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 Judicial 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 General; Mark E. Mattioli (argued), 

Assistant Attorney General, Helena, Montana 

Fred Van Valkenburg, County Attorney; Suzy Boylan-Moore 

and Andrew Paul, Deputy County Attorneys, Missoula, Montana 

 

 Heard: November 30, 2005 

 Submitted: June 6, 2006 

 Decided: October 2, 2006 

Filed: 

__________________________________________ 

Clerk 
 2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 A jury convicted Appellant Jason Lucas Garrymore of deliberate homicide on 

February 27, 2004. Thereafter, the Fourth Judicial District Court sentenced him to life 

imprisonment without the possibility of parole. Garrymore challenges the parole 

restriction and urges us to vacate his sentence. We affirm. 

¶2 We consider the following issues on appeal: 

¶3 (1) Does Garrymore’s failure to object to the District 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 federal and state constitutional and 

statutory rights to jury trial and due process? 

BACKGROUND 

¶5 After an incident on January 2, 2003, left nearly two-year-old 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 proceeded to trial by jury. The 

jury convicted Garrymore of deliberate homicide on February 27, 2004. 

¶6 After completion of a pre-sentence report, Garrymore’s case proceeded to 

sentencing on May 6, 2004. At the hearing, both Garrymore and the State presented 

evidence of Garrymore’s past conduct and character, and each side argued for a different 

sentence. The State adopted the recommendation of Mr. Sonju, the probation/parole 
 3 

officer who had prepared the pre-sentence report. Relying on considerable evidence, Mr. 

Sonju concluded that Garrymore could not be rehabilitated, and recommended that 

Garrymore be given a life sentence without the possibility of parole. Conversely, 

Garrymore argued that he was never given an opportunity to properly rehabilitate, 

especially when his mental health 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 sentenced him to life imprisonment without 

the possibility of parole. The court provided the following basis for its decision: 

Now, this defendant has three convictions for domestic abuse and 

unlawful restraint. He was arrested on the same type of charges in Utah 

and California but moved out of their jurisdiction so the charges were 

dismissed. In addition, he was on probation when this offense was 

committed. 

 . . . . 

 Now, throughout the trial and these proceedings, contrary to the 

testimony, I have not seen any remorse 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 Tylin’s death was caused by a tragic 

culmination of accidents. 

 Though he may not have actively planned this death, 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 died a violent, slow, painful death. 

She could have been taken to the hospital and possibly saved. He talked 
 4 

the mother out of that, and it appears that he would rather save his own 

neck from child abuse charges than save his two-year-old adopted daughter. 

 Finally, in our society, and I think we all realize it, even total 

strangers rush to assist a child in distress. But you, her adoptive father, 

chose to abuse and, from the pictures, torture 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 Montana State Prison without eligibility for parole. 

(Emphasis added.) Garrymore did not object to the sentence at the time of its 

pronouncement by the District Court. 

¶8 Garrymore appeals, asserting that the District Court imposed the parole eligibility 

restriction in violation of his federal and state constitutional and statutory rights. 

STANDARD OF REVIEW 

¶9 We review criminal sentences that include at least one year 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, 295 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 questions of law de novo. Wadsworth 

v. State, 275 Mont. 287, 298, 911 P.2d 1165, 1171 (1996). 

DISCUSSION 

Issue 1: Does Garrymore’s failure to object to the District 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 brief 
 5 

argument that the merits of Garrymore’s claim should not be reviewed on appeal. The 

State acknowledges the exception to the contemporaneous objection rule we adopted for 

sentencing purposes in State v. Lenihan, 184 Mont. 338, 602 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 case and a federal case addressing the exercise 

of plain error review, a separate doctrine not at issue herein.2

 Therefore, a 

comprehensive response 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 sentences for appellate review. The rule is not 

“jurisdictional” in the sense that the Court is with or without 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 jurisprudence, but the better practice 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 these two doctrines. 
 6 

¶12 First, the State offers that Lenihan does not apply because “neither party 

recommended a deferred or suspended sentence in this case.” Although the Lenihan case 

involved the imposition of a deferred sentence, the rule we adopted therein was not 

limited to probationary sentences, and we have undertaken, pursuant to Lenihan, 

appellate review of sentences which had 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 condition Garrymore challenges on 

appeal was raised during the sentencing hearing by the prosecution, the State contends 

that the Lenihan rule is inapplicable because an objection 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 since 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 circumstance inherently inconsistent 

with Lenihan, which applies, in the sentencing context, when the defendant remains silent 

and offers no argument in the district court, and, thus, is an exception to the general rule. 

More importantly, however, it would ultimately undermine the efficacy of the sentencing 
 7 

process to reject appellate review of sentences where the defendant objected in the 

district court and changed his theory on appeal, yet allow appellate review of sentences 

where no objection is made, thereby creating an institutional incentive for defendants to 

remain silent during sentencing. 

¶14 Thirdly, the State contends that Garrymore’s sentence “was not, as Garrymore 

now contends, unconstitutional.” We presume from this statement 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 review” 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 whereby appellate review of certain allegedly 

illegal sentences, which would be procedurally barred for lack of objection, may 

nonetheless be obtained. After 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, ¶¶ 26-30, 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 § 46-18-202(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 State offers no analysis from our Lenihan jurisprudence in support 
 8 

of its “statutory parameters” argument or why Lenihan should not apply to Garrymore’s 

particular constitutional challenge. 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 imposition of the parole eligibility 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. Specifically, he argues that the parole eligibility 

restriction constitutes a sentence enhancement which was based on facts not found by a 

jury. Accordingly, Garrymore 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 Montana and United States Constitutions, as well as 

commensurate state statutory rights 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 addressing 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 648, 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 sentence enhancement statutes, a 

sentencing judge’s discretion, and the Sixth and Fourteenth Amendments to the United 

States Constitution. Apprendi and its progeny have impacted sentencing statutes, 

sentencing guidelines, and criminal sentences throughout the country, and according to 

Garrymore, lead to the inexorable conclusion that the District Court unconstitutionally 

imposed the parole eligibility restriction upon him. 

¶18 In Apprendi, a defendant pled guilty in New Jersey state court to three offenses, 

one of which was possession of a firearm 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 penalty range of five to ten 

years. After a plea hearing at which the trial judge heard sufficient evidence to establish 

the defendant’s guilt on all 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 offenses 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 that increase the prescribed 

range of penalties to which a criminal defendant is exposed.” Apprendi, 530 U.S. at 490, 

120 S. Ct. at 2363. The Court formulated the following rule: 
 10 

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 jury, and proved beyond a reasonable doubt. 

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Applying the rule to the facts in 

Apprendi, the Court determined that New Jersey’s sentencing scheme was 

unconstitutional, because factfinding by the sentencing judge, not the jury, under 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 2366-67. Therefore, the statutory 

scheme constituted a “departure from the jury tradition that is an indispensable part of our 

criminal justice system” and violated the Sixth Amendment. Apprendi, 530 U.S. at 497, 

120 S. Ct. at 2366. 

¶21 Though Apprendi demonstrated the Sixth Amendment’s application to the 

sentencing process, an issue of practical 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 provided 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 not 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 justifying 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 solely 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. 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 possible sentence authorized by statute, but, 

rather, the maximum sentence for which a defendant 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 eligibility restriction increased his penalty beyond the statutory 
 12 

maximum authorized by the jury verdict. Accordingly, we take up the Montana statutes 

at issue. 

¶24 Conviction of the offense of deliberate 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 time of the commission of the 

offense, by life imprisonment, or by imprisonment 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. Because the State did not seek the death penalty, and since 

neither § 46-18-219, MCA, nor § 46-18-222, MCA, is applicable to Garrymore’s case, 

the maximum sentence which could have been imposed upon Garrymore pursuant to the 

language of the statute was “life imprisonment.” However, Garrymore argues that the 

parole eligibility restriction, although plainly authorized by another statute (§ 46-18-

202(2), MCA), operates to allow the imposition of a sentence which improperly exceeds 

the range authorized by § 45-5-102(2), MCA. He argues that the “life sentences” 

authorized by § 45-5-102(2), MCA, 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 not reflected by the jury’s verdict, but was conducted by the 

sentencing judge, the parole eligibility restriction violates the Sixth Amendment. 

¶25 Section 46-18-202(2), MCA, which authorizes restrictions on parole eligibility, 

provides as follows: 
 13 

Whenever 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 offender is ineligible for parole and 

participation in the supervised release program while serving that term. If 

the restriction is to be imposed, the sentencing judge shall state the reasons 

for it in writing. If the sentencing judge finds that the restriction is 

necessary for the protection of society, the judge shall impose the 

restriction as part of the sentence and the judgment must contain a 

statement of the reasons for the restriction. 

It is clear from the language of the statute that a sentencing judge, when imposing a 

prison term exceeding one year, may also impose a parole eligibility restriction in the 

judge’s sole discretion. This provision evidences a legislative intent to authorize, but not 

require, sentencing judges to restrict parole whenever they impose prison terms 

exceeding one year. Accordingly, it is evident 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 judges to add any time beyond the statutory 

maximum for the underlying offense,” thus establishing 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 distinction later advanced by Ring and 

Blakely, and discussed above: whether Garrymore was eligible to receive imposition of 

the parole eligibility restriction under § 46-18-202(2), MCA, based upon the facts 

reflected in the jury’s verdict. 

¶26 It is for this reason Garrymore’s assertion that § 45-5-102(2), MCA, contains an 

implicit “presumption of parole eligibility” is critical to his argument. He seeks to 
 14 

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 argument that such a 

presumption exists. 

¶27 We find no indicia in the sentencing statutes of a legislative intent to create a 

presumption in favor of parole eligibility which must be overcome in order for a 

sentencing judge to impose a parole restriction. The broad grant 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 restrictions on the enormous 

class of sentences which exceed a one-year term of imprisonment 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 because he was not entitled to such a sentence to begin with. 

There is no implicit presumption of parole eligibility. 

¶28 Of course, we acknowledge that a parole eligibility restriction must be 

accompanied by reasons stated in writing pursuant to § 46-18-202(2), MCA. We 

disagree, however, with Garrymore’s contention that the implicit fact-finding embodied 

within § 46-18-202(2), MCA, places the restriction beyond the “statutory maximum” for 

the purposes of Apprendi. We initially note that the Supreme Court has rejected the 
 15 

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). 

¶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 discretion often necessitates 

findings of fact to support a particular sentence, 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 2540. 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 the 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 limits judicial 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 the jury’s traditional function of finding 

the facts essential to lawful imposition 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 bearing 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 noted above, a plain reading of the statutes evidences the 

legislature’s intent to make life imprisonment without the possibility of parole an 

authorized sentence for deliberate homicide. See §§ 45-5-102(2) and 46-18-202(2), 

MCA. Second, although § 46-18-202(2), MCA, requires written reasons to support 

imposition of parole eligibility restriction, those reasons need not go beyond those facts 

found by the jury. Indeed, the factfinding requirement 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 entirely possible for a judge to restrict parole based 

solely upon facts found by the jury. 

¶31 Further, imposition of a parole restriction is not necessarily improper merely 

because the sentencing judge finds facts, to aid in the exercise of his discretion, not found 

by the jury. Here, the sentencing judge noted Garrymore’s prior 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 does 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 parole restriction under 
 17 

the statutes nor endue the District Court with additional statutory authority to impose the 

restriction. Imposition of the restriction remains 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 sentencing 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 deliberate 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 identical issue, the Arizona Supreme 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 life with the possibility of parole, in part 

because the statute authorizing parole restrictions 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 eligibility for deliberate homicide, and (b) because the legislature 

had not required a sentencing court to find specific facts before restricting parole, the 

factfinding requirement did not increase 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 mean that any specific 

finding is necessary for imposition of the sentence.” Fell, ¶ 18. 

¶34 Section 46-18-202(2), MCA, permits a sentencing judge to impose a parole 

eligibility restriction whenever the judge imposes a sentence 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 included among those reasons. For that reason, and 

because we conclude that the legislature intended the statutory maximum for § 45-5-

102(1)(a), MCA, to be life imprisonment 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 claim above, Garrymore argues that the 

District Court’s restriction on his parole eligibility pursuant 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 incarceration 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 instructed that it is to reach a verdict on the offense 

charged in the information, complaint, or indictment before the jury can 

consider whether the enhancing act, omission, or fact occurred. 

 (3) An enhancing act, omission, or fact is an act, omission, or fact, 

whether stated in the statute defining the charged offense or stated in 

another statute, that is not included in the statutory definition of the 

elements of the charged offense and that allows or requires a sentencing 

court to add to, as provided by statute, an incarceration period provided by 

statute for the charged offense or to impose the death penalty instead of a 

statutory incarceration period provided by statute for the charged offense. 

Codifying Apprendi, § 46-1-401, MCA, essentially requires a jury determination of the 

facts necessary to impose an additional sentence pursuant to a sentence enhancement 

statute. Because we see no substantive distinction 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 disposition 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 Court to add on to the sentence authorized by 

§ 45-5-102(2), MCA. However, as mentioned 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), MCA, does not, vis-à-vis an “act, 

omission, or fact,” allow or require a sentencing court to increase punishment for a 
 20 

charged offense. Accordingly, we conclude that the District 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 Constitution when it restricted his parole 

eligibility pursuant to § 46-18-202(2), MCA. Specifically, Garrymore argues that 

because the Montana Constitution is more protective 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 under the federal constitution and Apprendi. Unfortunately, 

we find this argument too undeveloped to undertake a distinctive application of state 

constitutional principles. 

¶39 Garrymore correctly notes that we have interpreted Article II, Sections 24 and 26 

of the Montana Constitution as affording a greater jury trial right than does the Sixth 

Amendment to the United States Constitution. See Woirhaye v. Fourth Judicial Dist. 

Court, 1998 MT 320, 292 Mont. 185, 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 not further consider the argument. 

¶40 Affirmed. 

 /S/ JIM RICE 
 21 

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 issues. 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 future cases asserting 

Lenihan. 

¶42 As is apparent from the Court’s discussion of the State’s arguments about 

Lenihan’s applicability, the application of that case is far from automatic. 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 burden of establishing her or his entitlement to that exception. A 

mere reference and citation to Lenihan will not suffice in the future, at least for me. 

¶43 Here, in the standard of review section of Garrymore’s opening brief, counsel 

merely cited to Lenihan and its progeny for the proposition 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 proposition. The problem 
 22 

with this approach is that we have other cases refusing to apply the Lenihan exception. It 

is my view that counsel must present more in the way of discussion and analysis 

regarding entitlement to the exception. 

¶44 When appellate counsel fails to do so, the result is a discussion such as that 

contained in our opinion here: the burden of establishing 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 past, it is an approach I am unwilling to continue to follow. 

Therefore, I encourage criminal defense counsel to clearly establish entitlement to the 

exception in their opening brief, or risk a determination 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 Opinion; however, I do not agree with the lack 

of detail in the Court’s reasoning. I therefore write separately to set forth an independent 

analysis of the important issues raised in this appeal. 

¶46 In particular, with respect to Issue 1, I agree with the Court that, notwithstanding 

Garrymore’s failure to raise his sentencing claims in the first instance in the District 

Court, we nevertheless may reach the merits of those claims by way of the Lenihan
 23 

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 the discussion there and not explain why 

Garrymore has, in fact, satisfied the requisites for invoking the Lenihan exception. 

Indeed, the Court’s truncated analysis implies 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 mandates, 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 never defined “illegal or exceeds statutory 

mandates.” Rather, we have simply allowed defendants to invoke the exception when it 

seemed right to do so—and vice versa. And in most of these cases, 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 conceivable definition of “illegal or exceeds statutory mandates.” 
 24 

Because these inconsistencies will only proliferate—and at an increasingly rapid pace1—

until we explicitly articulate the contours of the Lenihan exception, I do not agree with 

the Court’s conclusion in ¶ 11 that a comprehensive response to the State’s (and 

Garrymore’s) Lenihan arguments is “not necessary” here. 

¶49 To the contrary, it is necessary not only 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 and defense bars, and the 

courts, our Lenihan rule must be clear, unambiguous, and 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 constitutional 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 privileged to simply ignore lawful statutory mandates in order to 

achieve a particular result for the sake of either palatability or expediency. Third, by not 

articulating a clear and narrow Lenihan rule, we are, implicitly, maintaining an approach 

that relies less on careful, comprehensive, record-based legal analysis and more on ad hoc 

decision-making, which serves neither the litigants nor the courts, not to mention the law. 

 1 Lenihan has been cited as an exception to the time 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 ultimately will develop a narrow and focused definition of the 

Lenihan exception on a case-by-case basis, prompted 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 exception’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 has 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 statute and he is not alleging that the statute is 

unconstitutional). Yet, we have chosen to ignore these arguments and persist in an ad 

hoc approach. Moreover, experience teaches that, not surprisingly, prosecutors and 

criminal defense attorneys each will argue whatever version of Lenihan in our existing 

jurisprudence best serves their particular theory in the given case. Unfortunately, as 

explained below, our present jurisprudential cafeteria offers up a precedent for nearly 

every theory. Thus, there simply is not the incentive the Court presumes for the 

practicing bar to seek a narrow and focused Lenihan rule. That obligation 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 of 
 26 

the offerings off the steam table. I am convinced that the Court’s unwillingness here to 

shoulder this obligation and to address forthrightly the complexities of the Lenihan

exception in its present and unstructured state in our case law will simply encourage—

rather than constrain—muddled, ad hoc, and unpredictable decision-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 analysis of the foundation for the Lenihan exception, 

addressing the inconsistencies in our jurisprudence, and articulating a narrow and concise 

Lenihan rule—specifically, the exception may be invoked only 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 articulation, 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 further agree that 

Garrymore did not adequately develop his claim under Article II, Sections 24 and 26, of 

the Montana Constitution. However, these issues 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 explain in further detail, for the benefit of the 

parties, the practicing bar, and the lower courts, the intricacies of Apprendi’s application 
 27 

to our parole eligibility statute. Accordingly, I am providing an independent analysis of 

Garrymore’s Sixth Amendment and statutory claims. 

II. Issue 1: Does Garrymore’s failure to object in the District Court to its 

imposition of the parole eligibility restriction preclude our considering his 

challenges thereto on appeal?

A. Background 

¶54 Garrymore did not object during the sentencing proceeding to the District Court’s 

restricting his parole eligibility. Nor did he raise the constitutional and statutory issues he 

now pursues on appeal. He did suggest a lesser sentence of 40 years and argued against 

restricting his parole eligibility. Specifically, 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 after whatever period of time this Court thinks is 

appropriate as a sentence in this case. 

However, a defendant’s request at the sentencing hearing for a particular sentence does 

not constitute an objection to the sentence actually imposed. State v. Nelson, 274 Mont. 

11, 18, 906 P.2d 663, 667 (1995). Thus, we must determine, 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 considering 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, 2002 
 28 

MT 13, ¶ 15, 308 Mont. 154, ¶ 15, 41 P.3d 314, ¶ 15. However, a longstanding exception 

to this rule exists in the context 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 sentence is illegal or 

exceeds statutory mandates, even if no objection [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 surprising, given that we have, on 

occasion, used the term “jurisdiction” with respect to our application of the Lenihan exception. 

See, e.g., Lenihan, 184 Mont. at 343, 602 P.2d at 1000 (“We, therefore, 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]urisdiction 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.” 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 “jurisdictional” with “prescriptions delineating the 

classes of cases . . . falling within a court’s adjudicatory 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 jurisdiction, 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 loose 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 source of “jurisdiction” 

by which we consider an appellant’s otherwise procedurally barred challenge to his sentence. 

Rather, this Court’s jurisdiction derives from Article VII, Section 2, of the Montana Constitution, 

which includes “general supervisory control over all other courts,” and Lenihan, 

correspondingly, is a judicially-created exception to the timely objection rule. 
 29 

question at hand, therefore, is whether Garrymore may invoke this exception in order to 

have his otherwise procedurally barred challenge 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 suspended sentence in this case” and because “a 

contemporaneous Apprendi objection would not have provoked the judicial 

vindictiveness that Lenihan fears”; (2) “appellants are not permitted to change theories on 

appeal”; and (3) “the sentence Garrymore received was within statutory parameters and it 

was not . . . unconstitutional.” As stated earlier, 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 previous 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 overrule it, Brief of Respondent at 8, State v. Micklon, 2003 

MT 45, 314 Mont. 291, 65 P.3d 559 (No. 02-415) (“Montana 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 discussing 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 effective.” 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.” Given 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 applies 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 court deferred or suspended. The language of 

Lenihan does not carry such an implication. Rather, we stated 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 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 that Honey could invoke the Lenihan exception, 

notwithstanding the fact that the district court 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 appellant’s challenge to a sentence 

which had been neither suspended 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. 358, ¶¶ 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 Mont. 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 analogous suggestion that Lenihan applies only to cases in 

which there was a risk of judicial vindictiveness 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 review of the allegedly illegal sentence] 

may be a defendant’s only hope in cases involving deferred imposition of 

sentence. If a defendant objects to one of the conditions, the sentencing 

judge could very well decide to forego the deferred sentence and send him 

to prison. To guard against this possibility, 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 judicial vindictiveness or retaliation, 

however, was not meant as a limitation 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 exists 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 statutory authority in imposing a specific 

sentence, an objection below is not a prerequisite to the challenging of the 

sentencing order alleged to be void. 

Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (ellipsis in original, 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 court told Erickson that, but for the plea agreement, it likely 

would have given him the maximum sentence and 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 why Erickson did not object to his sentence for fear 

of receiving a harsher sentence.” Erickson, ¶ 33. 
 32 

¶60 Thus, our discussion of a defendant’s incentive to remain silent in the face of an 

invalid condition placed on his deferred (or suspended) sentence was simply an 

additional rationale for our decision to allow particular sentencing challenges to be raised 

for the first time on appeal. Indeed, as the Court notes in ¶ 13, we have characterized the 

risk of judicial vindictiveness as “part”—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 vindictiveness or retaliation at the sentencing hearing. 

ii. The State’s Second Argument 

¶61 With respect to the State’s contention that Lenihan should not be available to 

Garrymore because “appellants are not permitted to change theories on appeal,” the State 

is correct that, as a general rule, “[a] party 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, underlying the State’s argument is the premise that an objection was 

made to the particular sentencing term or condition that the appellant challenges on 

appeal and the appellant has since changed the legal theory advanced in support of that 

objection. Yet, if an objection was in fact made to the particular sentencing term or 

condition, it would be unnecessary for the appellant to invoke Lenihan, as his claim 
 33 

would be properly preserved. The only question would be whether we must nevertheless 

refuse to consider it because the legal theory behind the objection has changed. 

¶62 We have long held that “a party complaining 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 fundamentally unfair to fault 

the trial court for failing to rule correctly on an issue 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 sentence comes within the meaning of Lenihan’s 

“illegal or exceeds statutory mandates” concept, then it would be counterintuitive 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 appellants who made no objection whatsoever to the 

alleged sentencing error (and, thus, gave the sentencing court no opportunity to remedy 

the alleged error) and punish those who did object but then changed their legal theories. 

Moreover, as the Court aptly observes in ¶ 13, this approach ultimately would create an 

institutional incentive for defendants not to object during sentencing and thereby 

undermine the efficacy of the sentencing process. Accordingly, the State’s change-oflegal-theories argument must be rejected. 

iii. The State’s Third Argument 
 34 

¶64 The State argues that “this Court 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 was 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 the district court unless the Lenihan exception applies, 

application of Lenihan cannot depend on whether the defendant 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 objection rule, we will not reach 

the merits and make that determination without first deciding that the defendant may 

invoke Lenihan. For this reason, Lenihan is more properly viewed 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 gateway. 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 “alleged” (2) that such sentence is “illegal or exceeds statutory 
 35 

mandates.” Lenihan, 184 Mont. at 343, 602 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 mandates,” we did not mean that the sentencing 

court simply imposed an objectionable sentence. Such an interpretation of the Lenihan

exception would render the timely objection rule a practical nullity in the sentencing 

context. Rather, as discussed already, the basis for our adopting this exception to the 

timely objection rule in the sentencing context 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 obligation 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 which 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-settled that a sentencing court’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 sentencing statutes. See State v. Hicks, 2006 MT 

71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P.3d 206, ¶ 41 (“A district court’s authority 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 specific 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 statutory authority in imposing a specific 

sentence, an objection below is not a prerequisite to the challenging of the 

sentencing order alleged to be void. 

Lenihan, 184 Mont. at 342, 602 P.2d at 1000 (ellipsis in original, 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 (Pa.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 statutory 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 mandates” reflects a narrow concern: whether 

the challenged sentence was statutorily authorized. Given this precise focus, only a 

defendant who alleges a colorable claim that his sentence was 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-year maximum sentence authorized by the 

applicable statute). Or, the defendant may allege 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 998 
 37 

(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, 1028-29 (1993) (alleging 

that the district court was without authority to impose a sentence of 210 days in jail, 180 

of which would be served at the discretion 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 663 (1995), illustrates this 

narrow focus on statutory authority. In Nelson, the defendant argued on appeal that 

because he qualified as a nonviolent felony offender, Montana law required the 

sentencing court to consider alternatives to incarceration when sentencing him. 

However, he had not raised this issue in the district court; therefore, we stated, this Court 

would not review his sentencing challenge unless he could invoke Lenihan. See Nelson, 

274 Mont. at 17-18, 906 P.2d at 666-67. 

¶71 In addressing Lenihan’s applicability, we first emphasized that “an appellate court 

may review any sentence imposed in a criminal case, if it is alleged that such sentence is 

illegal or exceeds statutory mandates, even if no objection is made at the time of 

sentencing.” Nelson, 274 Mont. at 18, 906 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 offender to prison. . . . Although these 
 38 

statutes require consideration of alternatives to imprisonment, such 

consideration would not have necessarily 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 46-18-225, 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 sentenced 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. Thus, his allegation, in substance, was 

that the court erred in its determination of which sentence within the statutorily 

authorized range was appropriate for Nelson, not that it imposed a sentence for which 

there was no statutory authority. For this 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 preserved 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 which the district courts failed to consider 

alternatives to incarceration for nonviolent offenders, we remanded 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 principles; 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 inconsistencies 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 precedents 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 Appropriateness of Resolving Inconsistencies 

in our Lenihan Jurisprudence at this Juncture

 8

 Incidentally, the Indiana courts have 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 Indiana stated: “Normally, this Court will not 

consider an issue which is first raised on appeal, but a court of review cannot ignore a 

fundamental error which is apparent on the face of the record, such as an incorrect sentence.” 

Kleinrichert, 297 N.E.2d at 826. Subsequently, the court clarified that “to be fundamental error, 

the error must go to the substance 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 discretion 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 from our original statutory authority approach 

and thereby created inconsistencies in our Lenihan jurisprudence (which are identified 

and analyzed in detail below). Notably, the uncertainty and 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 exception 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 reviewed 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 Writ of Habeas Corpus at 20, Gratzer v. 

Mahoney (No. 05-075) (“[T]his Court has recently shown 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 when 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 proposition that any sentence falling within 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 “neither of the parties has cited to any of these cases or 

offered such argument.” Thus, the Court “deem[s] it inappropriate 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 briefs, “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, 846 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 review of these precedents, in the context of the Lenihan issue 

presented by Garrymore, discloses glaring inconsistencies in our applications of the 

exception and consequent inequitable treatment of numerous defendants. 

¶77 When faced with similar situations in the past, our approach 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 inconsistency in this Court’s case law regarding 

the appropriate standard of review of criminal sentences. 

Montoya, ¶ 11. We therefore “[took] [that] opportunity to clarify the proper standard.” 

Montoya, ¶ 13. After tracing back through our case law to the source of the confusion, 

see Montoya, ¶¶ 13-14, we held that 

[t]his Court reviews a criminal 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 since reinstated the standard disapproved in Montoya. 

See State v. Leitheiser, 2006 MT 70, ¶ 13, 331 Mont. 464, ¶ 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 eventually will need to overrule either Leitheiser and 

Setters (and their progeny) or Montoya (and its progeny), notwithstanding 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. 178, ¶¶ 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 stood 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, 306 Mont. 215, ¶¶ 29-47, 32 P.3d 735, ¶¶ 29-47 (resolving 

the “inconsistency and confusion” over the proper test to be applied in a harmless error 

analysis, although the parties had not identified this inconsistency 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 whether 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 argued the inconsistency 

issue); State v. Brister, 2002 MT 13, ¶ 21, 308 Mont. 154, ¶ 21, 41 P.3d 314, ¶ 21 

(overruling three precedents—although neither of the parties had cited to any of these 

cases or offered such argument—to the extent they held that failure to raise a 

contemporaneous objection to an illegal sentence at the time of hearing results in a 

waiver of the defendant’s objection). 

¶79 Notwithstanding, the Court, it seems, given its refusal in the case at hand to 

confront the inconsistencies in our Lenihan jurisprudence, would henceforth passively 

permit the continuation of a dichotomy in our case law until a party cites to the cases and 
 44 

specifically argues for a resolution. (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 will 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 own 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 for two irreconcilable 

standards, we have a duty to remedy the conflict if for no other reason than to ensure that 

similarly situated litigants are, in the particular case and thereafter, treated equally—

which is the fundamental rationale on which 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 years to ‘square away’ inconsistent or 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 preferable and overruling other 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 arguments 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-inclusive 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 accept 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 the parties’ misconceptions of Lenihan created by our own 

confusing applications. 

¶81 In this regard, the Chief Justice’s Special Concurrence criticizes Garrymore for 

“merely cit[ing] to Lenihan and its progeny” for the proposition 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 analysis,” that a failure to raise a contemporaneous objection 

to an illegal sentence at the time of sentencing 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 superficiality 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 portion of her sentence imposing 

restitution costs. Vernes failed to raise an objection at the time of 

sentencing, but this Court will consider an appeal from an alleged illegal 

sentence in a criminal case, 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 the 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 the 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, despite 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. 154, ¶ 16, 41 P.3d 314, ¶ 16. 

Gallagher, ¶ 30. And in the case at hand, for that matter, the Court never explains why 

Garrymore’s sentencing claims satisfy the requisites for invoking Lenihan. 

¶82 Thus, while the Chief Justice’s admonition that “counsel must present more in the 

way of discussion and analysis regarding entitlement to the exception” is well-taken, it is 

also precisely why we must articulate 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 superficial and conflicting applications of 

Lenihan—why the requisites for invoking the exception 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 court has no authority to impose”); Brief of 

Respondent at 9-10, State v. Kotwicki (No. 05-178) (asserting that “[t]he purpose of the Lenihan
 47 

sufficiently apprised of the issue and the competing interests. Therefore, while I might 

otherwise agree with the Court that “it [is] inappropriate to undertake 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 undertake review of our case law to resolve 

inconsistencies therein, notwithstanding the parties’ failure to brief this issue fully. 

ii. The Lafley Line 

¶84 In the first line of cases that is inconsistent with our statutory authority approach 

under Lenihan, we determined that the appellant’s allegation did not satisfy 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 felony assault and sentenced to 

ten years in the Montana State Prison plus two 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 485 (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 unconstitutional); 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 this 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 who 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 the 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 sentence 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 sentencing court’s authority to impose a particular 

sentence derives solely from valid sentencing statutes.13

 13 This principle is also implicated where two allegedly conflicting 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 claimed that § 61-8-731, MCA (2003) (the felony 

DUI sentencing statute) conflicted with § 46-18-502, MCA (2003) (the persistent felony offender 

sentencing statute) and that the district court’s sentencing authority was constrained by the 
 49 

¶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 impose the two-year sentence, as follows: the 

weapon enhancement statute cannot be applied to me without violating the constitutional 

proscriptions against double jeopardy and cruel 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 weapon enhancement upon my conviction 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 extent authorized by the prevailing statute. 

Similarly, under some statutory schemes a sentencing 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 requirements [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 authorized 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 consideration 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, Section 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 situated defendants whose underlying convictions required proof of 
 50 

¶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 Brown’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 State’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 challenge was identical to Lafley’s (that the 

district court was without authority to apply 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 who is challenging the validity of the 

statute under which he was sentenced. An allegation that a sentence falls within the 

range authorized by the sentencing statute, but that the statute 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 that Garrymore may invoke Lenihan to have his otherwise 

procedurally barred challenge to the constitutionality 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 unconstitutional on its face. For 

purposes of Lenihan, this makes no difference. A sentence is (allegedly) illegal regardless of 

whether the validity of the sentencing statute 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 allegation satisfied the requisites for invoking Lenihan

when, in fact, it did not. In State v. McLeod, 2002 MT 348, 313 Mont. 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, when it actually was his fourth. McLeod, ¶¶ 7, 9-10. 

Therefore, McLeod alleged on appeal “that his sentence is illegal because it was 

predicated on misinformation about his criminal history, thus violating his due process 

rights in the Fourteenth Amendment of the United States Constitution and Article II, 

Section 17, of the Montana Constitution.” McLeod, ¶ 16. McLeod had not raised this 

issue in the district court; thus, he was procedurally barred from raising it on appeal 

unless he could invoke the Lenihan exception.16

¶91 We concluded that McLeod 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 statutorily 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 diligence at or before the time of sentencing, see McLeod, 

¶¶ 10, 14, 24; thus, McLeod had an opportunity to object to the misinformation concerning the 

number of his prior convictions. This fact distinguishes 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 proceeding—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 the time of sentencing because their 

previous convictions remained valid at the time of sentencing.” McLeod, ¶ 21. As such, the 

defendants in those cases would not be precluded by their failure to make a timely objection 

from pursuing post-sentencing challenges to their sentences. 
 52 

the offense of criminal possession of dangerous drugs (he was given the maximum fiveyear sentence, see McLeod, ¶ 11), and he was not challenging the legality of § 45-9-102. 

Therefore, his allegation, in substance, was analogous to Nelson’s, supra: that he might 

have received a lesser sentence within the statutorily authorized range had the court not 

relied on misinformation in the PSI. As explained 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 prison with no part of the sentence suspended. 

See Legg, ¶ 22. This was one-half the maximum allowed under law. See Legg, ¶ 52. On 

appeal, he claimed, inter alia, that his sentence 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 psychological 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 concluded that we could review the 

claim because Legg “has challenged the legal validity of his sentence 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 in 
 53 

Nelson. As in McLeod, Legg’s claim was not that the court had imposed a sentence 

which it had no statutory authority to impose; rather, he claimed that the court had acted 

arbitrarily within the sentencing range authorized by the statute. 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) was the result of an error in the process by which the 

sentence was selected within the statutorily authorized range. Otherwise, the Lenihan

exception would swallow the timely objection rule by making appellate review of any 

allegedly incorrect sentence possible. 

iv. The Micklon Line 

¶94 The third line of cases that is inconsistent 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 felony criminal possession of 

dangerous drugs with intent to distribute. The agreement provided that the State would 

dismiss the remaining counts of the information 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 pay the $55,000 in five annual installments, 

while the State requested that he be required to pay the entire amount within one year 
 54 

from the sentencing date. The district court agreed to Micklon’s request, on the condition 

that interest accrue on the balance of the fine at a rate of ten percent per year. See 

Micklon, ¶ 4. 

¶95 On appeal, Micklon contended “that the condition of his sentence requiring that 

interest accrue on the unpaid balance of his fine is illegal because no statutory authority 

exists for such a condition.” Micklon, ¶ 7. Micklon had 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 condition 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 could 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 conditions’ to guard against the possibility that the 

sentencing court may forego a more lenient sentence 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 burden on him, paying 

interest would be acceptable to him.” Micklon, ¶ 10. Thus, we reasoned that he had 
 55 

“affirmatively agreed to the inclusion of the interest condition in his sentence.” Micklon, 

¶ 10. We then cited the principle, long established in the non-sentencing context, that 

“[w]e will not put a district court in error for an action in which 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 appeal 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 actually 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 judge 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 point, 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 participated” principle had been applied in a line of cases 

involving alleged trial and 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 not allege that he was serving a 

sentence which was beyond the court’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 participate[]” in the imposition of the condition, as 

we concluded Micklon had done. Micklon, ¶ 10. Irrespective of the option he chooses, 

however, the defendant’s desire to avoid a harsher sentence still exists. 

¶98 Accordingly, it does not inevitably follow from the fact that a defendant 

“affirmatively agreed” to or seemingly “acquiesced” 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 regarding 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 seemingly “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 district court’s authority in sentencing a criminal defendant is 
 57 

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 sentencing authority of a court exists solely by virtue of a 

statutory grant of power and therefore cannot be exercised in any manner not specifically 

authorized.” (emphasis added, internal quotation marks omitted)). A court does not gain, 

by virtue of a defendant’s acquiescence or affirmative agreement, the power or authority 

to take a particular action that it does not otherwise have the power or authority to take.18 

Take, for example, an appeal by a defendant who, to evade imposition of a life sentence, 

bargained with the sentencing court and the prosecutor to serve two years in prison and 

have his left arm severed (a sentence for which 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. App. LEXIS 23291 at *31 (9th Cir. 2006) (“ ‘[T]he waiver 

concept was never intended as a means of allowing 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 that interest accrue on the balance of Micklon’s 

$55,000 fine was in fact illegal. We did not reach this issue because we concluded that Micklon 

had waived his right to challenge the interest condition 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 recognize that the statutorily authorized 

punishment for a given crime represents the Legislature’s judgment as to the appropriate 

range of penalties for that offense. An acquiescence or active participation rule would 

devalue this judgment and burden the community with costs that the Legislature has not 

deemed appropriate given the crime.19 We should not 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—notwithstanding an allegation that the 

sentencing court lacked statutory authority to impose the challenged sentence—where the 

defendant appears to have been complicit in its imposition, see Micklon, ¶ 10; Eaton, 

¶¶ 12-13; Erickson, ¶¶ 30, 34, is erroneous and should be overruled explicitly. 

E. Summation and Application 

¶102 To summarize, we may review any criminal sentence that was imposed, allegedly, 

in the absence of statutory authority, notwithstanding 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 incarceration or monitoring by a probation 

officer (pursuant to a suspended or deferred sentence) 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 interest in providing a speedy trial which exists separate from, 

and at times in opposition to, the interests of the accused”). 
 59 

sentence, an objection below is not a prerequisite to the challenging of the sentencing 

order alleged to be void.” (internal quotation marks omitted)). Accordingly, the Lenihan

exception to the timely objection rule is properly invoked by a defendant who alleges a 

colorable claim that the sentencing court lacked statutory authority to impose the 

challenged sentence. 

¶103 In this regard, I note that several types of colorable sentencing 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 sentencing statute; a term of or a condition on the sentence 

was not authorized by any statute; the sentence falls within the range authorized by the 

applicable sentencing statute, but the sentencing 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 prerequisites to that authority. Such allegations 

reflect the principle that a sentencing court has 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 appellant 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 sentencing court failed to fulfill an “affirmative 

duty” or that it erroneously selected a particular term within the range authorized by a 
 60 

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 the 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 never had the opportunity to object 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 incarceration 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 review 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 sentences 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 parameters set by the applicable sentencing statutes, 

Montoya, ¶ 15, or (iii) whether the court adhered to the affirmative 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 “legality” 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 statutory law. We review the district court’s application of the 

sentencing statutes to determine whether the district court was correct.” (citation omitted)). 

Lenihan, by contrast, is not concerned with whether the challenged sentence is “correct.” 

Indeed, under such an approach, 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 review 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 procedurally 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 sentence enhancement after making additional 

findings of fact on contested matters. Jason Garrymore had both a 

constitutional and a statutory right not to have the enhancement imposed 

unless it was charged in the Information, 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 was sentenced within the ranges authorized 

by § 45-5-102(2), MCA (authorizing a sentence of life imprisonment) and § 46-18-

202(2), MCA (authorizing 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, Sections 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, alternatively, because a 
 62 

sentencing court’s application of § 46-18-202(2) is constrained by § 46-1-401. Such 

allegations constitute colorable 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 constitutional and statutory rights to jury trial 

and due process?

¶107 Garrymore was convicted of violating § 45-5-102(1)(a), MCA (2001).21 This 

offense is punishable as follows: 

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 time of the commission of the 

offense, by life imprisonment, or by imprisonment 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 imprisonment” or “imprisonment in the 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 sentence, requires that he serve at least 30 

 21 Unless specified otherwise, further statutory references are to the 2001 Montana Code 

Annotated, which was in effect at the time Garrymore 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 the 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 authorizes a sentencing judge to “impose the 

restriction that the offender is ineligible for parole” on the basis of facts not found by a 

jury beyond a reasonable doubt; that a sentencing judge is prohibited also by statute from 

restricting a prisoner’s parole eligibility on the basis of facts not found by a jury beyond a 

reasonable doubt; and that the District Court, therefore, lacked authority to add the parole 

eligibility restriction to Garrymore’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 the 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 conviction 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 quotation marks omitted) (quoting 4 W. Blackstone, 

Commentaries on the Laws of England 369-70 (1769)); and second, that “the prosecution 

must convince the trier of all 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 executive 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 violation of these constitutional protections. 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 increase 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 indictment 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 guilty in New Jersey state court 

to three of the charged offenses, 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, as 
 65 

part of the plea agreement, the State reserved the right to request the imposition of an 

enhanced sentence on the ground that Count 18 was committed with a biased purpose, 

and Apprendi, correspondingly, reserved the right to challenge the hate crime sentence 

enhancement as unconstitutional. Apprendi, 530 U.S. at 470, 120 S.Ct. at 2352. 

¶113 At the plea hearing, the trial judge heard sufficient evidence to establish 

Apprendi’s guilt on all three counts. Thereafter, 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 “purpose” for the shooting 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 preponderance 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 range of punishment for Count 18 to between 10 

and 20 years. Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351. The judge then 

sentenced him to a 12-year term of imprisonment, which was 2 years greater than the 

maximum punishment authorized by the facts to which he had admitted guilt. Apprendi, 

530 U.S. at 469, 471, 120 S.Ct. at 2351, 2352. (Apprendi 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 considered whether the foregoing procedures 

comported with the Sixth and Fourteenth Amendments. At the outset of its analysis, the 

Court rejected the notion that this question could be answered by determining whether 

the finding that Apprendi’s crime was motivated by racial bias and committed with a 

purpose to intimidate was an “element” of the offense or merely a sentencing “factor” or 

“enhancement.” 

New Jersey threatened Apprendi with certain pains if he unlawfully 

possessed a weapon and with additional pains if he selected his victims 

with a purpose to intimidate them because 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 describe 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 element of the offense.’ 

. . . [T]he mere presence of this ‘enhancement’ in a sentencing statute does not define its 

character.”).22

¶115 The Court then examined the roles historically served by juries and judges in 

criminal proceedings and the measure of persuasion to which prosecutors were held. 

Among other things, the Court explained 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 sanction-specific; it prescribed 

a particular sentence for each offense. The judge was meant simply to 

impose that sentence (unless he thought in the circumstances 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 pronounced or awarded by the judges, is not their 

determination or sentence, but the determination and sentence of the law.” 

Apprendi, 530 U.S. at 479-80, 120 S.Ct. at 2357 (second alteration 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 the range of sentencing options prescribed 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 consideration various factors relating both to the 

offense and the offender in imposing judgment, such discretion could only be exercised 

“within the range prescribed by statute” 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 proper to influence a judicious magistrate to make it heavier 

or lighter, yet not to exceed the limits fixed for what of crime is within the allegation and 

the verdict.’ ” (alteration in original) (quoting 1 J. Bishop, Criminal Law § 948 (9th ed. 

1923))). 

¶117 Thus, the Court observed, the historical evidence established that “punishment 

was, by law, tied to the offense” and that American judges “exercised sentencing 
 68 

discretion within a legally prescribed range.” Apprendi, 530 U.S. at 483 n.10, 120 S.Ct. 

at 2359 n.10. This evidence, in turn, pointed to “a single, consistent 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 that 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 inconsistency 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 defendant 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 deciding Apprendi’s claim, since 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 Court 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 procedure for cogent reasons.” Prosecution 

subjects the criminal defendant both to “the possibility that he may lose his 

liberty upon conviction and . . . the certainty that he would be stigmatized 

by the conviction.” We thus require this, among other, procedural 

protections in order to “provid[e] concrete substance 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 (alterations 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 heightened degree of persuasion required in 

criminal trials, the Court concluded that, except for the fact of recidivism, “it is 

unconstitutional for a legislature to remove from the jury the assessment of facts that 

increase the prescribed range of penalties to which a criminal defendant is exposed.” 

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363 (alteration 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 jury, and proved beyond a reasonable doubt.” 

Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63; see also Apprendi, 530 U.S. at 499, 120 

S.Ct. at 2367 (Scalia, J., concurring) (“[A]ll the 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 defendant 
 70 

to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi, 530 

U.S. at 494, 120 S.Ct. at 2365. For this reason, as stated earlier, the “elusive distinction 

between ‘elements’ and ‘sentencing factors’ ” is immaterial. Apprendi, 530 U.S. at 494, 

120 S.Ct. at 2365.23

¶121 In light of this constitutional rule, the Court concluded that New Jersey’s statutory 

scheme could not stand. Pursuant to that scheme, the trial judge in Apprendi’s case had 

been allowed to impose a punishment greater than the maximum punishment authorized 

for the crime of unlawfully possessing a firearm, based on the judge’s finding by a 

preponderance of the evidence that Apprendi’s purpose for unlawfully possessing a 

firearm was to intimidate his victim on the basis 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 historic link between verdict and 

judgment and the consistent limitation on judges’ discretion to operate within the limits 

 23 The Court clarified that the term “sentencing factor” is not “devoid 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 offense 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 hand, 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 years 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 restriction “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 offender is ineligible for parole and 

 24 Of course, a jury verdict is not required 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 facts reflected in the 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 possibility of parole is based. 
 72 

participation in the supervised release program while serving that term” (emphasis 

added). By virtue of the word “may,” it is clear that imposing a parole eligibility 

restriction is a sentencing option available to a sentencing judge to be exercised at his or 

her discretion whenever the sentence at issue 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 includes 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 maximum for the underlying offense.” Cavanaugh, 

189 Mont. at 278, 615 P.2d at 893. Rather, it “insures that 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 legislature has made available to district 

judges in the course of ordinary sentencing. The full restriction on parole 

and furlough eligibility permitted by section 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 punishments 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, which depends on the technical meaning of 
 73 

“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 jury, and proved beyond a 

reasonable doubt.” (emphasis added)). The Court 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 the “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 separate sentencing hearing “before the court 

alone” to determine “the existence or nonexistence of [certain 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 the jury’s verdict finding Ring 

guilty of first-degree felony murder, the maximum 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 contingent on the finding of a fact, that fact—no 
 74 

matter how the State labels it—must be found 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 610, 122 S.Ct. at 

2444 (Scalia, J., concurring) (“[T]he fundamental meaning of the jury-trial guarantee of 

the Sixth Amendment is that all facts essential to imposition of the level of punishment 

that the defendant receives—whether the statute 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 maximum 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 formal sense,’ for it explicitly cross-references the statutory 

provision requiring the finding of an aggravating 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 pleaded 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. However, other provisions of state law mandated a “standard 

range” sentence of 49 to 53 months for Blakely’s offense. Blakely, 542 U.S. at 299, 124 

S.Ct. at 2535. A judge could impose a sentence above the standard range if he found 

“substantial and compelling reasons justifying an exceptional sentence.” Blakely, 542 

U.S. at 299, 124 S.Ct. at 2535 (internal quotation marks omitted). However, “[a] reason 

offered to justify an exceptional sentence [could] be considered only if it [took] into 
 75 

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 was 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 . . . that 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 admitted 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 verdict alone does not allow, the jury has 

not found all the facts “which the law makes essential to the punishment,” 

and the judge exceeds his 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 2538. A jury “could not function as 

circuitbreaker in the State’s machinery of justice if it were relegated to making a 
 76 

determination that the defendant at some point 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 the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 

303, 124 S.Ct. at 2537 (emphasis omitted). For this reason, Garrymore’s challenge 

cannot be answered simply by pointing out that § 45-5-102(2) authorizes a sentence of 

“life imprisonment” and § 46-18-202(2) permits 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 the “without possibility 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 appropriate order any person confined in a 

state prison, except . . . persons serving sentences imposed under 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 (subject to the timing requirements of § 46-23-201(2)-(3)), unless that 

eligibility is restricted after further fact-finding under § 46-18-202(2). In other words, 

“[a] ‘life sentence’ [does] not mean the offender’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 years” include an implicit presumption 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 guarantee that a prisoner who 

is eligible for parole will in fact be paroled, the imposition of a parole eligibility restriction 

makes for a greater restriction on the prisoner’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, contemplates 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, this scheme does not create the Apprendi violation 

Garrymore perceives. For one thing, the placement of § 46-23-201 in the Code does not 

support the conclusion that parole eligibility is a presumption, implicit in sentences 

imposed under § 45-5-102(2), that must be overcome through additional judicial factfinding. Whereas § 46-18-202(2) appears in the “Sentence and Judgment” chapter of 

Title 46, follows a provision outlining “[s]entences 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 granting of probation, parole, and clemency. 

In the absence of explicit language to the contrary, this organization suggests that the 

provision on granting nonmedical parole (§ 46-23-201) yields to the provision on 

restricting an offender’s parole eligibility (§ 46-18-202(2)), not vice versa.26

¶134 Furthermore, as discussed above, § 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 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 suggestion 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 exceeding one year, contradicts 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 overcoming 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 for parole and participation 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 provision, which imposes a specific 

requirement on a judge who restricts a defendant’s parole eligibility, undoubtedly 

contemplates fact-finding on the part of the sentencing 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 States of Utah and California but moved from their 

jurisdiction and charges were dismissed”; “[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 another 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 trial 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 show remorse for the offense of which he has been 

convicted when he has a right to appeal the conviction and has invoked his right to remain silent 

at the sentencing hearing or expressly maintained 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 violated when 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 requirement 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). Indeed, the Court has “never 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 relevant 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 determination 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 judicial 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 the jury’s traditional function of finding 

the facts essential to lawful imposition 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 bearing 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 § 46-18-202(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 the reasons for [imposing the restriction] in 

writing.” Section 46-18-202(2), MCA. Washington’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 computing the standard range sentence—i.e., on the basis of the 

facts admitted in Blakely’s guilty plea. Rather, “ ‘[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 standard range sentence for the offense.’ ” 

Blakely, 542 U.S. at 304, 124 S.Ct. at 2537 (alteration in original, emphasis added). 

Thus, the judge had to find additional facts—facts not already admitted 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 into account facts reflected 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 furlough eligibility is necessary for ‘the 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 as 
 82 

¶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 (Ariz. 2005), if the death penalty is not 

imposed for first-degree murder the only other possible sentences are life with the 

possibility of release after a specified period (“life”) or life with no possibility of eventual 

release (“natural life”). See Fell, ¶ 1. Although “nothing in [the statutory provision] 

required that any specific fact be found before 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 provide that a defendant “shall” receive life unless 

certain facts are found. To the contrary, the statute 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 remainder 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 before 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 discretion of the sentencing court; they 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 

shall impose the restriction as part of the sentence and the judgment must contain a statement of 

the reasons for the restriction” (emphasis added). In other words, if the judge “finds that the 

restriction is necessary for the protection 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 the third sentence’s mandate). Because 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 society, 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 parole eligibility. The Montana Legislature did 

not make an increase in a defendant’s punishment 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). Rather, § 46-18-202(2) permits the court to impose the 

restriction in its discretion: “the sentencing judge may also impose the restriction that the 

offender is ineligible for parole” (emphasis added). 

¶140 Garrymore cites a number of cases in his briefs and his notices of supplemental 

authority that reach a contrary result. These 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 which justify a different minimum term. 

If the court finds that the aggravating factors outweigh any mitigating 

factors, the minimum term may be longer than 35 years, up to and 

including life without parole. If the court 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, internal quotation marks omitted). 

¶141 Interpreting this provision, the Vermont Supreme Court stated that “[t]he 

maximum sentence the court may impose . . . without 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 minimum terms accompanying sentences of life 

imprisonment.” Provost, ¶ 17. It is not surprising, therefore, that the court ultimately 

concluded that the statute “violates the rule in Apprendi and Blakely because it requires 

the sentencing court to weigh specific aggravating and mitigating factors not found by a 

jury beyond a reasonable 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 judge’s finding that a prior 

conviction constitutes a ‘heinous crime’ affects the ‘statutory 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, the punishments provided in § 45-5-102(2) do 

not contain a presumption of parole eligibility 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 for parole. Rather, the maximum sentence the jury’s guilty 

verdict authorized the District Court to impose in this case was “life imprisonment” or 

“imprisonment in the state prison for a term of not . . . more than 100 years,” without the 
 85 

possibility of parole. For this 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 Sixth 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 incarceration 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 unanimously found in 

a separate finding that the enhancing act, omission, or fact occurred beyond 

a reasonable doubt; . . . 

. . . . 

(3) An enhancing act, omission, or fact is an act, omission, or fact, 

whether stated in the statute defining the charged offense or stated in 

another statute, that is not included in the statutory definition of the 

elements of the charged offense and that allows or requires a sentencing 

court to add to, as provided by statute, an incarceration period provided by 

statute for the charged offense or to impose the death penalty instead of a 

statutory incarceration period provided by statute for the charged offense. 

 29 In his brief, Garrymore cites the 2001 version of § 46-1-401(3), but he quotes the 2003 

version of this statute. The differences between these two versions have no substantive effect on 

Garrymore’s claim; however, for the sake of accuracy, 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 other 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 sentencing judge to restrict an offender’s parole 

eligibility based on facts not found by a jury beyond a reasonable doubt; that § 46-1-401 

prevails over § 46-18-202(2); and that the District 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. Sections 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 identical 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 imposing the parole eligibility restriction on 

Garrymore’s sentence were not facts “that allow[ed] or require[d] [the] . . . court to add 

to, as provided by statute, an incarceration period provided 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 the District Court to 

impose a sentence of “life imprisonment” 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 not 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 deemed him ineligible 

for parole under § 46-18-202(2) based on facts 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 actions, 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 interpretation 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 Judicial 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 misdemeanor criminal defendant 

to exercise his right to a jury trial only once—either in justice court or in district court on 

trial de novo. See Woirhaye, ¶¶ 6, 12-19, 25-26. 

¶147 Yet, while we have interpreted some of our state constitutional provisions as 

providing more protection than do their federal counterparts, Garrymore has not 

explained, with respect to his specific sentence, why Sections 24 and 26 dictate a result 
 88 

contrary to the result reached above under Apprendi. Woirhaye, which applied the jury 

trial right in an entirely different context, 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 authorized 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 parole restriction imposed in 

this case violated Jason’s rights, and is illegal.” Accordingly, Garrymore is not entitled 

to relief on his state constitutional claim. 

CONCLUSION 

¶149 Although Garrymore did not object during the sentencing 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 (because § 46-18-202(2) is 

invalid on constitutional and statutory grounds) satisfies the 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 a 
 89 

term of not . . . more than 100 years,” without the possibility of parole. 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. Cotter, 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 proposed 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 extent that our decision in Micklon might be construed to preclude a 

Lenihan challenge under other circumstances, I would agree that the conclusion reached 

by Justice Nelson in ¶ 101 is legally correct. 

 /S/ PATRICIA COTTER