                                                                                                04/11/2017


                                          DA 15-0229
                                                                                            Case Number: DA 15-0229

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 79



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

RYLAN TALKSABOUT,

               Defendant and Appellant.

APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. ADC 13-374
                       Honorable Gregory G. Pinski, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Kristen L. Peterson, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Daniel Guzynski, Mary Cochenour, Special Deputy Cascade County
                       Attorneys, Helena, Montana



                                                    Submitted on Briefs: February 8, 2017

                                                               Decided: April 11, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The State charged seventeen-year-old Rylan Talksabout with two counts of sexual

intercourse without consent. Talksabout sought to have each charge transferred to Youth

Court. After analyzing the relevant statutory factors, the District Court denied both transfer

motions. Talksabout eventually pleaded guilty to one count, and the court sentenced him

to fifty years in prison, with ten years suspended. We address the following issues on

appeal:

       1. Whether the District Court abused its discretion by denying Talksabout’s
       requests to transfer the charges to Youth Court;

       2. Whether the District Court erred in sentencing Talksabout.

¶2     Applying appropriate deference, we affirm the District Court’s refusal to transfer

the charges to Youth Court. We remand for entry of an amended judgment and review of

the sentence as provided by law.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     In August 2013, the State filed an information in the District Court charging

Talksabout with one count of sexual intercourse without consent.             The State filed

the information directly in the District Court pursuant to § 41-5-206(2), MCA, because

of the nature of the charge and because Talksabout was seventeen when the offense

occurred. The charge arose out of Talksabout’s non-consensual sexual contact with

fourteen-year-old A.C. during an underage drinking party. An intoxicated A.C. told

Talksabout that she did not want to have sex, but Talksabout undressed her and digitally

penetrated her after trying to have sex with her.

                                          2
¶4     The District Court held a hearing in January 2014 pursuant to § 41-5-206(3), MCA,

to determine whether the case should be transferred to Youth Court. Juvenile Probation

Officer Tim Callahan and Great Falls Police Detective Mike Stimac testified for the State.

Licensed psychologist Dr. Bowman Smelko and Talksabout’s grandmother Betty

Trombley—with whom Talksabout lived—testified on Talksabout’s behalf. Dr. Smelko

had evaluated Talksabout and opined that Talksabout’s interests and the interests of the

community would best be served by handling the case in Youth Court. The District Court

agreed that transferring the case to Youth Court would be in Talksabout’s best interests. It

concluded, however, that the nature of the offense and the interests of community

protection weighed against transferring the case to Youth Court. The District Court

therefore denied the transfer motion. The court noted further that Talksabout was under

investigation for an unrelated sex offense involving a minor.

¶5     In January 2014, the State filed another information in the District Court charging

Talksabout with a separate count of sexual intercourse without consent. Even though

Talksabout was only sixteen at the time of that offense, the State again filed the information

directly in the District Court because sexual intercourse without consent is an enumerated

offense under § 41-5-206(1), MCA. The incident involved D.P., who was twelve at the

time. The second incident was similar to the first—D.P. and Talksabout were at an

underage drinking party and Talksabout got D.P. alone in a room, undressed her, and had

sex with her after being told no.

¶6     The two cases were consolidated on the State’s motion. In July 2014, the District

Court held another hearing pursuant to § 41-5-206(3), MCA, to determine whether to
                                          3
transfer the second incident to Youth Court. Adult Probation Officer Susan Carroll and

Detective Stimac testified on behalf of the State, and Dr. Smelko again testified on behalf

of Talksabout. The court once more found the statutory criteria for transfer to Youth Court

were not met and denied Talksabout’s motion.

¶7     Ultimately, Talksabout agreed to a non-binding plea agreement under which he

pleaded guilty to one count of sexual intercourse without consent. The agreement required

that Talksabout admit to the facts of both incidents involving A.C. and D.P. The District

Court sentenced Talksabout to Montana State Prison for fifty years, with ten years

suspended. The court’s sentence did not reflect that Talksabout was a criminally convicted

youth. Talksabout appeals.

                              STANDARDS OF REVIEW

¶8     We review for abuse of discretion a district court’s decision whether to transfer to

youth court a juvenile case charged in district court. State v. Dietsch, 2013 MT 245, ¶ 10,

371 Mont. 460, 308 P.3d 111. A court abuses its discretion if it acts arbitrarily without

employment of conscientious judgment or exceeds the bounds of reason, resulting in

substantial injustice. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811.

We review for clear error the specific findings of fact on which the district court relied in

making its transfer decision. State v. Whiteman, 2005 MT 15, ¶ 10, 325 Mont. 358, 106

P.3d 543. A finding is clearly erroneous if it is not supported by substantial evidence, if

the district court misapprehended the effect of the evidence, or if our review of the record

convinces us that the district court made a mistake. Whiteman, ¶ 10. We view the evidence

in the light most favorable to the prevailing party when determining whether a district
                                          4
court’s findings are supported by substantial credible evidence. Welu v. Twin Hearts

Smiling Horses, Inc., 2016 MT 347, ¶ 12, 386 Mont. 98, 386 P.3d 937. We review criminal

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

as a matter of law. Dietsch, ¶ 10.

                                       DISCUSSION

¶9    1. Whether the District Court abused its discretion by denying Talksabout’s
requests to transfer the charges to Youth Court.

¶10    Section 41-5-206, MCA, authorizes the State to charge a youth directly in district

court under certain circumstances. A county attorney may seek leave to file an information

in district court if the youth was twelve years old or older at the time of the conduct and is

alleged to have committed one of several enumerated offenses. Section 41-5-206(1),

MCA. If, however, the youth was seventeen years old at the time of the alleged enumerated

offense, the county attorney must petition for leave to file the information in district court.

Section 41-5-206(2), MCA.

¶11    In either instance, once leave to file the information is granted, “the district court

shall conduct a hearing to determine whether the matter must be transferred back to the

youth court,” unless the youth or the youth’s counsel waives the hearing.              Section

41-5-206(3), MCA. The district court may transfer the case to youth court only if it finds,

by a preponderance of the evidence, that:

       (a) a youth court proceeding and disposition will serve the interests of
       community protection;

       (b) the nature of the offense does not warrant prosecution in district court;
       and

                                           5
       (c) it would be in the best interests of the youth if the matter was prosecuted
       in youth court.

Section 41-5-206(3), MCA. Each of these factors must be met in order to transfer the case

to youth court. Section 41-5-206(3), MCA. In analyzing these factors, a district court, “as

factfinder[,] sits in the best position to weigh all of [the] evidence” and “resolve[]

conflicting evidence before it.” Dietsch, ¶¶ 15, 16. Generally, we will not overturn a

district court’s determinations regarding conflicting evidence. Dietsch, ¶ 16; accord

Whiteman, ¶ 15 (“[I]t is within the domain of the trial court to resolve conflicts in the

evidence based on its assessment of the demeanor and credibility of the witnesses before

it, and this Court will not resolve conflicts on appeal.”) (citation and internal quotes

omitted).

       I. Talksabout’s first transfer request.

¶12    In considering Talksabout’s motion on the first charge, the District Court reviewed

the evidence in light of each factor prescribed by § 41-5-206(3), MCA. First, as to whether

transferring the charge to Youth Court would serve the interests of community protection,

the District Court noted that Probation Officer Callahan “explained that protecting the

community is more challenging with older youths, and given his age, Talksabout cannot

complete sex offender treatment before he turns 18 years-old.” The court emphasized

Probation Officer Callahan’s testimony that unlike in district court, sex offender

registration is not required in a Youth Court disposition. The court noted its concern that

prior to the transfer hearing, “Talksabout absconded while released on his own

recognizance, failed to appear for Court, and committed a new offense by shoplifting from

                                          6
a local department store.” The court expressed further concern that Talksabout was under

investigation for a separate sex offense involving a minor.

¶13    The court acknowledged that Talksabout’s grandmother cared for and was

committed to her grandson. But it opined that “Talksabout is not provided with much

structure or discipline [at his grandmother’s home], as evidenced by dropping out of school

and allegedly committing the present offense while out of the house in the middle of the

night without his grandmother’s knowledge.” Finally, the court noted its concern over

Talksabout’s “victim impact statements” from Dr. Smelko’s report.           The statements

conveyed that Talksabout believed that he was the real victim in the situation, exhibiting a

lack of empathy and accountability. After considering all of the evidence, the District

Court concluded that transferring the case to Youth Court was not in the interests of

community protection given “Talksabout’s age, home environment, conduct while on

release, minimization of his alleged conduct, and need for more structured supervision if

convicted.”

¶14    The District Court next considered whether the nature of the offense warranted

prosecution in district court. The court noted that in analyzing this factor, it was required

to examine the nature of the allegations and not just the offense itself. (Citing Whiteman,

¶ 13.) The court declared that “there are few offenses more serious than sexual intercourse

without consent[,] and using intoxicants to perpetrate such an offense is inexcusable.” The

court then summarized Detective Stimac’s testimony, stating that “Talksabout knew the

victim’s age and that she was menstruating, yet proceeded to undress her, digitally

penetrate her, remove her clothes, and vaginally penetrate her on multiple occasions.” The
                                          7
court noted that during the transfer hearing, “Talksabout’s counsel faulted the victim for

becoming intoxicated, flirting with multiple boys at the party, and grabbing Talksabout’s

genitals.” The court stated not only that it was unpersuaded by Talksabout’s “implicit

assertion” that “‘date rape’ is a crime of lesser gravity,” but that such a belief “is as

repugnant as it is unsupported.” The District Court concluded that the nature of the

allegations warranted prosecution in District Court.

¶15    Addressing whether transferring the case to Youth Court would be in Talksabout’s

best interest, the court recognized Dr. Smelko’s testimony that “prosecution in District

Court will harm Talksabout’s cognitive and behavioral development, increase his risk to

reoffend, and he matches the profile of an offender that can be treated in Youth Court.”

The court noted that the State presented very little evidence to contradict Talksabout’s

position. The court therefore determined that Talksabout’s best interests weighed in favor

of transferring the case to Youth Court. Because Talksabout failed to establish two out of

the three elements for transfer under § 41-5-206(3), MCA, the court denied the transfer to

Youth Court and retained jurisdiction.

¶16    On appeal, Talksabout contends that the District Court abused its discretion by

finding that the interests of community protection and the nature of the offense warranted

prosecution in district court. Talksabout argues that the court’s findings on these two

elements were not supported by substantial evidence.

¶17    Regarding the interests of the community, Talksabout contends that the evidence

established that he had no prior violent criminal or drug history, that his grandmother could

provide adequate supervision and make him comply with probation, and that Youth Court
                                          8
could provide adequate supervision. Talksabout contends further that the District Court

improperly disregarded Dr. Smelko’s testimony.

¶18    Addressing the nature of the offense, Talksabout claims that the District Court was

unwilling to consider any so-called “mitigating facts.” These facts include: that Talksabout

is “a developmentally immature 17-year-old”; that he “vaginally penetrated without

consent a peer-age intoxicated 14-year-old”; that the other individuals at the party were

teenagers and there was alcohol at the party; that the victim “kissed several boys at the

party, and one youth stated A.C. actually put her hands down [Talksabout’s] pants”; that

another boy “first assaulted A.C. in a room alone”; that Talksabout “walked A.C. home

and kissed her good night” after sexually assaulting her; and that Talksabout apparently

thought A.C. was old enough to consent. Talksabout again asserts that the District Court

failed to adequately consider Dr. Smelko’s testimony in analyzing this factor. Talksabout

relies heavily on the fact that the other boy charged in connection with the same incident

had his transfer request approved.

¶19    Talksabout does not argue that the District Court committed any error of law. The

Dissent contends, however, that the court erred in its interpretation of the transfer statute

by failing to consider the “nature of the offense” in light of certain objectives of the Youth

Court Act. In the absence of “specific criteria” by which to evaluate the nature of the

offense, the Dissent proposes a new standard under which a district court must specifically

consider certain legislative purposes articulated in § 41-5-102, MCA. Dissent, ¶ 66. But

the legislative purpose governing transfer is that expressly articulated in § 41-5-206(3),

MCA, and requires a preponderance of evidence on all three factors in order for the District
                                          9
Court to transfer the matter to Youth Court for adjudication. The Youth Court Act’s

purposes are subsumed in § 41-5-206(3)(a) and (c), MCA, under which the District Court

must analyze both the interests of community protection and the best interests of the youth.

A youth’s best interests include the remedial purposes the Dissent reiterates from the Youth

Court Act’s general purposes provision, § 41-5-102(2)-(3), MCA. Dissent, ¶ 68. And the

District Court found that the preponderance of the evidence did support a finding that

transfer to Youth Court was in Talksabout’s best interests.

¶20    The Dissent cites no case applying § 41-5-206(3), MCA, since its 1997 amendment.

Case law construing the current statute confirms that the District Court must look to the

nature of the allegations—and not just the seriousness of the offense—in analyzing

whether the nature of the offense warrants prosecution in district court. Whiteman,

¶¶ 13-15. The statute commits the question of transfer to Youth Court to the District

Court’s discretion. Section 41-5-206(3), MCA; Dietsch, ¶ 10; Whiteman, ¶ 19. We are not

persuaded from our review of the record that the District Court’s findings are clearly

erroneous. The record substantiates the court’s findings that Talksabout failed to show by

a preponderance of the evidence that transferring the case to Youth Court would serve the

interests of community protection and that the nature of the offense did not warrant

prosecution in the District Court.

¶21    The record establishes that the District Court did not act arbitrarily or fail to employ

conscientious judgment when it concluded that “Talksabout’s age, home environment,

conduct while on release, minimization of his alleged conduct, and need for more

structured supervision if convicted, make[] the District Court a more appropriate forum to
                                          10
supervise Talksabout.” Nor did the court exceed the bounds of reason in concluding that

the nature of the offense warranted prosecution in the District Court.             Talksabout

was accused of undressing and forcibly having sexual intercourse with an intoxicated

fourteen-year-old after repeatedly being told no.          Though both Dr. Smelko and

Talksabout’s grandmother provided testimony to support Talksabout’s contentions, the

District Court was in the best position to resolve the conflicting evidence before it. Dietsch,

¶¶ 15, 16. The District Court did not have to accept Talksabout’s “mitigating facts,” which

it found to suggest the victim’s responsibility for the incident. The evidence strongly

indicated that, if convicted, Talksabout would need sex offender treatment. Talksabout

expressed unwillingness to enter treatment, however, and denied that his conduct “sexually

offended against” A.C. Even though he had not yet admitted to the offense, Talksabout

put this evidence before the court through Dr. Smelko, and the District Court did not clearly

err in considering it for the purpose of evaluating the nature of the offense and the interests

of community protection.

¶22    It is not the appellate court’s function to undertake, as the Dissent does, a de novo

review of the record or to raise objections that might have been, but were not, made by the

parties.1 Instead, this Court reviews a district court’s findings of fact for clear error.

Whiteman, ¶ 10. It is the “trier of fact [that] resolves conflicts in the evidence before it,




1
  For example, no one objected at the first hearing to the District Court’s consideration of
Dr. Smelko’s report, and the State moved for admission of Smelko’s supplemental report at the
second hearing—with no objection. And Talksabout did not raise, either in the District Court or
on appeal, any issue concerning infringement of the presumption of innocence or his right to
remain silent. Dissent, ¶¶ 53-60.
                                          11
and this Court will not reevaluate this same evidence on appeal.” Whiteman, ¶ 19; accord

Dietsch, ¶ 15 (“The District Court as factfinder sits in the best position to weigh all of this

evidence.”).

¶23    The Dissent overlooks our decisions in Whiteman and Dietsch deferring to the

district courts’ refusal to transfer cases to Youth Court. In Whiteman, we found substantial

credible evidence based on testimony from a corrections administrator and probation

officer that the youth court had more limited resources for handling young violent offenders

and that “youth court proceedings would limit the dispositional options to juvenile

correctional or treatment facilities and only for the limited time frame of the youth court’s

jurisdiction.” Whiteman, ¶¶ 17-18. In Dietsch, a case involving a sexual offense with

circumstances nearly identical to those in the case at bar, we likewise emphasized the

district court’s reliance on the youth court’s limited dispositional options, whereas district

court prosecution “would allow dispositional options that would include supervision and

rehabilitation ‘for a period of up to Dietsch’s remaining natural life.’” Dietsch, ¶ 14. We

relied on evidence in the record concerning the facts of the alleged offense, Dietsch’s “high

lack of empathy,” and his “highly significant familiarity about sex with underage girls in

his community.” Dietsch, ¶ 16. This evidence, we determined, was sufficient to support

the district court’s finding that the nature of the offense did not warrant youth court

disposition. Dietsch, ¶ 16. It is difficult to reconcile Whiteman and Dietsch with the

Dissent’s analysis of how the District Court should have analyzed the statutory transfer

factors in this case.


                                          12
¶24    Like Whiteman and Dietsch, the evidence presented to the District Court regarding

the § 41-5-206(3), MCA, factors conflicted. As in those cases, however, the record

contains substantial credible evidence to support the District Court’s findings. Bearing in

mind that we view the evidence in a light most favorable to the prosecution, we conclude

that the District Court did not abuse its discretion by denying Talksabout’s motion to

transfer to Youth Court the sexual intercourse without consent charge related to A.C.

       II. Talksabout’s second transfer request.

¶25    After hearing Talksabout’s transfer request related to D.P., the District Court again

analyzed the § 41-5-206(3), MCA, factors and likewise concluded that the factors

necessitated retention in the District Court. Similar to the first order, the District Court

was concerned that Talksabout’s age made treatment in Youth Court more difficult. The

court noted that Probation Officer Carroll “expressed concerns over the supervision of

Talksabout in Youth Court because he has a negative attitude toward treatment, there are

multiple alleged victims, and there is no accountability in Youth Court.” The court

emphasized that Dr. Smelko had revised his evaluation to conclude that “Talksabout

presents a moderate risk to reoffend.”        And the District Court again highlighted

Talksabout’s “victim impact statements” from Dr. Smelko’s report demonstrating that the

youth did not take responsibility for his actions.      The District Court consequently

concluded that the interests of community protection would best be served by continuing

the case in district court.

¶26    The court’s findings regarding the nature of the offense were nearly identical to its

findings in the first transfer order. The court summarized Detective Stimac’s testimony
                                         13
regarding the allegations as follows: “Talksabout knew the victim’s age, removed her

clothes, the victim protested, Talksabout persisted, and forcibly had sexual intercourse with

the 12-year-old victim.” The court also noted that the incident was alleged to have occurred

a month before Talksabout’s assault of A.C. The court thus concluded that the nature of

the offense warranted prosecution in the District Court.

¶27    Finally, the District Court analyzed whether transfer to Youth Court would be in

Talksabout’s best interests. The court again highlighted Dr. Smelko’s testimony. This

time, however, the court concluded that “Dr. Smelko’s conflicting and incomplete

conclusions and diagnoses” supported keeping the case in the District Court. The court

explained that Dr. Smelko had conducted new psychological testing on Talksabout’s

intellectual functioning that demonstrated he was comparable to an eight- or nine-year-old

child. But the court determined that a “close examination of Dr. Smelko’s report reveals

that other than baldly concluding that Talksabout has an eight or nine-year old intellectual

ability, Dr. Smelko does not actually conclude that he has an intellectual disability as

defined by the American Psychological Association and the United States Supreme Court.”

The District Court expressed deep concern regarding Dr. Smelko’s opinion that Talksabout

fit the hostile masculinity syndrome personality profile. The court quoted a treatise that

the State had referenced in cross-examining Dr. Smelko on this diagnosis:

       Hostile masculinity syndrome refers to a personality profile that includes
       interrelated attitudes and emotions that may be grouped within two primary
       components: The first consists of hostile, distrustful, insecure feelings toward
       people, particularly women, accompanied by misogynous (woman-hating)
       attitudes, such as beliefs that rape victims secretly desire to be victimized.
       The second component consists of a desire to control and dominate women
       that results in deriving sexual arousal and gratification from such domination
                                          14
       over women. Men who have such a syndrome typically also have an insecure
       sense of masculinity and are hypersensitive to rejection from women. They
       are frequently highly narcissistic as well.

The court acknowledged that from a punitive perspective, adult penalties were not in

Talksabout’s best interest. The court concluded, however, that from a rehabilitative

perspective, Talksabout required treatment—treatment that likely could not be completed

if the case were handled in Youth Court. Because effective treatment was in Talksabout’s

best interest, the court concluded that this factor weighed against transferring the case to

Youth Court.

¶28    On appeal, Talksabout contends that the District Court abused its discretion in

denying transfer of the second sexual intercourse without consent charge to Youth Court

for reasons similar to its denial on the first charge. Talksabout again asserts that the court’s

findings were not supported by substantial evidence. Talksabout argues that the District

Court acted arbitrarily in affording Dr. Smelko’s report limited weight. He again relies

heavily on Dr. Smelko’s testimony and asserts that Dr. Smelko demonstrated that

Talksabout was developmentally immature and required treatment as a youth. Thus,

Talksabout contends that the evidence regarding his best interests was not conflicting.

Talksabout argues that the District Court erred in relying on the probation officer’s

testimony in analyzing the interests of community protection because, in Talksabout’s

view, the probation officer was focused on adult supervision and failed to account for the

specifics of this case.

¶29    Talksabout emphasizes Dr. Smelko’s testimony and the weight the District Court

accorded that evidence; but he overlooks that it is the District Court’s role to weigh and
                                           15
resolve conflicts in the evidence before it. Dietsch, ¶¶ 15-16. That the State did not call

its own expert is of no moment; “[a] factfinder remains free to disregard an expert’s

testimony.” Willis v. Fertterer, 2013 MT 282, ¶ 35, 372 Mont. 108, 310 P.3d 544 (citing

Stave v. Estate of Rutledge, 2005 MT 332, ¶ 21, 330 Mont. 28, 127 P.3d 365). The State

points out that all of the evidence the District Court found concerning “at the first hearing

about the nature of the offense and interests of community protection became even more

concerning at the second hearing, since Talksabout’s two offenses were remarkably

similar.” Dr. Smelko had conducted additional testing since the first transfer hearing and

acknowledged on cross-examination that Talksabout was impulsive, could be expected

to entertain potentially dangerous risks to himself and others—including sexual

behaviors—and has a pattern of sexually abusive behavior. The additional evidence

presented at the second transfer hearing heightened the District Court’s concerns and

provided further evidence substantiating its findings on those two statutory factors.

¶30    There also was substantial evidence supporting the District Court’s conclusion that

retaining the second charge was in Talksabout’s best interests. As the court noted,

Dr. Smelko “reache[d] important conclusions on Talksabout’s risk,” including that

Talksabout was a moderate risk to reoffend, his behavior was “likely to be reckless,” and

he was “quite impulsive and prone to behaviors likely to be self-harmful or

self-destructive.” These observations support the District Court’s conclusion that the

treatment and supervision that could be provided under the auspices of the District Court

were in Talksabout’s best interest. Moreover, the District Court did not exceed the bounds

of reason when it relied on Dr. Smelko’s own conclusion that Talksabout fits the hostile
                                         16
masculinity syndrome personality profile. These were serious concerns that changed

Dr. Smelko’s assessment of Talksabout’s recidivism risk.          These concerns provide

additional support for the District Court’s conclusion that Talksabout would require more

intensive supervision and treatment than the Youth Court could provide. Accordingly, we

conclude that the District Court did not abuse its discretion in denying Talksabout’s second

transfer motion.

¶31    2. Whether the District Court erred in sentencing Talksabout.

¶32    A youth who has been charged and convicted in district court must be sentenced

pursuant to § 41-5-2503, MCA. Section 41-5-206(6), MCA. In sentencing the youth, the

district court must:

       (b) retain jurisdiction over the case until the criminally convicted youth
       reaches the age of 21;

       (c) order the department to submit a status report to the court, county
       attorney, defense attorney, and juvenile probation officer every 6 months
       until the youth attains the age of 21. The report must include a
       recommendation from the department regarding the disposition of the
       criminally convicted youth.

Section 41-5-2503(1)(b)-(c), MCA. Talksabout contends, and the State concedes, that the

case should be remanded to the District Court with instructions to modify the judgment in

accordance with these requirements. The State does not agree with Talksabout, however,

that § 41-5-2503(2), MCA, also requires the District Court to review Talksabout’s sentence

before he turns twenty-one. The State argues that § 41-5-2510(1), MCA, “specifically

excludes” Talksabout from the sentence review process provided for in § 41-5-2503(2),

MCA.

                                         17
¶33    Section 41-5-2503(2), MCA, provides that the “district court shall review the

criminally convicted youth’s sentence pursuant to 41-5-2510 before the youth reaches the

age of 21 if a hearing has not been requested under 41-5-2510.” (Emphasis added.) Section

41-5-2510, MCA, in turn, provides:

       When a youth has been convicted as an adult pursuant to the provisions of
       41-5-206, except for offenses punishable by death or life imprisonment or
       when a sentence of 100 years could be imposed, the county attorney, defense
       attorney, or youth may, at any time before the youth reaches the age of 21,
       request a hearing to review the sentence imposed on the youth.

Section 41-5-2510(1), MCA (emphasis added).

¶34    In construing statutes, our role “is simply to ascertain and declare what is in terms

or in substance contained therein, not to insert what has been omitted or to omit what has

been inserted.” Section 1-2-101, MCA. We look “to the plain meaning” of the statute’s

language. Eldorado Coop Canal Co. v. Hoge, 2016 MT 145, ¶ 18, 383 Mont. 523, 373 P.3d

836 (citation and internal quotes omitted). And we interpret a statute “as a part of a whole

statutory scheme and construe it so as to forward the purpose of that scheme.” Eldorado

Coop Canal Co., ¶ 18 (citation and internal quotes omitted). Courts must construe the

Criminally Convicted Youth Act in a manner that effectuates the following express

legislative purposes:

       (1) to protect the public;

       (2) to hold youth who commit offenses that may be filed directly in district
       court pursuant to 41-5-206 accountable for their actions;

       (3) to provide for the custody, assessment, care, supervision, treatment,
       education, rehabilitation, and work and skill development of youth convicted
       in district court; and

                                         18
       (4) to comply with the legislative purposes set forth in 41-5-102.

Section 41-5-2502, MCA.

¶35    It is undisputed that the State charged and convicted Talksabout as an adult pursuant

to § 41-5-206, MCA. As the State points out, the District Court could have sentenced

Talksabout to one hundred years for his sexual intercourse without consent conviction.

Section 45-5-503(2), MCA (prescribing sentencing requirements for sexual intercourse

without consent). Thus, under the plain language of § 41-5-2510(1), MCA, Talksabout

could not, “at any time” prior to reaching the age of twenty-one, “request a hearing to

review the sentence imposed on [him].” The fact that the statute prohibited Talksabout

from requesting an earlier hearing does not, however, bar his sentence from being

reviewed. The plain language of § 41-5-2503(2), MCA, provides that “if a hearing has not

been requested under 41-5-2510,” then the District Court must still “review [Talksabout’s]

sentence pursuant to 41-5-2510 before [he] reaches the age of 21.”

¶36    The statute requires the court to hold a hearing within ninety days after a request for

hearing is filed “or” the court determines that a sentence review hearing “is required under

41-5-2503.” Section 41-5-2510(2), MCA. After considering evidence presented at the

hearing, as well as records pertaining to the youth and any statements from the victim, the

youth’s parents or guardian, or other advocates for the youth, the court is required to

determine whether a preponderance of the evidence shows that “the criminally convicted

youth has been substantially rehabilitated.” Section 41-5-2510(4), MCA. If it makes a

determination of substantial rehabilitation, the sentencing court “shall determine whether

to:
                                          19
       (a) suspend all or part of the remaining portion of the sentence, impose
       conditions and restrictions pursuant to 46-18-201, and place the youth on
       probation under the direction of the department, unless otherwise specified;

       (b) impose all or part of the remaining sentence and make any additional
       recommendations to the department regarding the placement and treatment
       of the criminally convicted youth; or

       (c) impose a combination of options allowed under subsections (5)(a) and
       (5)(b), not to exceed the total sentence remaining.

Section 41-5-2510(5), MCA. These statutes guarantee that a criminally convicted youth

has at least one opportunity for the sentencing court to review his rehabilitative progress

and either reaffirm or revise his sentence when he turns twenty-one.

¶37    Our interpretation of the Criminally Convicted Youth Act furthers the statutory

scheme. The Criminally Convicted Youth Act’s express purposes include protection of the

public, holding youth accountable for their crimes, and providing “for the custody,

assessment, care, supervision, treatment, education, rehabilitation, and work and skill

development of youth convicted in district court.” Section 41-5-2502(3), MCA (emphasis

added). The Act further ties its “express legislative purposes” to those set forth in the

Youth Court Act’s § 41-5-102, MCA. Section 41-5-2502(4), MCA. In other words, the

Act does not just shuffle a youth off to the adult offender system and forget about his age.

The rehabilitative goals of both the Youth Court Act and the Criminally Convicted Youth

Act follow the youth until he or she reaches the age of twenty-one and the District Court

makes an express determination whether to finally impose the full adult sentence.

Prohibiting the District Court from reviewing Talksabout’s sentence would defeat the

statutory scheme and render pointless the provisions requiring status reports and a

                                         20
“recommendation from the department regarding the [youth’s] disposition” to facilitate the

sentencing court’s review. Section 41-5-2503(1)(c), MCA.

¶38    We conclude that the District Court erred by not including the requirements found

in 41-5-2503(1), MCA, in Talksabout’s sentence. On remand, because Talksabout turned

21 while this appeal was pending, the District Court must review his sentence pursuant to

§ 41-5-2510, MCA.

                                     CONCLUSION

¶39    We affirm the District Court’s orders denying Talksabout’s transfer motions. We

remand to the District Court to amend the judgment and review Talksabout’s sentence

consistent with this opinion.

                                                 /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE



Justice Dirk M. Sandefur, dissenting.

¶40    I dissent from the Majority’s resolution of Issue 1 affirming the District Court’s

refusal to transfer these matters from district court for youth court prosecution and

disposition. In refusing to transfer these matters from the District Court to youth court

pursuant to § 41-5-206(3), MCA, the District Court erroneously viewed R.T.’s guilt as a

fait accompli with the transfer hearings as a springboard to a lengthy prison sentence under

the guise that a district court prosecution was a more appropriate forum for his supervision
                                         21
and rehabilitation. While the statutory transfer criteria require district courts to consider

various circumstances in the event that a youth is guilty, we should not stamp our

imprimatur on a process gone awry in contravention of the evidence, the express purposes

of the Act, and a youth’s fundamental rights to the presumption of innocence and to remain

silent. I would: (1) reverse the District Court’s transfer hearing orders, thus defaulting

these cases to district court jurisdiction due to the expiration of the primary jurisdiction of

the youth court at R.T.’s current age of 21, see State v. Beach, 217 Mont. 132, 142-44, 705

P.2d 95, 100-02 (1985) (default district court jurisdiction over felony offenses under Mont.

Const. art. VII, § 4(1) and §§ 3-5-302(1)(a) and 46-2-201, MCA), abrogated on other

grounds, State v. Cope, 250 Mont. 387, 395-96, 819 P.2d 1280, 1285 (1991); (2) vacate

R.T.’s district court sentence; and (3) remand to the District Court to order a comprehensive

Department of Corrections status report pursuant to § 41-5-2503(1)(c), MCA, and for

immediate resentencing on R.T.’s prior guilty plea through a criminally convicted youth

sentence review hearing and findings pursuant to §§ 41-5-2503(2), -2510(4), and -2510(5),

MCA.

¶41    This consolidated case began as two separately charged incidents of sexual

intercourse without consent that occurred about a month apart. The first charged offense

(first case) involved a 14-year-old female victim (A.C.) and occurred when R.T. was 17

years old. The second charged incident (second case) involved a 12-year-old female victim

(D.P.) and actually occurred about a month before the first case when R.T. was 16 years

old. Both incidents similarly occurred at underage parties where R.T. and each victim

eventually went into isolated rooms together. In the first case, alone with the intoxicated
                                          22
14-year-old victim, R.T. undressed her and, after an unsuccessful attempt at penile-vaginal

intercourse, subjected her to digital-vaginal intercourse. In the second case, alone with the

12-year-old victim, R.T. undressed her and, despite her having said no, subjected her to

penile-vaginal intercourse.

¶42    Due to the youth’s age at the time of the alleged offenses, the State charged both

cases directly in district court rather than youth court. See § 41-5-206(1), (2), MCA. In

each case, the Youth Court Act then required an immediate transfer hearing to determine

whether prosecution would be more appropriate in youth court rather than in district court.

Section 41-5-206(3), MCA. Upon a hearing, a district court may transfer the prosecution

of a youth back to youth court only if it finds by a preponderance of the evidence that:

       [1] a youth court proceeding and disposition will serve the interests of
       community protection;

       [2] the nature of the offense does not warrant prosecution in district court;
       and

       [3] [a youth court prosecution would be in the youth’s] best interests.

Section 41-5-206(3), MCA. The Act requires courts to interpret and construe the statutory

transfer criteria “to effectuate” its “express legislative purposes.” Section 41-5-102, MCA

(emphasis added); see also State ex rel. Matter of D.M.B. v. Mont. Thirteenth Judicial Dist.

Youth Court, 2004 MT 335, ¶ 12, 324 Mont. 190, 103 P.3d 514 (recognizing mandate of

§ 41-5-102, MCA). The court must also apply and assess the transfer criteria in accordance

with a youth’s fundamental constitutional rights to the presumption of innocence and to

remain silent.   See § 41-5-102(4), MCA (court must construe and interpret Act in

accordance with youth’s “constitutional and statutory rights”).
                                         23
¶43    In separate written orders for each transfer hearing, the District Court separately

addressed each of the three statutory transfer criteria. The District Court’s findings and

conclusions were essentially the same on each criterion in both hearings except for

additional findings applicable to the second transfer hearing as noted herein. I address the

District Court’s findings and conclusions in kind.

       1. Interests of Community Protection -- § 41-5-206(3)(a), MCA.

¶44    Pursuant to § 41-5-206(3)(a), MCA, the court must determine whether a youth court

disposition “will serve the interests of community protection.” In support of its ultimate

§ 41-5-206(3)(a) finding in the first case, the District Court found that the district court was

“a more appropriate forum to supervise” R.T. based on his “age, home environment,

conduct while on release, minimization of his alleged conduct, and need for more

structured supervision.” (Emphasis added.) In the second case, the District Court similarly

found that the district court was “a more appropriate forum to . . . rehabilitate” R.T. based

on his “age, home environment, conduct while on release, minimization of his alleged

conduct, risk to reoffend and need for more structured supervision.” (Emphasis added.)1

The stated bases for the District Court’s ultimate § 41-5-206(3)(a) findings were

substantially the same except for R.T.’s upgraded risk to re-offend as an additional

consideration in the second case.




1
  Taken literally, the District Court’s express written findings that the district court was “a more
appropriate forum” to supervise and rehabilitate R.T. are not the specific findings contemplated
by § 41-5-206(3)(a), MCA, that “a youth court proceeding and disposition will [or will not] serve
the interests of community protection.” This Court nonetheless construes it as a negative finding
on the mandatory § 41-5-206(3)(a) criterion.
                                             24
                R.T.’s Age In Re Supervision and Sex Offender Treatment

¶45    In both cases, the District Court found that a district court prosecution was “a more

appropriate forum” due to R.T.’s “advanced age.” At the time of the first transfer hearing,

R.T. was “less than two months” short of his 18th birthday. He was 18 at the time of the

second transfer hearing. The primary youth court jurisdiction extends until a youth is 21

years old with the option of extending probation, subject to district court supervision and

adult consequences, until age 25. Sections 41-5-205(1) and -208, MCA. The District Court

found R.T.’s age significant because he would not be able to complete sex offender

treatment before age 18, “protecting the community is more challenging with older

youths,” and sex offender registration “is not required” for a youth court disposition.

¶46    In the first case, the District Court based its community protection finding on Chief

Juvenile Probation Officer Tim Callahan’s general statement that “the older the youth is,

the more challenging it can become to deal with.” However, in context, the complete

substance of Callahan’s testimony was that supervision of older sex offenders can be

challenging in youth court if the youth is unable to complete sex offender treatment by age

21 or, at the latest, age 25. The District Court’s findings inexplicably glossed over

Callahan’s specific testimony that “we could get [R.T.’s sex offender treatment] done” and

“we can protect the community even within the juvenile system.” (Emphasis added.) The

State presented, and the District Court cited, no evidence to the contrary. The District

Court did not find, and the evidentiary record is insufficient for an implied finding, that

R.T. could not or would not complete required sex offender treatment by age 21 or, at the

latest, age 25 under youth court supervision. The District Court similarly did not find, and
                                         25
the evidentiary record is similarly insufficient for an implied finding, that a youth court

supervision would not serve the interests of community protection contrary to the

unequivocal and unrebutted testimony of the Chief Probation Officer and Dr. Bowman

Smelko, Psy.D, ABPP.2 The hearing record was simply devoid of any conflicting evidence

to weigh. The District Court clearly mischaracterized or, at least, misapprehended the first

hearing evidence regarding the suitability of a youth court supervision to serve the interests

of community protection. Review of the record clearly manifests that the District Court

made a mistake.

¶47    The District Court similarly mischaracterized or misapprehended the import of the

distinction between district court and youth court sex offender registration. The District

Court inaccurately characterized sex offender registration as “not required” in youth court.

As a matter of law, sex offender registration is mandatory in youth court unless the court

specifically finds that “registration is not necessary” to protect the public and exemption

of a youth “is in the public’s best interest.” Sections 46-23-504(1), 41-5-1513(1)(d), MCA.

If the youth court does not exempt a youth from sex offender registration, the youth, like

an adult offender, must then register for the remainder of his or her life unless the court

later relieves the registration requirement in the public interest after a period of 10 years

for Level 1 (low risk) offenders or after 25 years for Level 2 (moderate risk) offenders. See




2
  Dr. Smelko is an independent MSOTA-qualified, board certified forensic psychologist. For
persons convicted of sex offenses, district court presentence investigation reports and youth court
predispositional reports must include a psychosexual evaluation conducted by a member of the
Montana Sex Offender Treatment Association (MSOTA).                    Sections 46-18-111(1)(b),
46-23-509(2), and 41-5-1513(2)(a), MCA.
                                             26
§ 46-23-506, MCA; compare §§ 46-23-504(1) with 41-5-1513(1)(d), MCA. Thus, the

District Court’s mischaracterization, or at least, misapprehension of the import of the

distinction between district court and youth court sex offender registration clearly did not

support its ultimate finding that a youth court proceeding would not serve the interests of

community protection.          The District Court mistakenly relied on that insignificant

distinction as a basis for its required § 41-5-206(3)(a) finding that a youth court prosecution

would not serve the interests of community protection.

¶48      Strangely enough, the State did not recall the Chief Probation Officer to testify at

the second transfer hearing. It instead presented, and the District Court relied on, the

opinion of Montana Department of Corrections Adult Probation and Parole (AP&P)

Officer Susan Carroll who essentially testified that a district court prosecution would better

serve the interests of community protection due to the challenge of “supervising adult sex

offenders,”3 the more punitive district court probation violation consequences, and because

it was then apparent that R.T. had committed two offenses rather than one. However, R.T.

was not an “adult sex offender.” As a matter of fact, he was a juvenile sex offender subject

to potential district court supervision as an adult.4 Regardless of this fine distinction, the

District Court’s findings reference only the AP&P officer’s general statements that R.T.’s

age “makes treatment more difficult,” he “might not complete treatment,” and R.T. “has a

negative attitude toward treatment.”


3
    Second Transfer Order, p. 4.
4
  As a matter of law, he was potentially a “criminally convicted youth” under § 41-5-2501, MCA,
et seq. (Criminally Convicted Youth Act).
                                             27
¶49    Except for the potentially longer supervision period and punitive probation violation

consequences in district court, neither the AP&P officer’s testimony, nor the District

Court’s findings, state or indicate any reason why, how, or on what basis district court

supervision of R.T.’s compliance with sex offender treatment or other probation conditions

would better protect the public than youth court supervision of those same conditions. The

risk that that R.T. “might not” timely complete sex offender treatment was highly

speculative and, in any event, the same in district court as in youth court. The State

presented, and the District Court found, no particularized non-speculative evidence that the

youth court jurisdiction would be insufficient to protect the public by ensuring that R.T.

would timely complete required sex offender treatment before age 21 or, at the latest, age

25. To the contrary, despite her stated concerns and preference for a district court

prosecution, the AP&P officer grudgingly admitted at the second hearing that the youth

court could safely supervise R.T. in the community. The State presented no evidence to

the contrary. In light of her grudging admission regarding the capability of a youth court

supervision, the AP&P officer’s mere preference for a district court supervision was hardly

sufficient to contradict or outweigh the unequivocal testimony of Dr. Smelko, and the

similarly unequivocal earlier testimony of the Chief Probation Officer, that the youth court

could safely supervise R.T. in the community. Thus, the mere facts of R.T.’s age, the

possibility that he might violate his sex offender treatment or other probation conditions,

and that district court probation violation consequences were more punitive clearly did not

support the District Court’s § 41-5-206(3)(a) finding that a youth court prosecution would

not serve the interests of community protection.
                                         28
          R.T.’s Home Environment and Need for More Structured Supervision

¶50    In further support of its findings that a district court prosecution was a “more

appropriate forum” to supervise and rehabilitate R.T., the District Court found that R.T.

had little family “structure or discipline” and needed more structured supervision. The

District Court based this finding on the facts that R.T.’s elderly grandmother had raised

him since birth, he dropped out of school at 16 to assist her, and he snuck out of his

grandmother’s home late at night to go to the underage drinking party where the incident

with the 14-year-old victim occurred.

¶51    However, other than a ticket for failing to wear a helmet at a skate park, R.T. had

no prior criminal record. The State presented no evidence indicating that R.T. had any

prior delinquent, violent, predatory, deviant, mentally unstable, or anti-social history or

tendencies. Regardless of his ultimate guilt or innocence in this case, the fact that, like

most Montanans, R.T. was not raised in an idyllic nuclear family setting did not ipso facto

make him a risk to community safety. The State presented no evidence that R.T.’s

imperfect family structure increased any case-related risk that he might commit another

sex offense, that youth court supervision could not adequately protect the community from

that risk, or that district court supervision could better protect the community from that

risk. Whether subject to district court or youth court supervision, a probation officer would

closely supervise R.T. on probation. The State presented, and the District Court found, no

evidence indicating that district court supervision would provide more structure for

community protection than youth court supervision.         Thus, R.T.’s imperfect family

structure clearly did not support the District Court’s ultimate finding under
                                         29
§§ 41-5-206(3)(a) and -102, MCA, that a youth court proceeding would not serve the

interests of community protection.     Upon review of the record, the District Court

mistakenly relied on R.T.’s imperfect family structure as a basis for its § 41-5-206(3)(a)

finding that a youth court prosecution would not serve the interests of community

protection.




                                        30
                              R.T.’s Conduct While on Release

¶52     In further support of its findings that a district court prosecution was a “more

appropriate forum” to supervise and rehabilitate R.T., the District Court found that he had

“absconded” by failing to appear for court and had committed a new shoplifting offense

while earlier released on his own recognizance. However, the District Court made no

finding as to the reason for R.T.’s failure to appear for the earlier hearing, whether due to

his own irresponsible disregard, lack of notice, or miscommunication with appointed

counsel or his grandmother. There was certainly no finding that R.T. ran away from home

for any significant period or that he attempted to flee to avoid prosecution. The District

Court’s finding that R.T. “absconded” was a dramatic overstatement of the evidence. The

District Court’s findings are also conspicuously devoid of any finding, or sufficient record

basis for an implied finding, indicating any logical nexus between R.T.’s sex offense

recidivism risk and his earlier failure to appear for a hearing or the unrelated misdemeanor

shoplifting offense.    Thus, R.T.’s failure to appear for a hearing and the unrelated

shoplifting offense clearly did not support the required finding under § 41-5-206(3)(a),

MCA, that a youth court proceeding would not serve the interests of community protection.

Upon review of the record, the District Court’s reliance on those considerations as bases

for its § 41-5-206(3)(a) finding in favor of a district court prosecution was clearly mistaken.

      R.T.’s Minimization and Rights to Presumption of Innocence and to Remain Silent

¶53     In both transfer orders, the District Court found that R.T.’s “minimization of his

alleged conduct” supported its ultimate § 41-5-206(3)(a) finding that the district court was

a “more appropriate forum” to supervise and rehabilitate him. The District Court found
                                          31
that R.T. minimized his “alleged conduct” in statements taken from Dr. Smelko’s

pre-adjudication psychosexual evaluation report, paraphrased in the report and listed in the

District Court’s findings as follows:

              • I am the real victim in the current situation
              • I do not agree with the police report describing my offenses
              • I do not believe my sexual behavior messed up my victim
              • I do not have a sexual problem [sic] to work out and treatment
              • I am not willing to enter treatment
              • I never sexually offended against this person

In essence, the District Court found that the youth court could not safely treat and supervise

R.T. because he: (1) continued to deny his guilt; (2) denied that he needed sex offender

treatment; and (3) would not willingly submit to sex offender treatment.

¶54    As a threshold matter, no connective record facts bridge the vast evidentiary divide

between the mere fact that R.T. continued to deny guilt and its consequences under a

pre-conviction not guilty plea and the postconviction likelihood that he would be more able

or willing to complete sex offender treatment and probation under youth court or district

court supervision. In the manifest absence such a critical evidentiary bridge, the mere fact

of R.T.’s continued denial of guilt and its consequences was simply not probative of

whether he would or would not have been less likely to successfully complete sex offender

treatment and probation under youth court supervision than district court supervision.

Further compounding this manifest evidentiary shortfall was the unrebutted testimony of

Dr. Smelko and the Chief Juvenile Probation Officer, with the AP&P officer’s grudging

admission, that the youth court could safely treat and supervise R.T. in the community. On

this basis alone, R.T.’s pre-adjudication “minimization of his alleged conduct” clearly does

                                          32
not support the District Court’s finding that a youth court prosecution would not serve the

interests of community protection. Thus, to the extent based on R.T.’s pre-adjudication

minimization of his conduct, the District Court’s adverse § 41-5-206(3)(a) finding was

clearly erroneous.

¶55    However, the District Court’s focus on R.T.’s pre-adjudication denial of guilt and

its consequences is even more problematic. Regardless of whether the rules of evidence

technically apply at youth court transfer hearings,5 youth have fundamental federal and

state constitutional rights to the presumption of innocence and to remain silent. In re

Winship, 397 U.S. 358, 365-68, 90 S. Ct. 1068, 1073-75 (1970) (recognizing due process

right to proof of guilt beyond a reasonable doubt in juvenile delinquency proceedings); In

re Gault, 387 U.S. 1, 47-55, 87 S. Ct. 1428, 1454-58 (1967) (recognizing 5th and 14th

Amendment right to remain silent in juvenile delinquency proceedings); Mont. Const. art.

II, §§ 15, 17, 25 (rights of minors, due process, right to remain silent); § 41-5-1502(2),

MCA (right to proof of guilt beyond a reasonable doubt); § 41-5-102(4), MCA (court must

construe and interpret Youth Court Act in accordance with youth’s “constitutional and

statutory rights”).

¶56    In its first transfer order, the District Court resorted to R.T.’s “minimization” to try

to offset Dr. Smelko’s testimony that R.T. presented a low risk to reoffend and that the

youth court could safely treat and supervise him in the community. In the second transfer



5
  Given the fundamental liberty interests affected and the potential for lifetime adverse
consequences to youth, it is an indefensible travesty that this Court has yet to unequivocally
mandate enforcement of the rules of evidence in youth court transfer hearings.
                                          33
hearing, with the additional reference to the AP&P officer’s testimony that R.T. “has a

negative attitude toward [sex offender] treatment,” the District Court again relied on the

“minimization” to offset Dr. Smelko’s testimony that, despite the upgrade of R.T.’s

risk-tier designation to a Level 2 (moderate risk to re-offend),6 the youth court could still

safely treat and supervise him in the community.

¶57    The sole purpose of a youth court transfer hearing is to determine whether the

prosecution should proceed in district court or youth court. See § 41-5-206(3), MCA.

While the statutory transfer criteria necessarily require the district court to assess a youth’s

circumstances in the event of a conviction, the court may not apply or assess them in a

manner that contravenes or imposes adverse consequences on a youth’s exercise of his or

her fundamental rights to remain silent and to the presumption of innocence. Despite

perfunctory recognition that R.T. “ha[d] not pled guilty,” the District Court’s consideration

of R.T.’s refusal to admit guilt, and its consequences, as a basis for the District Court’s

adverse § 41-5-206(3)(a) finding violated R.T.’s rights to the presumption of innocence

and to remain silent.

¶58    Recognizing this problem, the State asserts on appeal that R.T. waived his rights by

presenting Dr. Smelko’s testimony. However, nothing in Dr. Smelko’s testimony, his

report, or the District Court’s findings indicates any statement by R.T. directly or indirectly

admitting guilt. To the contrary, the problem was that the District Court penalized R.T. for

not admitting guilt and accepting the consequences thereof. Thus, the State’s implied


6
  See § 46-23-509(2), MCA (Montana Sexual or Violent Offender Registration Act (SVOR)
risk-tier designations).
                                     34
waiver theory had no application to the District Court’s infringement of R.T.’s rights to the

presumption of innocence and to remain silent based on his refusal to admit guilt or accept

the consequences of guilt.7

¶59    The State’s waiver theory applies, if at all, only to the threshold disclosure of R.T.’s

statements. By analogy, the youth court may order a pre-dispositional “psychological

evaluation” of a youth “if the youth waives the youth’s constitutional rights in the manner

provided for in” § 41-5-331, MCA. Section 41-5-1503, MCA. At the time of the

pre-adjudication psychosexual evaluation, R.T. was a 17-year-old high school dropout.

There is no evidence that he affirmatively waived his right to remain silent at or prior to

the evaluation. There is no evidence that counsel assisted R.T. at the evaluation. R.T. did

not testify at either hearing and did not affirmatively waive his right to remain silent on

either hearing record. Dr. Smelko was an independent MSOTA-qualified mental health

expert apparently commissioned by defense counsel. He was not R.T.’s agent or treating

medical provider. There is no evidence that anyone counseled or advised R.T. that

statements made to Dr. Smelko in that clinical setting could potentially be used against him

in court.    Dr. Smelko’s testimony did not reference or otherwise introduce R.T.’s

statements into the hearing record.         Neither the State, nor defense counsel, offered

Dr. Smelko’s report into evidence. The Court demanded to see the report sua sponte.




7
  Further illustrating the manifest fundamental fairness need for application of the rules of evidence
to youth transfer hearings, R.T.’s statements, as recounted in Dr. Smelko’s evaluation report, were
inadmissible double-hearsay. See M. R. Evid. 801(c), 802, and 805.
                                             35
Under the totality of the circumstances, R.T. did not waive his right to remain silent based

on defense counsel’s mere presentation of Dr. Smelko’s testimony.

¶60    The District Court’s improper consideration of his refusal to admit guilt and its

consequences was highly prejudicial. It was a, if not the, central justification for the

District Court’s § 41-5-206(3)(a) finding that a youth court prosecution would not serve

the interests of community protection. Thus, to the extent based on R.T.’s pre-adjudication

minimization of his conduct, the District Court’s adverse § 41-5-206(3)(a) finding was

independently erroneous as a matter of law in violation of R.T.’s fundamental rights to the

presumption of innocence and to remain silent.

             Multiple Offenses and More Punitive District Court Consequences

¶61    In further support of its second hearing finding that a district court prosecution was

a “more appropriate forum” to rehabilitate R.T., the District Court’s findings gave

significant weight to AP&P Officer Susan Carroll’s opinion that a district court prosecution

would better serve the interests of community protection because R.T. was now accused of

two sex offenses and a district court prosecution had more punitive consequences. Indeed,

the fact that R.T. was accused of two sex offenses involving minors in the span of a month

was obviously a valid community protection concern. However, the exclusive focus of the

parties and the District Court at both transfer hearings was whether a district court or youth

court supervision would best serve the interests of community protection.8 Nowhere in the


8
 See First Transfer Order pp. 5-6 (finding district court “a more appropriate forum to . . . supervise”
R.T.) (emphasis added) and Second Transfer Order pp. 5-6 (predicate findings in re AP&P
officer’s preference more punitive court consequence and ultimate finding that district court was
“a more appropriate forum to . . . rehabilitate” R.T.) (emphasis added).
                                             36
record is there any suggestion, evidence or court finding that an unsuspended prison

sentence of any length might be necessary to serve the interests of community protection.9

¶62    Even as to probation, it was not enough for the District Court to merely consider

whether district court probation violation consequences were “more appropriate” than

youth court consequences. If the focus of a transfer hearing becomes the sufficiency of

probation violation consequences, § 41-5-206(3)(a), MCA, still requires the court to

consider whether youth court probation violation consequences, including adult

supervision and potential imprisonment until age 25, would “serve the interests of

community protection.” See § 41-5-102(2), MCA (Act must be interpreted and construed

“to effectuate” its express remedial purpose of providing “avoidable consequences” for

misconduct     through    “supervision,    care,   rehabilitation,   detention,   competency

development, and community protection”); see also D.M.B., ¶ 12. In no other way can

courts balance the Youth Court Act’s dual, but not necessarily competing, purposes of

youth remediation and public protection.

¶63    Here, the evidence that the youth court could safely treat and supervise R.T. in the

community was the only specific community protection evidence at either transfer hearing.

At the first hearing, the evidence was the unqualified opinions of the independent,

MSOTA-qualified psychosexual expert and the Chief Juvenile Probation Officer. At the

second hearing, the evidence was the unqualified opinions of the psychosexual expert and



9
  Yet, after R.T. pled guilty, without any material change in the quantum or quality of adverse
evidence than existed at the time of the second transfer hearing, the District Court ultimately
sentenced the 18-year-old to 50 years in the Montana State Prison with only 10 years suspended.
                                            37
the admission of the AP&P officer. In light of her admission that the youth court could

safely supervise R.T. in the community, the AP&P officer’s stated preference for a district

court prosecution clearly did not support the required § 41-5-206(3)(a) finding that a youth

court disposition would not serve the interests of community protection.

¶64    In advance of the second transfer hearing, Dr. Smelko upgraded R.T.’s SVOR

risk-tier designation from a Level 1 (low risk to reoffend) to a Level 2 (moderate risk to

re-offend), but nonetheless maintained his unequivocal opinion that the youth court could

safely treat and supervise R.T. in the community. The State presented no contrary expert

testimony or other evidence. In contrast to the District Court’s sua sponte critique of

Dr. Smelko’s opinion that a youth court prosecution would be in R.T.’s best interests, the

District Court’s findings did not dispute Dr. Smelko’s still unrebutted opinion that the

youth court could safely treat and supervise R.T. in the community. Thus, without more,

the mere facts that R.T. was now accused of two sex offenses and that the district court had

more punitive probation violation consequences clearly did not support the required finding

under § 41-5-206(3)(a), MCA, that a youth court proceeding would not serve the interests

of community protection. Upon review of the record, the District Court mistakenly relied

on those considerations as bases for its § 41-5-206(3)(a) finding in favor of a district court

prosecution.

¶65    In summary, the District Court’s ultimate § 41-5-206(3)(a) finding that a youth court

proceeding would not serve the interests of community protection is clearly erroneous as

matter of fact. The evidence in the transfer hearing records clearly supported an affirmative

finding that a youth court proceeding and disposition would serve the interests of
                                          38
community protection. The District Court’s finding is also independently erroneous as a

matter of law in violation of R.T.’s fundamental rights to the presumption of innocence

and to remain silent.

       2. Nature of the Offense -- § 41-5-206(3)(b), MCA.

¶66    Pursuant to § 41-5-206(3)(b), MCA, the court must determine whether the “nature

of the offense does not warrant prosecution in district court.” In current form, the Youth

Court Act lists 21 felony offenses that require initial filing in district court for youths who

were 17 years old at the time of commission of one of the listed offenses. Section

41-5-206(1), (2), MCA. By legal consequence and factual nature, these offenses are the

most serious offenses under Montana law. Consequently, as a mandatory condition

precedent for transfer of any of these cases from district court back to the youth court, the

district court must find that “the nature of the offense does not warrant prosecution in

district court.” Section 41-5-206(3)(b), MCA. The Act provides no specific criteria or

standard to guide the court, or inform youths, on what basis or under what circumstances

the “nature” of these most serious offenses would “not warrant prosecution in district

court.” However, as an overarching guide, the district court must still construe and

interpret § 41-5-206(3)(b), MCA, “to effectuate” the “express legislative purposes” of the

Youth Court Act. Section 41-5-102, MCA.10


10
   In addition to effecting the remedial purposes of the Act, § 41-5-102, MCA, constitutionally
saves § 41-5-206(3)(b), MCA, by providing general standards that limit otherwise unbridled, i.e.,
arbitrary, discretion in determining whether a particular case warrants prosecution in district court
or youth court. See State v. G’Stohl, 2010 MT 7, ¶ 9, 355 Mont. 43, 223 P.3d 926 (law defectively
vague per U.S. and Montana Constitutions if so vague that it authorizes or encourages arbitrary
application); Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S. Ct. 518, 520-21, (1966) (state
                                            39
¶67    In the first case, the District Court based its § 41-5-206(3)(b) finding on the

seriousness of the alleged facts that the 17-year-old R.T.: (1) knew the victim was only 14

years old; (2) encouraged her to use “intoxicants”; and (3) undressed and subjected her to

digital and penile intercourse without her consent while she was intoxicated. On the

hearing record and in its subsequent written order, the District Court then further found

“repugnant” what it perceived as victim-blaming and a false distinction between “date

rape” and “forcible rape.” In the second case, the District Court exclusively focused on the

seriousness of alleged facts that the 16-year-old R.T.: (1) “may have been under the

influence of marijuana”; (2) knew the victim was only 12 years old; and (3) removed the

victim’s clothes and subjected her to intercourse over her verbal protests and physical

resistance.

¶68    However, mere focus on the seriousness or severity of the alleged facts is not enough

under § 41-5-206(3)(b), MCA. As a matter of law, courts must carefully consider whether,

despite the serious nature of the alleged facts, a youth court proceeding could accomplish

or effect the Act’s express non-punitive, remedial purposes to:

       (1)     provide “immediate, consistent, enforceable, and avoidable consequences”
               for misconduct through “supervision, care, rehabilitation, detention,
               competency development, and community protection;” and

       (2)     maintain youth “in a family environment whenever possible, separating the
               youth . . . only when necessary for the welfare of the youth or for the safety
               and protection of the community.”



law must have “understandable meaning with legal standards” enforceable without resort to
subjective “notions of what the law should be”); Margaret S. v. Edwards, 794 F.2d 994, 999 (5th
Cir. 1986) (state law affecting liberty interest is void for vagueness if “inherently standardless”
and enforceable only on unlimited, arbitrary discretion).
                                             40
Section 41-5-102(2) to (3), MCA; see also D.M.B., ¶ 12 (mandatory nature of § 41-5-102,

MCA); see also In re J.D.W., 267 Mont. 87, 91-94, 881 P.2d 1324, 1327-29 (1994)

(erroneous transfer to district court based on reference to longer district court jurisdiction

without consideration of adequacy of youth court jurisdiction in re Act’s criteria and

remedial purposes) (modified in part by statutory amendment). If a youth court prosecution

cannot accomplish or effect the express purposes of the Act due to the nature of the facts

and circumstances of a particular case, then the nature of the case warrants a district court

prosecution under § 41-5-206(3)(b), MCA. On the other hand, if a youth court prosecution

can accomplish or effect the express purposes of the Act despite the serious nature of the

facts and circumstances of the case, then the nature of the case warrants a youth court

prosecution under § 41-5-206(3)(b), MCA. Though district courts of course have broad

discretion to make these determinations on a case-by-case basis, they cannot simply

disregard or gloss over them. Unmoored from its express remedial purposes, mere focus

on the seriousness of the facts and circumstances of a case would defeat the Act’s

mandatory legislative purposes and effectively mean that no case with serious or severe

facts and circumstances would warrant youth court prosecution under any circumstance.

See In re Stevenson, 167 Mont. 220, 228-29, 538 P.2d 5, 9-10 (1975).

¶69    Incredibly, the Majority contends that such consideration and balancing of the

express legislative purposes of the Act would effect a “new standard” for determining

whether the serious nature of an offense would not warrant a district court prosecution

under § 41-5-206(3)(b), MCA. The Majority essentially contends that, as a result of the

1997 amendment of § 41-5-206(3), MCA, the “nature of the offense” is now a stand-alone
                                          41
transfer criterion focused solely on a standardless assessment of the severity of the alleged

facts of offenses which are already the most serious offenses under Montana law.

Conspicuously missing from the Majority analysis is any analysis or explanation indicating

any legal standard or factual scenario under which the factual basis for offenses that are

already the most serious of offenses would not preclude a youth court prosecution under

§ 41-5-206(3)(b), MCA.

¶70     Even more problematic, the Majority simply ignores the Legislature’s express

command that courts “interpret and construe” the Youth Court Act “to effect” its “express

legislative purposes.” Section 41-5-102, MCA (emphasis added). How the Majority

construes § 41-5-206(3)(b), MCA, to be exempt or excluded from the unqualified mandate

of § 41-5-102(2) to (3), MCA, is mystifying. The fact, as asserted by the Majority, that

this Court has yet to squarely consider the interplay between §§ 41-5-102(2) to (3)

and -206(3)(b), MCA, is a patently insufficient basis to endorse and uphold unfettered

district court discretion over the express legislative command of § 41-5-102(2) to (3),

MCA. The mandatory language of § 41-5-102, MCA, is not a new standard—it is an old

standard that this Court is duty-bound to enforce regardless of the outcome in a particular

case.

¶71     Here, in both cases, the District Court’s § 41-5-206(3)(b) consideration and findings

went no further than noting the seriousness of the offenses and alleged facts. Neither the

District Court’s findings, nor either of the hearing records, indicate any careful

consideration of whether, despite the seriousness of the offenses and factual allegations, a

youth court prosecution could accomplish or effect the Act’s dual, and not necessarily
                                          42
mutually exclusive, legislative purposes of youth remediation and community protection.

Though the District Court correctly found that the alleged facts were serious and egregious

in nature, those findings of fact are incomplete under §§ 41-5-206(3)(b) and -102, MCA,

without reconciliation with the express legislative purposes of the Act. Thus, whether

viewed as an erroneous application of law or based on insufficient evidence, the District

Court’s ultimate § 41-5-206(3)(b) finding that the nature of these cases warranted district

court prosecution was clearly erroneous.11

       3. R.T.’s Best Interests -- § 41-5-206(3)(c), MCA.

¶72    Pursuant to § 41-5-206(3)(c), MCA, the court must determine whether a youth court

prosecution would be in the youth’s best interests. In the first case, noting Dr. Smelko’s

unrebutted testimony and the State’s failure to present any contradictory evidence, the

District Court found that a youth court proceeding would be in R.T.’s best interests due to

the inevitable harm that an adult court prosecution would cause to R.T.’s “cognitive and

behavioral development.” However, in the second case, the District Court contrarily found

that “Dr. Smelko’s conflicting and incomplete conclusions and diagnoses, the pre-trial

nature of his evaluation, [R.T.’s] moderate risk to reoffend, and Dr. Smelko’s serious



11
    This Court need not separately address the District Court’s unnecessarily provocative
commentary regarding alleged “victim-blaming” and the “repugnant” false equivalency between
“date rape” and “forcible rape.” A fair reading of the record clearly indicates that neither
Dr. Smelko’s risk factor analysis nor defense counsel’s related arguments were, or were intended
as, victim-blaming or minimization of non-consensual sexual intercourse contrary to Montana law
and social mores. Moreover, neither the District Court’s findings nor the record indicate how the
alleged after-the-fact victim-blaming or minimization by an independent MSOTA-qualified
mental health professional, or defense counsel, could further aggravate the prior conduct of the
youth to warrant a punitive district court prosecution.

                                           43
concerns about [R.T.’s] prognosis for intervention (especially the hostile masculinity

syndrome) necessitate retention of this case in [d]istrict [c]ourt.”12

¶73    As a threshold matter, the District Court’s reliance on the “pre-trial nature” of

Dr. Smelko’s evaluation is puzzling. By definition, a youth court transfer hearing is a

preliminary, pre-adjudicatory hearing with the sole purpose to determine whether the case

should proceed as a district court or youth court prosecution. See § 41-5-206(3), MCA.

As such, the highly relevant risk factor and amenability to community treatment and

supervision analyses of an MSOTA-qualified mental health professional must necessarily

be “pre-trial [in] nature.”        The mere fact that a psychosexual evaluation was a

pre-adjudication evaluation does not per se diminish its probative value under

§ 41-5-206(3), MCA.

¶74    The District Court further assigned “limited weight” to Dr. Smelko’s diagnosis of

R.T.’s limited “intellectual ability” and risk analysis conclusions because:

       The standards for a psychosexual evaluation prescribed by the Montana Sex
       Offender Treatment Association provide, “Evaluations received by the
       pre-sentence investigator that have been performed prior to an admission of
       guilt by the offender may not meet the requirements of these Standards.” See
       Montana Sex Offender Treatment Association, Standards for Evaluation and
       Ongoing Assessment of Adult Sexual Offenders, June 16, 2014, at p. 4.




12
   Taken literally, the District Court’s express written finding that the referenced considerations
“necessitate retention of this case in [d]istrict [c]ourt” is not the specific finding contemplated by
§ 41-5-206(3)(c), MCA, that a youth court prosecution is, or is not, in the best interests of the
youth. This Court nonetheless construes it as a negative finding on the mandatory § 41-5-206(3)(c)
criterion.

                                             44
(Emphasis in original.) However, as manifest in the quotation, the referenced standard

disclaimer is applicable only to the postconviction MSOTA-qualified psychosexual

evaluations required in presentence and predispositional investigation reports. See also

§§ 46-18-111(1)(b), 46-23-509, 41-5-1513(2), MCA. Though often highly relevant to

youth court transfer criteria, the Youth Court Act does not similarly require psychosexual

evaluations for pre-adjudication youth court transfer hearings. Moreover, even to the

extent pertinent, the cited MSOTA disclaimer says no more than that pre-adjudication

psychosexual evaluations may not satisfy MSOTA standards. Consequently, at most, a

question of fact may exist in a particular case as to the MSOTA standard sufficiency of a

pre-adjudication evaluation. The District Court did not find, and the record does not reflect,

any evidence indicating that Dr. Smelko’s pre-adjudication psychosexual evaluation did

not meet MSOTA standards. Neither party, nor the District Court, questioned Dr. Smelko

about the subsequently cited MSOTA disclaimer and it was not otherwise at issue at the

hearing. The District Court’s unsupported reference to the MSOTA disclaimer is no more

than speculative innuendo, devoid of probative value on the record in this case. The

District Court abused its discretion in speculatively discounting Dr. Smelko’s

psychosexual evaluation analysis based on the cited MSOTA disclaimer.

¶75    Upon close examination of the predicate findings, the District Court’s reference to

“incomplete conclusions and diagnoses” referred to Dr. Smelko’s diagnoses that R.T. had

the “intellectual ability” of an 8 to 9 year old and was “‘borderline’ mentally retarded.” In

support of that characterization, the District Court’s findings reflect considerable sua

sponte critique of Dr. Smelko’s clinical methodology and reasoning by abstract reference
                                          45
to cited federal authority and internally referenced standards of the American

Psychological Association. No record expert testimony supported the critique and the

District Court nonetheless relied upon the primary thrust of Dr. Smelko’s testimony in any

event.

¶76      In that regard, the District Court seized upon “Dr. Smelko’s serious concerns about

[R.T.’s] prognosis for intervention (especially the hostile masculinity syndrome).” Of

obvious concern to himself, the State, and the District Court, Dr. Smelko concluded, upon

additional evaluation after the first hearing, that R.T. seems to also fit “the Hostile

Masculinity [psychological] subtype” characterized by:

         hostile, distrustful, insecure feelings toward people, particularly women,
         accompanied by misogynous (woman-hating) attitudes, such as beliefs that
         rape victims secretly desire to be victimized . . . [and the] desire to control
         and dominate women that results in deriving sexual arousal and gratification
         from such domination over women.

Based on this serious concern, Dr. Smelko upgraded his prior assessment of R.T.’s risk-tier

designation from a Level 1 (low risk to re-offend) to a Level 2 (moderate risk to re-offend).

Despite its narrow critique of R.T.’s diagnosed mental disability, the District Court

accepted these central conclusions without challenge or qualification.

¶77      Dr. Smelko further testified unequivocally that R.T. needed sex offender treatment

regardless of whether supervised by the youth court or district court. Again, the District

Court agreed.      It expressly found that “from a rehabilitative side [R.T.] requires

treatment”—“[e]ffective treatment is in [R.T.’s] best interest.” The District Court similarly

found that “adult penalties are not in [R.T.]’s best interest . . . that is true in every case.”

Thus, neither the District Court’s express findings nor the hearing record manifest any
                                           46
logical basis for concluding under § 41-5-206(3)(c), MCA, that a youth court prosecution

would not be in R.T.’s best interests.

¶78    Even if valid, the District Court’s narrow critique of R.T.’s diagnosed mental

disability did not undermine or conflict with Dr. Smelko’s unrebutted testimony, as noted

in the District Court’s second hearing findings, that a district court prosecution “will harm

[R.T.’s] cognitive and behavioral development and increase his risk to reoffend.”

(Emphasis added.) Any infirmity in Dr. Smelko’s mental disability diagnosis similarly did

not undermine or conflict with the District Court’s own express findings that “effective

treatment” was in R.T.’s best interests and that “adult penalties” were not. The District

Court made no finding, and the record is devoid of any basis for an implied finding, that a

district court prosecution rather than a youth court prosecution was necessary to provide

R.T. effective sex offender treatment. The District Court’s reliance on its critique of

Dr. Smelko’s mental disability diagnosis as a basis for its finding that a youth court

prosecution would not be in R.T.’s best interests was a non sequitur. Thus, the District

Court misapprehended the evidence. Its second hearing § 41-5-206(3)(c) finding that youth

court supervision would not be in R.T.’s best interests was clearly erroneous.

       4. Conclusion

¶79    Consistent with the express legislative purposes of the Youth Court Act, this Court

has previously recognized that:

       Adults and youths are different, and so are the court systems that recognize
       those differences. The U.S. Supreme Court discussed key differences
       between juveniles and adults in its landmark decisions holding that the death
       penalty cannot be imposed on juvenile offenders. Roper v. Simmons, 543
       U.S. 551, 569-71, 125 S. Ct. 1183, 1195-96, 161 L. Ed. 2d 1 (2005);
                                         47
        Thompson v. Oklahoma, 487 U.S. 815, 833-38, 108 S. Ct. 2687, 2698-2700,
        101 L. Ed. 2d 702 (1988). The youth court system was specifically designed
        to appropriately address the youthful indiscretions resulting from
        immaturity. The U.S. Supreme Court discussed how the distinct needs of
        youths are promoted by ensuring their ongoing access to rehabilitative,
        rather than punitive, juvenile justice systems.

In re G.T.M., 2009 MT 443, ¶ 15, 354 Mont. 197, 222 P.3d 626 (emphasis added and

citations omitted). This Court has further noted that:

        Montana recognizes that youths are to be given special treatment by the
        courts. The youth court system is designed to promote individual
        rehabilitation and allow young people to learn positive lessons from their
        transgressions. In youth court, these young people are not subject to the same
        criminal sanctions as are adults. An express legislative purpose of the
        Montana Youth Court Act is “to prevent and reduce youth delinquency
        through a system that does not seek retribution but that provides:
        (a) immediate, consistent, enforceable, and avoidable consequences of
        youths’ actions; (b) a program of supervision, care, rehabilitation, detention,
        competency development, and community protection for youth before they
        become adult offenders[.]” Section 41-5-102(2), MCA[.]

In re Appeal of Cascade Cnty. Dist. Court, 2009 MT 355, ¶ 14, 353 Mont. 194, 219 P.3d 1255

(citations omitted, first alteration original).

¶80     Consistent with the express legislative purpose of Montana’s Youth Court Act, and

of particular application here, the United States Supreme Court has recognized that:

        Three general differences between juveniles under 18 and adults demonstrate
        that juvenile offenders cannot with reliability be classified among the worst
        offenders. First, as any parent knows and as the scientific and sociological
        studies respondent and his amici cite tend to confirm, “[a] lack of maturity
        and an underdeveloped sense of responsibility are found in youth more often
        than in adults and are more understandable among the young. These qualities
        often result in impetuous and ill-considered actions and decisions.” It has
        been noted that “adolescents are overrepresented statistically in virtually
        every category of reckless behavior.” Arnett, Reckless Behavior in
        Adolescence: A Developmental Perspective, 12 Developmental Review 339
        (1992). In recognition of the comparative immaturity and irresponsibility of


                                                  48
juveniles, almost every State prohibits those under 18 years of age from
voting, serving on juries, or marrying without parental consent.

The second area of difference is that juveniles are more vulnerable or
susceptible to negative influences and outside pressures, including peer
pressure. . . . “[Y]outh is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to influence and to
psychological damage.”. . . This is explained in part by the prevailing
circumstance that juveniles have less control, or less experience with control,
over their own environment. See Steinberg & Scott, Less Guilty by Reason
of Adolescence: Developmental Immaturity, Diminished Responsibility, and
the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)
(hereinafter Steinberg & Scott) (“[A]s legal minors, [juveniles] lack the
freedom that adults have to extricate themselves from a criminogenic
setting”).

The third broad difference is that the character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles are more
transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis
(1968).

These differences render suspect any conclusion that a juvenile falls among
the worst offenders. The susceptibility of juveniles to immature and
irresponsible behavior means “their irresponsible conduct is not as morally
reprehensible as that of an adult.” Their own vulnerability and comparative
lack of control over their immediate surroundings mean juveniles have a
greater claim than adults to be forgiven for failing to escape negative
influences in their whole environment. The reality that juveniles still struggle
to define their identity means it is less supportable to conclude that even a
heinous crime committed by a juvenile is evidence of irretrievably depraved
character. From a moral standpoint it would be misguided to equate the
failings of a minor with those of an adult, for a greater possibility exists that
a minor's character deficiencies will be reformed. Indeed, “[t]he relevance
of youth as a mitigating factor derives from the fact that the signature
qualities of youth are transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside.” . . . see also
Steinberg & Scott 1014 (“For most teens, [risky or antisocial] behaviors are
fleeting; they cease with maturity as individual identity becomes settled.
Only a relatively small proportion of adolescents who experiment in risky or
illegal activities develop entrenched patterns of problem behavior that persist
into adulthood”).



                                   49
       . . . [A] plurality of the Court recognized the import of these characteristics
       with respect to juveniles under 16. . . . We conclude the same reasoning
       applies to all juvenile offenders[.]

Roper, 543 U.S. at 569-71, 125 S. Ct. at 1195-96 (holding death penalty unconstitutionally

cruel and unusual punishment for juvenile offenders) (internal citations omitted and

emphasis added).

¶81    In fairness to the District Court, these cases are extremely difficult and devastating

to all parties involved—victims and their families, youth offenders and their families, and

the communities in which we live. This type of illegal conduct and resulting harm is

inexcusable and intolerable. Despite increased public awareness and stepped-up law

enforcement, the problem of sex offenses continues to plague our communities and society,

often sparking high public interest and concern. However, despite the pernicious nature of

this problem and the understandably high public interest and concern, it remains never

more imperative in our country and State that we remain vigilant that these types of cases

are fairly prosecuted by the calm and objective application of the rule of law to complete

and reliable facts, particularly in the case of juvenile offenders. In no other way can our

constitutional system provide fair, equal, and objective justice for all.

¶82    Our Youth Court Act, enacted by the people through the Legislature, has laid out a

fair and objective framework to deal with these types of cases. The sole question at issue

in this case is whether the District Court correctly determined, on the evidence presented

in court, that the governing provisions of the Youth Court Act warranted youth court

prosecutions or adult prosecutions in district court.


                                          50
¶83    Glossing over the manifest deficiencies in the District Court’s findings and

application of the law, the Majority chides that “[i]t is not [this Court’s] function to

undertake . . . a de novo review of the record or to raise objections that might have been,

but were not, made by the parties.” True enough. However, it is nonetheless the function,

and duty, of this Court to carefully review district court transfer hearing determinations for

legal correctness, abuse of discretion based on arbitrary rationale, and clearly erroneous

fact findings based on insufficient evidence, misapprehension of the evidence, or firm

conviction of mistake. Dietsch, ¶ 10; Derbyshire, ¶ 19; Whiteman, ¶ 10. Aside from

repeated cursory assertions of broad discretion, the Majority analysis simply falls short of

our applicable standards of review.

¶84    For the foregoing reasons, I conclude that, in refusing to transfer these cases back

for youth court prosecution and disposition pursuant to § 41-5-206(3), MCA, the District

Court abused its discretion in contravention of the record evidence, express purposes of the

Act, and R.T.’s fundamental constitutional rights to the presumption of innocence and to

remain silent. I would: (1) reverse the District Court’s transfer hearing orders, thus

defaulting these cases to district court jurisdiction due to the expiration of the primary

jurisdiction of the youth court at R.T.’s current age of 21, see Beach, 217 Mont. at 142-44,

705 P.2d at 100-02 (default district court jurisdiction over felony offenses under Mont.

Const. art. VII, § 4(1) and §§ 3-5-302(1)(a) and 46-2-201, MCA), abrogated on other

grounds, Cope, 250 Mont. at 395-96, 819 P.2d at 1285; (2) vacate R.T.’s district court

sentence; and (3) remand to the District Court to order a comprehensive Department of

Corrections status report pursuant to § 41-5-2503(1)(c), MCA, and for immediate
                                          51
resentencing on R.T.’s prior guilty plea through a criminally convicted youth sentence

review hearing and findings pursuant to §§ 41-5-2503(2), -2510(4), and -2410(5), MCA.

¶85   I dissent.

                                                /S/ DIRK M. SANDEFUR



Justice Laurie McKinnon and Justice Michael E Wheat join the dissenting Opinion of Justice
Sandefur.


                                                /S/ LAURIE McKINNON
                                                /S/ MICHAEL E WHEAT




                                        52
