                                                                                           October 21 2014


                                          DA 14-0176

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 284N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KENNETH ANTHONY ALLEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 84-6774
                        Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kenneth Anthony Allen, self-represented, Deer Lodge, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                                    Submitted on Briefs: October 1, 2014
                                                               Decided: October 21, 2014


Filed:




                                            Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

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

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

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

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

¶2      On September 24, 1984, in Cause No. DC 84-6774, Kenneth Anthony Allen (Allen)

pled guilty to robbery, aggravated kidnapping, and sexual intercourse without consent and

was subsequently sentenced to a 40-year term of incarceration in the Montana State Prison.

According to the State, Allen discharged his sentence under Cause No. DC 84-6774 in

March 2011; however, Allen continues to serve a 25-year consecutive sentence imposed

following a conviction for mitigated deliberate homicide committed during the 1991 prison

riot. Allen has been denied parole in 2004, 2009, and 2012. His discharge date is set for

2025.

¶3      In 2004, the Department of Corrections (DOC) performed a risk assessment of

Allen, which indicated that Allen was a high risk to reoffend.            Based upon this

determination, the DOC designated Allen as a level 3 sexual offender.

¶4      On November 12, 2013, Allen filed a “Motion for Nunc Pro Tunc” with the Fourth

Judicial District Court in Missoula County contending that his due process rights had been

violated by the DOC’s designation determination. On February 24, 2014, the District Court

denied Allen’s motion concluding that he had adequate opportunities to challenge his

designation at his parole hearings. This appeal follows.




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¶5        Allen, on his own behalf, argues that the District Court erred in denying his Motion

for Nunc Pro Tunc (which appears to seek an order striking the DOC tier designation).

Allen, allegedly unaware of his DOC designation until 2012, asserts that his right to due

process was violated by the DOC level 3 sexual offender designation because the DOC “did

not give [him] a hearing to argue against the designation.” Furthermore, Allen argues that

the Parole Board is not the appropriate venue to object to his designation because it lacks the

authority to change his designation.

¶6        The State first argues that Allen’s argument is moot in that his claim arose under

Cause No. 84-6774, a sentence that was discharged in March 2011. Alternatively, the State

argues that the level 3 sexual offender designation Allen received in prison is utilized to

assess his risk while in prison and is not used to determine Allen’s tier level for purposes of

registration upon release, pursuant to § 46-23-509, MCA, of the Sexual or Violent Offender

Registration Act (SVORA). Therefore, the State maintains that Allen’s claim is not ripe for

review.

¶7        This Court exercises de novo plenary review of a district court's decision on

constitutional issues. State v. Pound, 2014 MT 143, ¶ 20, 375 Mont. 241, 326 P.3d 422.

Issues of justiciability, including mootness and ripeness, are questions of law which are

reviewed de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455.

¶8        The Montana Legislature adopted the SVORA offender tier level designation in

1997. For those sexual offenders sentenced prior to October 1, 1997, without an assignment

of a tier level designation by the sentencing court, the DOC “shall designate the offender as

level 1, 2, or 3 when the offender is released from confinement.” Section 46-23-509(5),


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MCA (emphasis added). Upon release, all offenders, regardless of level designation, must

register with law enforcement officials and update their registration in the event of a change

of address. Sections 46-23-504 and -505, MCA. The duration of registration depends upon

the tier level designation. Section 46-23-506, MCA.1

¶9         Allen insists that he is entitled to the same due process rights that were afforded to

the appellant in State v. Samples, 2008 MT 416, 347 Mont. 292, 198 P.3d 803. In that case,

Samples discharged his sentence and, upon release into the community, was designated a

level 3 sexual offender by the DOC pursuant to the SVORA. Samples, ¶ 9. Samples was not

provided notice of or information about his level 3 designation nor was he presented with an

opportunity to contest the designation. Samples, ¶ 9. This Court held that “there is a liberty

interest at stake when a person is designated as a particular risk level under the [SVORA].”

Samples, ¶ 34.

¶10        Allen’s reliance on Samples is misplaced. Here, Allen remains confined in the

Montana State Prison, so the “liberty interest” articulated in Samples has yet to be triggered.

Moreover, the DOC’s preliminary tier designation assessment cannot be used to assign

Allen’s level for purposes of registration under the SVORA. As the State represents, the

SVORA assessment will be made once Allen is discharged from confinement, and at that

time Allen will have full due process rights, including the right to contest the designation. In

the meantime, because Allen remains incarcerated and is not presently burdened by the DOC

tier level designation, his claim is not ripe for review.


       1
         For example, a level 3 sexual offender must register for the remainder of the offender’s life
and is obligated to complete registration verification every 90 days with the appropriate law


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

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

conclude that the District Court did not err in denying Allen’s Motion for Nunc Pro Tunc.

We therefore affirm.


                                                /S/ PATRICIA COTTER

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ MICHAEL E WHEAT




enforcement agency. Sections 46-23-504 and -506, MCA.


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