DA 07-0099

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 391

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

KELLY DALE CLARK,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Lake, Cause No. DC 2002-099

Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell; 

Assistant Attorney General, Helena, Montana

Mitch Young, Lake County Attorney, Polson, Montana

Submitted on Briefs: August 20, 2008

 Decided: November 20, 2008

Filed:

__________________________________________

Clerk

November 20 2008
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Appellant Kelly Dale Clark (Clark) appeals the denial of his motion for a new 

trial, as well as the sentence imposed on him for a conviction of sexual assault. We 

affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The factual background in this case was previously described in State v. Clark, 

2005 MT 330, 330 Mont. 8, 125 P.3d 1099 (Clark I).

¶3 On or about July 18, 2002, Clark’s fourteen year-old stepdaughter (T.C.) returned 

home from babysitting and changed into a bikini in preparation to mow the lawn. Clark

I, ¶ 5. Clark was home at the time, having returned from playing golf and was lying on a 

couch in the living room. T.C. later testified that Clark asked her if one of her breasts 

was larger than the other as she came into the living room, had her kneel beside him, and 

soon thereafter pushed up her bikini top and exposed her breasts. T.C. reacted by 

covering up her breasts with her hands to which Clark allegedly replied “It’s not like I 

haven’t seen boobs before.” Clark I, ¶ 5. He then proceeded to show T.C. “boob 

exercises” she could perform by pushing her breasts up, down, and sideways. T.C. also 

stated that Clark had touched her nipples in the process. After the incident, Clark told 

T.C. that she did not need to tell her mother about what had happened. Clark I, ¶ 5.

¶4 T.C. later related these incidents to her mother Christina, and was eventually 

interviewed by law enforcement officials concerning the matter. Clark I, ¶¶ 6, 9. After 

T.C. reported the incident, Christina temporarily left Clark and obtained a restraining 

order against him. As a result of the investigation by law enforcement officials, Clark 
3

was arrested and charged with sexual assault on July 31, 2002. Not long after his arrest, 

Clark and Christina were back in contact with one another. After resuming her 

relationship with Clark, Christina informed T.C. that she did not want her in her life as 

long as she did not tell the truth. Clark I, ¶ 9. At Christina’s urging, T.C. contacted law 

enforcement and stated that she had lied during her interview. She was re-interviewed by 

law enforcement officials and asked to explain what she had lied about. T.C. essentially 

recounted the same facts adding only that she did not think Clark’s acts were “perverted.” 

When asked by law enforcement what prompted her to attempt to change her story, she 

recounted Christina’s ultimatum that T.C. could no longer be in her life if she “kept 

lying.”

¶5 Clark was tried before a jury in February 2003. Clark I, ¶ 7. At trial, T.C.’s 

credibility was questioned and evidence was presented showing that she had lied on 

several occasions and changed her story concerning the incident. When T.C. testified at 

trial, she continued to insist that she had lied in her first interview, but was unable to 

articulate what precisely she had lied about. Moreover, T.C. testified that Clark had 

initiated the contact, lifted up her bikini top, and touched her breasts.

¶6 At trial, Clark testified on his own behalf and offered a different version of events. 

Clark did not dispute that he had touched T.C.’s breasts, but testified that T.C. had 

initiated the conversation and had herself lifted up her bikini top, and that he had only 

touched her breasts with two fingers on the inside of her breasts in order to verify 

whether they were of unequal size. Clark I, ¶ 11. Clark also stated that he was shocked

when T.C. lifted up her bikini top, and reacted in surprise by reaching out and touching 
4

her breasts. He also denied that he had actually performed breast exercises on her, but 

instead simply described to her the breast exercises that she could do and that she 

performed them on herself. Additionally, in closing arguments Clark maintained that 

T.C. was not a reliable witness based on her recanted statements and admitted lies, and 

that there was no evidence that Clark’s touching of T.C.’s breasts was sexual in nature.

¶7 A jury ultimately convicted Clark of sexual assault and he was sentenced to 

twenty years in prison with sixteen suspended. Clark I, ¶ 16. After Clark’s conviction, 

T.C. was sent to live with a woman named Alana Myers and her husband, who was a 

pastor in Bigfork. Clark I, ¶ 14. Both Clark and Christina warned Myers that T.C. had a 

tendency to lie. While T.C. was living with her, Myers told her that if she had lied about 

the incident with Clark, she needed to tell the truth. T.C. subsequently recanted her 

testimony and memorialized her recantation in a letter, which she swore to under oath.

¶8 In the letter, T.C. stated that she, not Clark, had initiated the interaction between 

them by asking Clark if one of her breasts was larger than the other. T.C. also claimed

that she, not Clark, had lifted up her bikini top and exposed her breasts to Clark. 

Additionally, T.C. stated that Clark did not actually touch her nipples and that her 

previous testimony to that effect was a lie. Instead, T.C. stated that Clark merely touched 

the side of her breasts. Furthermore, T.C. stated that Clark did not perform the breast 

exercises directly on her, but instead demonstrated them on himself. T.C also stated that 

while the interaction was a little uncomfortable, it was only due to the fact that the 

conversation involved sexual matters, and not because she thought Clark was after her, 

coming on to her, or wanted to do more to her than what she initially asked. At the end 
5

of this written statement, T.C. reiterated that she saw nothing “perverted or wrong” in 

what happened, and blamed any characterizations to the contrary on the twisting of her 

words by the prosecution during her testimony at trial.

¶9 In March 2003, Clark moved for a new trial on the basis of T.C.’s letter. Clark I, 

¶ 15. The District Court held a hearing on this motion, but ultimately denied it. Clark 

appealed. On appeal, we reversed the District Court’s denial of Clark’s motion for a new 

trial. In Clark I, we revisited and then revised the analysis to be employed by a district 

court when considering a defendant’s motion for a new trial. Clark I, ¶¶ 27-38. We 

stated that in order to prevail on a motion for a new trial in light of newly-discovered 

evidence, the defendant must satisfy the following five-factor test:

(1) The evidence must have been discovered since the defendant’s trial;

(2) the failure to discover the evidence sooner must not be the result of a 

lack of diligence on the defendant's part;

(3) the evidence must be material to the issues at trial;

(4) the evidence must be neither cumulative nor merely impeaching; and

(5) the evidence must indicate that a new trial has a reasonable probability 

of resulting in a different outcome.

Clark I, ¶ 34.

¶10 Under this revised standard, we reversed the district court’s denial of Clark’s 

motion because of “our inability to glean from the record the District Court’s reasons for 

denying the motion,” and because we could not determine whether the district court had 

correctly applied the law. Clark I, ¶ 42. Thus, we remanded the case “for the District 

Court to undertake anew Clark’s motion for a new trial.” Clark I, ¶ 43. 
6

¶11 On February 23, 2006, the District Court held a new hearing on Clark’s motion.

At this hearing, counsel for parties presented oral argument but did not present new 

testimony or evidence. After this hearing, the District Court once again denied Clark’s 

motion for a new trial, and issued an order explaining its analysis.

¶12 In its analysis, the District Court reviewed the evidence and testimony that had 

been presented at the first hearing on a new trial, and concluded that factors (1) through 

(3) of the Clark I test were satisfied, but that factors (4) and (5) were not. At the first 

hearing in 2003, T.C. testified to the version of events as contained in the letter. 

However, she nonetheless asserted that “she was shocked and surprised when the 

defendant touched her breast.” Clark also testified at the 2003 hearing, reiterating his 

version of events as related at trial. With respect to factor (4), the District Court 

concluded that the new evidence was cumulative and merely impeaching. Under factor 

(5), the District Court concluded there was not a reasonable probability that the 

consideration of T.C.’s letter by a jury would result in a different outcome. The District 

Court noted that it was still undisputed that Clark had touched T.C.’s breasts. The 

District Court further observed that the only factual change in events as set forth in the

letter was that T.C. now stated that she, not Clark, initiated the interaction and lifted up 

her top, and that Clark’s touching of her breasts was not “perverted.” However, the 

District Court noted that the jury had already heard this version of events in Clark’s 

testimony at trial.

¶13 The jury had also already heard evidence concerning T.C.’s reputation for lying 

and her motive for recanting her various versions of events. The District Court observed
7

that in Clark I we expressed the view that child recantations are notoriously unreliable 

and suspect. In this regard, the District Court noted that T.C. had been physically and 

emotionally removed from her mother as a result of her allegations against Clark and 

specifically advised that this separation would continue as long as she continued to make 

allegations against Clark. Additionally, T.C. had received encouragement to recant her 

previous testimony from at least four separate authority figures, including her mother, 

stepfather, counselor, and her pastor’s wife. Moreover, she still testified at the hearing on 

Clark’s motion for a new trial that his actions “shocked and surprised her.” This 

testimony was inconsistent with her claim that Clark’s actions in touching her breasts 

were consistent with his role as a father figure, thus weakening further the credibility of 

the letter. Additionally, the District Court observed that Clark’s testimony that he too 

was “shocked and surprised” when T.C. pulled down her top was inconsistent with what 

he actually did at the time, “which was to reach toward T.C. and put his fingers on her 

breast.” In light of the inherent contradictions of both T.C.’s latest recantation and 

Clark’s own testimony at trial, the District Court concluded that T.C.’s letter would not 

be believed by a jury, and its consideration would not lead to a reasonable probability of

a different outcome.

¶14 After the District Court again denied his motion for a new trial pursuant to our 

order in Clark I, Clark moved to amend the sentence originally imposed on him on 

December 11, 2003. The District Court had sentenced Clark to twenty years in prison 

with sixteen suspended and ordered Clark to complete Phase I and II of sexual offender 

treatment before becoming eligible for parole. As a component of Phase II treatment
8

offered at the Montana State Prison, Clark would be required to admit his guilt to the 

sexual assault charge. Phase II sex offender treatment for “deniers,” i.e., those who are 

unable or unwilling to admit their guilt, was only offered outside of prison. Because he 

steadfastly denied his guilt, Clark argued that he could not complete Phase II unless he 

relinquished his constitutionally guaranteed right against self-incrimination under the 

Fifth Amendment to the United States Constitution. The District Court agreed with 

Clark, and in an order dated August 4, 2006, vacated its original judgment and set a resentencing hearing on the matter.

¶15 The District Court, the State, and Clark’s attorney all apparently agreed that the 

mandatory minimum sentence for sexual assault under § 45-5-502(3), MCA (2001) was 

four years. At the re-sentencing hearing, Clark argued that he was eligible for an 

exception to the mandatory minimum for sexual assault under § 46-18-222(6), MCA 

(2001). The District Court disagreed and re-sentenced Clark on December 29, 2006 to 

twenty years in the Montana State Prison with sixteen suspended, giving him credit for 

time served since his initial sentencing on November 21, 2003. The District Court 

declined to find that an exception to the mandatory minimum sentence for sexual assault 

applied in his case. The District Court also removed the sentencing condition that Clark

would be eligible for parole after completing Phase II sex offender treatment. The net 

effect of this re-sentencing was that Clark would have to serve out the four year 

mandatory minimum, and would not be eligible for parole before that time. The District 

Court stated that it was not punishing Clark for standing upon his constitutional rights, 

but said it simply could not meet its obligation to protect society if it released Clark 
9

before the mandatory minimum of four years without Clark successfully completing 

Phase II treatment. Additionally, the District Court re-imposed a total of thirty-three 

conditions to apply to Clark during the suspended portion of his sentence while Clark 

was on probation.

¶16 Clark now timely appeals the denial of his motion for a new trial, as well as his resentencing by the District Court on December 29, 2006. We restate the issues on appeal 

as follows:

¶17 Issue One: Did the District Court abuse its discretion by denying Clark’s motion 

for a new trial?

¶18 Issue Two: Did the District Court abuse its discretion in requiring Clark to serve

the mandatory minimum term of four years for the sexual assault conviction?

¶19 Issue Three: Did the District Court abuse its discretion in imposing probation 

conditions on Clark’s suspended sentence?

STANDARD OF REVIEW

¶20 We generally review a district court’s denial of a motion for a new trial under the 

abuse of discretion standard. Clark I, ¶ 18. To prevail on a motion for a new trial, the 

defendant must satisfy the five-factor test from Clark I. (See Opinion, ¶ 9.) The findings 

of fact made by the district court under this five-factor test must be supported by a 

preponderance of the evidence and will be reviewed under the clearly erroneous standard. 

Clark I, ¶ 39.

¶21 We review the district court’s imposition of a sentence for legality, to determine 

whether a sentence is within statutory parameters. State v. Vernes, 2006 MT 32, ¶ 27, 
10

331 Mont. 129, ¶ 27, 130 P.3d 169, ¶ 27. However, we review for an abuse of discretion 

the reasonableness of conditions imposed upon probation. State v. Ashby, 2008 MT 83, 

¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, ¶ 9. 

DISCUSSION

¶22 Issue One: Did the District Court abuse its discretion by denying Clark’s motion 

for a new trial?

¶23 Clark argues the District Court abused its discretion in denying his motion for a 

new trial. Clark maintains the District Court overlooked a significant evidentiary aspect 

of T.C.’s letter—namely, that now T.C. essentially agrees with Clark that she, not Clark,

was the one who initiated the discussion about her breast size and that she was the one 

who had pulled down her bikini top. Clark argues that a consideration of T.C.’s letter 

would change the entire character of the State’s case against him. Clark argues the 

State’s evidence that he initiated the interaction and pulled down the bikini top was the 

State’s primary proof of his alleged criminal intent. T.C.’s recantation would change the 

circumstances under which a jury would evaluate his intent and whether or not the 

contact was sexual in nature. With this new evidence, Clark argues that his actions may 

be seen as bad judgment, but the evidence of sexual contact is now removed. Therefore, 

T.C.’s letter is not cumulative or merely impeaching. Thus, the District Court erred in 

analyzing this new evidence under factor (4).

¶24 With respect to factor (5), Clark asserts that the admission of the letter would have 

a reasonable probability of changing the outcome of the case. Clark argues that T.C.’s 

testimony at the 2003 hearing on the new trial motion explained her motivation for 
11

complaining against Clark in the first place—i.e., that she was angry at Clark for being a 

harsh disciplinarian which is why she originally accused him. However, she maintained 

that she failed to appreciate the consequences of lying about the incident, and was then 

later frightened about what might happen to her if she recanted altogether, leading to her 

partial recantation in the second interview. Thus, Clark argues, while there is no 

guarantee the letter would be seen by a jury as credible, he avers that it nonetheless is 

beyond the District Court’s discretion to find that a jury would not believe T.C.’s 

recantation and conclude there is not a reasonable probability of a different outcome.

¶25 Under factor (4), the defendant must demonstrate that the newly discovered 

evidence is “neither cumulative nor merely impeaching.” Clark I, ¶ 34. The District 

Court concluded that the proffered evidence was “merely impeaching and cumulative.” 

Cumulative evidence is statutorily defined as “additional evidence of the same character 

to the same point.” Section 26-1-102(4), MCA. Evidence is considered “merely 

impeaching” when it is collateral in nature and does “not have a direct bearing on the 

merits of the trial under review.” Jackson v. State, 884 A.2d 694, 704 (Md. Spec. App. 

2005). We are inclined to agree with Clark that the evidence in question is not collateral 

and therefore is potentially not “merely impeaching.” However, we do conclude the 

evidence is cumulative, as T.C. has already recanted once before, and evidence of this 

fact was before the jury. Thus, the factor (4) analysis by the District Court was arguably 

partially incorrect; nonetheless, any error in this regard is not determinative.

¶26 In order to prevail on a motion for a new trial under Clark I, the defendant must 

satisfy all five factors. In this case, we agree with the District Court that Clark has failed 
12

to satisfy his burden under factor (5). Thus, we affirm its denial of Clark’s motion for a 

new trial. 

¶27 In Clark I, we stated that factor (5) is likely to be the “crux” of a district court’s 

evaluation of a motion for a new trial. Clark I, ¶ 36. We also stated that the “reasonable 

probability” standard under this factor “properly leaves to the trial judge determinations 

of weight and credibility of the new evidence, and to consider what impact, looking 

prospectively at a new trial with a new jury, this evidence may have on that new jury.” 

Clark I, ¶ 36. With respect to a district court’s evaluation of recantations under this 

factor, we specifically stated as follows: 

In the context of recantations, for example, nothing in our decision today 

negates the concerns we expressed in [State v. Perry, 232 Mont. 455, 758 

P.2d 268 (1988)] that recantations are to be “viewed with great suspicion” 

and that they “demonstrate[] the unreliability of a witness,” lest the finality 

of trial verdicts be at the mercy of the scofflaw or unreliable witness. 

Perry, 232 Mont. at 466, 758 P.2d at 275. In addition, it is understood that 

the recanting witness lacks credibility by virtue of the fact that he has 

already lied at least once, [United States v. Provost, 969 F.2d 617, 620 (8th 

Cir. 1992)] (“where a witness makes subsequent statements directly 

contradicting earlier testimony the witness either is lying now, was lying 

then, or lied both times”), but the function of the district court in this 

instance is to examine how the recanting witness’s credibility may affect a 

new jury’s verdict. To take a similar but more distinctive situation, 

recantations by child victims of sexual abuse are notoriously unreliable and 

suspect, see People v. Schneider (Colo. 2001), 25 P.3d 755, 763 (collecting 

cases), and that reality could appropriately contribute to a district court’s 

evaluation of the credibility of a recantation in those circumstances and the 

recantation’s subsequent effect on a jury. These concerns are but some of 

what a district court may consider . . . when ruling on a motion for new 

trial.

Clark I, ¶ 37.
13

¶28 In Crosby v. State, 2006 MT 155, 332 Mont. 460, 139 P.3d 832, we further 

explained how a district court properly analyzes a motion for a new trial under this factor. 

In that case, defendant Crosby was convicted of sexual intercourse without consent on 

January 20, 1996, and given a ten-year sentence at the Montana State Prison. Crosby, 

¶ 5. The victim, Crosby’s then ten-year-old daughter, had testified at trial against him. 

Several years later, when the victim was approximately twenty, she gave a sworn 

statement in which she recanted her original trial testimony. On February 26, 2003, 

Crosby filed a petition for postconviction relief, alleging that newly discovered evidence 

would demonstrate his actual innocence. Crosby, ¶ 6. The district court held an 

evidentiary hearing on Crosby’s petition. The victim testified that her mother had 

influenced her to accuse Crosby at the time of the original trial, and that the events to 

which she originally testified did not actually occur. Crosby, ¶ 7. Both the State and 

Crosby also presented expert testimony concerning the credibility of childhood testimony 

given the stressful home conditions the victim was under at the time of trial.

¶29 The district court denied Crosby’s motion and he appealed. In its order, the 

district court had found, as a matter of law, that the recanting testimony was untrue. 

Crosby, ¶ 12. Applying the test from Clark I, we reversed. In particular, we noted that in 

Clark I, “we explicitly overruled the statement in Perry that a ‘trial judge is required to 

grant a new trial only when he is satisfied the recantation of the witness is true.’ ” 

Crosby, ¶ 18 (quoting Clark I, ¶ 32). Instead of denying the motion based on whether or 

not the district court believed the recantation from a perspective of a fact-finder, we held 

that the district court was only to consider all five Clark I factors, including “whether a 
14

new trial would have the reasonable probability of resulting in a different outcome.” 

Crosby, ¶ 21. 

¶30 In response to a concern raised by the dissenting opinion that the district court did 

properly consider the Clark I factors and that our reversal was improper, we went on to 

explain in practical terms the difference “between the district court properly assessing the 

‘weight and credibility’ of the recanting testimony, which Clark commands, versus the 

district court determining the ultimate ‘veracity’ of the recanting testimony, which Clark

prohibits.” Crosby, ¶ 23.

Under proper application of the Clark test, a possible scenario might be 

one in which the district judge finds the recanting witness highly credible, 

but nonetheless denies a new trial under the Clark test in light of the 

strength of the testimony of five other prosecution witnesses presented at 

the original trial. Alternatively, a judge might find a witness not 

particularly credible, but nonetheless grant a new trial under Clark

because there is a reasonable probability—given the paucity of other 

evidence adduced at the first trial—that a jury on retrial would acquit the

defendant when presented with the new evidence. In sum, the distinctions 

set forth in Clark, and reaffirmed here, are both appropriate and crucial to 

ensuring that the reviewing judge does not intrude on the jury’s province 

as fact finder.

Crosby, ¶ 24.

¶31 In the case at bar, the District Court did not abuse its discretion in concluding 

there was not a reasonable probability that T.C.’s latest recantation would result in a 

different outcome. The District Court did not succumb to the error we cautioned against 

in Crosby, and base its decision on whether or not the recantation was true. Instead, it 

examined the entire context in which this recantation would be presented to the jury, in 

light of the testimony and evidence presented during the original trial. As explained 
15

above (Opinion, ¶¶ 12-13), it correctly noted that the recantation was “unreliable and 

suspect,” given the fact that T.C. was allegedly a victim of sexual abuse and had been 

encouraged to recant by authority figures. Additionally, T.C. was both emotionally and 

physically removed from her mother Christina, and advised that the separation would 

continue as long as she continued to make allegations against Clark. The District Court 

observed further that this was T.C.’s second recantation, and that though she initially 

recanted in the second interview with law enforcement, she did not actually give a factual 

recantation of events until after Clark testified at trial. Under these circumstances, the 

District Court was within its discretion to conclude that a new jury would simply not 

believe T.C.’s letter given her prior statements and the events leading up to the letter.

¶32 In considering whether newly-discovered evidence warrants a new trial, the role of 

the District Court is not to second-guess the jury. Under Clark I, a district court is simply 

to apply the factors under the circumstances and make findings in accordance therewith. 

The District Court did so appropriately here. The original jury in this case heard Clark’s 

testimony and simply did not believe him. We agree with the District Court that there is 

not a “reasonable probability” that a consideration of T.C.’s letter would make Clark’s 

testimony any more credible the second time around because the letter and T.C.’s 

testimony would still not explain why Clark reached out and touched T.C.’s breasts in the 

first place. Thus, the District Court did not abuse its discretion when it denied Clark’s 

motion.

¶33 Issue Two: Did the District Court abuse its discretion in requiring Clark to serve 

the mandatory minimum term of four years for the sexual assault conviction?
16

¶34 Clark maintains the District Court abused its discretion in requiring him to serve 

the mandatory four-year minimum sentence for sexual assault upon re-sentencing. 

Clark’s original sentence required him to complete Phase II counseling before becoming 

eligible for parole. Because Clark steadfastly maintained his innocence, the District 

Court agreed that requiring him to do so would violate his Fifth Amendment rights and 

removed that condition. But instead of releasing him to probation and reducing the term 

of his incarceration, the District Court re-imposed the twenty-year sentence and did not 

give Clark an exception to the mandatory minimum for sexual assault. 

¶35 The dissents notwithstanding, the State did not seek to dismiss Clark’s challenges 

to his sentence in District Court on the grounds that such challenges were outside the 

scope of remand. Instead, it acquiesced in the re-sentencing proceedings. Because the 

State failed to object in the District Court to Clark’s re-sentencing motions as being 

outside the scope of our remand, the District Court proceeded to issue those rulings. This 

being so, Clark now has the right to appeal from his re-sentencing. Thus, we proceed to 

the merits of Clark’s appeal.

¶36 At the time of re-sentencing, Clark had been in prison for approximately three 

years. Clark argues the District Court’s action in requiring him to serve the mandatory 

minimum of four years for sexual assault was vindictive and made no sense because it 

required him to serve additional time in prison without receiving treatment. While Clark 

urges us to conclude that the District Court abused its discretion in sentencing him, we 

conclude rather that Clark’s sentence was illegal. 
17

¶37 Upon review of the record, it has come to the Court’s attention that the District 

Court, the State, and Clark’s counsel have all relied upon the wrong statute with respect 

to Clark’s sentencing for the sexual assault conviction. “It is axiomatic that when 

deciding a case involving the commission of a crime or sentencing for a crime, we use 

the criminal statutes in effect at the time of the commission.” Dexter v. Shields, 2004 

MT 159, ¶ 13, 322 Mont. 6, ¶ 13, 92 P.3d 1208, ¶ 13 (citing State v. Muhammad, 2002 

MT 47, ¶ 24, 309 Mont. 1, ¶ 24, 43 P.3d 318, ¶ 24).

¶38 Clark was charged by information on July 31, 2002, with violating § 45-5-502, 

MCA (2001). Clark I, ¶ 20. This statute reads in pertinent part as follows:

Sexual assault. (1) A person who knowingly subjects another person to 

any sexual contact without consent commits the offense of sexual assault.

(2) A person convicted of sexual assault shall be fined not to exceed 

$500 or be imprisoned in the county jail for a term not to exceed 6 months, 

or both.

(3) If the victim is less than 16 years old and the offender is 3 or 

more years older than the victim or if the offender inflicts bodily injury 

upon anyone in the course of committing sexual assault, the offender shall 

be punished by life imprisonment or by imprisonment in the state prison for 

a term of not less than 2 years or more than 100 years and may be fined not 

more than $50,000.

Section 45-5-502(1) through (3), MCA (2001) (emphasis added).

¶39 Throughout Clark’s sentencing, the State, Clark’s counsel, and the District Court 

proceeded under the premise that the mandatory minimum for his offense was four years. 

That is patently incorrect. The four-year mandatory minimum for sexual assault was not 

added by the Legislature until 2003, well after the crime was committed. See

§ 45-5-502(3), MCA (2003). Accordingly, the mandatory minimum for Clark’s 

conviction was two years, not four years, and by proceeding under the mistaken belief 
18

that the mandatory minimum was four years, the District Court obviously sentenced 

Clark under a statute which was not in effect at the time the offense was committed.

¶40 Because the District Court was without statutory authority to impose a mandatory 

minimum of four years on Clark, such sentence constitutes an illegal sentence. See State 

v. Burch, 2008 MT 118, ¶ 12, 342 Mont. 499, ¶ 12, 182 P.3d 66, ¶ 12 (quotations 

omitted, alterations in original) (“Because a district court’s authority to sentence a 

defendant is defined and constrained by statute, and the court has no power to impose a

sentence in the absence of specific statutory authority . . . [a] sentence not based on 

statutory authority is an illegal sentence.”) Although Clark has already served four years 

in prison, we nonetheless vacate Clark’s sentence and remand for re-sentencing on the 

grounds that it was an illegal sentence under the law in effect at the time Clark’s crime 

was committed.

¶41 Issue Three: Did the District Court abuse its discretion in imposing probation 

conditions on Clark’s suspended sentence?

¶42 The District Court imposed a total of thirty-three probation conditions upon Clark

during the term of his suspended sentence. Because we vacate Clark’s sentence and 

remand for re-sentencing, Clark will have the opportunity to challenge his probation 

conditions before the District Court. However, only those conditions which are objected 

to before the District Court may be later challenged on appeal. Ashby, ¶ 22.

CONCLUSION
19

¶43 We affirm the District Court’s denial of Clark’s motion for a new trial. However, 

we vacate Clark’s sentence and remand for re-sentencing consistent with the specific 

considerations set forth in this Opinion.

/S/ PATRICIA COTTER

We concur: 

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ BRIAN MORRIS

Justice James C. Nelson, specially concurring.

¶44 I concur in the Court’s Opinion except that I do not agree with our statement of 

the standard of review in ¶ 21 of the Opinion. See State v. Stiles, 2008 MT 390, ¶¶ 19-

50, ___ Mont. ___, ¶¶ 19-50, ___ P.3d ___, ¶¶ 19-50 (Nelson, J., dissenting).

¶45 As for the Dissent’s concern about the State’s acquiescence in the District Court’s 

exceeding the scope of our remand (see Dissent, ¶¶ 63-67), I tend to agree with the Chief 

Justice’s comments. Indeed, I have made these same sorts of arguments in response to 

opinions of this Court holding that a defendant “acquiesced” in the trial court’s exercise 

of authority it did not have by imposing an illegal sentence. See e.g. State v. Micklon, 

2003 MT 45, ¶¶ 13-22, 314 Mont. 291, ¶¶ 13-22, 65 P.3d 559, ¶¶ 13-22 (Nelson & 

Trieweiler, JJ., dissenting); Micklon, ¶ 23 (Leaphart, J., dissenting); State v. Walker, 2007 

MT 205, ¶¶ 30-40, 338 Mont. 529, ¶¶ 30-40, 167 P.3d 879, ¶¶ 30-40 (Nelson & Warner, 

JJ., concurring in part and dissenting in part); Walker, ¶ 25 (Cotter, J., concurring); see 

also State v. Garrymore, 2006 MT 245, ¶¶ 94-101, 334 Mont. 1, ¶¶ 94-101, 145 P.3d 
20

946, ¶¶ 94-101 (Nelson, J., specially concurring). Yet, time and time again, the Court has 

rejected these arguments, asserting that a trial court may exercise nonexistent authority if 

the defendant “affirmatively agrees to,” “acquiesces” in, “actively participates” in, 

“bargains for,” “desires,” “wants,” “requests,” or is “willing” to serve an illegal sentence. 

Micklon, ¶ 10; Walker, ¶¶ 16-18. Accordingly, I cannot understand the rationale, 

suggested by the Dissent, that would allow a trial court to impose an illegal sentence if 

the defendant acquiesces in it, but would deny the trial court the power to undo an illegal 

sentence if the State acquiesces in the court’s doing so. What we fail to recognize is that 

the mischief in both approaches is that it is not the statutes and our remand orders which 

define the trial court’s authority; rather, it is a litigant’s conduct—his “acquiescence”—

which gives the court the authority to exercise power which it otherwise would not have.1 

While this approach might be characterized as nonsensical, it is what our jurisprudence 

permits.

 

1

Justice Morris made essentially this same observation for the Court in Davis v. 

State, 2008 MT 226, 344 Mont. 300, 187 P.3d 654, when he stated:

The State, by urging this Court to construe the time prescription set 

forth in § 46-21-102, MCA, as a limit on district courts’ subject matter 

jurisdiction, asserts that a petitioner may dictate a court’s subject matter 

jurisdiction on the timeliness of his petition. The Supreme Court has 

described subject matter jurisdiction, however, as authority that “cannot be 

expanded to account for the parties’ litigation conduct . . . .” The State fails 

to identify a provision in either the Montana Constitution or the Montana 

Code that allows this Court to hinge a district court’s “power” to entertain a 

post-conviction petition on the timeliness of the petition.

Davis, ¶ 21 (ellipsis in Davis, citation omitted).
21

¶46 Finally, I previously raised the same sorts of concerns about trial courts violating 

remand orders as are now, again, being raised by the Dissent. See In re Marriage of 

Bartsch, 2007 MT 136, ¶¶ 36-48, 337 Mont. 386, ¶¶ 36-48, 162 P.3d 72, ¶¶ 36-48 

(Nelson, J., Gray, C.J., & Rice, J., dissenting). In Bartsch, we remanded to the trial 

court, directing that court to make specific findings of fact on three issues. The trial 

court, however, failed to make the specific findings required. See Bartsch, ¶¶ 37, 40-46. 

Yet, we affirmed the trial court’s remand decision. Bartsch, ¶ 30. We determined that 

the trial court’s nonspecific findings of fact were “sufficiently clear” for purposes of 

appellate review. Bartsch, ¶ 18.

¶47 The Court here is simply being consistent in following the Micklon line of cases 

and Bartsch. Although these are precedents with which I strenuously disagree, I am

constrained to follow both. And that will continue to be the case until we overrule the 

Micklon line of cases and cease glossing over trial courts’ failure to comply with remand 

orders as we did in Bartsch. It would seem that, as to this case, unfortunately, “What 

goes around, comes around.”

¶48 With these caveats, I otherwise concur in the Court’s Opinion.

/S/ JAMES C. NELSON

Justice Jim Rice, concurring in part and dissenting in part.

¶49 I concur with the Court’s resolution of Issue 1 but believe the Court has erred by 

allowing the District Court to reopen and reconsider Clark’s sentence after remand. 
22

¶50 The State argues that the sentencing issues Clark raised on remand, and now 

before us in the present appeal, are not properly before this Court because Clark did not 

raise them in his first appeal. According to the State, the limited purpose of our remand 

was for the District Court to reconsider Clark’s motion for a new trial in light of our 

holding in Clark I. Thus, the State argues, Clark was not entitled to challenge the 

originally imposed sentence because we did not send that issue back to the District Court 

for review.

¶51 Clark argues, and this Court briefly observes (Opinion, ¶ 36), that the State 

acquiesced to the District Court’s reopening of Clark’s sentence, and therefore the State 

waived its objection. According to Clark, his original sentence was also reviewable on 

remand, without ever formally appealing it, simply because it was “illegal.” I would 

adopt the State’s arguments and re-impose the District Court’s original sentence, as I do 

not believe a waiver occurred here.

¶52 The law of the case doctrine provides that “in deciding a case on appeal, when the 

Supreme Court states in its opinion a principle or rule of law necessary to the decision, 

such pronouncement becomes the law of the case, and must be adhered to throughout its 

subsequent proceedings, both in the trial court and upon subsequent appeal.” Haines 

Pipeline Constr., 265 Mont. at 289, 876 P.2d at 637 (citing Zavarelli, 239 Mont. at 124, 

779 P.2d at 492); see also Sanders v. State, 1998 MT 62, ¶ 12, 288 Mont. 143, ¶ 12, 955 

P.2d 1356, ¶ 12. While the trial court may generally consider any matters left open by the 

appellate court when a case is remanded for further proceedings, Zavarelli, 239 Mont. at 

125-26, 779 P.2d at 493, that rule does not apply when the case is remanded with 
23

specific, limited instructions, even if the Court employs its oft-used “further proceedings” 

language. A closer look at Haines Pipeline Constr. and Zavarelli demonstrates the 

difference between a case remanded for a new trial and a case remanded with limiting 

instructions. 

¶53 In Haines Pipeline Constr., we had previously affirmed the District Court’s 

findings and conclusions in all respects except as to compensatory and punitive damages, 

remanding for the “singular purpose” of allowing “the parties to plead, prove, argue and 

defend against” a change in the law which had occurred between the litigation and the 

appeal and which had rendered the then-existing record insufficient to support the district 

court’s punitive damages award. Haines Pipeline Constr., 265 Mont. at 291, 876 P.2d at 

638. Despite our limited remand, however, the District Court retried the case de novo, 

ultimately making findings and conclusions “directly contrary to the findings of fact and 

conclusions of law in Haines I, which were affirmed by this Court.” Haines Pipeline 

Constr., 265 Mont. at 287, 876 P.2d at 636. We observed that the trial court is free to 

conduct further proceedings “not inconsistent with the decision of the appellate court, as 

to any question not presented or settled by such decision.” Haines Pipeline Constr., 265 

Mont. at 290, 876 P.2d at 637 (second emphasis added); see also Story v. City of 

Bozeman, 259 Mont. 207, 230-31, 856 P.2d 202, 216 (1993) (“A judgment of the 

supreme court ordering a new trial opens anew all questions in the case.”) However, by 

conducting a trial de novo, the district court in Haines Pipeline exceeded the scope of 

remand and entertained an issue which had not been reopened.
24

¶54 In contrast, in Zavarelli we had previously remanded the case to the District Court 

after concluding it had erred by finding a prescriptive easement on certain property. See 

Zavarelli v. Might, 230 Mont. 288, 292-93, 749 P.2d 524, 527 (1988). We stated: “Since 

the prescriptive easement cannot be supported, the judgment must be reversed. We 

remand for such further proceedings as are necessary in the light of this opinion and the 

facts found by the District Court.” Zavarelli, 230 Mont. at 292-93, 749 P.2d at 527

(emphasis added). Thus, the District Court’s subsequent conclusion “that the 

descriptions in the mutual deeds were the result of a mutual mistake” was not 

inconsistent with our holding that no prescriptive easement existed, and was not 

precluded by the law of the case. Zavarelli, 239 Mont. at 126, 779 P.2d at 493. Upon 

reaching this Court once again after remand, we observed that when the case returned to 

the District Court, it had “the posture of not having a final judgment. In that situation, 

when there is nothing in the terms of the mandate to prevent it, the trial court has the 

power, on reconsideration, to find the same facts and change its holding, or to find 

different facts consistent with its original holding.” Zavarelli, 239 Mont. at 126, 779 

P.2d at 493 (emphasis added). In other words, we had “left open” any question other 

than whether a prescriptive easement existed. The District Court was free to conclude 

that a mutual mistake had been made because its previous judgment had been reversed in 

its entirety.

¶55 The present case is similar to Haines Pipeline Constr. and distinguishable from 

Zavarelli. We did not “leave open” the judgment of the District Court as we had done in 

Zavarelli by reversing it in its entirety. Instead, similar to our holding in Haines Pipeline 
25

Constr., we expressly affirmed the District Court’s judgment of conviction—which 

included Clark’s sentence—and reversed only the District Court’s denial of Clark’s 

motion for a new trial. Clark, ¶ 43. We then remanded for the sole purpose of 

reconsidering Clark’s motion for retrial. In other words, ours was not a wholesale 

reversal of the District Court’s judgment, but was a limited reversal and remand. As 

such, the District Court did not have jurisdiction to reconsider its entire judgment or 

sentence, because that issue had been settled by this Court and had become the law of the 

case, which demanded that Clark’s conviction and sentence stand as rendered by the 

District Court and affirmed on Clark’s first appeal. Just as we did in Haines Pipeline 

Constr., we remanded for a “singular purpose,” and the District Court exceeded the scope 

of that remand by reconsidering Clark’s sentence. See also State v. O’Shea, 634 N.W.2d 

150, 158 (Iowa Ct. App. 2001) (remand to the District Court was for the sole purpose of 

applying the correct legal standard to defendant’s new trial motion and did not extend to 

a reconsideration of his motion for judgment of acquittal). 

¶56 Accordingly, I would not reach the merits of Issues 2 and 3 and would reverse the 

District Court’s re-sentencing of Clark for lack of jurisdiction.

/S/ JIM RICE

Chief Justice Karla M. Gray, concurring in part and dissenting in part.

¶57 I concur in the Court’s opinion on issue one, which affirms the District Court’s 

denial of Clark’s motion for a new trial. I dissent from the Court’s decision to address 
26

and resolve the second issue. I would address the scope of remand question sua sponte 

and conclude that the District Court exceeded the scope of our remand—and, therefore, 

its power—by entertaining and resolving the sentencing matter as part of the proceeding 

on remand. As a result, I would hold the second issue is not properly before us. In that 

regard, I join Justice Rice’s dissent and his analysis of Zavarelli and Haines. I write 

separately to address the scope of remand issue in more detail.

¶58 Section 3-2-204, MCA, provides that this Court may affirm, reverse or modify any 

judgment or order from which an appeal is taken or direct “further proceedings to be 

had.” The statute, of course, merely restates our constitutional appellate authority. See

Mont. Const. art. VII, § 2(1).

¶59 Two issues were raised in Clark I: an assertion of instructional error and an 

assertion of error in the denial of defendant’s motion for a new trial. We ultimately 

affirmed the judgment of conviction. Clark I, ¶¶ 3, 4 and 43. We also clarified one 

aspect of the law relating to motions for new trial, but we could not determine whether or 

not the trial court had correctly applied the law in denying the motion for new trial. 

Clark I, ¶¶ 34-42. Consequently, we reversed that order and remanded “for the District 

Court to undertake anew Clark’s motion for new trial.” Clark I, ¶ 42. In summarizing 

the outcome, we stated we were remanding for “further proceedings consistent with this 

opinion.” Clark I, ¶ 43. Obviously, the further consistent proceedings could only include 

the previously—and expressly—stated reconsideration of the motion for new trial. 

¶60 On remand, nearly two months after the District Court denied his motion for new 

trial and nearly two and one-half years after the Judgment and Commitment in his case, 
27

defendant moved to amend the judgment. He asserted that there was an abuse of 

discretion in the sentence originally imposed. The District Court entertained the issue, 

and resolved it in the State’s favor. In my view, given the carefully limited power we 

returned to the District Court on remand, that court did not have the power or authority to 

consider the sentencing issue at all. 

¶61 This is not a new concept in Montana law. Our cases have long held that, on 

remand after appeal, the trial court’s duty is to comply with the mandate of this Court and 

to obey the directions therein; the trial court commits error if it fails to follow those 

directions. See e.g. State ex rel. Olson v. District Court, 184 Mont. 346, 349, 602 P.2d 

1002, 1004 (1979) (citations omitted). Indeed, this conclusion is “both logical and 

clearly expressed [in Montana statute].” See In re Marriage of Sarsfield, 215 Mont. 123, 

125, 495 P.2d 473, 474 (1985). We also have held that a trial court cannot ignore an 

appellate court’s mandate in disposing of a case on remand; doing so constitutes error. 

Marriage of Sarsfield, 215 Mont. at 125, 495 P.2d at 474. Finally, and more recently, we 

repeated that on remand, the trial court may “make any order not inconsistent with the 

decision of the appellate court.” Brown v. State, 2002 MT 58, ¶ 15 309 Mont. 106, ¶ 15, 

46 P.3d 42, ¶ 15 (citation omitted).

¶62 Here, we remanded for reconsideration of the motion for new trial in light of our 

clarification in Clark I—no less and no more. That remand, in my view, put mandatory 

constraints on the trial court’s power and authority to act on remand. The District Court 

in the present case did follow our directive regarding the motion for new trial, and I join 

the Court in affirming that decision in issue one. Long after the District Court had met its 
28

obligation on remand, Clark moved to amend the years’ old Judgment and Commitment. 

The District Court’s action in entertaining and resolving that motion constituted error in 

that the court exceeded the scope of our remand. In my view, a trial court which does 

more than it was empowered to do on remand ignores our directives and is inconsistent 

with our instructions every bit as much as a trial court which does less or which 

otherwise acts differently from our remand instructions.

¶63 The Court concludes that this matter of whether the District Court exceeded the 

scope of our remand cannot be addressed here because the State did not object on remand 

and, indeed, “acquiesced.” It is my view that a party cannot vest or divest a court of the 

power or authority to entertain and resolve an issue. Indeed, this is particularly true 

where that court is already constrained by this Court’s remand.

¶64 Some may argue that we do not always provide precise instructions on remand, 

and that may be so. It was not, however, the case in Clark I, as the Court admits in ¶ 10. 

Some also might contend that the scope of remand is neither an important question nor 

one which this Court should notice sua sponte. I would strongly disagree. Leaving the 

determination of a trial court’s authority to act on remand to a party to raise seems simply 

injudicious. I believe this Court must be much more watchful than that of its authority, 

and of the power and authority of trial courts. Furthermore, such an approach would 

leave the timely finality of cases to counsel’s watchful eye. Given our longstanding 

jurisprudence about the importance of the finality of cases, this strikes me as most 

unwise. See e.g. Tipp v. Skjelset, 1998 MT 263, ¶ 28, 291 Mont. 288, ¶ 28, 967 P.2d 787, 

¶ 28 (citation omitted).
29

¶65 Finally, I recognize that some might be concerned about being able to review and 

correct a purportedly illegal sentence. I would respond that there are a variety of 

statutory methods of challenging allegedly illegal sentences, including—but not 

necessarily limited to—direct appeal and postconviction relief (via a claim of ineffective 

assistance of counsel). In addition, habeas corpus relief is available to an incarcerated 

person wishing to challenge the legality of the duration of confinement. See Brown, ¶ 21. 

¶66 Importantly, a motion to amend a 21⁄2-year-old judgment is not a cognizable means 

of challenging an allegedly illegal sentence. Here, Clark does not assert that his original 

sentence was illegal or, indeed, that the sentence he now is being allowed to appeal is 

illegal. He merely asserts that the sentencing court abused its discretion in resentencing 

him. In that regard, if the challenge is to a sentence asserted to be objectionable, but not 

illegal, I cannot imagine the basis on which either the trial court or this Court could 

consider it at this very late date. See State v. Hameline, 2008 MT 241, ¶ 12, 344 Mont. 

461, ¶ 12, 188 P.3d 1052, ¶ 12; State v. Kirkland, 2008 MT 107, ¶ 8, 342 Mont. 365, ¶ 8, 

181 P.3d 616, ¶ 8 (citation omitted). To avoid this additional problem, the Court simply 

concludes the sentence is illegal, and constructs a new analysis never advanced by Clark.

¶67 For me, the bottom line is that we should not stray into allowing trial courts on 

remand to exercise power they simply do not have. Therefore, I join the Court’s opinion 

on issue one, but strenuously dissent from the Court’s opinion on issue two. I would hold 

that the District Court exceeded its authority on remand in considering the sentencing 

claim and that Clark has readily available options to challenge the sentence in the event 

he or his seasoned counsel believe it is illegal. 
30

/S/ KARLA M. GRAY