DA 06-0604

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 217

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JOSEPH WAYNE HINKLE,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC 05-299

Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Attorney at Law; Helena, Montana

For Appellee:

Mike McGrath, Montana Attorney General; Sheri K. Sprigg, Assistant 

Attorney General; Helena, Montana

Brant Light, Cascade County Attorney; Matthew Robertson, 

Deputy County Attorney; Great Falls, Montana

Submitted on Briefs: February 20, 2008

 Decided: June 17, 2008

Filed:

__________________________________________

Clerk

June 17 2008
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Justice Jim Rice delivered the Opinion of the Court. 

¶1 Appellant Joseph Wayne Hinkle appeals from the order of the Eighth Judicial 

District Court, Cascade County, revoking his youth court probation, imposing his 

previously stayed adult sentence, and suspending that sentence subject to sentencing 

conditions. We affirm. 

¶2 We consider the following issues on appeal: 

¶3 1. Did the District Court abuse its discretion by revoking Hinkle’s youth court 

probation and imposing Hinkle’s previously stayed twenty-year suspended sentence for 

negligent homicide? 

¶4 2. Did the District Court impose an illegal sentence by restricting Hinkle from 

playing games of chance or entering casinos? 

FACTUAL AND PROCEDURAL BACKGROUND

¶5 In June 2005, Hinkle and his best friend, Kyle McCracken, both age seventeen, 

were eating lunch in the cab of McCracken’s pickup when a .22 caliber revolver that 

Hinkle was playing with discharged, striking McCracken in the head and killing him 

instantly. Hinkle admitted to detectives that he and McCracken were joking around with 

the gun when McCracken said “go ahead and shoot me,” at which point the gun 

accidentally discharged. Hinkle was subsequently charged with negligent homicide, a 

felony, in violation of § 45-5-104, MCA (2003). Because Hinkle was seventeen years 

old at the time of the offense, the county attorney filed an information in district court 

under § 41-5-206(2), MCA (2003). Thereafter, pursuant to a plea agreement, Hinkle pled 
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“True” to the charge of negligent homicide and in return the county attorney agreed to 

recommend that he be “committed to the Youth Court for a suspended placement in a 

treatment facility until age 18 or sooner released; formal juvenile probation until age 25 

or sooner released; and a stayed adult sentence of 20 years to the Montana Department of 

Corrections . . . .” The District Court “conditionally accepted the terms of the binding 

plea agreement” and transferred the matter to the Youth Court as an extended jurisdiction 

prosecution under § 41-5-1602, MCA (2003). 

¶6 A sentencing hearing was held March 6, 2006, and the District Court sentenced 

Hinkle in accordance with the plea agreement. Pursuant to § 41-5-1604(1)(a)(ii), MCA, 

Hinkle was supplementally sentenced to an adult sentence of twenty years commitment to 

the Department of Corrections, with the sentence stayed on the condition that he not 

violate the provisions of the dispositional order and not commit a new offense. The court 

ordered Hinkle to fully comply with twenty-two conditions of his juvenile probation and 

warned him that “he would be held strictly accountable for any probation violation.” 

¶7 Twelve days after the sentencing hearing, Hinkle was cited for being a minor in 

possession of alcohol. At an evidentiary hearing on April 17, 2006, Hinkle admitted that 

he had violated two conditions of his youth court probation which required him to 

(1) “obey all laws, court orders, rules of the home, and rules of probation” and 

(2) “prohibited [him] from possessing or consuming alcoholic beverages or any illicit 

drug or inhalant, except as prescribed by a licensed physician.” The court revoked 

Hinkle’s probation under the Youth Court Act and transferred the matter back to the 
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District Court for further proceedings. A new pre-sentence investigation (PSI) was 

ordered.

¶8 During the dispositional hearing, the juvenile probation officer who supervised 

Hinkle and the adult probation officer who prepared Hinkle’s PSI recommended that 

Hinkle be placed on adult probation and supervision. The PSI further recommended that 

Hinkle not be immediately incarcerated, “thereby giving this Defendant another chance, 

but one with serious consequences should he falter.” The PSI also included a 

psychological evaluation of Hinkle, stating that Hinkle’s profile was disconcerting in the 

area of “fearlessness,” because Hinkle “is likely to engage in risky or potentially lifethreatening activities . . . . Perhaps more significantly, he is recklessly foolhardy, 

seemingly uninhibited by genuine hazards, and disposed to pursue truly perilous 

ventures.” Last, the court read two letters into the record: a victim impact statement from 

McCracken’s parents and a letter in support of Hinkle. The court commented that both 

letters typified the balancing of interests which the court faced.

¶9 In imposing sentence, the court explained that it had considered a number of 

factors, including: (1) the negotiated agreement between the State and Hinkle that 

provided for imposition of an adult sentence if the conditions of youth probation were not 

followed; (2) that Hinkle should be held accountable because he violated the terms of his 

youth probation “right out of the gate;” (3) that the PSI did not indicate that Hinkle was 

unable to comply with the terms of his youth probation; (4) the testimony of the 

probation officers that the youth court was not “fully equipped to monitor and effectively 
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address probation and probation problems of an adult until age 25;” and (5) the victim 

impact report submitted by McCracken’s family. The court imposed the twenty-year 

adult sentence which had originally been stayed, but suspended that sentence subject to 

nineteen conditions. Condition 4 prohibited Hinkle from entering any casinos or playing 

any games of chance. Hinkle appeals.

STANDARD OF REVIEW

¶10 An offender who is not sentenced to a term of one year or more of actual 

incarceration is statutorily ineligible for sentence review by the Sentence Review 

Division (SRD). Section 46-18-903, MCA (2003). In such cases, we first review the 

sentence for legality to determine whether it falls within statutory parameters and, if so, 

we then examine whether the sentencing court abused its discretion in imposing the 

sentence. State v. Armstrong, 2006 MT 334, ¶ 8, 335 Mont. 131, ¶ 8, 151 P.3d 46, ¶ 8. 

An abuse of discretion occurs when a district court acts arbitrarily without conscientious 

judgment or exceeds the bounds of reason. State v. Ruiz, 2005 MT 117, ¶ 22, 327 Mont. 

109, ¶ 22, 112 P.3d 1001, ¶ 22. The sentencing statutes authorize a district court to 

impose “reasonable restrictions” necessary to rehabilitate the offender or protect the 

victim and society. State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, ¶ 9, 179 P.3d 1164, 

¶ 9 (citing § 46-18-201(4)(n), MCA (2005)). Accordingly, we first review a condition of 

probation for legality and then review the condition for an abuse of discretion. Ashby, 

¶ 9. 
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¶11 Hinkle asserts that we should review sentences that are ineligible for SRD review 

in a manner that would “permit the parties the same opportunities afforded in the SRD 

process, at least to the extent that supplemental briefs may be filed, or additional 

sentencing data provided, so that this Court could fully review the sentence imposed.” 

Essentially, Hinkle would have this Court review all SRD ineligible sentences for 

“uniformity.” However, we have previously stated that

[s]entence review is not a constitutional right, but a system the legislature 

has voluntarily created. As such, there is no due process right to sentence 

review. It is within the discretion of the legislature to determine under what 

circumstances and conditions to allow sentence review. 

State ex rel. Holt v. Dist. Ct., 2000 MT 142, ¶ 12, 300 Mont. 35, ¶ 12, 3 P.3d 608, ¶ 12. 

Accordingly, we decline Hinkle’s invitation to review sentences for uniformity and we 

adhere to the two-tiered review stated above. 

DISCUSSION

¶12 1. Did the District Court abuse its discretion by revoking Hinkle’s youth 

court probation and imposing Hinkle’s previously stayed twenty-year suspended 

sentence for negligent homicide? 

¶13 Hinkle asserts that the District Court abused its discretion by revoking Hinkle’s 

youth court probation and imposing the previously stayed adult sentence. Hinkle 

contends that the “District Court took an unduly harsh and punitive approach to 

[Hinkle’s] drinking violation.” The State responds that the seriousness of the crime, 

Hinkle’s age at the time it occurred, his demonstrated failure to heed warnings about his 

actions, and the lack of other options under the youth court system demonstrate that the 

District Court did not abuse its discretion in imposing the suspended adult sentence.
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¶14 Under the plea bargain agreement, the State originally agreed to recommend youth 

court probation until age twenty-five as a sentence, conditioned upon Hinkle’s 

compliance with the conditions of probation, including no commission of new offenses. 

Upon these terms the State also agreed to recommend a stay of a twenty-year adult 

sentence in order to provide an incentive for Hinkle to comply with the terms of his 

sentence. However, twelve days after sentencing, Hinkle violated two conditions of his 

probation, leaving the District Court with the options of either 1) continuing Hinkle’s 

youth probation and the stay of the adult sentence or 2) ordering execution of the adult 

sentence. The court was presented with testimony from two probation officers, both of 

whom recommended that Hinkle be transferred to adult probation and parole on a 

suspended sentence, subject to conditions. The court also considered the PSI, the victim 

impact report, and a letter in support of Hinkle. 

¶15 The court followed the recommendation of the probation officers, determining that 

to continue Hinkle’s youth probation would act as little more than a “slap on the wrist” 

that would send Hinkle “on [his] way with very little consequence, if any, and with 

another seemingly hollow statement that this is serious business.” The court concluded 

that this result would be inappropriate given the underlying offense of negligent 

homicide. Accordingly, the court imposed a suspended adult sentence, which, as the 

State asserts, was “a further act of grace” because, under the binding plea agreement, the 

court could have imposed a twenty-year sentence of confinement. Hinkle ignores this 

“act of grace” when asserting that the District Court acted in an “unduly harsh” manner.
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¶16 A review of the record convinces us that the court handled this case in a sensitive 

and appropriate manner. Consequently, the District Court’s order was neither arbitrary 

nor without conscientious judgment or exceeding the bounds of reason and was an 

appropriate exercise of discretion.

¶17 2. Did the District Court impose an illegal sentence by restricting Hinkle from 

playing games of chance or entering casinos? 

¶18 Hinkle’s second argument is that the District Court imposed an illegal condition 

by prohibiting him from entering casinos and playing games of chance. Hinkle contends 

that there “simply is no connection between the offense of conviction and the challenged 

restriction on entry into casinos, or playing any game of chance[,]” making the condition 

illegal pursuant to the “nexus” requirement of State v. Ommundson, 1999 MT 16, ¶ 11, 

293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11. 

¶19 However, we recently expanded the Ommundson rule in Ashby. There we 

determined that “a sentencing judge may impose a particular condition of probation so 

long as the condition has a nexus to either the offense for which the offender is being 

sentenced, or to the offender himself or herself.” Ashby, ¶ 15. Additionally, we have 

held a youth offender’s sentence may appropriately consider the purposes of the Youth 

Court Act, which is to rehabilitate the Youth by establishing “a program of supervision, 

care, rehabilitation, detention, competency development, and community protection for 

youth before they become adult offenders[.]” Section 41-5-102(2)(b), MCA (2003); In re

D.A.S., 2008 MT 168, ¶ 15, __ Mont. __, ¶ 15, __ P.3d __, ¶ 15. 
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¶20 Hinkle’s conviction of negligent homicide stemmed from his handling of a 

firearm. That crime requires a conscious disregard of a risk involving a gross deviation 

from a reasonable standard of conduct. Section 45-2-101(42), MCA (2003). The PSI 

prepared for the revocation proceeding described Hinkle as reckless and foolhardy, 

unable to appreciate risks and hazards, and predisposed to pursue perilous ventures. 

These personal characteristics make Hinkle particularly vulnerable to the pitfalls of 

irresponsible gambling. See State v. Kroll, 2004 MT 203, ¶ 31, 322 Mont. 294, ¶ 31, 

95 P.3d 717, ¶ 31 (“the lure of easy money has long been a hallmark of gambling”). 

Further, Hinkle is a youth offender who requires supervision and competency 

development in order to successfully complete his sentence and achieve the objectives of 

rehabilitation under the Youth Court Act. As such, the District Court appropriately 

imposed the gambling and casino condition. 

¶21 Affirmed.

/S/ JIM RICE

We concur: 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS