DA 10-0547 

### INTHE SUPREME COURTOF THE STATE OF MONTANA 2012 MT44



### IN

### THEMATTEROF: M.W.,A YouthUnderthe Age of18. 

# FILED FEB 28 

### 2012 

# Xa Smitfi CLERKOF THESI:JPRiEMECOURT SlATEOF MONTANA APPEAL FROM: DistrictCourtofthe FirstJudicial District, In and Forthe County ofLewis and Clark, CauseNo. DJ2007-30 Honorable Dorothy McCarter, PresidingJudge
COUNSEL OF RECORD: ForAppellant: Nancy G. Schwartz; NG Schwartz Law, PLLC; Billings, Montana ForAppellee: Steve Bullock, MontanaAttorney General; Micheal S. Wellenstein, AssistantAttorney General; Helena, Montana Leo Gallagher, Lewis and ClarkCountyAttorney; Helena, Montana

SubmittedonBriefs: November 30, 2011 Decided: February 28,2012
Filed: February 28 2012Justice Jim Rice deliveredthe Opinion ofthe Court. ,-rl The Youth Court ofthe First Judicial District, Lewis and Clark County, required then-juvenile M.W. to register as a sexual offender. The case was subsequently transferred to District Court, which later denied M.W.'s petition to be relieved ofthe registration requirement. M.W. appeals the denial ofhis petition. We affirm. ,-r2 Did the District Court err by denying M W. 's petition to relieve himfrom the requirementto registeras a sexualoffender? 

### FACTUALAND PROCEDURALBACKGROUND ,-r3 In June 2007, the State filed a petition in Youth Court alleging M.W. was a delinquent youth. M.W. admitted that he committed sexual assault, in violation of§ 45- 5-502, MCA (2005), by touching his sister's genital area. At the time ofthe offense, M.W. was 14 and was three or more years older than his sister. The Youth Court adjudged M.W. as delinquent and placed him on probation until the age of 18, subject to

numerous conditions. M.W. was notrequired to register as a sexual offender. ,-r4 In May 2008, the State filed arevocation petition, alleging that M.W. had violated probationary conditions. M.W. admitted to several ofthe allegations. The Youth Court committed M.W. to the Department ofCorrections (DOC) for placement at Pine Hills Youth Correctional Facility until the age of 18, but suspended the commitment upon conditions, including that he complete a sexual offender treatment program. M.W. was notrequiredto register as a sexual offender.

2**~5** In April 2009, the State filed another revocation petition after M.W. was unsuccessfully discharged from sexual offender treatment. Describing M.W. as "a seriousjuvenile offender," andreasoning that, despite all reasonable efforts to keep M.W. in his home and community, placement outside the community was necessary, the Youth Court committed M.W. to the DOC for placement at Pine Hills. The court stated that M.W. was to fully comply with sexual offendertreatment at Pine Hills and "shall not be discharged prior to completion of the program." In the event that M.W. failed to successfully complete the program by age 18, the State "shall request thatjurisdiction of the matter be transferred to District Court for Lewis and Clark County, pursuant to Montana Code Ann. Section 41-5-208." The court also ordered that M.W. "shall register

as a sexual offender at Level I," stating "[t]he statute tells me you have to registerunless Ican say that it's not necessary for the protection ofthe public and thatregistration is not in the public's bestinterest. And I don'tbelieve I can find that atthis point, so I'm going to require registration." While M.W. argued against imposition of the registration requirement, he did not appeal from the Youth Court's July 2009 dispositional order.**~6** In August 2009, the State moved to transfer M.W.'s case to District Court and his supervision to adult probation and parole pursuant to § 41-5-208, MCA, because he was approaching age 18 and had not completed sexual offender treatment. The Youth Court grantedthe motion, and the District Court entered an orderthat M.W. was "transferredto adult supervision under the Montana Department ofCorrections until he reaches the age of25, subjectto the following:
31. The Defendant shall participate in a program of Sexual Offender Treatment with an MSOTA affiliated counselor as approved by the Adult Probation Department and successfully complete the program; said treatment program shall be evaluated on an on-going basis by his treatment team to determine that it is meeting the defendant's treatmentneeds; 2. The Defendant shall register as a sexual offenderatLevel I
...."**~7** In February 2010, the State moved to amend the transfer order to add language stating: "Should the youth complete all ofhis probation requirements prior to his 25th birthday, consideration may be given for an early release from supervision." The court grantedthe motion and amendedthe orderaccordingly.**~8** In March 2010, M.W. filed apetition to terminate the remainder ofhis suspended sentence, stating he had completed sexual offender treatment and all probation requirements. The District Court granted M.W.'s petition, ordering that M.W. "shall be released from supervision by the Department ofCorrections for the remaining portion of his suspended sentence." In July 2010, M.W. petitioned for an orderrelieving him ofhis duty to register as a sexual offender. The District Court denied the request, reasoning "[t]he Court concludes that it has no authority at this time to modifY the sentence and grant Defendant's request. Notwithstanding its lack of authority, the Court has no inclinationto grantDefendant's request." M.W. appeals. STANDARD OFREVIEW**~9** "We review conclusions oflaw to determine ifthey are correct." 

### In re CD.H., 2009 MT 8, 21,349 Mont. 1,201 P.3d 126 (citation omitted).

4DISCUSSION**~10** Did the District Court err by denying M W 's petition to relieve himfrom the requirementto registeras asex offender?**~[11** M.W. first challenges the original imposition ofthe registration requirement. He notes that, while the 2007 version ofthe MCA mandated registration except in limited circumstances, the 2005 version made registration discretionary with the Youth Court. Because his offense was committed in 2006, M.W. argues that the 2005 version applies, and that the discretionary provisions and associated procedures within that version "cannot be retroactively denied to him." M.W. argues that this Court's decision in UnitedStates v. Juvenile Male, 2011 MT 104, 9,360 Mont. 317, 255 P.3d 110, does not operate to retroactively apply the 2007 Sexual or Violent Offender Registration Act (SYORA) amendments to him because the "procedural protections" under the 2005 Act "cannot be deleted after-the-fact" without violating ex post facto protections. Thus, M.W. argues that, because he was not afforded the protections ofthe 2005 law when the registration requirementwas originally imposed, he cannotbe validly required to register.**~12** However, as the State notes, M.W. did not appeal from the order imposing the registration requiremententered by the Youth Court in July 2009. UnderM. R. App. P. 5 (now M. R. App. P. 4(5)), M.W. had 60 days to appeal, butthattime has long passed, and the challenge he now attempts to make to the original imposition ofthe requirement has been forfeited. See State v. Muhammad, 2002 MT 47, 22, 309 Mont. 1, 43 P.3d 318 (citation omitted) ("Muhammad first filed his notice ofappeal on July 26, 2000, more than one year after the imposition ofthe banishment condition in the May 28, 1999, 5Order. Therefore, since Muhammad failed to timely file a notice of appeal from the May 28, 1999, Order, he is precluded from now challenging the legality ofthe conditions therein imposed.").**~13** Alternatively, M.W. argues that, even ifthe 2007 amendments are retroactively applicable to him, he is no longer under a duty to register because the requirement was imposed as a condition ofhis sentence, and he has now been released from supervision. Although no precedent is offered in support ofthis proposition, M.W. reasons that he "has complied with all of the terms of his probation and has been relieved of his probationary sentence, [and] is now entitled to be relieved from the probationary condition that he register as a sexual offender." The State responds that M.W. waived this argument because he is raising it for the first time on appeal, and even ifthis Court chooses to address M.W.'s argument, sexual offender registration is an independent requirementunderMontana law.**~14** '''The general rule is that issues not raised before the trial court and new legal theories are not considered by this Court on appeal because it is unfair to fault the trial court on an issue it was never given an opportunity to consider.'" State v. Montgomery, 2010 MT 193, 11,357 Mont. 348,239 P.3d 929 (quoting State v. Courville, 2002 MT 330, 5, 313 Mont. 218,61 P.3d 749); see also Whitehorn v. Whitehorn Farms, Inc., 2008 MT 361, 21, 346 Mont. 394, 195 P.3d 836. However, ifan appellate argument is

a change in emphasis, rather than an entirely new theory, we have considered such arguments. See Whitehorn, 23; see also Beckerv. RosebudOperatingServs., Inc., 2008 6MT 285, 18, 345 Mont. 368, 191 P.3d 435. It is correct, as the State points out, that M.W. did not argue in the District Courtthat, because ofhis release from supervision, he

was relieved ofthe duty to register as amatter oflaw. He did argue that §§ 46-23-506(3) and 41-5-1513, MCA, provided discretion to the District Court to relieve him from the registrationrequirementbecausehe hadregistered "for a sufficienttime period." Further, the District Court deniedM.W.'s petition, inpart, upon the conclusionthat itwas without authority to grant relieffrom registration, and thus the court had the opportunity to rule

on the issue. Therefore, we conclude that M.W.'s appellate argument is appropriately made.

15 M.W.'s argument assumes that sexual offenderregistration is a general sentencing condition which operates only as long as the probationary sentence is in effect. Generally, probation conditions cannot continue beyond the time of supervision. See State v. Grana, 2009 MT 250, 17, 351 Mont. 499, 213 P.3d 783 (emphasis added) (an internetrestriction as a condition ofsentence "applies onlyso long as Grana is subjectto probationary conditions"). However, registration is not a general condition which a sentencing court is merely authorized to impose upon a probationary sentence. Rather, apart from the general sentencing statutes, registration is prescribed by discrete statutes that govern the imposition and duration ofregistration for sexual offenders, including youth offenders. Section 41-5-1513, MCA (2007); see also §§ 46-23-502 through -506, MCA (2007). These provisions specifically delineate the crimes for which registration must be imposed and the circumstances underwhich an offender may be exempted from
7registration. See State v. White Bear, 2005 MT 7, 8, 325 Mont. 337, 106 P.3d 516 (citing State v. Mount, 2003 MT 275, 68,317 Mont. 481, 78 P.3d 829) ("White Bear's argument is based on the incorrect premise that registration was a condition of his sentence for the previous

... offense and, as such, was part ofthe punishment for that offense. Violation of the SVORA registration requirements is a separate statutory offense; the registration requirements are not part ofcriminal sentencing on the original sexual or violent offense."); CD.H., 28 (emphasis added) ("Section 46-23-504, MCA, calls for all sexual offenders to register, including those offenders designated as level I."). Failure to register as required by these separate provisions constitutes a crime, for which criminalpenalties may be imposed. 1**~16** "A district court's authority in sentencing a criminal defendant is defined and constrained by statute, and the courthas no powerto impose a sentence in the absence of specific statutory authority." State v. Hicks, 2006 MT 71, 41,331 Mont. 471,133 P.3d 206 (citation omitted). Here, sentencing courts are constrained and must impose registration under the terms of the governing statutes. Courts have no authority to exempt or release a defendant from registration unless authorized to do so by these provisions. Otherjurisdictions have likewise held. See State v. Myers, 256 P.3d 13,**~~142,** 44 (N.M. 2011) (internal citations omitted) ("SORNA registration is not a

1 Violation ofa condition of supervision may result in revocation ofthe suspended sentence. Section46-18-203(7), MCA. Violation ofthe registration requirement is a crime under § 46-23- 507, MCA ("A sexual or violent offender who knowingly fails to register, verify registration, or keep registration current underthis partmay be sentencedto aterm ofimprisonment ofnot more than 5 years ormay be fined notmore than $10,000, orboth."). 8sentence, nor is it a condition ofrelease. Rather, 'registration and notification provisions under SORNA are immediate and automatic'.

. .. 'The duty to register

... arises by legislative mandate, not by court order.

. .. The duty to register is an independent statutory duty with a remedial purpose and is not terminated by dismissal ofcriminal charges."'); State v. Munds, 922 P.2d 215,217 (Wash. App. Div. 3 1996) ("the duty to register as a sex offender arises pursuant to legislative mandate, rather than by order of the sentencing court" and rejecting defendant's argument that registration was not required because he was not under supervision); State v. Robinson, 142 P.3d 729 (Idaho 2006) (rejecting request of defendant-who pled guilty to a sexual offense and was placed onprobation, then completedprobation and successfully petitionedto set aside his guilty plea-to be relieved from registration because he had not satisfied the statutory requirements). While M.W.'s disposition order may have treated registration as a condition of sentence, nonetheless it was also a stand-alone requirement dictated by statute.2**~17** Section 41-5-1513(1)(d), MCA (2007), requires a delinquent youth who has been adjudicated for a sexual offense, as defined by § 46-23-502, MCA, to register unless the court finds that the youth has not previously been adjudicated for a sexual offense, that registration is not necessary for protection ofthe public, and that relieffrom registration is in the public's best interest. See CD.H, 24. M.W. was adjudicated ofsuch a sexual

2As quoted above, in 6, the court's orderdid not expressly designate registration as acondition ofsentence. However, the parties have commonly referred to the requirement as a "condition" throughouttheseproceedings. 9offense and registration was imposed because, as the Youth Court indicated, it could not find the facts necessary under the statute to exempt M.W. from the requirement. M.W. did not appeal from the order imposing the requirement. Then, the duration ofa youth's registration requirement is governed by several provisions, beginning with § 41-5- 1513(5), MCA. Itprovides as follows: The duration ofregistration for a youth who is required to register as a sexual orviolent offender mustbe as provided in 46-23-506, exceptthatthe court may, based on specific findings of fact, order a lesser duration of registration. In tum, § 46-23-506, MCA, which is part of the adult sexual offender registration statutes, provides, in pertinentpart, as follows: 46-23-506. Duration of registration. (l) A sexual offender required to registerunderthis part shall register for the remainder ofthe offender's life, except as provided in subsection (3) or during a period of time during which the offenderis inprison. (3)(b) [Except for circumstances not applicable here], at any time after 10 years ofregistration for a level 1 sexual offender and at any time after 25 years ofregistration for a level 2 sexual offender, an offender may petition the sentencing court or the district court for thejudicial district in which the offender resides for an orderrelieving the offender ofthe duty to register.

. .. The courtmay grantthe petition upon finding that: (i) the offenderhas remained a law-abiding citizen; and (ii) continued registration is not necessary for public protection and thatrelieffrom registration is in the bestinterests ofsociety.**~18** Applying these provisions here, the Youth Court entered no "specific findings of fact" necessary under § 41-5-1513(5), MCA, to order a lesser duration of M.W.'s registration requirement. It simply ordered that M.W. "shall register as a sexual offender at Level I." Consequently, registration was imposed for the standard duration, which, as 10stated by § 41-5-1513(5), MCA, is governed by § 46-23-506, MCA. Under § 46-23-506, MCA, registration is imposed for life, butpermits levelland level 2 offenders to petition the court for reliefofthe requirement after a period ofregistration. The period is 10 years for level 1 offenders, and 25 years for level 2 offenders. M.W. was designated a level 1 offender, and thus may petition for relief from registration only after he has completed a 10-yearperiod ofregistration. M.W.'s registration requirement began with the Youth Court's orderinJuly 2009.**~19** The District Court analyzed the issue correctly by concluding that it did not have authority, at the present time, to relieve M.W. from the registration requirement. Under his sentence, M.W. must register for a period of 10 years before he becomes eligible to seekreliefofthe requirement. Nothing in our opinion today forecloses M.W.'s ability to petitionthe court for suchrelieffrom registration afterthatperiodhas elapsed.**~20** Affirmed.

We concur:

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