                                                                                         January 17 2012


                                          DA 11-0349

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 9



IN THE MATTER OF:

T.M.L.,

         A Youth under the Age of 18.




APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Broadwater, Cause No. DJ 09-16
                        Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

                 For Appellee:

                        Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant
                        Attorney General, Helena, Montana

                        John T. Flynn, Broadwater County Attorney, Townsend, Montana


                                                   Submitted on Briefs: December 14, 2011
                                                              Decided: January 17, 2012




Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     T.M.L. appeals two orders of the First Judicial District, Broadwater County, one

denying T.M.L.’s motion to dismiss for lack of jurisdiction, and the other requiring T.M.L.

to register as a sex offender. We affirm in part, and remand for the limited purpose of

striking the sentencing condition requiring T.M.L. to register as a sexual offender.

                                    BACKGROUND

¶2     In 2009, seventeen year old T.M.L. was charged in Youth Court with felony burglary,

misdemeanor criminal trespass to vehicles, and misdemeanor theft from a vehicle. Based

upon T.M.L.’s admissions of entering a house and car without permission, and stealing

women’s undergarments, T.M.L. pled guilty to felony burglary and misdemeanor criminal

trespass to vehicles on March 5, 2010.

¶3     The Youth Court entered a Dispositional Order on March 26, 2010, which

provided in pertinent part:

       1. That the Youth, [T.M.L.], be placed on probation to the Juvenile Probation
       Department of the First Judicial District until he reaches the age of 18 years
       old and for the balance of said term, be under the control, abide by, and
       carefully follow the instructions of said Juvenile Probation Department. Upon
       reaching the age of 18, the Youth will appear before the Court for the purpose
       of a Transfer Hearing pursuant to § 41-5-208, MCA, to transfer supervision
       and responsibility to the District Court and the supervision to the Adult
       Probation and Parole Department and to determine conditions of his probation
       with the Adult Probation and Parole Department . . . .

T.M.L. turned eighteen on April 30, 2010.

¶4     On November 5, 2010, the State filed a Motion to Reinstate Youth Court Petition and

transfer from youth court to district court pursuant to § 41-5-208, MCA, and § 41-5-1501(4),
                                             2
MCA. In response, T.M.L. filed a motion to dismiss for lack of jurisdiction because the

State failed to file the motion prior to T.M.L. turning eighteen. The Youth Court denied

T.M.L.’s motion to dismiss on January 11, 2011. On March 7, 2011, the Youth Court

transferred T.M.L.’s matter to district court, and transferred T.M.L.’s supervision to adult

supervision under the Department of Corrections. As part of its March 7, 2011, Order, the

District Court required T.M.L. to register as a sexual offender. This timely appeal followed.



¶5     We restate the issues as follows:

¶6     Issue One: Did the Youth Court err when it retained jurisdiction over T.M.L.?

¶7     Issue Two: Did the Youth Court err when it required T.M.L. to register as a sexual

offender?

                               STANDARDS OF REVIEW

¶8     A youth court’s interpretation and application of the Youth Court Act is reviewed for

correctness. In re J.A., 2011 MT 132, ¶ 5, 361 Mont. 16, 255 P.3d 150 (citing In re Cascade

Co. Dist. Ct., 2009 MT 355, ¶ 10, 353 Mont. 194, 219 P.3d 1255). We review criminal

sentences for legality, to determine whether they are within the parameters set by statutes as

a matter of law. State v. Grana, 2009 MT 250, ¶ 11, 351 Mont. 499, 213 P.3d 783.

                                      DISCUSSION

¶9     Issue One: Did the Youth Court err when it retained jurisdiction over T.M.L.?

¶10    T.M.L. argues the Youth Court lost jurisdiction when T.M.L. turned eighteen because

T.M.L.’s probation ended upon T.M.L. reaching the age of eighteen. The State argues the
                                              3
Youth Court retained jurisdiction because the Dispositional Order extended jurisdiction past

T.M.L.’s probationary period in order to conduct a transfer hearing. The Youth Court agreed

with the State and retained jurisdiction because the Youth Court had not terminated its

jurisdiction pursuant to § 41-5-205(1), MCA, and because § 41-5-208(1), MCA, permits a

youth court to transfer a matter to district court “at any time after a youth reaches 18 years of

age but before the youth reaches 21 years of age.” We agree with the Youth Court.

¶11    Generally, a youth court’s jurisdiction ceases when the youth reaches the age of

twenty-one. In re J.A., ¶ 9. Section 41-5-205(1), MCA, provides:

       The court may dismiss a petition or otherwise terminate jurisdiction on its own
       motion or on the motion or petition of any interested party at any time. Unless
       terminated by the court and except as provided in subsections (2) and (3), the
       jurisdiction of the court continues until the individual becomes 21 years of
       age.

Pursuant to § 41-5-208(1), MCA, a youth court retains jurisdiction to transfer a matter to the

district court “at any time after a youth reaches 18 years of age but before the youth reaches

21 years of age.”

¶12    If the exceptions found in § 41-5-205, MCA, are inapplicable, a youth court may

continue to exercise jurisdiction over an individual until he or she reaches 21 years of age.

In re K.D.K., 2006 MT 187, ¶ 20, 333 Mont. 100, 141 P.3d 1212. In K.D.K., the Youth

Court required K.D.K. to compensate the victim for any therapy costs associated with

K.D.K.’s crime against the victim. K.D.K., ¶ 4. The Order further provided that K.D.K.’s

probation would end on February 27, 2005, when K.D.K. turned eighteen. K.D.K., ¶ 4. The

Youth Court also stated it would “retain jurisdiction over the youth until the age of twenty-
                                               4
one for financial purposes such as payment of fees/fines, attorney fees and/or restitution.”

K.D.K., ¶ 4.

¶13    In June 2003, K.D.K. executed a restitution agreement and agreed to pay $4,507.53 to

the victim. K.D.K., ¶ 6. On February 11, 2005, the State moved to modify the Youth

Court’s Order and requested additional restitution. K.D.K., ¶ 7. Two days before K.D.K.

turned eighteen, on February 25, 2005, the Youth Court held a hearing on the State’s motion

and required both parties to submit post-hearing briefs. K.D.K., ¶ 9. In K.D.K.’s brief,

K.D.K. asserted that the Youth Court could no longer exercise jurisdiction over K.D.K.

because K.D.K.’s probation ended on February 27, 2005. K.D.K., ¶ 11. More than three

months after K.D.K.’s probation ended, on June 9, 2005, the Youth Court granted the State’s

motion to modify its Order and impose additional restitution. K.D.K., ¶ 11.

¶14    K.D.K. appealed the imposition of additional restitution, arguing that the Youth Court

was without jurisdiction to order additional restitution after K.D.K.’s probation ended on

February 27, 2005. K.D.K., ¶ 17. On appeal, this Court held that the Youth Court lost

jurisdiction – except in relation to the financial obligations outlined in the original Order and

the restitution agreement – pursuant to § 41-5-205, MCA, on February 27, 2005, and thereby

lost its ability to impose additional financial obligations on K.D.K. K.D.K., ¶ 20. This Court

further noted that in a different case a youth court may “retain jurisdiction over a youth until

he or she reaches 21 years of age.” K.D.K. ¶ 20.

¶15    In this case, unlike K.D.K., the Youth Court did not terminate its jurisdiction under

§ 41-5-205, MCA, once T.M.L. turned eighteen and T.M.L.’s probation ended. Instead, the
                                               5
Youth Court purposefully retained jurisdiction over T.M.L. when it required T.M.L., upon

turning eighteen, to appear before the court for the purpose of a transfer hearing. It is

irrelevant that the State did not request the transfer hearing until approximately six months

after T.M.L. reached the age of eighteen. Further, § 41-5-208, MCA, contemplates this exact

situation and provides youth court jurisdiction over a transfer proceeding once a youth

reaches eighteen, but before the youth turns twenty-one. Since the exceptions to § 41-5-

205(1), MCA, are inapplicable, the Youth Court had jurisdiction over T.M.L. and properly

denied T.M.L.’s motion to dismiss.

¶16    Issue Two: Did the Youth Court err when it required T.M.L. to register as a sexual

offender?

¶17    The appropriate remedy for an illegal sentencing condition hinges on the ability of the

lower court to correct the illegal sentencing condition on remand. State v. Olivares-Coster,

2011 MT 196, ¶ 16, 361 Mont. 380, 259 P.3d 760. To determine the appropriate remedy, we

utilize the following approach:

       “[W]hen a portion of a sentence is illegal, the better result is to remand to the
       district court to correct the illegal provision. Remand to give the district court
       the opportunity to correct the illegal provision should be ordered unless, under
       the particular circumstances of the case, the illegal portion of the sentence
       cannot be corrected. If so, the case should be remanded to the district court
       with instructions to strike the illegal conditions.”

Olivares-Coster, ¶ 16 (quoting State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231

P.3d 1087). A sentencing condition imposed without statutory authority is illegal. See

Olivares-Coster, ¶¶ 17-18.


                                               6
¶18    As a condition of T.M.L.’s probation, the Youth Court required T.M.L. to register as a

sexual offender pursuant to Title 46, Chapter 23, Part 5, MCA. According to this part, a

person who has been convicted of, or in youth court, found to have committed or been

adjudicated for a sexual offense is a sexual offender and shall register as such. Section 46-

23-504(1), MCA. This registration requirement applies to a discrete list of sexual offenses

found in § 46-23-502(9), MCA.          Neither felony burglary, § 45-6-204, MCA, nor

misdemeanor criminal trespass to vehicles, § 45-6-202, MCA, is a sexual offense for which

registration is required. An individual may nevertheless be required to register as a sexual

offender for a non-delineated offense if it is part of a plea agreement. Section 46-23-512,

MCA.

¶19    It is clear that the Youth Court did not have the power to require T.M.L. to register as

a sexual offender. T.M.L. did not commit a delineated sexual offense, and signed no plea

agreement requiring registration. The State concedes the Youth Court exceeded its statutory

authority by requiring T.M.L. to register as a sexual offender. We agree with T.M.L. and the

State, the Youth Court had no statutory authority to require T.M.L. to register as a sexual

offender as a condition of T.M.L.’s sentence, therefore this condition is illegal. Accordingly,

we remand this matter for the limited purpose of striking the condition that T.M.L. register as

a sexual offender.

                                      CONCLUSION

¶20    For the reasons stated above, we affirm in part, and remand for the limited purpose of

striking the sentencing condition requiring T.M.L. to register as a sexual offender.
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                          /S/ MICHAEL E WHEAT



We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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