                                                                                           March 3 2015


                                       DA 13-0858
                                                                                         Case Number: DA 13-0858

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2015 MT 73N



IN THE MATTER OF:

X.V.H.,

          A Youth.



APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and For the County of Lincoln, Cause No. DJ-12-10
                     Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                     Nancy G. Schwartz, N.G. Schwartz Law, PLLC; Billings, Montana


            For Appellee:

                     Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant
                     Attorney General; Helena, Montana

                     Bernard G. Cassidy, Lincoln County Attorney, Robert Slomski, Deputy
                     Lincoln County Attorney; Libby, Montana



                                                 Submitted on Briefs: January 28, 2015
                                                            Decided: March 3, 2015



Filed:

                     __________________________________________
                                       Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     X.V.H., a youth, appeals the November 4, 2013 Youth Court order of commitment of

the Nineteenth Judicial District, Lincoln County, which revokes his Youth Court probation

and requires X.V.H. to register as a Level 2 sex offender. We affirm.

¶3     On November 26, 2012, the Youth Court filed an order of commitment for X.V.H.

after X.V.H. admitted to two counts of felony sexual assault of two child victims. X.V.H.

was ordered to serve probation at Alternative Youth Adventures (AYA) in Boulder. The

terms of X.V.H.’s probation included condition 3: being obedient to guardians, teachers,

therapist, group home staff, and his probation officer, and condition 4: successfully

completing a sex offender treatment program. The order of commitment stated: “The Court

defers any decision regarding requiring registration of the Youth as a sexual offender until

after the Youth has completed treatment.”

¶4     The State filed a petition to revoke probation on October 16, 2013. The petition

alleged that X.V.H. violated condition 3 of probation by not being obedient to authority

figures and condition 4 by not successfully completing treatment. At the hearing on the

petition to revoke, X.V.H. admitted to violating conditions 3 and 4 of his probation. The

Youth Court also addressed his sexual abuse of a third child victim, to which X.V.H. had not

immediately admitted in sessions with his therapist. The second order of commitment was
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filed on November 5, 2013. The second order revoked probation, committed X.V.H. to Pine

Hills Youth Correctional Facility in Miles City, and required X.V.H. to register as a Level 2

sex offender. X.V.H. appeals the second order of commitment.

¶5     X.V.H. argues that the Youth Court abused its discretion by ordering him to register

as a sex offender because he had not yet completed treatment. X.V.H. notes that the first

order of commitment provided that the Youth Court deferred the decision of requiring

registration “until after the Youth has completed treatment.” X.V.H. asserts that completion

of treatment was a “condition precedent” to the decision of registration, and since that

condition had not yet occurred, the Youth Court’s decision to require him to register was

premature. X.V.H. contends that the Youth Court should have continued to defer the

decision until he had completed treatment at Pine Hills.

¶6     The State argues that X.V.H. was required to register as a sex offender under the

Sexual or Violent Offender Registration Act, §§ 46-23-501, MCA, et. seq., and X.V.H. did

not meet any of the criteria which allow relief from registration under § 41-5-1513(1)(d),

MCA. The State further contends that X.V.H. was required to “successfully complete the

sexual offender treatment program at AYA,” (emphasis added) under the first order of

commitment, which X.V.H. did not do. X.V.H.’s therapist reported that “he has not

internalized his treatment and will not use the skills he has learned to remain at a nominal

level of risk for re-offense.” The State argues that because X.V.H. had unsuccessfully

completed treatment at AYA, the Youth Court was within its discretion to order registration

at the hearing on the petition to revoke X.V.H.’s probation.



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¶7     We will not overrule a youth court’s judgment absent a clear abuse of discretion. The

test for an abuse of discretion is whether the trial court acted arbitrarily,without employment

of conscientious judgment, or exceeded the bounds of reason resulting in substantial

injustice. In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126 (citations and

quotations omitted). In this case, the State’s contention that X.V.H. did not successfully

complete sex offender treatment at AYA as required by the first order of commitment is well

taken. X.V.H.’s therapist at AYA reported that X.V.H. would not be allowed to graduate

from the AYA sex offender treatment program. X.V.H. did not complete several homework

assignments, and he continued to act inappropriately among his peers.

¶8     Assuming arguendo that the completion of treatment constituted a “condition

precedent” which had to be satisfied before the Youth Court could require X.V.H. to register,

the condition was satisfied when X.V.H. unsuccessfully completed treatment at AYA. To

hold otherwise would reach an absurd result in which X.V.H. could theoretically put off

registration indefinitely by continually failing to successfully complete treatment.

Accordingly, the Youth Court did not abuse its discretion by ordering X.V.H. to register as a

Level 2 sex offender.

¶9     X.V.H. next argues that the Youth Court violated his Fifth Amendment right against

self-incrimination by considering his failure to immediately admit sexual abuse of another

victim, citing State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991). In Imlay, we held that a

defendant convicted of a crime could not have his sentence augmented for the sole reason of

failing to admit guilt of the crime for which he was convicted. Imlay, 249 Mont. at 91, 813



                                              4
P.2d at 895. X.V.H. urges this Court to invoke plain error review to address this unpreserved

issue of self-incrimination.

¶10    The State contends that the Youth Court had adequate grounds on which to revoke

X.V.H.’s probation, independent of X.V.H.’s initial unwillingness to admit to this further

offense. The State cites State v. Osborne, 2007 MT 217, ¶ 12, 339 Mont. 45, 167 P.3d 405,

in which we distinguished Imlay and found revocation of probation was proper when

“Osborne failed the program for various reasons, including lack of participation in group

sessions, failure to complete homework assignments and identify a cycle of abuse.” Osborne,

¶ 12. We noted in Osborne that a lack of participation in treatment, independent from not

admitting the offense for which one was convicted, is sufficient grounds to revoke probation.

Osborne, ¶ 12. The State argues that X.V.H. failed to complete treatment on grounds

independent from not admitting a further offense; therefore, the Youth Court had sufficient

grounds to revoke X.V.H.’s probation, and X.V.H. has not met the burden necessary to

invoke plain error review of the unpreserved claim that the Youth Court violated X.V.H.’s

Fifth Amendment right against self-incrimination.

¶11    “This Court generally does not address issues raised for the first time on appeal.”

State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. “Failure to make a timely

objection during trial constitutes a waiver of the objection except as provided

in 46-20-701(2).” Section 46-20-104(2), MCA. Notwithstanding this limitation on our

ability to review unpreserved objections, we have held:

       [T]his Court may discretionarily review claimed errors that implicate a
       criminal defendant’s fundamental constitutional rights, even if no
       contemporaneous objection is made and notwithstanding the inapplicability of
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       the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at
       issue may result in a manifest miscarriage of justice, may leave unsettled the
       question of the fundamental fairness of the trial or proceedings, or may
       compromise the integrity of the judicial process.

Taylor, ¶ 14 (quoting State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996)).

¶12    X.V.H. is correct that, under our holding in Imlay, the Youth Court could not consider

X.V.H.’s failure to admit to the new offense as the sole reason for revoking his probation.

However, that is not the situation in this case. X.V.H. admitted to violating two separate

conditions of his probation at the revocation hearing. These violations included refusing to

comply with his therapist’s instructions and putting forth no effort to complete assignments

in therapy on numerous occasions. X.V.H.’s privilege against self-incrimination was not

implicated in any manner by these violations. Independent of X.V.H.’s failure to admit to

the new offense, therefore, there were adequate grounds to revoke his probation, and the

Youth Court did not abuse its discretion in doing so.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. Having

reviewed the briefs and the record on appeal, we conclude that the appellant has not met his

burden of persuasion to invoke use of the plain error doctrine in this case. The issues in this

case were therefore ones of judicial discretion and there clearly was not an abuse of

discretion. Affirmed.

                                                   /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
                                              6
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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