithstanding the pa rties’ failure to brief this issue fully. ii. The Lafley Line ¶84 In the first line of cases that is inconsis tent with our statutory authority approach under Lenihan , we determined that the appellant’s allegation did not sa tisfy the requisites for invoking the exception when , in fact, it did. In State v. Lafley , 1998 MT 21, 287 Mont. 276, 954 P.2d 1112, Lafley had been convicted of felo ny assault and sentenced to ten years in the Montana State Prison plus tw o years for the use of a dangerous weapon. Lafley , ¶¶ 1, 17. On appeal, he claimed, inter alia, that the two-year sentence constituted double jeopardy and cruel and unusual punishment. Lafley , ¶ 27. Lafley had not raised this claim in the district court; thus, he could not pursue it on appeal unless he could invoke Lenihan

.
exception is to prevent sentencing courts from vindictively punishing convicts who object to illegal sentences or conditions,” and that “[h] ow the sentencing court went about imposing its fine is not an issue that Lenihan compels this Court to review”) ; Brief of Respondent at 7-11, State v. Johnson , 2005 MT 48, 326 Mont. 161, 108 P.3d 4 85 (No. 04-002) (suggesting that a defendant may not invoke the Lenihan exception where his sentence is within the range authorized by statute and he is not alleging that the statute is unc onstitutional); Appellant’s Reply Brief at 3-4, State v. Kotwicki (No. 05-178) (arguing that, in determining whether a defendant may invoke Lenihan , this Court need not “attempt to divine why no objection was raised to the illegal sentence or condition”); Brief of Appellant at 2-3, State v. Micklon , 2003 MT 45, 314 Mont. 291, 65 P.3d 559 (No. 02-415) (asserting that because a sentencing court has no power to impose a sentence in the absence of specific statutory authority, such a sentence is illegal and, therefore, may be reviewed by this Court under the Lenihan exception).48 ¶85 We determined that Lafley was “ not challenging the legality of the sentence.” Lafley , ¶ 27 (emphasis added). In reaching th is conclusion, we first observed that “a sentence is not illegal when it is within the parameters provided by statute.” Lafley , ¶ 26 (internal quotation marks omitted). We then explained that because § 46-18-221, MCA, authorizes a court to sentence a person wh o uses a dangerous weapon in the commission of an offense “ ‘to a term of imprisonment in the state prison of not less than 2 years or more than 10 years,’ ” Lafley , ¶ 27 (quoting § 46-18-221, MCA), and because Lafley was sentenced to two years imprisonment for th e use of a weapon in the commission of the assault, the sentence imposed by the district court was within statutory parameters. Thus, we held that Lafley was barred from pursuing his claim on appeal. Lafley , ¶ 27. ¶86 Yet, although our statement that “a senten ce is not illegal when it is within the parameters provided by statute” was correct, it was also incomplete. It goes without saying that a legislature may not authorize a sentencing court to contravene state or federal constitutional provisions. Thus, while “[ t]he sentencing authority of a court exists solely by virtue of a statutory grant of power,” Lenihan , 184 Mont. at 342, 602 P.2d at 1000 (internal quotation marks omitted) , the granted power may not infringe constitutional rights. In other words, a senten cing court’s authority to impose a particular sentence derives solely from valid sentencing statutes. 13

13 This principle is also implicated where tw o allegedly conflicti ng sentencing statutes both apply to the defendant. See , e.g. , State v. Osborne , 2005 MT 264, ¶ 4, 329 Mont. 95, ¶ 4, 124 P.3d 1085, ¶ 4, in which the appellant clai med that § 61-8-731, MCA (2003) (the felony DUI sentencing statute) conflicte d with § 46-18-502, MCA (2003) (t he persistent felony offender sentencing statute) and that the district cour t’s sentencing authority was constrained by the49 ¶87 Accordingly, the fact that an appellant ’s sentence falls within the parameters provided by the relevant statute does not make Lenihan unavailable to him where his allegation is that the statute itself is invalid . A sentence is no less “illegal” because it conforms to the mandates of an unconstitutional statute. 14 Hence, because Lafley challenged the constitutionality of § 46-18-221, MCA, he was, in fact, challenging the sentencing court’s statutory authority to impo se the two-year sentence, as follows: the weapon enhancement statute ca nnot be applied to me withou t violating the constitutional proscriptions against double jeopardy and crue l and unusual punishment; thus, the statute is invalid as applied to me, and the sentencing court, therefore, lacked statutory authority to impose the two-year weap on enhancement upon my conv iction of felony assault. 15

former. Where one of the statutes must give way to the other (an issue we did not reach in Osborne because Osborne’s claim was procedurally barred, see Osborne , ¶ 20), the sentencing court’s authority exists only to the exte nt authorized by the prevailing statute. Similarly, under some statutory schemes a se ntencing court’s authority does not arise until certain prerequisites have been satisfied. See , e.g. , State v. Pritchett , 2000 MT 261, ¶ 7, 302 Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7 (“ District courts are not authorized to impose a sentence of restitution until all [the] . . . statutory requi rements [found in §§ 46-18-241 to -249, MCA,] are satisfied.” (emphasis added)). Under such schemes, therefore, any sentence imposed by the court before the prerequisites to its authority have been fulfilled will be in the absence of statutory authority. (Note that this was not the situation in Nelson , supra . Nelson’s sentence of ten years was statutorily author ized by § 45-5-202(3), MCA. Nelson , 274 Mont. at 20, 906 P.2d at 668. Although the sentencing court had an “affirmative duty” under §§ 46-18-201(11) and -225, MCA, to take certain matters into cons ideration in sentencing, doing so was not a prerequisite to its authority, Nelson , 274 Mont. at 20, 906 P.2d at 668, which is the crucial distinction here.) 14 We later held that “application of the weapon enhancement statute to felony convictions where the underlying offense requires proof of use of a weapon violates the double jeopardy provision of Article II, Sec tion 25 of the Montana Constitution.” State v. Guillaume , 1999 MT 29, ¶ 16, 293 Mont. 224, ¶ 16, 975 P.2d 312, ¶ 16. 15 Lafley challenged the constitutionality of § 46-18-221, MCA, as applied to him (and, concomitantly, to similarly situ ated defendants whose underlying convictions required proof of50 ¶88 Relying on our reasoning in Lafley , the State argued in State v. Brown , 1999 MT 31, 293 Mont. 268, 975 P.2d 321, that Brow n’s failure to raise his double jeopardy challenge to § 46-18-221, MCA, in the district court precluded his reliance on Lenihan in this Court. Brown , ¶ 8. Brown did not dispute the St ate’s argument and instead urged us to consider his claim under the doctrine of plain error review, which we did. See Brown , ¶¶ 9-14. Yet, because Brown’s sentencing ch allenge was identical to Lafley’s (that the district court was without authority to appl y the weapon enhancement statute on top of Brown’s conviction of felony assault, see Brown , ¶ 13), he met the requisites of Lenihan

. ¶89 For these reasons, Lafley and Brown should be overruled to the extent they hold that Lenihan may not be invoked by an appellant wh o is challenging the validity of the statute under which he was sentenced. An allegation that a sentence falls within the range authorized by the sentenci ng statute, but that the statut e is itself invalid and that the sentencing court, therefore, was without authority to impose the sentence, is sufficient to pass through the Lenihan gateway. (Indeed, the Court overrules Lafley and Brown

— albeit implicitly—by deciding th at Garrymore may invoke Lenihan to have his otherwise procedurally barred challenge to the co nstitutionality of § 46-18-202(2), MCA, considered on the merits.) iii. The McLeod and Legg Line

the use of a weapon), as opposed to attacking the statute as unc onstitutional on its face. For purposes of Lenihan , this makes no difference. A sentence is (allegedly) illegal regardless of whether the validity of the sentencing statut e is challenged on its face or as applied.51 ¶90 We have also reached the mirror image result of Lafley —in other words, we determined that the appellant’s allega tion satisfied the re quisites for invoking Lenihan when, in fact, it did not. In State v. McLeod , 2002 MT 348, 313 M ont. 358, 61 P.3d 126, the pre-sentence investigation report (“PSI”) on which the district court had relied in imposing sentence incorrectly stated that the conviction for which McLeod was being sentenced was his fifth felony, wh en it actually was his fourth. McLeod , ¶¶ 7, 9-10. Therefore, McLeod alleged on appeal “tha t his sentence is illegal because it was predicated on misinformation about his crimin al history, thus viol ating his due process rights in the Fourteenth Amendment of th e United States Constitu tion and Article II, Section 17, of the Mo ntana Constitution.” McLeod , ¶ 16. McLeod had not raised this issue in the district court; thus, he was procedurally barred fro m raising it on appeal unless he could invoke the Lenihan exception. 16 ¶91 We concluded that Mc Leod could invoke Lenihan , since “[he] challenges only the legal validity of the sentence.” McLeod , ¶ 15. Yet, McLeod had been sentenced to a term of imprisonment within the range stat utorily authorized by § 45-9-102, MCA, for

16 Essential to the ensuing discussion of McLeod is the fact that the error in the PSI could have been discovered with reasonable dilige nce at or before the time of sentencing, see McLeod , ¶¶ 10, 14, 24; thus, McLeod had an opportunity to objectto the misinforma tion concerning the number of his prior convictions. This fact dis tinguishes McLeod’s situation from cases in which a prior conviction upon which the sentencing court relies in imposing a particular sentence is later —i.e., subsequent to the sentencing pr oceeding—determined to be invalid. See McLeod , ¶¶ 17-22. In such cases, the defendants “could [ not] possibly have been afforded the opportunity to object to the consideration of their previous convictions at th e time of sentencing because their previous convictions remained va lid at the time of sentencing.” McLeod , ¶ 21. As such, the defendants in those cases would not be preclu ded by their failure to make a timely objection from pursuing post-sentencing ch allenges to their sentences.52 the offense of criminal possession of danger ous drugs (he was given the maximum fiveyear sentence, see McLeod , ¶ 11), and he was not challengi ng the legality of § 45-9-102. Therefore, his allegation, in subs tance, was analogous to Nelson’s, supra : that he might have received a lesser sentence within the stat utorily authorized range had the court not relied on misinformation in the PSI. As e xplained above, however, this is not an allegation of an “illegal” sentence for Lenihan purposes. Even if the court had been aware that the current conviction was McLeod ’s fourth (not fifth) felony, it still had authority to sentence him to five years in prison, see McLeod , ¶ 26; thus, McLeod’s failure to object at the time of sentencing should have precluded our consideration of his due process claim. ¶92 The same is true of State v. Legg , 2004 MT 26, 319 Mont. 362, 84 P.3d 648. Legg was sentenced to a fifty-year term in State pris on with no part of the sentence suspended. See Legg , ¶ 22. This was one-half th e maximum allowed under law. See Legg , ¶ 52. On appeal, he claimed, inter alia, that his sent ence was in violation of due process because the district court had “acted arbitrarily in imposing sentence because it failed to consider the mitigating factors referenced in [a ps ychological evaluation of Legg], or make a finding of aggravating circumstances.” Legg , ¶ 58. Legg had not challenged his sentence on this basis in the district court; nevertheless, we concl uded that we could review the claim because Legg “has challeng ed the legal validity of his se ntence by alleging that it was issued without regard to the mitigating factors identified in [the] evaluation, thus violating his due process rights,” Legg , ¶ 60. This reasoning contravened our holding in53 Nelson . As in McLeod , Legg’s claim was not that th e court had imposed a sentence which it had no statutory authority to impose; rather, he claimed that the court had acted arbitrarily within the sentenci ng range authorized by the stat ute. As such, he should not have been permitted to invoke Lenihan to obtain our review of his claim. ¶93 Therefore, McLeod and Legg also should be overruled in so far as they permit a defendant to invoke the Lenihan exception to obtain review of a sentence which the sentencing court had authority to impose pursuant to a concededly valid sentencing statute, but which (allegedly) wa s the result of an error in the process by which the sentence was selected within the statutor ily authorized range. Otherwise, the Lenihan exception would swallow the timely objection ru le by making appellate review of any allegedly incorrect sentence possible. iv. The Micklon Line ¶94 The third line of cases that is inconsiste nt with our statutory authority approach under Lenihan began with State v. Micklon , 2003 MT 45, 314 Mont. 291, 65 P.3d 559. Pursuant to a plea agreement, Micklon pleaded guilty to fe lony criminal possession of dangerous drugs with intent to distribute. The agreement provided that the State would dismiss the remaining counts of the inform ation and recommend a ten-year suspended sentence and that Micklon would pay a fine and surcharge totaling $55,000; however, the agreement did not specify a payment schedule. See Micklon , ¶¶ 3-4. At sentencing, Micklon requested that he be allowed to pa y the $55,000 in five annual installments, while the State requested that he be require d to pay the entire amount within one year54 from the sentencing date. The district cour t agreed to Micklon’s request, on the condition that interest accrue on the ba lance of the fine at a rate of ten percent per year. See Micklon , ¶ 4. ¶95 On appeal, Micklon contende d “that the condition of his sentence requiring that interest accrue on the unpaid balance of his fine is ille gal because no stat utory authority exists for such a condition.” Micklon , ¶ 7. Micklon ha d not objected to this condition in the district court; however, as discussed above, his allegation that the district court was without statutory authority to impose the co ndition was sufficient for him to pass through the Lenihan gateway and have his challenge to the interest requirement considered on the merits. ¶96 Nevertheless, we held that Micklon coul d not pursue his claim on appeal. In reaching this conclusion, we first observed that “[p]art of the rationale” behind the Lenihan exception “is that, as a practical matter, ‘a defendant often times must remain silent even in the face of invalid conditi ons’ to guard against th e possibility that the sentencing court may forego a more lenient sent ence if the defendant objects to one of the conditions.” Micklon , ¶ 9 (quoting Lenihan , 184 Mont. at 343, 602 P.2d at 1000). Micklon, however, had not remained silent during his sentencing. In response to the district court’s asking him “for his thoughts about having interest accrue on the unpaid balance of his fine as an incentive to pay the fine in a shorter time period,” Micklon had responded that “although it might create a greater financial bur den on him, paying interest would be acceptable to him.” Micklon , ¶ 10. Thus, we reasoned that he had55 “affirmatively agreed to the inclusion of the interest condition in his sentence.” Micklon , ¶ 10. We then cited the principle, long esta blished in the non-sentencing context, that “[w]e will not put a district court in error for an action in whic h the appealing party acquiesced or actively participated,” Micklon , ¶ 10 (quoting State v. Harris , 1999 MT 115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881, ¶ 32), 17 and we concluded that Micklon, therefore, had “waived” his right to a ppeal the allegedly illegal condition on his suspended sentence, Micklon , ¶ 11. ¶97 Yet, although we recognized that a defendant often will refrain from objecting to what he believes is an invalid sentencing term or condition for fear of judicial vindictiveness or retaliation, our holding ac tually undermined this rationale. As explained in Lenihan and Micklon , when a defendant believes that objecting to an aspect of his sentence may cause the sentencing ju dge to forego a more lenient sentence, he often times must remain silent , even in the face of a condition of questionable legality. See Lenihan , 184 Mont. at 343, 602 P.2d at 1000; Micklon , ¶ 9. Yet, doing so is not possible as a practical matter when, as in Micklon , the sentencing judge solicits the defendant’s thoughts concerning the condition. At that poi nt, the defendant could voice an objection to the condition, but he thereby would run the risk that the judge will impose

17 The “acquiesced or actively pa rticipated” principle had been applied in a line of cases involving alleged trial a nd procedural errors. See Harris , ¶¶ 28, 32; State v. White Clay , 1998 MT 244, ¶¶ 22-24, 291 Mont. 147, ¶¶ 22-24, 967 P.2d 370, ¶¶ 22-24; Matter of R.B.O. , 277 Mont. 272, 282-83, 921 P.2d 268, 274-75 (1996); In re Pedersen , 261 Mont. 284, 287, 862 P.2d 411, 413 (1993); In re Marriage of Smith , 242 Mont. 495, 501, 791 P.2d 1373, 1377 (1990), and cases cited therein; In re Marriage of West , 233 Mont. 47, 51, 758 P.2d 282, 285 (1988). Harris itself involved four allegations of trial error; the defendant did notallege that he was serving a sentence which was beyond the c ourt’s authority to impose. See Harris , ¶¶ 3-6.56 a harsher sentence (e.g., make Micklon pay the $55,000 amount within one year). Alternatively, he could remain silent or state that he has no thoughts and, accordingly, be deemed to have “acquiesced” in the condition. Micklon , ¶ 10. Lastly, he could “affirmatively agree[]” to or “actively partic ipate[]” in the impositi on of the condition, as we concluded Micklon had done. Micklon , ¶ 10. Irrespective of the option he chooses, however, the defendant’s desire to a void a harsher sentence still exists. ¶98 Accordingly, it does not inevitably follow from the fact that a defendant “affirmatively agreed” to or seemingly “acqui esced” in a condition on or a term of his sentence that the Lenihan exception is unavailable to him, our reasoning in Micklon notwithstanding. Given the choice to remain silent about having interest accrue on the unpaid balance of his fine, Micklon might well have done so (so as to avoid the harsher requirement of having to pay the $55,000 within one year). However, the applicability of Lenihan is not subject to such happenstance— namely, whether the sentencing judge happened to solicit the defendant’s thoughts re garding the aspect of his sentence later challenged on appeal. ¶99 In addition, at a more fundamental level, Micklon ’s implication that a sentence is not “illegal” for Lenihan purposes if the defendant seem ingly “acquiesced or actively participated” in its imposition is contrary to one of the most basic tenets of our judicial system. It is axiomatic that a sentencing court’s power and authority are granted by the Legislature, not the defendant. State v. Hicks , 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (“A distri ct court’s authority in senten cing a criminal defendant is57 defined and constrained by statute, and the court has no power to impose a sentence in the absence of specific statutory authority .” (emphasis added)); Lenihan , 184 Mont. at 342, 602 P.2d at 1000 (“The senten cing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exerci sed in any manner not specifically authorized.” (emphasis added, internal quot ation marks omitted)). A court does not gain, by virtue of a defendant ’s acquiescence or affirmative ag reement, the power or authority to take a particular action that it does not ot herwise have the power or authority to take. 18 Take, for example, an appeal by a defendant who, to evad e imposition of a life sentence, bargained with the sentencing court and the pr osecutor to serve two years in prison and have his left arm severed (a sentence for whic h there is no statutory authority), but then subsequently decided that he wanted to keep his arm. Surely his allegation that this sentence was not statutorily authorized is not nullified by the fact that he “actively participated” in its imposition. Cf. Comer v. Schriro , ___ F.3d ___, ___, 2006 WL 2613669 at *9, 2006 U.S. A pp. LEXIS 23291 at *31 (9th Cir. 2006) (“ ‘[T]he waiver concept was never intended as a means of allo wing a criminal defendant to choose his own sentence.’ ” (alteration in original) (quoting Com. v. McKenna , 383 A.2d 174, 181 (Pa. 1978))).

18 This is not to say that the requirement th at interest accrue on the balance of Micklon’s $55,000 fine was in fact illegal. We did not reach this issu e because we concluded that Micklon had waived his right to challenge the interest co ndition on appeal. Rather, the point here is that an allegation that the sentencing court lacked statutory authority to impose the challenged sentence is sufficient to pass through the Lenihan gateway, irrespective of the defendant’s supposed complicity in that sentence.58 ¶100 In a similar vein, it is important to re cognize that the stat utorily authorized punishment for a given crime represents the Legislature’s judgment as to the appropriate range of penalties for that offense. An ac quiescence or active participation rule would devalue this judgment and burden the co mmunity with costs that the Legislature has not deemed appropriate given the crime. 19 We should no t be so quick to disregard these costs simply because the defendant and the sentencing court have. Lenihan certainly does not stand for such an approach. ¶101 For the foregoing reasons, the suggestion in Micklon , in State v. Eaton , 2004 MT 283, 323 Mont. 287, 99 P.3d 661, and in State v. Erickson , 2005 MT 276, 329 Mont. 192, 124 P.3d 119, that Lenihan may not be invoked—notwithst anding an allegation that the sentencing court lacked statutory authority to impose the challenged sentence—where the defendant appears to have be en complicit in its imposition, see Micklon , ¶ 10; Eaton , ¶¶ 12-13; Erickson , ¶¶ 30, 34, is erroneous and should be overru led explicitly. E. Summation and Application ¶102 To summarize, we may review any criminal sentence that was imposed, allegedly, in the absence of statutory authority, notwithst anding the defendant’s failure to object at the time of sentencing. Lenihan , 184 Mont. at 342, 602 P.2d at 1000 (“Where . . . it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific

19 Obvious costs include those associated with incarcerati on or monitoring by a probation officer (pursuant to a suspended or deferred sent ence) in excess of the period set forth in the relevant punishment statute. Cf. Barker v. Wingo , 407 U.S. 514, 519-21, 92 S.Ct. 2182, 2186-87 (1972) (discussing the “societal inte rest in providing a speedy tria l which exists separate from, and at times in opposition to, th e interests of the accused”).59 sentence, an objection below is not a prere quisite to the challenging of the sentencing order alleged to be void.” (internal quotation marks omitted)). Accordingly, the Lenihan exception to the timely objectio n rule is properly invoked by a defendant who alleges a colorable claim that the sent encing court lacked statutory authority to impose the challenged sentence. ¶103 In this regard, I note that several types of colorable se ntencing challenges, distilled from the discussion above, emerge from our Lenihan cases thus far: the measure of the sentence (duration of imprisonment, amount of fine, etc.) falls outside the range authorized by the applicable se ntencing statute; a term of or a condition on the sentence was not authorized by any statute; the senten ce falls within the ra nge authorized by the applicable sentencing statute, but the sentenci ng statute is itself invalid, facially or as applied; and the sentencing court’s authority to impose the sentence never arose because the court did not fulfill the statutory prerequi sites to that authority. Such allegations reflect the principle that a sentencing court ha s no power to impose a criminal sentence in the absence of specific statutory authority, Hicks , ¶ 41; Lenihan , 184 Mont. at 342, 602 P.2d at 1000, and an appe llant may pass through the Lenihan gateway and have his otherwise procedurally barred sentencing claim reviewed on appeal if he alleges, with supporting analysis, that his sentence, or a portion thereof, is invalid for any of these

reasons. ¶104 By contrast, an allegation that the senten cing court failed to fulfill an “affirmative duty” or that it erroneously selected a partic ular term within the range authorized by a60 concededly valid sentencing statute ( see , e.g. , the discussions of Nelson at ¶¶ 70-72,

supra , and McLeod and Legg at ¶¶ 90-93, supra ) does not meet the requisites of Lenihan

. If the sentence the defendant received is one that the sentencing court still was authorized to impose had it not erred in th e manner alleged, then the sentence is not “illegal” for Lenihan purposes. See Nelson , 274 Mont. at 20, 906 P.2d at 668. 20 ¶105 Lastly, it bears repeating that nothing in Lenihan is meant to preclude a timely appeal by a defendant who ne ver had the opportunity to obj ect at the time of sentencing

20 Incidentally, as the Court states in ¶ 9, we review criminal sentences that include at least one year of actual in carceration for legality. State v. Herd , 2004 MT 85, ¶ 22, 320 Mont. 490, ¶ 22, 87 P.3d 1017, ¶ 22; State v. Montoya , 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. In this regard, it is important to clarify that the term “legality” has a broader meaning in the standard of revi ew context than it does in the Lenihan context. As a standard of review, our use of the term signifies that “we will not review a sentence for mere inequity or disparity.” State v. Webb , 2005 MT 5, ¶ 8, 325 Mont. 317, ¶ 8, 106 P.3d 521, ¶ 8; see also Montoya , ¶ 12; but see State v. Ruiz , 2005 MT 117, ¶ 8, 327 Mont. 109, ¶ 8, 112 P.3d 1001, ¶ 8. Rather, when reviewing criminal sentence s for “legality,” we are determining (i) whether the sentencing court had statutory authority to impose the sentence at issue, State v. Hicks , 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41; Ruiz , ¶ 12, (ii) whether the sentence falls within the paramete rs set by the applicable sentencing statutes, Montoya , ¶ 15, or (iii) whether the c ourt adhered to the affirmativ e mandates of the applicable sentencing statutes, see , e.g. , State v. Pence , 273 Mont. 223, 231, 902 P.2d 41, 46 (1995); State v. Pritchett , 2000 MT 261, ¶ 7, 302 Mont. 1, ¶ 7, 11 P.3d 539, ¶ 7; State v. Williams , 2003 MT 136, ¶ 8, 316 Mont. 140, ¶ 8, 69 P.3d 222, ¶ 8; State v. Shults , 2006 MT 100, ¶ 34, 332 Mont. 130, ¶ 34, 136 P.3d 507, ¶ 34. We have also stated this “l egality” review in a general sense in terms of correctness. See State v. Megard , 2006 MT 84, ¶ 16, 332 Mont. 27, ¶ 16, 134 P.3d 90, ¶ 16 (“This Court reviews a district court’s imposition of sentence for legality only. The question is one of law and the determination is whether the district court interpreted the law correctly.” (citation omitted)); State v. Sprinkle , 2000 MT 188, ¶ 6, 300 Mont. 405, ¶ 6, 4 P.3d 1204, ¶ 6 (“Sentencing is based on statutor y law. We review the distri ct court’s application of the sentencing statutes to determine whether the di strict court was correct.” (citation omitted)). Lenihan , by contrast, is not concerned with whet her the challenged sentence is “correct.” Indeed, under such an appr oach, as noted earlier, the Lenihan exception would swallow the timely objection rule. Rather, legality in the Lenihan context involves a narrower question: whether the sentence at issue was authorized by a valid sentencing statute. As such, “legality” for Lenihan purposes is narrower than our “legality” standard of revi ew of criminal sentences.61 in the first place. See ¶ 90 n.16, supra ; McLeod , ¶¶ 17-22; State v. Lane , 1998 MT 76, ¶¶ 31-33, 288 Mont. 286, ¶¶ 31-33, 957 P.2d 9, ¶¶ 31-33; § 46-20-701(2), MCA. ¶106 Applying these principles to the case at hand, Garrymore may pass through the Lenihan gateway and have his otherwise proced urally barred challenges to his sentence reviewed on appeal. Relying on Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348 (2000), and its progeny, as well as Article II, Sections 24 and 26, of the Montana Constitution and § 46-1-401, MCA (2001), he claims that the District Court “exceeded its authority when it imposed the parole eligibility restriction, and thus imposed an illegal and unconstitutional sentence.” He further explains that [t]he district court imposed a senten ce enhancement after making additional findings of fact on contested matte rs. Jason Garrymore had both a constitutional and a statutory right no t to have the enhancement imposed unless it was charged in the Informati on, and proved to a jury by proof beyond a reasonable doubt. The imposition of the parole restriction in this case constitutes an illegal sentence. Thus, while Garrymore acknowledges that he wa s sentenced within th e ranges authorized by § 45-5-102(2), MCA (authorizing a sent ence of life imprisonment) and § 46-18- 202(2), MCA (author izing a sentencing court to restrict an offender’s parole eligibility), he claims that this latter statute is invalid because it authorized the District Court—in contravention of the Sixth Amendment, Article II, Sect ions 24 and 26, and § 46-1-401, MCA—to restrict his eligibility for parole on the basis of facts not found by a jury beyond a reasonable doubt. In other words, he alleges that the District Court lacked authority to impose this portion of his sentence because § 46-18-202(2) was, as applied to him, an unconstitutional grant of power by the Legislature and, alte rnatively, because a62 sentencing court’s application of § 46-18-2 02(2) is constrained by § 46-1-401. Such allegations constitute colora ble claims that satisfy the requisites for invoking the Lenihan exception. We therefore may reach the merits of these claims, notwithstanding Garrymore’s failure to raise them in the first instance in the District Court. III. Issue 2: Did imposition of the parole eligibility restriction, because it was based on facts not found by a jury beyond a reasonable doubt, violate Garrymore’s federal and state constitution al and statutory rights to jury trial and due process? ¶107 Garrymore was convicted of viol ating § 45-5-102 (1)(a), MCA (2001). 21 This offense is punishable as follows: A person convicted of the offens e of deliberate homicide shall be punished by death as provided in 46-18-301 through 46-18-310, unless the person is less than 18 years of age at the time of the commission of the offense, by life imprisonment, or by im prisonment in the state prison for a term of not less than 10 years or more than 100 years, except as provided in 46-18-219 and 46-18-222. Section 45-5-102(2), MCA. ¶108 The State did not seek the death penalty in this case, and the exceptions listed in §§ 46-18-219 and -222 are not at issue here. Thus, Garrymore’s claims, in more specific terms, are as follows: that the maximum sentence authorized for the offense of which he was convicted is “life imprisonm ent” or “imprisonment in th e state prison for a term of not . . . more than 100 years” ; that both of these maximums contemplate the possibility of parole (which, as applied to Garrymore’s se ntence, requires that he serve at least 30

21 Unless specified otherwise, further statut ory references are to the 2001 Montana Code Annotated, which was in effect at the time Garrymo re committed this crime (on or about January 3, 2003). See State v. Brister , 2002 MT 13, ¶ 26, 308 Mont. 154, ¶ 26, 41 P.3d 314, ¶ 26 (“[T]he law in effect at the time of the commission of th e crime controls as to the possible sentence.”).63 years, see § 46-23-201(3), MCA); that § 46-18- 202(2) violates federal and state constitutional provisions to the extent it aut horizes a sentencing judge to “impose the restriction that the offender is ineligible for parol e” on the basis of facts not found by a jury beyond a reas onable doubt; that a sent encing judge is prohibited also by statute from restricting a prisoner’s parole eligibility on the basis of facts not foun d by a jury beyond a reasonable doubt; and that the District Court, therefore, lacked authority to add the parole eligibility restriction to Garry more’s life sentence. As noted above, these claims are based on the Sixth and Fourteenth Amendments, as interpreted in Apprendi ; Article II, Sections 24 and 26, of th e Montana Constitution; and § 46-1-401. I begin with a discussion of Garrymore ’s federal claim under Apprendi

. A. Federal Constitutional Claim ¶109 At issue in this case are two longstanding principles of criminal procedure: first, that upon a defendant’s convictio n for a charged offense, “the court must pronounce that judgment, which the law hath annexed to the crime,” Apprendi , 530 U.S. at 478-79, 120 S.Ct. at 2356 (emphasis and internal quota tion marks omitted) (quo ting 4 W. Blackstone, Commentaries on the Laws of England 369-70 (1 769)); and second, th at “the prosecution must convince the trier of a ll the essential elements of guilt” “beyond a reasonable doubt,” Apprendi , 530 U.S. at 478, 120 S.Ct. at 2356 (internal quotation marks omitted) (quoting In re Winship , 397 U.S. 358, 361, 90 S.Ct. 1068, 1071 (1970), in turn quoting C. McCormick, Evidence § 321, at 681-82 (1954)).64 ¶110 The Framers enshrined these fundamental guarantees in the Sixth Amendment, which ensures an accused the right to “trial, by an impartial jury,” and in the Fourteenth Amendment, which proscribes any deprivation of liberty without “due process of law.” See Apprendi , 530 U.S. at 476-77, 120 S.Ct. at 2355. The Supreme Court has characterized the right of jury trial as “no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executiv e branches, jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington , 542 U.S. 296, 305-06, 124 S.Ct. 2531, 2538-39 (2004). ¶111 As explained above, Garrymore alleges that the parole eligibility restriction on his sentence was imposed in viola tion of these constitutional prot ections. The starting point for analyzing this claim is the Supreme Court’s decision in Apprendi , in which the Court addressed whether a factual determination authorizing an increa se in the maximum possible prison sentence for an offense must be made by a jury on the basis of proof beyond a reasonable doubt. See Apprendi , 530 U.S. at 469, 120 S.Ct. at 2351. ¶112 Apprendi was charged in a 23-count indi ctment with a number of shootings, as well as the unlawful possession of various weapons. Apprendi , 530 U.S. at 469, 120 S.Ct. at 2352. Pursuant to a plea agreement, he pleaded gu ilty in New Jersey state court to three of the charged offe nses, one of which was second- degree possession of a firearm for an unlawful purpose (Count 18). Apprendi , 530 U.S. at 469-70, 120 S.Ct. at 2352. Under New Jersey law, this offense carried a penalty range of 5 to 10 years; however, as65 part of the plea agreement, th e State reserved the right to request the imposition of an enhanced sentence on the ground that Count 18 was committe d with a biased purpose, and Apprendi, correspondingly, reserved the right to challenge the hate crime sentence enhancement as unc onstitutional. Apprendi , 530 U.S. at 470, 120 S.Ct. at 2352. ¶113 At the plea hearing, the trial judge he ard sufficient evidence to establish Apprendi’s guilt on all three counts. Ther eafter, the prosecutor filed a motion for an extended term under the hate crime statute. Apprendi , 530 U.S. at 470, 120 S.Ct. at 2352. At the evidentiary hearing on Apprendi’s “p urpose” for the shootin g on which Count 18 was based, Apprendi adduced evidence that he was not in any way biased against African-Americans. Nevertheless, the judge found, by a prepondera nce of the evidence, that Apprendi’s actions were taken “ ‘with a purpose to intimidate’ ” and that the crime “ ‘was motivated by racial bias.’ ” Apprendi , 530 U.S. at 470-71, 120 S.Ct. at 2352. This finding had the effect of doubling the rang e of punishment for Co unt 18 to between 10 and 20 years. Apprendi , 530 U.S. at 468-69, 120 S.Ct . at 2351. Th e judge then sentenced him to a 12-year term of impris onment, which was 2 years greater than the maximum punishment authorized by the fa cts to which he had admitted guilt. Apprendi , 530 U.S. at 469, 471, 120 S.Ct. at 2351, 2352. (Appre ndi was also sentenced to shorter concurrent sentences on the other two counts . Those sentences were not at issue on Apprendi’s appeal before the Supreme Court. See Apprendi , 530 U.S. at 471, 474, 120 S.Ct. at 2352, 2354.)66 ¶114 On appeal, the Supreme Court consider ed whether the foregoing procedures comported with the Sixth and Fourteenth Ame ndments. At the outset of its analysis, the Court rejected the notion that this questi on could be answered by determining whether the finding that Apprendi’s crime was moti vated by racial bias and committed with a purpose to intimidate was an “el ement” of the offense or mere ly a sentencing “factor” or “enhancement.” New Jersey threatened Apprendi wi th certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them be cause of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label “sentence enhancement” to descri be the latter surely does not provide a principled basis for treating them differently. Apprendi , 530 U.S. at 476, 120 S.Ct. at 2355; see also Apprendi , 530 U.S. at 495-96, 120 S.Ct. at 2365-66 (“[M]erely because the state legislature placed its hate crime sentence ‘enhancer’ ‘within the sentencing provisions’ of the criminal code ‘does not mean that the finding of a biased purpose to intimidate is not an essential el ement of the offense.’ . . . [T]he mere presence of th is ‘enhancement’ in a sentenci ng statute does not define its character.”). 22 ¶115 The Court then examin ed the roles historically serv ed by juries and judges in criminal proceedings and the measure of pers uasion to which pros ecutors were held. Among other things, the Court explai ned that in the late 18th century,

22 For this reason, the State’s observation that “[a] parole eligibility restriction . . . is not considered a penalty enhancement” is inapposite. “Labels do not afford an acceptable answer.” Apprendi , 530 U.S. at 494, 120 S.Ct. at 2365 (alteration and internal quotation marks omitted).67 “[t]he substantive criminal law tended to be sancti on-specific; it prescribed a particular sentence for each offens e. The judge was meant simply to impose that sentence (unless he tho ught in the circum stances that the sentence was so inappropriate that he should invoke the pardon process to commute it).” As Blackstone, among many others, has made clear, “[t]he judgment, though pronoun ced or awarded by the judges, is not their determination or sentence, but the dete rmination and sentence of the law.” Apprendi , 530 U.S. at 479-80, 120 S. Ct. at 2357 (second altera tion in original, citations and footnotes omitted). ¶116 The 19th century saw a shift in this country from statutes providing fixed-term sentences to those providing judges with discretion; however, such discretion was invariably “bound by th e range of sentencing options pr escribed by the legislature.” Apprendi , 530 U.S. at 481, 120 S.Ct. at 2358. In other words, while it had become permissible for judges to take into consid eration various factors relating both to the offense and the offender in imposing judgment , such discretion coul d only be exercised

“ within the range prescribed by statut e” for that offense. Apprendi , 530 U.S. at 481, 120 S.Ct. at 2358; see also Apprendi , 530 U.S. at 482 n.9, 120 S. Ct. at 2358 n.9 (“ ‘[I]f the law has given the court a discretion as to the punishment, it will look in pronouncing sentence into any evidence prope r to influence a judicious magistrate to make it heavier or lighter, yet not to exceed the limits fixed fo r what of crime is wi thin the allegation and the verdict.’ ” (alteration in original) (quoting 1 J. Bishop, Criminal Law § 948 (9th ed. 1923))). ¶117 Thus, the Court observed, th e historical evidence esta blished that “punishment was, by law, tied to the offense” and that American judges “exercised sentencing68 discretion within a legally prescribed range.” Apprendi , 530 U.S. at 483 n.10, 120 S.Ct. at 2359 n.10. This ev idence, in turn, pointed to “a single, cons istent conclusion: The judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts th at expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Apprendi , 530 U.S. at 483 n.10, 120 S.Ct. at 2359 n.10. ¶118 The Court acknowledged the inconsistenc y between this historically mandated conclusion and the Court’ s recent decision in Almendarez-Torres v. United States , 523 U.S. 224, 118 S. Ct. 1219 (1998). See Apprendi , 530 U.S. at 487-90, 120 S.Ct. at 2361-
62. In Almendarez-Torres , the Court held that the fact of recidivism, though it may increase the maximum penalty to which a defend ant is exposed, need not be charged in an indictment or information. Almendarez-Torres , 523 U.S. at 243-47, 118 S.Ct. at 1230- 33; see also Jones v. United States , 526 U.S. 227, 248-49, 119 S.Ct. 1215, 1226-27 (1999) (discussing the Almendarez-Torres decision in detail). While this holding “represents at best an exceptional departure from the historic practice” described above, Apprendi , 530 U.S. at 487, 120 S.Ct . at 2361, the Court found it unnecessary to revisit the precedent for purposes of deci ding Apprendi’s claim, sinc e he had not contested the decision’s validity, Apprendi , 530 U.S. at 489-90, 120 S.Ct. at 2362. Instead, the Court distinguished Almendarez-Torres as “a narrow exception to the general rule.” Apprendi , 530 U.S. at 490, 120 S.Ct. at 2362.69 ¶119 Lastly, with respect to the burden necessary to prove the facts which expose an accused to a particular punishment, the Cour t reaffirmed the rationales undergirding the right to have the jury verdict based on proof “beyond a reasonable doubt.” As we made clear in Winship , the “reasonable doubt” requirement “has [a] vital role in our criminal procedur e for cogent reasons.” Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and . . . the ce rtainty that he would be stigmatized by the conviction.” We thus requi re this, among other, procedural protections in order to “p rovid[e] concrete substanc e for the presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously. Apprendi , 530 U.S. at 484, 120 S.Ct. at 2359 (alte rations and ellipsis in original, citations omitted) (quoting Winship , 397 U.S. at 363, 90 S.Ct. at 1072). ¶120 Hence, given the foregoing history of the jury trial right, the bounded discretion judges had in imposing sentences, and the heig htened degree of pers uasion required in criminal trials, the Court concluded that, ex cept for the fact of recidivism, “it is unconstitutional for a legislatur e to remove from th e jury the assessmen t of facts that increase the prescribed range of penalties to which a criminal defe ndant is exposed.” Apprendi , 530 U.S. at 490, 120 S.Ct. at 2363 (alte ration omitted). “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a ju ry, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490, 12 0 S.Ct. at 2362-63; see also Apprendi , 530 U.S. at 499, 120 S.Ct. at 2367 (Scalia, J., concurring) (“[A]ll th e facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.”). This inquiry “is one not of form, but of effect— does the required finding expose the defendant70 to a greater punishment th an that authorized by the jury’s guilty verdict?” Apprendi , 530 U.S. at 494, 120 S.Ct. at 2365. For this reas on, as stated earlier, the “elusive distinction between ‘elements’ and ‘sentenci ng factors’ ” is immaterial. Apprendi , 530 U.S. at 494, 120 S.Ct. at 2365. 23 ¶121 In light of this constitutional rule, the C ourt concluded th at New Jersey’s statutory scheme could not stand. Pursua nt to that scheme, the trial judge in Apprendi’s case had been allowed to impose a punishment greate r than the maximum punishment authorized for the crime of unlawfully possessing a fir earm, based on the judge’s finding by a preponderance of the evidence that Appr endi’s purpose for unlawfully possessing a firearm was to intimidate his victim on the basi s of a particular characteristic the victim possessed. Apprendi , 530 U.S. at 491, 120 S.Ct. at 2363. By “remov[ing] the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone,” this scheme ignores “[t]he hist oric link between verdict and judgment and the consistent limitation on ju dges’ discretion to operate within the limits

23 The Court clarified that the term “sentenc ing factor” is not “d evoid of meaning.” Rather, the term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense. On the other hand, when the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater o ffense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an “element” of the offense. Apprendi , 530 U.S. at 494 n.19, 120 S.Ct. at 2365 n.19.71 of the legal penalties provided.” Apprendi , 530 U.S. at 482-83, 120 S.Ct. at 2359. The Sixth Amendment prohibits such a practice. Apprendi , 530 U.S. at 491-92, 120 S.Ct. at
2363. ¶122 Applying these principles to the case at ha nd, the sentence range authorized by the jury’s verdict—which reflected its finding, beyond a reasonable doubt, that Garrymore had “purposely or knowingly cause[d] the death of another human being,” § 45-5- 102(1)(a), MCA—was “life imprisonment” or “imprisonment in the state prison for a term of not less than 10 year s or more than 100 years,” § 45-5-102(2), MCA. (As noted above, neither the death penalty nor the exceptions listed in §§ 46-18-219 and -222 are at issue here.) The question to be answered is whether the rest riction “without possibility of parole” exceeded this range. In other words, were the reasons stated by the District Court for imposing the parole eligibility restriction, in substance, factual findings that exposed Garrymore to a punishment greater than the punishment authorized by the jury’s guilty verdict alone? See Apprendi , 530 U.S. at 482-83, 494, 120 S.Ct. at 2359, 2365. 24 ¶123 Section 46-18-202(2) provides that “[w] henever the sentencing judge imposes a sentence of imprisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offe nder is ineligible for parole and

24 Of course, a jury verdict is not require d with respect to facts a defendant has admitted—for instance, pursuant to a guilty plea. See United States v. Booker , 543 U.S. 220, 232, 125 S.Ct. 738, 749 (2005) (“[T]he defendant’s right to have the jury find the existence of any particular fact that the law makes essential to his punishment . . . is implicated whenever a judge seeks to impose a sentence that is not solely based on fact s reflected in th e jury verdict or admitted by the defendant .” (emphasis added, citation and internal quotation marks omitted)). In the case at hand, Garrymore did not admit any of the facts on which his sentence of life imprisonment without possibi lity of parole is based.72 participation in the supervised release pr ogram while serving that term” (emphasis added). By virtue of the wo rd “may,” it is clear that imposing a parole eligibility restriction is a sentencing opti on available to a sentencing judg e to be exercised at his or her discretion whenever the sentence at issu e exceeds one year. In other words, the restriction falls within the sentencing range prescribed by the legislature for offenses which, upon conviction, carry a sentence of imprisonment in a state prison for a term exceeding one year. This incl udes Garrymore’s life sentence. ¶124 Indeed, in Cavanaugh v. Crist , 189 Mont. 274, 615 P.2d 890 (1980), on which the State relies heavily, we stated that “[§ 46-18 -202(2)] does not permit district judges to add any time beyond the statutory maxi mum for the underlying offense.” Cavanaugh , 189 Mont. at 278, 615 P.2d at 893. Rather, it “insures th at the length of the penalty enacted by the legislature and imposed by the court is carried out.” Cavanaugh , 189 Mont. at 278, 615 P.2d at 893. We further explained that [t]he restriction of parole and furlough program eligibility . . . represents one option, among others, the legislatur e has made available to district judges in the course of ordinary sent encing. The full restriction on parole and furlough eligibility permitted by se ction 46-18-202(2) has no existence apart from the sentence imposed for the underlying offense. Cavanaugh , 189 Mont. at 278, 615 P.2d at 893. Thus, Cavanaugh makes it clear that a restriction on parole eligibility is within the range of puni shments authorized by § 45-5- 102(2). ¶125 However, while the foregoing language of Cavanaugh remains true today, it does not fully answer the question at hand, wh ich depends on the technical meaning of73 “statutory maximum.” See Apprendi , 530 U.S. at 490, 120 S.Ct . at 2362-63 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a ju ry, and proved beyond a reasonable doubt.” (emphasis added)). The Cour t did not define this term in great detail
in Apprendi , but it did so in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428 (2002), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531 (2004). ¶126 In Ring , the Court confronted Arizona’s capital sentencing scheme. Under Arizona law, the statutory maximum penalty for first-degree murder was death, Ring , 536 U.S. at 592, 122 S.Ct. 2434 ; however, “death” was not th e “statutory maximum” for Apprendi purposes. This was so because upon a defendant’s conviction of this offense, the trial judge was required to conduct a se parate sentencing hearing “before the court alone” to determine “the existe nce or nonexistence of [certa in enumerated] circumstances . . . for the purpose of determining the sentence to be imposed.” Ring , 536 U.S. at 592, 122 S.Ct. at 2434 (alteration and ellipsis in original, internal quotation marks omitted). Unless at least one aggravating circumstance was found by the judge to exist beyond a reasonable doubt, a death sentence could not legally be imposed. Ring , 536 U.S. at 597, 122 S.Ct. at 2437. In other words, “[b]ased solely on th e jury’s verdict finding Ring guilty of first-degree felony murder, the ma ximum punishment he could have received was life imprisonment.” Ring , 536 U.S. at 597, 122 S.Ct. at 2437. ¶127 This scheme contradicted the holding of Apprendi . “If a State makes an increase in a defendant’s authorized punishment conti ngent on the finding of a fact, that fact—no74 matter how the State labels it—must be foun d by a jury beyond a reasonable doubt.” Ring , 536 U.S. at 602, 122 S.Ct. at 2439; see also Ring , 536 U.S. at 6 10, 122 S.Ct. at 2444 (Scalia, J., concurring) (“[T]he fundament al meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essent ial to imposition of the level of punishment that the defendant receives—whether the stat ute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.”). It did not matter that the maxi mum penalty for first- degree murder under Arizona law was death. “The Arizona first- degree murder statute ‘authorizes a maximum penalty of death only in a fo rmal sense,’ for it explicitly cr oss-references the statutory provision requiring the finding of an aggrav ating circumstance [by the trial judge alone] before imposition of the death penalty.” Ring , 536 U.S. at 604, 122 S.Ct. at 2440 (citation omitted). ¶128 In Blakely , the Court dealt with Washington’s determinate sentencing scheme. Pursuant to a plea agreement, Blakely plea ded guilty to second-degree kidnapping, which as a class B felony carried a maximum term of 10 years. Blakely , 542 U.S. at 298-99, 124 S.Ct. at 2534-35. Howe ver, other provisions of stat e law mandated a “standard range” sentence of 49 to 53 mo nths for Blakely’s offense. Blakely , 542 U.S. at 299, 124 S.Ct. at 2535. A judge could impose a senten ce above the standard range if he found “substantial and compelling reasons ju stifying an exceptional sentence.” Blakely , 542 U.S. at 299, 124 S.Ct. at 2535 (internal quota tion marks omitted). However, “[a] reason offered to justify an exceptio nal sentence [could] be consid ered only if it [took] into75 account factors other than those which [were] used in computing the standard range sentence for the offense.” Blakely , 542 U.S. at 299, 124 S.Ct. at 2535 (first alteration in original, emphasis added, internal quotation marks omitted). The trial court found that Blakely had acted with “deliberate cruelty ” in committing the kidnapping and imposed an exceptional sentence of 90 months, which wa s 37 months beyond the statutory maximum of the standard range. Blakely , 542 U.S. at 300, 124 S.Ct. at 2535. ¶129 On appeal, the state argued that the 90-month sentence did not violate Apprendi “because the relevant ‘statutory maximum’ is not 53 months, but the 10-year maximum for class B felonies.” Blakely , 542 U.S. at 303, 124 S.Ct. at 2537. The Court rejected this argument outright: Our precedents make clear . . . th at the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or ad mitted by the defendant . In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verd ict alone does not a llow, the jury has not found all the facts “w hich the law makes essen tial to the punishment,” and the judge exceeds hi s proper authority. Blakely , 542 U.S. at 303-04, 124 S.Ct. at 2537 (citations omitted). Thus, the Court concluded, “[t]he ‘maximum sentence’ is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).” Blakely , 542 U.S. at 304, 124 S.Ct. at 25 38. A jury “could not function as circuitbreaker in the State’ s machinery of justice if it were relegated to making a76 determination that the defendant at some poi nt did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely , 542 U.S. at 306-07, 124 S.Ct. at 2539. ¶130 Thus, as Ring and Blakely make clear, the “statutory maximum” for Apprendi purposes is not the maximum possible sentence provided in the criminal code for a given offense. Rather, it is the maximum sentence the defendant may receive “on the basis of the facts reflected in th e jury verdict or admitte d by the defendant.” Blakely , 542 U.S. at 303, 124 S.Ct. at 2537 (emp hasis omitted). For this re ason, Garrymore’s challenge cannot be answered simp ly by pointing out that § 45-5-102(2) author izes a sentence of “life imprisonment” and § 46-18-202(2) permit s a district judge to restrict parole eligibility. Cavanaugh , a pre- Apprendi case, did not answer the question clarified by Ring and Blakely : whether, in order to impose th e “without possib ility of parole” restriction pursuant to § 46-18-202(2 ), a district court first must find additional facts— i.e., facts not already admitted by the defendant or found by the jury and reflected in its verdict. ¶131 In this regard, Garrymore argues that while the maximum sentence authorized by the statute may be “life imprisonment” or “imprisonment in the state prison for a term of not . . . more than 100 years” without the possibility of parole , the maximum sentence authorized by the jury’s verdict in his case was “life imprisonment” or “imprisonment in the state prison for a term of not . . . more than 100 years” with the possibility of parole. Thus, “[t]he verdict alone did not authorize the parole restriction imposed by the judge.77 That enhancement required additional findings of fact.” He acknowledges that § 45-5- 102(2) does not state explicitly whether or not the punishments set forth therein include eligibility for parole; however, § 46-23-201(1) provides that “the board [of pardons and parole] may release on nonmedical parole by ap propriate order any person confined in a state prison, except . . . persons serving sentences imposed un der 46-18-202(2) . . . , when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.” ¶132 Accordingly, Garrymore submits, a person convicted of deliberate homicide is eligible for parole (subj ect to the timing requiremen ts of § 46-23-201(2)-(3)), unless that eligibility is restricted after further fact-fi nding under § 46-18-202(2 ). In other words, “[a] ‘life sentence’ [does] not mean the offe nder’s natural life.” Rather, the terms “life imprisonment” and “imprisonment in the state prison for a term of not less than 10 years or more than 100 year s” include an implicit presumptio n of parole eligibility which may be overcome only upon additional, post-verdict findings of fact. Therefore, he maintains, “[t]he effect of the [District Court’s] post- verdict fact-finding . . . was to increase a sentence from 30 years’ actual time before parole eligibility, to a literal life-time term of imprisonment.” 25

25 For purposes of the ensuing discussion, while there is no guarant ee that a prisoner who is eligible for parole will in fact be parole d, the imposition of a parole eligibility restriction makes for a greater restriction on the prisone r’s liberty and, thus, a harsher sentence. See Cavanaugh , 189 Mont. at 276, 615 P.2d at 892 (“The clear effect of section 46-18-202(2) is to permit a district judge to close one avenue for escaping the full force of a sentence.”). The sentencing scheme, in fact, contem plates this characterization. See , e.g. , § 46-18-219 (mandating a life sentence without possibility of parole for specified recidivists).78 ¶133 Garrymore’s interpretation of the interplay between §§ 45-5-102(2), 46-23-201, and 46-18-202(2) is incorrect. To be sure, a prisoner is parole eligible pursuant to § 46- 23-201 unless designated otherwise pursuant to § 46-18-202(2) (or § 46-18-219, which is not at issue here). However, th is scheme does not create the Apprendi violation Garrymore perceives. For one thing, the placement of § 46-2 3-201 in the Code does not support the conclusion thatparole eligibility is a presumption , implicit in sentences imposed under § 45-5-102(2), th at must be overcome throu gh additional judicial factfinding. Whereas § 46-18-202(2) appears in the “Sentence and Ju dgment” chapter of Title 46, follows a provision outlining “[s]en tences that may be imposed,” and itself outlines “[a]dditional restrictions on sentences ,” § 46-23-201, by contrast, appears in a separate chapter of Title 46 concerning the gr anting of probation, parole, and clemency. In the absence of explicit language to the contrary, this organization suggests that the provision on granting nonmedic al parole (§ 46-23-201) yi elds to the provision on restricting an offender’s parole el igibility (§ 46-18-202 (2)), not vice versa. 26 ¶134 Furthermore, as discussed above, § 46-1 8-202(2) provides that “[w]henever the sentencing judge imposes a sentence of im prisonment in a state prison for a term exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole and participation in the supervised release program while serving that term.” Such an unqualified grant of authority to the sentencing judge, conditioned

26 In the same vein, the State’s suggestio n that “life imprisonment” means “life imprisonment without possibility of parole” must be rejected. If that were the meaning intended by the Legislature, then § 46-18-202 (2) would be a waste of print.79 only upon the term’s exceedin g one year, contra dicts the notion that there is a presumption of parole eligibility to be overcome. Indeed, if § 46-18-202(2) were setting forth the method for overcomi ng such a presumption, one would expect to see language to that effect—e.g., “if the court finds ‘X ’ then it may restrict parole eligibility notwithstanding 46-23-201.” ¶135 To be sure, the second sentence of § 46-18-202(2) mandates that “[i]f the restriction [that the offender is ineligible fo r parole and participa tion in the supervised release program while serving his term] is to be imposed, the sentencing judge shall state the reasons for it in writing.” 27 Yet, while this provisi on, which imposes a specific requirement on a judge who restricts a de fendant’s parole e ligibility, undoubtedly contemplates fact-finding on the part of the se ntencing court in order to substantiate its

27 In the case at hand, the District Judge’s written reasons were as follows: “[t]he Defendant has three prior convictions of abuse and unlawful restraint”; “[t]he Defendant was arrested on the same type of charges in the Stat es of Utah and California but moved from their jurisdiction and charges were di smissed”; “[t]he Defendant was on probation when this offense was committed”; and “[f]urther, the Court adopts a portion of Mr. Sonju’s reasons.” These reasons are consistent with the reasons given by the judge orally at the sentencing hearing. See ¶ 7 of the Court’s Opinion. The Court notes that anothe r factor considered by the District Judge in pronouncing sentence was Garrymore’s lack of remorse. See ¶¶ 7, 31. Specifically, the judge stated during the sentencing hearing that “throughout the tr ial and these proceedings, contrary to the testimony, I have not seen any remorse from this defendant.” However, subsequent to Garrymore’s sentencing, we decided State v. Cesnik , 2005 MT 257, 329 Mont. 63, 122 P.3d 456, in which we held that a sentencing court may not punish a defendant or augment his sentence for refusing or failing to accept responsibility or sh ow remorse for the offense of which he has been convicted when he has a right to appeal the conviction and has i nvoked his right to remain silent at the sentencing hearing or expressly mainta ined his innocence throughout the proceedings. Cesnik , ¶¶ 18-25; see also State v. Shreves , 2002 MT 333, ¶¶ 20-23, 313 Mont. 252, ¶¶ 20-23, 60 P.3d 991, ¶¶ 20-23. In the case at hand, Garrymore does not allege that his state or federal constitutional protections against self incrimination were violatedwhen the District Judge based the sentence in part on Garrymore’s failure to demonstrate sufficient remorse; thus, for purposes of this discussion, this factor was an otherwise valid sentencing consideration.80 imposition of the restriction, such a requireme nt does not necessarily place the resulting sentence beyond Apprendi ’s “statutory maximum.” ¶136 First, the Supreme Court has rejected the argument “that every fact with a bearing on sentencing must be found by a jury.” Jones v. United States , 526 U.S. 227, 248, 119 S.Ct. 1215, 1226 (1999). Inde ed, the Court has “nev er doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range .” United States v. Booker , 543 U.S. 220, 233, 125 S.Ct. 738, 750 ( 2005) (emphasis added). The exercise of this discretion will often, if not invariably , necessitate implicit or explicit findings of fact that the judge deems important or rele vant in selecting a particular sentence. See Blakely , 542 U.S. at 309, 124 S.Ct. at 2540. However, “the defendant has no [Sixth Amendment] right to a jury dete rmination of [these] facts.” Booker , 543 U.S. at 233, 125 S.Ct. at 750. As the Court explained in Blakely , the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits j udicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of th e jury’s traditional function of finding the facts essential to lawful impos ition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discreti on. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerne d. In a system that says the judge may punish burglary with 10 to 40 year s, every burglar knows he is risking 40 years in jail. In a syst em that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-yea r sentence—and by reason of the Sixth Amendment the facts beari ng upon that entitlement must be found by a jury.81 Blakely , 542 U.S. at 308-09, 124 S.Ct. at 2540. ¶137 Second, the second sentence of § 46-18-20 2(2) does not mandate as a condition for imposing a parole eligibility restriction that the sentencing judge find a particular fact. Rather, it requires only that the judge “state th e reasons for [imposing the restriction] in writing.” Section 46-18-202(2), MCA. Washin gton’s sentencing scheme, as it existed at the time of Blakely’s sentencing, is useful for illustrating this crucial distinction. That scheme did not permit the sentencing judge to enhance Blakely’s sentence on the basis of the facts already used in com puting the standard range senten ce—i.e., on the basis of the facts admitted in Blakely’s guilty plea. Ra ther, “ ‘[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the sta ndard range sentence for the offense.’ ” Blakely , 542 U.S. at 304, 124 S.Ct. at 2537 (a lteration in original, emphasis added). Thus, the judge had to find additional facts—facts not already admitte d by Blakely—in order to impose the enhanced sentence. By contrast, pursuant to the first and second sentences of § 46-18-202(2), a sentencing judge’s reasons for imposing a parole eligibility restriction may take in to account facts refl ected in the jury’s verdict, as well as other facts not reflected in that verdict; but no particular finding is mandated before the restriction may be imposed. 28

28 In Cavanaugh , we stated that “District Courts are required to determine whether the full restriction on parole and furl ough eligibility is necessary for ‘t he protection of society’ when a person is sentenced after conviction.” Cavanaugh , 189 Mont. at 279, 615 P .2d at 893. In view of Apprendi and Blakely , such an interpretation of § 46-18-202(2) would render the statute unconstitutional. For this reason, this portion of Cavanaugh , to the extent it may be read as82 ¶138 Construing a sentencing scheme similar in operation to §§ 45-5-102(2) and 46-18- 202(2), the Arizona Supreme Court found no Apprendi violation. Under the statutory provision at issue in State v. Fell , 115 P.3d 594 (Ari z. 2005), if the death penalty is not imposed for first-degree murder the only ot her possible sentences are life with the possibility of release after a sp ecified period (“life”) or life w ith no possibility of eventual release (“natural life”). See Fell , ¶ 1. Although “nothing in [the statutory provision] required that any specific fact be found befo re a natural life sentence could be imposed,” the defendant nonetheless argued that “life is the ‘presumptive’ sentence for first degree murder and that natural life is an ‘aggravated’ sentence.” Fell , ¶¶ 12-13. The court rejected this contention: The statute does not prov ide that a defendant “shall” receive life unless certain facts are found. To the contrary, the statut e provides that “[i]f the court imposes a life sentence, the court may order that the defendant not be released on any basis for the remainde r of the defendant’s natural life.” A.R.S. § 13-703(A) (emphasis added). Had the legislature intended to require a specific finding be made befo re a natural life sentence could be

making imposition of a parole eligibility restriction contingent on a finding by the sentencing court that it is necessary for the protection of society, is no longer good law. As explained above, the first and second sentences of § 46- 18-202(2) leave imposition of a restriction on parole eligibility to the discre tion of the sentencing court; th ey do not require such a finding. The third sentence of § 46-18-202(2), however, is another matter. It provides that “[i]f the sentencing judge finds that the restriction is necessary for the protection of society, the judge shallimpose the restriction as part of the sentence and the judgment must contain a statement of the reasons for the restriction” (e mphasis added). In other words, if the judge “finds that the restriction is necessary for the protec tion of society,” the judge not only may make the defendant ineligible for parole, the judge must do so (whether or not the judge would have imposed the restriction in the absence of th e third sentence’s mandate). Becau se the District Court did not impose the parole eligibility restriction on Garrymore’s life sentence on the ground that it was necessary for the protection of soci ety, we need not decide in this case whether the third sentence of § 46-18-202(2) constitutes an Apprendi violation.83 imposed, it surely would have said so specifically, as it did in the statutes governing sentencing for felonies other than first degree murder. . . . In this area, the legislature has concluded that the trial court can appropriately exercise its discretion to determine whether future release is possible (although not assured) or whether the defendant must instead spend the rest of his or her life in prison. Fell , ¶¶ 14-15 (alteration in original). ¶139 This reasoning is equally applicable to §§ 45-5-102(2) and 46-18-202(2). As explained above, nothing in § 46-18-202(2) requires a district court to make a particular finding before it restricts a defendant’s paro le eligibility. The Montana Legislature did not make an increase in a defendant’s punish ment to exclude the possibility of parole “contingent on the finding of a fact,” Booker , 543 U.S. at 231, 125 S.Ct. at 749 (internal quotation marks omitted). Ra ther, § 46-18-202(2) permit s the court to impose the restriction in its discretion: “the sentencing judge may also impose the restriction that the offender is ineligible fo r parole” (emphasis added). ¶140 Garrymore cites a number of cases in his briefs and his notices of supplemental authority that reach a contrary result. Th ese decisions, however, are distinguishable from the case at hand. State v. Provost , 896 A.2d 55 (Vt. 2005), provides a typical example.
In Provost , the statute at issue stated, in relevant part: The punishment for murder in the first degree shall be imprisonment for life and for a minimum term of 35 years unless the court finds that there are aggravating or mitigating factors whic h justify a different minimum term. If the court finds that the aggrava ting factors outwei gh any mitigating factors, the minimum term may be longer than 35 years, up to and including life without parole. If the co urt finds that the mitigating factors outweigh any aggravating factors the minimum term may be set at less than 35 years but not less than 15 years.84 Provost , ¶ 14 (emphasis added, intern al quotation marks omitted). ¶141 Interpreting this provision, the Vermont Supreme Court stated that “[t]he maximum sentence the court may impose . . . w ithout finding any facts in addition to the jury’s verdict is life imprisonment with a minimum term of thirty-five years.” Provost , ¶ 15. The court reasoned that the Vermont Legislature had intended “to attach significance to the difference between mini mum terms accompanying sentences of life imprisonment.” Provost , ¶ 17. It is not surprising, therefore, that the court ultimately concluded that the statut e “violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggrav ating and mitigating f actors not found by a jury beyond a r easonable doubt before imposing a sentence of life without parole.”
Provost , ¶ 17 (emphasis added); cf. State v. Leake , 699 N.W.2d 312, 321, 323 (Minn. 2005) (also cited by Garrymore , and holding that “a judg e’s finding that a prior conviction constitutes a ‘heinous crime’ affects the ‘s tatutory maximum’ ” because a sentence of life imprisonment without the possibility of release cannot be imposed until such a finding is made). ¶142 In light of the foregoing discussion, th e punishments provided in § 45-5-102(2) do not contain a presumption of parole eligib ility which must be overcome by post-verdict fact-finding before a sentencing court may impose the restriction in § 46-18-202(2) that the offender is ineligible fo r parole. Rather, the maximu m sentence the jury’s guilty verdict authorized the District Court to impo se in this case was “ life imprisonment” or “imprisonment in the state prison for a te rm of not . . . more than 100 years,” without the85 possibility of parole. For th is reason, application of § 46-18-202(2) to Garrymore’s sentence of life imprisonment was not unconstitutional under Apprendi and its progeny, and Garrymore’s sentence, therefore, is not illegal under the Si xth and Fourteenth Amendments. B. State Statutory Claim ¶143 The basis for Garrymore’s state statutory claim is § 46-1-401, MCA (2001), 29 which was enacted in response to Apprendi . It provides, in pertinent part, as follows: (1) A court may not impose an in carceration penalty enhancement specified in Title 45, Title 46, or any other provision of law unless: (a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment , with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact; [and] (b) if the case was tried before a jury, the jury unan imously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt; . . .

. . . . (3) An enhancing act, omission, or fa ct is an act, omission, or fact, whether stated in the statute defini ng the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and th at allows or requires a sentencing court to add to, as provided by statut e, an incarceration period provided by statute for the charged offe nse or to impose the de ath penalty instead of a statutory incarceration period provided by statute for the charged offense.

29 In his brief, Garrymore cite s the 2001 version of § 46-1-401(3), but he quotes the 2003 version of this statute. The di fferences between these two versions have no substantive effect on Garrymore’s claim; however, for the sake of acc uracy, I note that the 2001 version controls, see ¶ 107 n.21.86 (4) Use of the fact of one or more prior convictions for the same type of offense or for one or more othe r types of offenses to enhance the incarceration penalty for a charged offense is not subject to the requirements of this section. Garrymore suggests that §§ 46-18-202(2) and 46-1 -401 conflict with each other to the extent that the former authorizes a senten cing judge to restrict an offender’s parole eligibility based on facts not found by a jury beyond a reasonable d oubt; that § 46-1-401 prevails over § 46-18-202(2); and that the Dist rict Court, therefore, was without authority to impose the parole eligibility restriction on his sentence. (This argument is analogous to the scenario discussed above in ¶ 86 n.13.) ¶144 Garrymore is incorrect. Sec tions 46-18-202(2) and 46-1-401 are not in conflict. Rather, § 46-1-401 merely codifies the mandates of the Sixth and Fourteenth Amendments, as construed by the Supreme Court in Apprendi and its progeny. Thus, the disposition of Garrymore’s claim based on this statute is iden tical to the disposition of his federal constitutional claim under Part III.A. above . For the reasons just discussed, the District Court’s stated reasons for impo sing the parole eligibility restriction on Garrymore’s sentence were not facts “that allo w[ed] or require[d] [the] . . . court to add to, as provided by statute, an incarceration period pr ovided by [§ 45-5-102(2)] for [deliberate homicide],” as contemplated by § 46-1-401(3). To the contrary, the jury’s guilty verdict on the charge of deliberate homicide authorized th e District Court to impose a sentence of “life impr isonment” or “imprisonment in the state prison for a term of not less than 10 years or more than 100 years,” without the possibility of parole. Thus, Garrymore’s sentence does no t contravene § 46-1-401.87 C. State Constitutional Claim ¶145 Lastly, Garrymore argues that his rights under Article II, Sections 24 and 26, of the Montana Constitution were violated when the District Court de emed him ineligible for parole under § 46-18-202(2) based on fact s not found by the jury beyond a reasonable doubt. Section 24 guarantees an accused the right to “trial by an impartial jury,” while Section 26 provides that “[t]he right of trial by jury is secured to all and shall remain inviolate” and that “[i]n all criminal ac tions, the verdict shall be unanimous.” ¶146 Garrymore points out, correctly , that we have “refused to ‘march lock-step’ with the United States Supreme Court’s interpre tation of corresponding provisions in the federal constitution,” particularly where, as in this case, “the language of the Montana Constitution setting forth the rights guaranteed is not identical to the language used in the federal Constitution.” Woirhaye v. Fourth J udicial Dist. Court , 1998 MT 320, ¶ 14, 292 Mont. 185, ¶ 14, 972 P.2d 800, ¶ 14. Thus, in Woirhaye , we construed Sections 24 and 26 as affording a greater jury trial right than does the Sixth Amendment, and we invalidated former § 46-17-201(3) because it allowed a misdemeano r criminal defendant to exercise his right to a jury trial only once—e ither in justice court or in district court on trial de novo. See Woirhaye , ¶¶ 6, 12-19, 25-26. ¶147 Yet, while we have interp reted some of our state constitutional provisions as providing more protection than do their federal counterparts, Garrymore has not explained, with respect to hi s specific sentence, why Secti ons 24 and 26 dictate a result88 contrary to the resu lt reached above under Apprendi

. Woirhaye , which applied the jury trial right in an entirely different c ontext, does not afford an answer. ¶148 As explained in detail above, pursuant to the first two sentences of § 46-18-202(2) a sentencing judge is authori zed upon a conviction of deliberate homicide to restrict the defendant’s parole eligibility without first having to find a particular fact. This scheme satisfies the dictates of the Sixth Amendment and Apprendi ; whether it violates Sections 24 and 26, however, is not something we can address based on the undeveloped assertion that “the increased protection afforded criminal defendants under Montana’s constitutional jury trial guarantees [] establish[es] that the pa role restriction imposed in this case violated Jason’s rights, and is ille gal.” Accordingly, Ga rrymore is not entitled to relief on his state constitutional claim. CONCLUSION ¶149 Although Garrymore di d not object during the se ntencing proceeding to the District Court’s authority to impose the parole eligibility restriction on his life sentence, his allegation on appeal that the court lacked such authority (becau se § 46-18-202(2) is invalid on constitutional and st atutory grounds) satisfies th e requisites for invoking the Lenihan exception, meaning that he may obtain review of his allegedly illegal sentence, notwithstanding his failure to object. ¶150 With respect to the merits of Garrymore’s arguments under Apprendi and § 46-1- 401, MCA, the maximum sentence the jury’s verdict authorized the District Court to impose in this case was “life imprisonment” or “imprisonment in the state prison for a89 term of not . . . more than 100 years,” without the possibility of paro le. For this reason, the court had authority to impose the parole eligibility restriction, and Garrymore’s sentence is not illegal.

/S/ JAMES C. NELSON

Justice Patricia O. Cotte r, specially concurring. ¶151 I concur in Justice Nelson’s conclusion that now, rather than later, is an appropriate time to clear up the inconsistencies in our Lenihan jurisprudence. Therefore, I join in the discussion and pr oposed resolution set forth in ¶¶ 45-106 of Justice Nelson’s Special Concurrence. I write separately to note that I concurred with the Court’s resolution in State v. Micklon , 2003 MT 45, 314 Mont. 291, 65 P.3d 559, on the grounds that since it was Micklon who initiated the request for leniency as to the restitution requirements, he should not now be heard to quarrel with the result. I still believe this is so. However, to the exte nt that our decision in Micklon might be construe d to preclude a Lenihan challenge under other circumstances, I w ould agree that the conclusion reached by Justice Nelson in ¶ 10 1 is legally correct.

/S/ PATRICIA COTTER