NO. 95-400

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

TAMMY SWOBODA.

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Roberta A. Drew, Deputy Public Defender,

Yellowstone County Public Defenders,

Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Carol Schmidt, Ass't Attorney General,

Helena, Montana

Marcia Good Sept, Deputy Yellowstone County

Attorney, Billings, Montana

Filed:

Submitted on Briefs: April 11, 1996

Decided: May 17, 1996
Justice W. William Leaphart delivered the Opinion of the Court.

Tammy Swoboda (Swoboda) appeals from her sentence imposed by

the Yellowstone County, Thirteenth Judicial District Court.

Swoboda pled guilty to the crime of sexual abuse of children, a

felony. The court committed Swoboda to the Department of

Corrections and Human Services for fifteen years. We affirm.

The issue on appeal is as follows:

Did the District Court abuse its discretion when it

failed to consider and discuss alternatives to

imprisonment for a nonviolent felony offense pursuant to

§§ 46-18-225, and 46-18-201(11) [formerly(l MCA,

before sentencing Swoboda to a term of imprisonment?

We review a sentence on appeal to determine whether the

sentencing court clearly abused its discretion in imposing

sentence. State v. Blake (Mont. 1995), 908 P.2d 676, 677, 52

St.Rep. 1269, 1270; State v. Beach (1985), 217 Mont. 132, 153, 705

P.2d 94, 107. Criminal sentencing alternatives are strictly a

matter of statute in Montana. State v. LaMere (19951, 272 Mont.

355, 358, 900 P.2d 926, 928; State v. Stevens (1993), 259 Mont.

114, 115, 854 P.2d 336, 337. Therefore, our standard of review is

whether the District Court correctly interpreted the applicable

statutes. LaMere, 900 P.2d at 928.

Swoboda qualified as a nonviolent felony offender. She argues

that Montana law, § 46-18-201(11), MCA, requires the sentencing

court to consider alternatives to incarceration, including the ten

sentencing criteria found in § 46-18-225, MCA, when sentencing

nonviolent offenders. If the court does not select alternatives to

imprisonment it must state its reasons for not doing so. Section

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46-18-201(U), MCA. Swoboda argues that the court failed to

fulfill this statutory requirement.

In three recent cases in which district courts failed to

consider alternatives to incarceration for nonviolent offenders, we

remanded for resentencing. State v. Pence (1995), 273 Mont. 223,

902 P.2d 41; LaMere, 900 P.2d 926; Stevens, 854 P.2d 336. However,

in these cases the defendants raised the issue of consideration of

alternatives to incarceration before the district court, or, as in

Stevens, the State conceded that the statute had not been followed.

Stevens, 854 P.2d at 337; see also State v. Nelson (Mont. 1995),

906 P.2d 663, 52 St.Rep. 1069.

However, in the instant case, the issue of consideration of

alternatives to imprisonment was not raised before the District

Court and the State did not concede that the statute had not been

followed. The transcript of the sentencing hearing reveals that

Swoboda did not object to the court's failure to consider

sentencing alternatives nor did she request reconsideration.

Swoboda did not alert the District Court to the alleged failure to

consider alternatives to imprisonment. Nelson, 906 P.2d at 667.

Thus, the court was not able to correct any deficiency in the

sentencing process. Nelson, 906 P.2d at 667.

This Court does not review issues which were not preserved for

appeal in the court below. Sections 46-20-205 and 46-20-701, MCA.

We have held that failure to raise an issue before the district

court bars a defendant from raising the issue on appeal under § 46-

20-104, MCA. Nelson, 906 P.2d at 667; State v. Arlington (1994),

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265 Mont. 127, 151, 875 P.2d 307, 321.

An exception to this general rule is found in the holdings of

State v. Hatfield (1993), 256 Mont. 340, 846 P.2d 1025 and State v.

Lenihan (1979), 184 Mont. 338, 602 P.2d 997. See also Nelson, 906

P.2d at 667. In those cases we held 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. Hatfield, 846

P.2d at 1029; Lenihan, 602 P.2d at 1000.

Both Hatfield and Lenihan involved situations where the

judgment was void due to lack of statutory authority. In Hatfield

and Lenihan, the district courts' sentences were illegal or in

excess of statutory authority because the courts lacked the

specific statutory authority to impose the sentence. See Nelson,

906 P.2d at 668. Unlike Hatfield and Lenihan, Swoboda's sentence

is neither illegal nor does it exceed statutory authority.

Swoboda was sentenced to fifteen years with the Department of

Corrections and Human Services for the offense of sexual abuse of

children, a felony, in violation of § 45-5-625, MCA. When Swoboda

was sentenced, a person convicted of this offense could be punished

by imprisonment for a term not to exceed 50 years or fined not more

than $10,000, or both. Section 45-5-625(2) (b), MCA (1993).

Swoboda's fifteen-year sentence is thus neither illegal nor in

excess of the statutory mandates.

Additionally, §§ 46-18-201(11) and 46-18-225, MCA, do not

preclude a court from sentencing a nonviolent felony offender to

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prison. Nelson, 906 P.2d at 668. Section 46-18-225, MCA, states:

"Prior to sentencing a nonviolent felony offender to a term of

imprisonment . . I1 the court shall take into account certain

criteria (emphasis added). Section 46-18-201(11) states: "If the

offender is subsequently sentenced to the state prison . . . 'I the

court shall state why alternatives to imprisonment were not

selected (emphasis added). Although these statutes require

consideration of alternatives to imprisonment, such consideration

would not have necessarily changed the court's final sentence for

Swoboda.

Finally, Swoboda argues that the District Court violated

Swoboda's rights of due process by not considering alternatives to

imprisonment. Therefore, Swoboda alleges, even though she did not

object to the District Court's failure to consider alternatives to

imprisonment, we should review her sentencing under the "plain

error" exception to § 46-20-104, MCA. Section 46-20-104(2), MCA,

provides:

Upon appeal from a judgment, the court may review

the verdict or decision and any alleged error objected to

which involves the merits or necessarily affects the

judgment. Failure to make a timely objection during

trial constitutes a waiver of the objection except as

provided in 46-20-701(2).

The exceptions provided in 5 46-20-701(2)l, MCA, are as follows:

Any error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded.

No claim alleging an error affecting jurisdictional or

constitutional rights may be noticed on appeal, if the

I Except for the "[convicted person]" language, this 1995

version of the statute is identical to the 1993 version in effect

at the time of Swoboda's sentencing.

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alleged error was not objected to as provided in 46-20-

104, unless the defendant [convicted person] establishes

that the error was prejudicial as to his guilt or

punishment and that:

(a) the right asserted in the claim did not exist

at the time of the trial and has been determined to be

retroactive in its application;

(b) the prosecutor, the judge, or a law enforcement

agency suppressed evidence from the defendant [convicted

person1 or his attorney that prevented the claim from

being raised and disposed of; or

(c) material and controlling facts upon which the

claim is predicated were not known to the defendant

[convicted person] or his attorney and could not have

been ascertained by the exercise of reasonable diligence.

Swoboda does not argue that any of exceptions provided by

subsections (a), (b), or (c), are present. Rather, Swoboda's

contention concerning these exceptions is limited to the following

argument:

The legislature has provided a process which a sentencing

court must follow prior to determining whether a person

convicted of a crime shouldbe imprisoned. §46-18-201 and

546-18-225. In the instant case, the sentencing court

did not consider the sentencing statutes in violation of

Swoboda's due process rights. Such a due process

violation is manifestly unjust. Consequently, Swoboda

asks this court to find that the sentencing court abused

its discretion when it failed to comply with Swoboda's

due process rights prior to passing sentence.

Swoboda's failure to discuss the provisions of § 46-20-701(2) (a)(b)

and (c) defeats any application of the statutory exceptions in this

case. Nonetheless, we recently held that the doctrine of common

law plain error review can continue to survive despite the

existence of Montana's plain error statute. State v. Finley (Mont.

1996), _ P.2d __, 53 St.Rep. 310. In Finley, we discussed the

background and application of the common law doctrine of plain

error as well as the statutory requirements of § 46-70-701(2), MCA,

in Montana. In Finlev, we articulated an understandable rationale

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and rule concerning plain error. Finley, 53 St.Rep. at 315. In

Finlev, we held:

this Court may discretionarily review claimed errors that

implicate a criminal defendant's fundamental

constitutional rights, even if no contemporaneous

objection is made and notwithstanding the inapplicability

of the § 46-20-701(2), MCA, criteria, where failing to

review the claimed error at issue may result in a

manifest miscarriage of justice, may leave unsettled the

question of the fundamental fairness of the trial or

proceedings, or may compromise the integrity of the

judicial process.

Finlev, 53 St.Rep. at 315.

Here, our refusal to review the District Court's failure to

consider alternative to imprisonment does not rise to the level of

a manifest miscarriage of justice, will not leave unsettled the

question of the fundamental fairness of the trial or proceedings,

nor will it compromise the integrity of the judicial process.

Finlev, 53 St.Rep. at 315. As stated earlier, Swoboda's sentence

is neither illegal nor in excess of the statutory mandates. Under

§§ 46-18-201(11) and 46-18-225, MCA, the District Court was not

precluded from sentencing a nonviolent felony offender to prison.

Nelson, 906 P.2d at 668. Although these statutes require

consideration of alternatives to imprisonment, such consideration

would not have necessarily changed the court's final sentence for

Swoboda. Thus, we decline to review this unobjected-to error by

the District Court under the plain error doctrine as articulated in

Finlev.

We do, however, restate our caution from Nelson:

Prior to sentencing a nonviolent felony offender to

imprisonment, the court must examine and take into

account the ten specific criteria set forth in § 46-18-

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225, MCA.

Section 225 requires consideration of such

thinqs as where the needs of the offender

would be best served. These statutes do not

provide the court with any discretion. The

legislature has directed trial courts to make

these considerations before any nonviolent

offender is incarcerated.

LaMere, 900 P.2d at 928 (emphasis added). Explicit,

rather than implicit consideration of the criteria makes

for a much more meaningful appellate review. In future

cases, we strongly encourage district courts, in imposing

sentence upon nonviolent offenders, to specifically

recognize and address the criteria set forth in § 46-18-

225, MCA.

Nelson, 906 P.2d at 668. Notwithstanding our recognition of the

importance of trial courts specifically addressing the criteria set

forth in § 46-18-225, MCA, Swoboda, having failed to object to the

sentence or to move for reconsideration, is barred from raising the

issue of consideration of alternatives on appeal. Affirmed.

We concur: /