DA 09-0471

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 95

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JAYDEE HAAGENSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. DDC 2006-622

Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt (argued), Chief Appellate Defender, Jim Wheelis, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, John Paulson (argued),

Assistant Attorney General, Helena, Montana

John Parker, Cascade County Attorney, Joel Thompson, Deputy County

Attorney, Great Falls, Montana

Argued and Submitted: February 24, 2010

Decided: May 4, 2010

Filed:

__________________________________________

Clerk

May 4 2010
2

Justice James C. Nelson delivered the Opinion of the Court.

¶1 After a probation and parole officer revoked Jaydee Haagenson’s parole, the

Eighth Judicial District Court, Cascade County, revoked the suspended portion of his

sentence as well. Haagenson appeals, alleging that this action violated his constitutional

right against double jeopardy. We disagree and, thus, affirm.

BACKGROUND

¶2 In December 2006, the State filed an information charging Haagenson with two 

counts of criminal distribution of dangerous drugs (methamphetamine), a felony, in 

violation of § 45-9-101, MCA (2005). These offenses allegedly occurred in January and

March of 2006. Haagenson and the State ultimately entered into a plea agreement,

pursuant to which Haagenson pleaded guilty to one count of criminal distribution of

dangerous drugs and the State recommended a specific sentence as to that count and

dismissed the other count. On May 24, 2007, the District Court sentenced Haagenson to

the Montana State Prison (MSP) for ten years, with seven years suspended (the sentence

recommended by the State). The conditions on the suspended sentence required

Haagenson to remain law-abiding and not to consume alcohol.

¶3 Haagenson was released from MSP in July 2007 to attend a drug treatment

program in Lewistown. He then was transferred to the Great Falls Pre-Release Center in

April 2008 and was granted parole in October 2008. His parole was subject to certain

conditions, including that he remain law-abiding and that he not possess or use alcohol.

The term of parole was set to expire on May 22, 2010, when Haagenson would begin

serving the seven-year suspended portion of his sentence.
3

¶4 On or about May 6, 2009, Haagenson was taken into custody and charged with the

deliberate homicide of Jerod Williams, who was choked to death at a residence in Great 

Falls. Haagenson was intoxicated at the time he allegedly killed Williams. A week later, 

James Clancy (Haagenson’s probation and parole officer) and Eric Tadlock (Clancy’s 

supervisor) held an “onsite hearing” at the Cascade County Detention Center. See

§ 46-23-1024, MCA. At the hearing, Tadlock found that there was probable cause to

believe that Haagenson had violated the two aforementioned conditions on his parole by

choking Williams to death and by consuming alcohol. Tadlock thus recommended to the

Board of Pardons and Parole that Haagenson’s parole be revoked, and Haagenson was 

incarcerated at MSP pending the Board’s review of the matter.

1

¶5 Meanwhile, on May 18, 2009, the State filed a petition to revoke Haagenson’s 

suspended sentence—which, as noted, he had not yet begun to serve. See State v.

Sullivan, 197 Mont. 395, 400-01, 642 P.2d 1008, 1010-11 (1982) (a suspension of

sentence may be revoked for acts done by the offender after sentence is imposed but

before he actually begins serving the suspended sentence); accord State v. Morrison, 

2008 MT 16, 341 Mont. 147, 176 P.3d 1027. The State’s petition was based on the same 

acts that had formed the basis for the revocation of his parole—i.e., the homicide and the

use of alcohol. The District Court held a hearing on June 25, 2009, at which time

Haagenson moved the court to dismiss the State’s petition on the ground that he had 

1 According to testimony in the record, a parolee is “deemed revoked” once

probable cause of a parole violation is found. The matter is then referred to the Board of

Pardons and Parole, and the parolee remains ineligible for community placement until the

matter is resolved by the Board. See §§ 46-23-1023(3), -1024(3), MCA.
4

already been sanctioned for these acts by having his parole revoked and being sent back

to MSP. Relying on State v. Martinez, 2008 MT 233, 344 Mont. 394, 188 P.3d 1034, 

Haagenson argued that an offender cannot be twice sanctioned for the same acts—here, 

by first having his parole revoked and then having his suspended sentence revoked.

¶6 The District Court agreed with Haagenson that he had been “sanctioned” for the

violations of his conditions of parole by virtue of the fact that his parole had effectively

been revoked and he had sent back to MSP. Thus, the court framed the issue before it as

whether or not the State’s administrative action through the Department of 

Corrections to technically or effectively revoke Mr. Haagenson’s parole on 

the same allegations that form the basis of the State’s petition to revoke his

ensuing probation, preclude, as a matter of law, pursuant to State versus

Martinez, the Court from -- at this time, in effect, sanctioning Mr.

Haagenson in the probation context on the same conduct.

The District Court answered this question in the negative. The court read Martinez as

standing for the proposition that the State cannot administratively sanction an offender

for a probation violation and also obtain a judicial sanction (in particular, revocation of 

the suspended sentence) for the very same conduct, as doing so would be “tantamount to 

a double jeopardy situation.” The court did not find this principle to be applicable here,

however, as the State was not attempting a double-sanction for a probation violation.

Rather, the court analogized the present situation to one in which a probationer commits

an unlawful act and may be prosecuted, convicted, and punished for that act and, based

on the very same act, may be subject to sanction for a probation violation as well. From

this, the court reasoned that a sanction for a parole violation is distinct from a sanction for

a probation violation, even though the two sanctions are based on the same acts.
5

¶7 The District Court concluded that the administrative revocation of Haagenson’s

parole did not preclude the otherwise valid revocation of his suspended sentence. Based

on its finding, by a preponderance of the evidence, that Haagenson had violated the terms

of probation by virtue of the homicide and his use of alcohol, the court revoked the

seven-year suspended sentence and sentenced Haagenson to a seven-year term at MSP. 

The court noted that Haagenson’s actions left it with “no confidence” that he can or

should be supervised in the community. Haagenson now appeals.

ISSUE

¶8 Under the facts presented, an offender on parole (serving the un-suspended portion

of his sentence) engaged in acts that violated not only the conditions of his release, but

also the conditions of the suspended portion of his sentence. Haagenson does not dispute

that the violations may be used for revocation of the offender’s parole and for prosecution

of a separate criminal charge as well (if the acts were criminal). He also does not dispute

that a suspension of sentence may be revoked for acts done by the offender before he

actually begins serving the suspended sentence. His claim, rather, is that the violative

acts may not be used both to revoke the offender’s parole and to revoke his suspended

sentence, without infringing the prohibition against double jeopardy.

STANDARD OF REVIEW

¶9 The issue of whether a district court has acted within its statutory authority in

revoking a suspended sentence presents a question of law over which we exercise plenary

review. State v. Martinez, 2008 MT 233, ¶ 16, 344 Mont. 394, 188 P.3d 1034. We also

exercise plenary review over questions of constitutional law. Martinez, ¶ 16.
6

DISCUSSION

¶10 At the outset, it is necessary to dispel the notion, argued by the State, that the issue

raised by Haagenson has already been decided in State v. LeDeau, 2009 MT 276, 352

Mont. 140, 215 P.3d 672. In LeDeau, the offender (LeDeau) argued that revoking both

his parole and his ensuing suspended sentence based on the same conduct violated his

constitutional right to be free from double jeopardy. However, LeDeau had not properly

preserved this issue for appeal, and we accordingly had to decide whether to review his

claim under the doctrine of plain error review. See LeDeau, ¶¶ 13-14. To obtain plain

error review of an otherwise procedurally barred constitutional claim, an appellant must

make a threshold showing that his claim meets any of the three criteria set out in State v.

Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996). See State v. West, 2008 MT 338, 

¶ 23, 346 Mont. 244, 194 P.3d 683; State v. Jackson, 2009 MT 427, ¶¶ 42, 48, 354 Mont.

63, 221 P.3d 1213. We ultimately concluded (albeit, implicitly) that LeDeau had not

made this showing, and we therefore declined to decide his claim on the merits. See 

LeDeau, ¶ 18. Granted, in the course of reaching this conclusion, we recited a number of 

legal principles that bear on Haagenson’s claim here. See LeDeau, ¶¶ 15-17. But

nevertheless, it is self-evident that, by definition, when this Court declines to exercise

plain error review of a claim, this Court does not decide the merits of that claim.

LeDeau, therefore, is not controlling authority here.

¶11 By the same token, Haagenson’s suggestion that Martinez and State v. Johnston,

2008 MT 318, 346 Mont. 93, 193 P.3d 925, dictate the outcome of this case is similarly

mistaken. In Martinez, the offender (Martinez), who was serving a seven-year suspended
7

sentence, violated the terms of his probation on numerous occasions. By statute, a

probationer may be arrested for violating a condition of probation, § 46-23-1012(1), (2),

MCA, and his probation and parole officer, in turn, must then elect one of three options:

(1) authorize the detention center to release the probationer, (2) hold an intervention

hearing pursuant to § 46-23-1015, MCA, or (3) arrange for the probationer to appear

before a magistrate to set bail, see § 46-23-1012(3), MCA. If the probationer is detained

and bond is set, then the probation and parole officer must file a report of violation and

the court may proceed thereafter with revocation of probation. See § 46-23-1012(4)-(5), 

MCA. In Martinez’s case, the probation and parole officer elected initially to address his

probation violations through intervention hearings, at which Martinez was sanctioned.

But after three such hearings and another probation violation, the officer elected to file a

report of violation based on all of Martinez’s violations. The district court, in turn,

revoked his suspended sentence after receiving evidence as to all of the violations. See 

Martinez, ¶¶ 4-12, 19.

¶12 Martinez appealed, claiming that the probation and parole officer lacked statutory

authority to seek revocation of his suspended sentence for conduct that had been

addressed and sanctioned through the three intervention hearings. He also argued that the

revocation of his suspended sentence violated his right to be free from double jeopardy.

We agreed that § 46-23-1012(3), MCA, permitted the probation and parole officer to

pursue only one of the three options set forth in that statute for an alleged probation

violation. Martinez, ¶ 18. Thus, by statute, Martinez’s suspended sentence could not be

revoked based on the same probation violations that had been addressed through the
8

intervention hearings. However, the sentence could be revoked based on violations that

had not already been addressed through an intervention hearing. Thus, since the report of

violation alleged one such violation, we held that the district court did not exceed its 

authority in revoking Martinez’s suspended sentence. Martinez, ¶ 20. It followed from

this that Martinez had not been double-sanctioned for a single probation violation, and we

denied his double jeopardy claim accordingly. See Martinez, ¶ 21. We relied on the

same reasoning in disposing of an identical double jeopardy claim raised by the offender

(Johnston) in Johnston. See Johnston, ¶¶ 42-44.

¶13 Martinez and Johnston thus did not present the scenario we face here, in which

two sanctions (revocation of parole, plus revocation of the ensuing suspended sentence)

were imposed for the same acts. Haagenson, however, reads our remarks about double

jeopardy in those cases (see Martinez, ¶ 21; Johnston, ¶¶ 43-44) as intimating that if

Martinez and Johnston had in fact been subjected to multiple sanctions based on the same

probation violation or violations, their double jeopardy rights would have been infringed.

We acknowledge that the language in those cases could be interpreted in this manner.

However, for the reasons which follow, we conclude that a revocation of parole or

probation does not implicate the protection against double jeopardy.

¶14 The Fifth Amendment to the United States Constitution provides that “[n]o person

shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . .”

This prohibition, which is applicable to the states through the Fourteenth Amendment,

Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969), protects against a

second prosecution for the same offense after acquittal, a second prosecution for the same
9

offense after conviction, and multiple punishments for the same offense, Dept. of

Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 n. 1, 114 S. Ct. 1937, 1941 n. 1

(1994) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076

(1969)); see also Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 493 (1997)

(the Clause protects against the imposition of multiple criminal punishments for the same

offense, but only when such occurs in successive proceedings). Article II, Section 25 of

the Montana Constitution also protects against double jeopardy. It states that “[n]o 

person shall be again put in jeopardy for the same offense previously tried in any 

jurisdiction.” We have explained that “double jeopardy exemplifies the legal and moral 

concept that no person should suffer twice for a single act.” State v. Guillaume, 1999 MT 

29, ¶ 17, 293 Mont. 224, 975 P.2d 312. In Guillaume, this Court held that Article II,

Section 25 affords greater protection against multiple punishments for the same offense

than does the Fifth Amendment to the United States Constitution. See Guillaume, ¶ 16. 

Haagenson invokes this greater protection here.

¶15 A threshold question in applying these constitutional provisions to the present

facts is whether a revocation of parole or probation constitutes a “punishment” for double

jeopardy purposes. In this regard, various federal courts have determined that revocation

of parole, probation, or supervised release is a penalty attributable to the original

conviction, not a new punishment, and that the Fifth Amendment’s Double Jeopardy

Clause, therefore, is not implicated by such revocation. See United States v. Pettus, 303

F.3d 480, 487 (2d Cir. 2002); United States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit

B 1981) (per curiam); United States v. Miller, 797 F.2d 336, 340 (6th Cir. 1986); United
10

States v. Wyatt, 102 F.3d 241, 244-45 (7th Cir. 1996); United States v. Bennett, 561 F.3d

799, 802-03 (8th Cir. 2009); United States v. Soto-Olivas, 44 F.3d 788, 789-90 (9th Cir.

1995); United States v. Woods, 127 F.3d 990, 992 (11th Cir. 1997) (per curiam). These

courts have reasoned that a term of parole, probation, or supervised release replaces a

portion of a sentence of imprisonment and is a part of the original sentence. See Woods,

127 F.3d at 992; Wyatt, 102 F.3d at 245. A revocation proceeding, in turn, is a purely

administrative action designed to determine whether a parolee or probationer has violated

the conditions of his parole or probation, not a proceeding designed to punish a criminal

defendant for violation of a criminal law. See Woods, 127 F.3d at 992. By engaging in

prohibited conduct (criminal or not) during the term of parole, probation, or supervised

release, the offender “triggers a condition that permits modification of the terms of his 

original sentence.” Wyatt, 102 F.3d at 245; see also Pettus, 303 F.3d at 487 (“The

requirement that a defendant only be punished once for a particular crime does not mean

that this punishment cannot be modified . . . .”). Revocation thus “amounts only to a 

modification of the terms of the defendant’s original sentence, and does not constitute 

punishment for the revocation-triggering offense.” Wyatt, 102 F.3d at 245; accord

Woods, 127 F.3d at 992 (revocation “constitutes a modification of the terms of the 

original sentence and implicates solely the punishment initially imposed for the offense 

conduct underlying that sentence”); see also Johnson v. United States, 529 U.S. 694, 700, 

120 S. Ct. 1795, 1800 (2000) (“[P]ostrevocation sanctions [are] part of the penalty for the

initial offense . . . .”); cf. Soto-Olivas, 44 F.3d at 791 (punishment imposed upon
11

revocation is punishment for the original crime, not punishment for the conduct leading 

to revocation).

¶16 Likewise, under Montana law, a term of conditional release or suspension of

sentence2is in lieu of a term of imprisonment and is a part of the original sentence. See

§§ 46-18-201(2), 46-18-203(7), 46-23-201, 46-23-1001(3), (4), 46-23-1025(2), MCA.

Parole is a privilege and not a right; and since it is granted as a matter of grace, the State

may offer such grace under and subject to such conditions as it considers most conducive

to accomplish the desired purpose. McDermott v. McDonald, 2001 MT 89, ¶ 19, 305

Mont. 166, 24 P.3d 200. The same is true of a suspension of sentence: It “is a

discretionary act of grace by a district court,” State v. Watts, 221 Mont. 104, 106, 717

P.2d 24, 26 (1986), which may be made subject to such reasonable conditions as the court

deems necessary, see § 46-18-201(4), MCA. The decision to grant conditional release or

to suspend a sentence “is a decision to forego complete denial of liberty by incarceration

in favor of a [supervised] period of restricted liberty in the hope that the purposes of

rehabilitation of defendant and the protection of the public can be achieved by the lesser

deprivation of liberty.” State v. Oppelt, 184 Mont. 48, 53, 601 P.2d 394, 397 (1979)

(internal quotation marks omitted). An offender on conditional release or under a

suspended sentence thus “lives with the knowledge that a fixed sentence for a definite

2

The federal cases cited above address the federal probation, parole, and

supervised-release systems. For purposes of this Opinion, when discussing Montana law,

we use the terms “conditional release” and “parole” to refer to release from imprisonment

by the Board of Pardons and Parole and the terms “suspension of sentence” and

“probation” to refer to release by the sentencing court without imprisonment. See

§ 46-23-1001(3), (4), MCA.
12

term hangs over him.” In re Ratzlaff, 172 Mont. 439, 445, 564 P.2d 1312, 1316 (1977) 

(internal quotation marks omitted). Revocation of a suspended sentence “indicates a 

determination by the court that the purposes of rehabilitation are not being served by the 

suspension,” Watts, 221 Mont. at 107, 717 P.2d at 26, and revocation of conditional

release reflects a similar determination by the Board of Pardons and Parole. Revocation

leaves the offender subject to execution of the original sentence as though he had never

been given conditional release or a suspension of sentence. See Ratzlaff, 172 Mont. at

443-44, 564 P.2d at 1315; State v. Lange, 237 Mont. 486, 489, 775 P.2d 213, 215 (1989). 

But “ ‘a revocation proceeding is not a criminal adjudication, does not require proof of a

criminal offense, does not impose punishment for any new offense, and is an act in the

performance of the duty of . . . supervision of [conditional] liberty.’ ” Oppelt, 184 Mont.

at 53-54, 601 P.2d at 398 (quoting State v. Eckley, 579 P.2d 291, 293 (Or. App. 1978));

see also Lange, 237 Mont. at 489, 775 P.2d at 215 (a revocation hearing is not a criminal 

trial; rather, it is simply “an exercise of the trial court’s supervision” over the offender

during probation, and the consequence of revocation is execution of a penalty previously

imposed); State v. Walker, 2001 MT 170, ¶¶ 12, 15, 306 Mont. 159, 30 P.3d 1099.

¶17 Based on the foregoing, we hold that a revocation of parole or probation does not

constitute a punishment for double jeopardy purposes under the Fifth Amendment or

Article II, Section 25. Rather, it is a supervisory act involving the enforcement of

conditions imposed on a term of parole or probation. See Lange, 237 Mont. at 489, 775

P.2d at 215; State v. Chapman, 721 P.2d 1248, 1254 (Idaho 1986). Upon the

demonstration of a probation violation, the sentencing court may modify the offender’s
13

original sentence by replacing the term of probation with imprisonment. See

§ 46-18-203(7), MCA. Likewise, upon the demonstration of a parole violation, the Board

of Pardons and Parole may simply return the offender to prison. See § 46-23-1025(2), 

MCA. This is not a “punishment”; rather it is a forfeiture of a conditional privilege

previously granted by the State as a matter of grace. Thus, the same act or acts may form 

the basis for revoking both an offender’s parole and his ensuing suspended sentence,

without contravening the Double Jeopardy Clauses.

¶18 In the present case, Haagenson was granted conditional release and a suspended

sentence, both of which were subject to certain conditions including that he remain

law-abiding and not consume alcohol. Haagenson violated these conditions and thus

forfeited the privilege of that release and his future suspended sentence. Revocation of

his parole and revocation of his probation did not constitute “punishments” and, thus, did 

not implicate the Double Jeopardy Clauses. To hold otherwise would “create an

indefensible loop-hole, whereby a convict considered by the court to be unsuitable for

public release would be entitled to probation merely because of the timing of his violative 

conduct” (i.e., if that conduct occurred while he was serving the un-suspended portion of

his sentence). Knight v. United States, 73 F.3d 117, 123 (7th Cir. 1995).

¶19 Haagenson, however, attempts to cobble together a double jeopardy claim out of

the statutory procedures for probation and parole violations and our analysis in Martinez.

Recall that in Martinez, we considered the procedures applicable to probation violations

and concluded that they permit the probation and parole officer to pursue only one of

three options: release the probationer from detention, hold an intervention hearing, or file
14

a report of violation and seek revocation of probation (after arranging for a magistrate to

set bail). See Martinez, ¶ 18; § 46-23-1012(3)-(5), MCA. From this and our statements

in Martinez, ¶ 21, Haagenson reasons that if an intervention hearing is held and the

offender is sanctioned, the revocation option cannot be pursued for the same conduct

without violating double jeopardy. Applying this rule here, Haagenson contends that

because an onsite hearing was held at which he was sanctioned (his parole was revoked),

his probation cannot also be revoked.

¶20 There are two problems with this argument. First, despite intimations to the

contrary in Martinez and Johnston, revocation of parole or probation does not constitute a

punishment for double jeopardy purposes, as explained above. Second, Haagenson is

incorrectly blending the distinct procedures applicable to parole violations and probation

violations. The holdings in Martinez and Johnston were based on our construction of 

§ 46-23-1012(3), MCA, which applies to probation violations. With parole violations,

an onsite hearing is held and a probable cause determination is made; if probable cause

exists, a hearing is held before the Board of Pardons and Parole; and if the violation is

established, the Board may revoke parole. See §§ 46-23-1024, -1025, MCA. Thus,

whereas the use of an intervention hearing in the probation context precludes the

subsequent revocation of probation, Martinez, ¶¶ 18-20, the use of an onsite hearing in

the parole context does not preclude the subsequent revocation of parole. In fact, an

onsite hearing is a required step in the process. But more to the point of Haagenson’s 

argument, § 46-23-1012, MCA, does not preclude the revocation of probation just

because the offender has been subjected to an onsite hearing and parole revocation under
15

§§ 46-23-1024 and -1025, MCA. In short, Haagenson has pointed to nothing in the

statutes indicating that Officer Clancy could not pursue an onsite hearing and parole

revocation under §§ 46-23-1024 and -1025, MCA, as well as a probation revocation

under § 46-23-1012(3)(c), (4), and (5), MCA. Our approach in Martinez and Johnston,

therefore, is distinguishable from and inapplicable to the factual circumstances of the

present case.

CONCLUSION

¶21 Haagenson did not receive multiple punishments for a single act. His right to be 

free from double jeopardy was not violated.

¶22 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ MIKE McGRATH

/S/ PATRICIA O. COTTER

/S/ MICHAEL E WHEAT

Justice W. William Leaphart, specially concurring.

¶23 I concur in the result reached by the Court but disagree with the Court’s statement

in ¶ 10 that, “it is self-evidence that, by definition, when this Court declines to exercise

plain error review of a claim, this Court does not decide the merits of that claim.

LeDeau, therefore, is not controlling authority here.”
16

¶24 I do not agree that statements made by the Court in addressing plain error review

are susceptible of such an absolute rule. The Court’s conclusion that when we decline to

exercise plain error review we have, by definition, not addressed the merits can,

depending on the case, be superficial.

¶25 We have not been consistent in our use of the verb “decline” as it relates to the

“plain error doctrine” versus “plain error review.” We have cases in which we simply

decline to exercise plain error review with essentially no explanation or indication that

we analyzed the appeal under the two Finley criteria. State v. Essig, 2009 MT 340, ¶ 31,

353 Mont. 99, 218 P.3d 838, 843. We have cases in which we engage in the review of

the alleged plain error but, in the end, decline to invoke the common law plain error

doctrine. State v. Godfrey, 2004 MT 197, ¶ 40, 322 Mont. 254, 95 P.3d 166 (concluding,

after a sixteen-paragraph analysis, that “the particular facts of this case do not compel the

application of the plain error doctrine because there simply was no clear comment on or

infringement of Godfrey’s fundamental right to remain silent”); State v. Lindberg,

2008 MT 389, ¶ 35, 347 Mont. 76, 196 P.3d 1252 (declining, after several pages of

common law plain error analysis, to invoke common law plain error and holding that

“given the totality of the circumstances in this case, the prosecutor’s comments do not

rise to a level sufficient to invoke the plain error doctrine”) (emphasis added). Then we

have cases in which we (at least to some extent) discuss the merits of the claimed error,

and then decline to exercise “plain error review.” State v. Rovin, 2009 MT 16, ¶ 30,

349 Mont. 57, 63-64, 201 P.3d 780 (emphasis added); State v. Lacey, 2009 MT 62, ¶ 74,

349 Mont. 371, 397, 204 P.3d 1192 (“None of these [plain error] concerns are present
17

here, and we decline to review Lacey’s claimed errors under the plain error doctrine.”);

State v. LeDeau, 2009 MT 276, 352 Mont. 140, 215 P.3d 672; State v. Shively, 2009 MT

252, ¶ 24, 351 Mont. 513, 216 P.3d 732 (“Having reviewed the facts and circumstances

herein, we conclude that this case is not appropriate for the exercise of plain error

review.”).
18

¶26 This latter category of cases arguably presents a semantic inconsistency in that

they discuss the merits on one hand and then, on the other hand, “decline to review.” In

concluding herein that the Court’s statements in the latter category of cases are of no

precedential value, I believe the Court elevates form over substance. We made clear in

State v. Finley—our seminal decision laying out the common law plain error doctrine—

that even the initial invocation of common law plain error requires this Court to consider

or “review” the facts as applied to the Finley criteria: “The particular facts and

circumstances of each case drive the applicability of the plain error doctrine.” State v.

Finley, 276 Mont. 126, 134, 915 P.2d 208, 214 (1996).

¶27 As a practical matter, we do not address requests to exercise plain error in a

vacuum. “When determining whether to apply the common law plain error rule, we must

decide whether the errors alleged by Sullivan implicate fundamental constitutional

rights.” State v. Sullivan, 280 Mont. 25, 32, 927 P.2d 1033, 1037. In other words, we

frequently review the matter to determine whether the alleged error implicates a

fundamental right, and if so, does it result in a miscarriage of justice, implicate the

fundamental fairness of the trial or compromise the integrity of the judicial process. If

not, we either decline to exercise plain error review, as in Lacey, or we decline to apply

the plain error doctrine, as in Godfrey. In either case, the Court’s analysis is of value.

Although I think we can avoid this semantic confusion by being more specific as to

whether we are declining the review or declining the plain error doctrine, I reject any

attempt to establish a categorical rule that anything the Court says in declining plain error

review is without precedential value.
19

¶28 I believe a more appropriate route is to clarify the language we use when

considering the applicability of the common law plain error doctrine. This doctrine

requires the Court to review the facts of the appeal under two criteria: (1) whether a

fundamental right was implicated; and (2) whether failure to review the claim would

result in the miscarriage of justice or unfair consequences articulated in Finley. Finley,

276 Mont. at 137, 915 P.2d at 215. There is no means of avoiding this review, regardless

of whether it occurs in one sentence or ten paragraphs of analysis. I would therefore urge

the Court to clarify the lexicon associated with common law plain error. The Court

“reviews” a party’s request to invoke the common law plain error doctrine. If we find

that the appeal meets both Finley criteria, then we “apply” or “invoke” the common law

plain error doctrine.

/S/ W. WILLIAM LEAPHART

Justice Brian Morris and Justice Jim Rice join in the special concurring opinion of Justice

Leaphart.

/S/ JIM RICE

/S/ BRIAN MORRIS