                                       No. 05-654

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2007 MT 64



IN THE MATTER OF H.C.R.,

           A Youth.




APPEAL FROM:      The District Court of the Twelfth Judicial District,
                  In and For the County of Hill, Cause DJ 2002-069,
                  Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Jeremy S. Yellin, Attorney at Law, Havre, Montana

           For Respondent:

                  Honorable Mike McGrath, Attorney General; Joslyn M. Hunt,
                  Assistant Attorney General, Helena, Montana

                  Cyndee Peterson, County Attorney; Steve Gannon, Deputy
                  County Attorney, Havre, Montana


                                                    Submitted on Briefs: November 1, 2006

                                                               Decided: March 13, 2007

Filed:


                  __________________________________________
                                    Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     H.C.R. appeals from the sentence imposed by the Twelfth Judicial District Youth

Court, Hill County (Youth Court), sentencing H.C.R. to the custody of the Department of

Corrections (DOC) until H.C.R. reaches the age of twenty-five, with the last three years

suspended. We reverse and remand with instructions.

¶2     H.C.R. raises the following issues on appeal:

¶3     1.     Did the State breach the sentencing stipulation, wherein it agreed to seek

adult supervision for violations of sentence conditions by H.C.R., and the Youth Court

err by imposing a sentence in violation of its previous order, which incorporated the

sentencing stipulation?

¶4     2.     Did the Youth Court sentence H.C.R. illegally by imposing a sentence

greater than the original sentence?

¶5     Because Issue 1 is dispositive, we do not address Issue 2.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6     H.C.R., who is now nineteen years old, first became involved with the Youth

Court at age fifteen, when H.C.R. was found to have committed various criminal

offenses, including theft, criminal mischief, and ungovernable youth. As a result, on

February 7, 2003, H.C.R. was placed on probation until he reached the age of eighteen

and was subsequently committed to the DOC for placement at Bear Paw Youth

Guidance. On December 17, 2003, the State petitioned to revoke H.C.R.’s probation,

alleging that he had not followed treatment plans, was involved in thefts, and had

committed assaults. H.C.R. eventually admitted to these allegations and, in response, the


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Youth Court again committed H.C.R. to the DOC for placement at Pine Hills Juvenile

Correctional Center until he reached the age of eighteen. On May 21, 2004, the State

once again petitioned to revoke H.C.R.’s suspended commitment, alleging he had

committed the offense of disorderly conduct, tested positive for illegal drug use, and had

not followed his treatment plan. The State amended its May 21, 2004, petition to include

an alleged sexual assault by H.C.R.

¶7     H.C.R. admitted the allegations in the State’s May 21, 2004, amended petition to

revoke. In return for H.C.R.’s admissions, the parties agreed as follows:

       [T]he youth and the county attorney have stipulated that upon reaching the
       age of 18, the remainder of the youth’s commitment will be suspended and
       the youth will be under the supervision of Juvenile Probation until his 21st
       birthday . . . . The parties further stipulated that if the youth violates any of
       those conditions, upon a finding of probable cause that the violation
       occurred, the parties will jointly petition the court, pursuant to § 41-5-208,
       MCA, to transfer this case to District Court and transfer his supervision to
       adult probation services.

In response to this stipulation, the Youth Court entered an order on June 24, 2004 (2004

Order), stating as follows:

       Pursuant to the parties’ stipulation and good cause appearing, upon a finding
       of probable cause that the youth has violated any of these conditions, the
       parties shall jointly petition to have this matter transferred to District Court
       and adult supervision.

¶8     Eleven months later, on May 19, 2005, the State filed a “Petition to Transfer

Supervision to Adult Probation and Parole,” claiming that H.C.R. had not properly met

the conditions of the 2004 Order based on his behavior at Pine Hills, and had exhausted

the juvenile justice system while still posing a threat to public safety. In its petition, the

State asserted that transfer to adult probation and parole was “necessary to ensure the


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youth’s continued compliance” with the 2004 Order. The Youth Court ordered a hearing

on the State’s petition for August 24, 2005. Both prior to and at the hearing, H.C.R.

asserted that the State could not seek a custodial sentence as result of the sentencing

stipulation which had been submitted and approved by the court in the 2004 Order.

Despite the stipulation, the State nonetheless moved for a custodial sentence. The Youth

Court found, by a preponderance of the evidence, that H.C.R. had violated the conditions

of the 2004 Order. The Youth Court then concurred with the State’s recommendation

and sentenced H.C.R. to the DOC until he reached age twenty-five, with the last three

years suspended. H.C.R. appeals.

                               STANDARD OF REVIEW

¶9     A review of the record reveals the State and H.C.R. agreed that if H.C.R. were to

violate any conditions of the 2004 Order, the Youth Court would transfer the case to

district court “and transfer [H.C.R.’s] supervision to adult probation services.” We view

this sentencing stipulation as equivalent to a plea agreement in the criminal context.

¶10    We have held that a district court abuses its discretion when it fails to require the

State to abide by the terms of a plea agreement. State v. Rardon, 1999 MT 220, ¶ 17, 296

Mont. 19, ¶ 17, 986 P.2d 424, ¶ 17 (Rardon I), overruled in part on other grounds, State

v. Munoz, 2001 MT 85, ¶ 38, 305 Mont. 139, ¶ 38, 23 P.3d 922, ¶ 38. Where counsel for

one party objects to the sentencing recommendation of the other party, we also review the

district court’s discretionary ruling under the abuse of discretion standard. See State v.

Rardon, 2002 MT 345, ¶ 14, 313 Mont. 321, ¶ 14, 61 P.3d 132, ¶ 14 (Rardon II). Thus,

because H.C.R. argued against the State’s sentencing recommendation and asserted the


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State could not make a recommendation outside of the 2004 Order, we review the Youth

Court’s decision here under the abuse of discretion standard of review.

                                       DISCUSSION

¶11      Did the State breach the sentencing stipulation, wherein it agreed to seek adult
         supervision for violations of sentence conditions by H.C.R., and the Youth Court
         err by imposing a sentence in violation of its previous order, which incorporated
         the sentencing stipulation?

¶12      We have recognized that “a plea agreement presupposes fundamental fairness in

the securing of the agreement between the defendant and the prosecutor . . . .” Rardon I,

¶ 14 (citing State v. Schoonover, 1999 MT 7, ¶ 12, 293 Mont. 54, ¶ 12, 973 P.2d 230,

¶ 12).    Furthermore, “prosecutors—as well as—defendants are bound by the plea

agreements they make.” Rardon I, ¶ 14; Schoonover, ¶ 12 (citing State v. Bowley, 282

Mont. 298, 310, 938 P.2d 592, 599 (1997)). In stressing that prosecutors are also bound

by the plea agreement, we have explained:

         This phase of the process of criminal justice, and the adjudicative element
         inherent in accepting a plea of guilty, must be attended by safeguards to
         insure the defendant what is reasonably due in the circumstances. Those
         circumstances will vary, but a constant factor is that when a plea rests in
         any significant degree on a promise or agreement of the prosecutor, so that
         it can be said to be part of the inducement or consideration, such promise
         must be fulfilled. Prosecutors who engage in plea bargaining must meet
         strict and meticulous standards of both promise and performance as a plea
         of guilty resting in any significant degree on an unfulfilled plea bargain is
         involuntary and subject to vacation. Prosecutorial violations, even if made
         inadvertently or in good faith to obtain a just and mutually desired end, are
         unacceptable.

Bowley, 282 Mont. at 310-11, 938 P.2d at 599 (citations omitted).

¶13      In Rardon I, the State and defendant entered into a written plea agreement

whereby in exchange for the defendant’s guilty plea, the State agreed to recommend “a


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sentence in conformity with whatever recommendation” was given by the Pre-Sentence

Investigation (PSI) to be performed in the case prior to sentencing. Rardon I, ¶ 4. The

officer who prepared the PSI report recommended the defendant receive a forty-year

prison sentence, with twenty years suspended. Rardon I, ¶ 7. In contrast and despite the

written plea agreement in place and the recommendation of the PSI officer, at the

sentencing hearing, the State recommended the district court impose a seventy-year

prison sentence with no eligibility for parole until the defendant obtained sex offender

treatment, with a minimum of thirty years served. Rardon I, ¶ 8.

¶14     On appeal, the defendant argued the State breached the terms of the plea

agreement when recommending a sentence different than what was contained in the PSI

report. Rardon I, ¶ 15. We concluded that the State had a contractual promise to make a

sentencing recommendation in conformity with the PSI report and that when the State

recommended a sentence in excess of what was contained in the PSI, it breached the plea

agreement. Rardon I, ¶ 17. We held that the district court had “abused its discretion

when it failed to require the State to abide by the terms of the plea agreement.” Rardon I,

¶ 17.

¶15     H.C.R. argues that the State breached the stipulation incorporated in the 2004

Order when it sought a custodial sentence rather than the adult probationary sentence it

had agreed to. The 2004 Order obligated the State to petition the Youth Court, along

with H.C.R., “to transfer this case to District Court and transfer his supervision to adult

probation services.” Because the State did not fulfill its obligations under the stipulation,




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H.C.R. argues that he is entitled to be resentenced “with the requirement that the State

follow and meticulously comply with its agreement.”

¶16    The State does not address the issue of whether it breached the terms of the

stipulation, but instead focuses on the Youth Court’s authority to transfer H.C.R.’s case

to district court and sentence H.C.R. as the court sees fit pursuant to § 41-5-208(5),

MCA. Although the State correctly identifies the Youth Court’s statutory authority, it

fails to address the key issue here—that is, whether the State breached the agreement it

entered into with H.C.R., as memorialized in the 2004 Order.

¶17    The State agreed to petition the Youth Court to transfer H.C.R.’s case to district

court and to seek adult supervision in the event H.C.R. violated the conditions of his

sentence. Thereafter, the State properly moved to transfer the case to district court, but,

similar to Rardon I, the State failed to follow the terms of the sentencing stipulation when

it sought a custodial sentence with the DOC, rather than adult supervision of H.C.R. As

we have frequently stated, prosecutors as well as defendants are bound by the agreements

they make with each other. Rardon I, ¶ 14; Schoonover, ¶ 12; Bowley, 282 Mont. at 310,

938 P.2d at 599. We conclude that the State did not honor the agreement it made and the

failure to do so constitutes a breach of the sentencing stipulation.

¶18    Moreover, this matter progressed beyond an agreement entered by the parties. The

parties also submitted the sentencing stipulation to the Youth Court, which approved the

stipulation and incorporated it within the 2004 Order.           Thus, upon re-sentencing

following the subsequent revocation for violation of sentencing conditions, H.C.R. was




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entitled to receive the sentence which the parties had presented to, and which was

approved by, the Youth Court.

                                     CONCLUSION

¶19    We conclude that the Youth Court abused its discretion when it failed to require

the State to abide by the terms of the sentencing stipulation, and erred by sentencing

H.C.R. This matter is reversed and remanded to the Twelfth Judicial District Court, Hill

County, with instructions that H.C.R. be resentenced in accordance with the terms of the

sentencing stipulation as incorporated by the 2004 Order. So concluding, we need not

address the second issue raised herein.



                                               /S/ JIM RICE


We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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