                                                                                            July 9 2013


                                          DA 12-0556

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 183N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHANE ALAN LEE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Richland, Cause No. DC 09-51
                        Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jeffrey S. Weikum, Pagel Weikum, PLLP, Bismarck, North Dakota

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Mike Weber, Richland County Attorney, T.R. Halvorson, Deputy County
                        Attorney, Sidney, Montana



                                                    Submitted on Briefs: May 29, 2013

                                                               Decided: July 9, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter 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     On September 29, 2009, an Information was issued charging Shane Alan Lee with

three criminal counts—felony burglary, misdemeanor theft, and felony forgery, occurring

between July 20 and July 28, 2009. Lee allegedly entered his sister’s home while she

was on vacation, stole her checkbook, and forged multiple checks. Counsel was assigned

to Lee and he was released on bail with instructions to comply with specific release terms

and conditions. In May 2010, Lee entered a plea of guilty to all counts. The District

Court scheduled a sentencing hearing for August 10, 2010. Lee failed to appear and a

bench warrant was issued. Lee was arrested on November 9, 2010.

¶3     A sentencing hearing was held on January 27, 2011, at which time testimony was

presented on whether to sentence Lee to the Montana Department of Corrections (DOC)

or Montana State Prison (MSP). Subsequently, Lee was sentenced as follows: felony

burglary: DOC for 15 years, with 10 suspended, fined $1,000; misdemeanor theft: 6

months in the Richland County jail, all suspended; felony forgery: DOC for 15 years,

with 10 suspended, fined $1,000. The three sentences were to run concurrently with one

another but consecutively to Lee’s sentence in another criminal case. In July 2011, Lee

was transferred to MSP.


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¶4     In October 2011, Lee filed a petition to amend judgment arguing that he had

received a DOC sentence and he should not be in MSP. The State opposed the petition

but the District Court granted it, declaring the first sentence null and void. Lee was

released on bail to await resentencing. On July 4, 2012, while out on bail, Lee was

arrested and charged with multiple felony and misdemeanor charges.

¶5     On July 17, 2012, the District Court conducted a second sentencing hearing. Lee

was sentenced to 20 years with DOC with 15 suspended for felony burglary, and 15 years

with DOC with 10 suspended for felony forgery, to run concurrently. He was fined

$1,000 for each felony. No sentence was imposed for the misdemeanor theft charge as

the earlier sentence had been discharged. The District Court expressly recommended that

DOC place Lee where he could receive chemical dependency treatment. The court also

asked if the parties had any questions regarding the new sentence. Lee had no questions

nor did he object to the increased burglary sentence. Lee appeals. We affirm.

¶6     On appeal, Lee argues that the District Court erroneously lengthened his felony

burglary sentence based upon the July 4 charges despite the court having issued an order

expressly excluding the July 4 events and charges from consideration at the resentencing

hearing. The State responds that Lee waived appellate review of this claim by failing to

raise the issue with the District Court at sentencing.

¶7     This Court generally refuses to review issues that are raised for the first time on

appeal. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. However, in

State v. Lenihan, 184 Mont 338, 602 P.2d 997 (1979), we announced an exception to this

“contemporaneous objection” rule. We stated that we will review a criminal sentence


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that “is alleged . . . [to be] illegal or exceeds statutory mandates, even if no objection is

made at the time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000. In this

case, Lee does not allege that his lengthened sentence was illegal or that it exceeded

statutory mandates; he argues instead that the District Court lengthened his sentence

based upon events the court stated it would not consider in resentencing. Consequently,

the Lenihan exception does not apply. Because Lee failed to raise a contemporaneous

objection to his sentence during his second sentencing hearing, he has waived the right to

raise this issue for the first time on appeal. Kotwicki, ¶ 8.

¶8     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. The

issue in this case is legal and is controlled by settled Montana law which the District

Court correctly interpreted. We therefore affirm the District Court.



                                                   /S/ PATRICIA COTTER


We Concur:

/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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