DA 06
- 0604 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 217
ST ATE OF MONTANA, Plaintiff and Appellee, v. JOSEPH WAYNE HINKLE, Defendant and Appellant.
APPEAL FROM: Di strict Courtof the Eighth Judicial District,

In and For the County

of Cascade, Cause No. CDC 05
- 299 Honorable Di

rk M. Sandefur, Presiding Judge COUNSEL OF RECORD:

For Appellant: William F. Hooks, Attorney at Law; Helena, Montana For Appellee : Mi ke McGrath, Mont ana Attorney General; Sheri K. Sprigg, Assistant Attorney General; Helena, Montana Brant Light, Cascade County A ttorney; Matthew Robertson, Deputy Count y Attorney; Great Falls, Montana

Submitted on Briefs: February 20, 2008 Decided: June17, 2008 Filed:

__________________________________________ Clerk June 17 20082

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 y outh court p robation, imposing his previously stayed adult sentence, and suspending that sentence subject tos entencing conditions. We affirm. ¶2 We consider

the following issue son appeal: ¶3 1. Did the District Court abuse its discretion by revoking Hinkle’s youth c ourt probation and imposing Hinkle’s previously stayed twenty - year suspended sentence for negligent homicide? ¶4 2. Did the District Court impose an illegal sentenceb yrestricting Hinkle from playing games of chance or entering casinos?

FACTUAL AND PROCEDU RAL BACKGROUND ¶5 In June 2005, H inkle and his best friend, Kyle McCracken , both ag e seventeen, were eating lunch in the cab of McCracken’s pickup when a .22 caliber revolver that Hinkle was playing with discharged, s triking McCracken in the head andkilling 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 wass ubsequentlyc harged with negligent homicide, a fel ony, in violation of § 45
- 5 - 104, MCA ( 2003)
. B ecause Hinkle was seventeen years old at the time of the offense, the county attorney f ile d aninformation in district c ourt under § 41
- 5 - 206( 2 ), MCA

(2003) . Thereafter, pursuant to a plea agreement , Hinkle p led3

“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 release d ; formal juvenile probation untila ge 2 5 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 e xtended 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. P ursuant to § 41
- 5 - 1604(1)(a)(ii), MCA, Hinkle was supplementallysentenced to an adult sentence of twenty years commitment to the Department of Corrections , w ith the sentence stayed on the condition that he not violate the provisions of the disposition alorder 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 alcoh ol. At an evidentiary hearing on April 17, 2006, Hinkle admitted that he had violated two condition s of his y outh court probation which required h im t o (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 the4

District Court for furth er proceedings. A n ew pre - sentence investigation (PSI) was ordered. ¶8 D uringthe dispositional hearing , the juvenile probation officer who supervised Hinkle and the adult probation officer who prepared Hinkle’s PSIrecommended that Hinkle be placed on adult p robation and supervision. The PSI further recommended that Hinkle n ot be immediately incarcerated, “thereby giving this Defendant another chance, but one with serious c onsequences should he falter.” The PSI also included a psychological evaluation of H inkle, stating that Hinkle’s profile was disconcerting in the area of “f

earlessness, ”b ecause Hinkle “is likely to engage in risky or potentially life
threatening 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 lettersinto the record : a victim impact statement from McCracken’s parents and a letter in support of Hinkle. The court commented that both letters typifie d the balancing of interests which the court faced
. ¶9 In imposing sentence, the court explained that it had considered anumber of factors , including : ( 1) the negotiated agreement between the S tate and Hinkle that provided for imposition of an adult senten ceif 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 y outh probation; (4) the testimony of the probation officers that the youth court was not “fully equipped to monitor and effectively5

address probation and probation problems of an adult until age 25 ; ” and (5) the victim impact report submitted

b y McCracken’s family. The court imposed the twenty - year adult sentence which had originally been stayed , b ut suspended th ats entence s ubject to nineteen conditions. Condition 4 prohibit edHinkle from entering any casinos or playing any games of chance. Hinkle appeals. STANDARD OF REVIEW ¶10 An offender who is not sentence d to a term of one year or more of actual incarceration is statutorily ineligible for sentence review by the Sentence Review Division( SRD)
. S ection 46
- 18
- 903, MCA ( 2003)
. In such cases, w e 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. 1 31, ¶ 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 authorizeadistrict 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 , ¶ 9.6

¶11 Hinkle asserts that we should review sentences that are ineligible for SRD review in a manner that would “permit th e 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 havethis C ourt 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 conditionsto 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 declineH inkle’s invitation to review sentences for uniformityand we adhere to the two - tiered review stated above. DISCUSSION ¶12 1. Did th e District Court abuse its discretion by revoking Hinkle’s youth court pr obation and imposing Hinkle’s previously stayed twe nty-year su spended 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. H inkle 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 ag e at the time it occurred, hisd emonstrated failure to heed warnings about his actions , and the lack of other optionsunder the youth court system demonstrate that

the D istrict C ourt did not abuse its discretion in imposing the suspended adult sentence.7

¶14 Under th eplea 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 offense s . Upon these terms the State also agreed to recommend a stay of a twenty - year adult sentence in order

to providean incentive forH inkle to comply with the terms of his sentence . H owever, twelvedays after sentencing, Hinkle violated two conditions of his probation , leaving the District Court with theoptionso f either 1) continuing H inkle’s youth probation and the stay of the adul t s entence or 2) orderinge xecution of the adult sentence. The court was presented with testimony from two probation officers, both of whom recommended that Hinkle be transferre d to adult probation and parole on a suspended sentence , s ubject to conditions
. The court also considered the PSI, the victi m impact report, and a letter in support of Hinkle. ¶15 The court followed th e recommendationof the probation officers, determiningthat to continue Hinkle’s youth probation would a ct as little more than a “slapo n 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 a dult sentence, which, as the State asserts, was“ a further act of grace”b ecause , under the binding plea agreement , the c ourt could have imposed a twenty - year sentenceo f confinement
. Hinkle ignores this “act of grace” whenasserting that the District Court acted in an “unduly harsh” manner.8

¶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 wasn either arbitrary nor without conscientious judgment or exceeding the bounds of reasonand was an appropriate exerciseof discretion. ¶17 2. Did the District Court impose an illegal sentencebyrestricting Hinkle from playing games of chance or entering ca sinos? ¶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 c hallenged 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, w e 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 orh erself.” Ashby , ¶ 15. Additionally, we have held ay outh offender’s sentence may appropriately consider the purpose so f the Youth Court Act, which is to rehabilitate the Youth by establishing “ a program of supervision, care, rehabilitation, detention, competency developme nt, 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
.9

¶20 Hinkle ’s conviction of negligent homicide stemme d from his h andling of a firearm. That crime requires ac onscious disregard of a risk involving agross deviation from a reasonable standard of conduct. S ection 45
- 2
- 101(42), MCA (2003). The PSI prepared for the revocation proceeding described Hinkle asreckless and foolhardy, unable to appreciate risks and hazards, and pre disposed to pursue perilous ventures. These personal characteristics make Hinkle particularly vulnerable to the pitfalls of irresponsible gambling
. See State v. Kroll, 2004 MT 203, ¶3 1, 322 Mont. 2 94, ¶ 31, 95 P.3d 717, ¶ 31 (“the lure of easy money has long been a hallmark of gamb ling”)
. Further, Hinkle is a youth offender who requiress upervision and competency development in order to successfully complete his sentence and achievethe objectives of rehabilitation under the Youth Court Act. A s such, theD istrict Court appropriately imposed thegambling and casino condition. ¶21 Affirmed. /S/ JIM RICE

We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BRIAN MORRIS