                                                                                             April 26 2016


                                           DA 15-0329
                                                                                          Case Number: DA 15-0329

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 97N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOHN FESLER LANCE, II,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 14-237
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John Fesler Lance, II, Self-Represented, Deer Lodge, Montana

                For Appellee:

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

                        William Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: March 16, 2016

                                                                Decided: April 26, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), 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     John Fesler Lance, II (Lance) appeals a decision from the Twenty-First Judicial

District Court, Ravalli County, relative to his most recent jury trial on February 23, 2015.

The District Court prevented Lance from presenting evidence regarding his 1979

dissolution decree and ordered him to pay restitution. The issue is whether the District

Court properly precluded an already-adjudicated issue from being submitted to the jury,

and whether the District Court properly awarded restitution. We affirm.

¶3     Lance’s issues stem from his 1979 divorce decree, which led to a sheriff’s sale of

his real property near Florence, Montana. Lance unsuccessfully contested the divorce

decree and the Florence property’s sale. Undeterred, Lance continued his attempts to

regain the property, which led to three convictions for felony intimidation and a

commitment to the Montana State Prison. While at the Montana State Prison, Lance

continued to send harassing correspondence to the current owners of the property. On

March 26, 2014, the Ravalli County Justice Court granted the current owners a

Permanent Order of Protection from Lance.

¶4     On March 31, 2014, the State discharged Lance. On September 15, 2014, Lance

violated the order of protection for a second time since his March release. On February


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23, 2015, a jury convicted Lance of four offenses: (1) felony intimidation; (2) felony

stalking; (3) misdemeanor order of protection violation; and (4) misdemeanor criminal

trespass. On March 25, 2015, the District Court sentenced Lance to 75 years for each

felony conviction and six months for each misdemeanor offense, all to run concurrently.

The District Court sentenced Lance “to a prison designated by the Montana Department

of Corrections, for execution of this, the sentence and judgment of the Court.” It also

ordered Lance to pay $16,129.35 for restitution and a $1,612.93 Restitution Surcharge

Fee.

¶5     Lance has challenged the divorce decree and property sale’s validity for over three

decades, leading to three decisions and three orders from this Court. See Lance v. Lance,

195 Mont. 176, 635 P.2d 571 (1981) (upholding the Lances’ divorce decree because of

Lance’s untimely attempt to reopen his dissolution proceedings); In re Marriage of

Lance, 213 Mont. 182, 690 P.2d 979 (1984) (upholding a district court’s dismissal of

Lance’s custody modification petition for lack of jurisdiction); State v. Lance, 222 Mont.

92, 721 P.2d 1258 (1986) (upholding Lance’s criminal intimidation charges and the

intimidation statute’s constitutionality); Lance v. Fourth Judicial Dist. of Mont., No. OP

11-0553, 363 Mont. 416, 2011 Mont. LEXIS 501 (December 6, 2011) (denying Lance’s

petition for writ of mandamus from another civil case attacking his divorce decree’s

validity and his 25 years of incarceration for felony intimidation); Lance v. Twenty-First

Judicial Dist., Nos. OP 11-0747, 11-0748, 11-0771, 364 Mont. 551, 2012 Mont. LEXIS

118 (February 14, 2012) (consolidating and denying three separate petitions seeking a

writ of error coram vobis because M. R. Civ. P. 60(e) abolished such a writ, and no other


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writ applied to the facts); Lance v. Fourth Judicial Dist. Court, No. OP 13-0289, 2013

Mont. LEXIS 284 (June 19, 2013) (denying Lance’s petition for a writ of supervisory

control from another civil matter contesting his divorce decree’s validity).

¶6     We review a district court’s evidentiary ruling for abuse of discretion. State v.

Nichols, 2014 MT 343, ¶ 8, 377 Mont. 384, 339 P.3d 1274. A district court has broad

discretion for ruling on the admissibility of evidence. State v. Payne, 2011 MT 35, ¶ 15,

359 Mont. 270, 248 P.3d 842.

¶7     During the February 23, 2015 pretrial conference, the District Court determined

that the “issue of the title to the [property] . . . is done and over with. It’s not relevant to

these proceedings.” Lance contends the District Court erred in determining his divorce

decree and property sale issues were not relevant to a trial concerning his most recent

intimidation charges.     “Relevant evidence means having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” M. R. Evid. 401.

“Evidence which is not relevant is not admissible.” M. R. Evid. 402. The District Court

properly withheld Lance’s divorce decree and property sale evidence because these issues

have already been adjudicated multiple times and were properly excluded on the basis of

issue preclusion.

¶8     Issue preclusion “bars the reopening of an issue that has been litigated and

resolved in a prior suit.” Kullick v. Skyline Homeowners Assn., 2003 MT 137, ¶ 18, 316

Mont. 146, 69 P.3d 225. Issue preclusion prevents litigants from “incessantly waging

piecemeal, collateral attacks against judgments.” Baltrusch v. Baltrusch, 2006 MT 51,


                                               4
¶ 15, 331 Mont. 281, 130 P.3d 1267. Issue preclusion bars relitigation of an issue if four

elements are met: (1) an identical issue was previously raised in prior adjudication; (2) a

final judgment on the merits was issued in the prior adjudication; (3) the party against

whom issue preclusion is asserted was a party or in privity with a party to the prior

adjudication; and (4) the party against whom issue preclusion is asserted must have been

afforded a full and fair opportunity to litigate any issues which may be barred. Baltrusch,

¶ 18.

¶9      Here, all four elements are met. First, the issues of Lance’s divorce and the

property sale are identical to those previously adjudicated. In 1981, this Court held that

Lance’s decree of dissolution was “conclusive as to all issues raised by the pleadings

actually litigated and adjudged.”      “[And his] marriage to [his ex-wife] is finally

terminated and that for the good of his children it is time to take some new directions.”

Lance, 195 Mont. at 184, 635 P.2d at 576 (holding the Lances’ divorce decree final

because Lance failed to timely contest it; and intrinsic fraud—as opposed to extrinsic—

did not excuse the untimely attempt). This Court has also already addressed the property

sale issue: “Lance lost his interest in the [property], which was sold pursuant to a sheriff’s

sale.   Lance failed to appeal in a timely manner or to timely seek relief from the

judgment, and we affirmed the District Court.” Lance, 2012 Mont. Lexis 118, ¶ 3.

Second, the divorce and property sale issues were resolved on their merits. Those issues

revolve around Lance’s procedural failures during his divorce proceedings. Lance argues

his failure to timely contest the divorce resulted in a default judgment not appropriate for

issue preclusion.   This argument is misplaced as the issue is not the merits of the


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underlying divorce, but whether its final resolution is void because of a procedural

mistake. This Court determined the procedural issue on the merits when we decided

Lance failed to timely contest his divorce decree. Lance, 195 Mont. at 184, 635 P.2d at

576. Third, Lance was a party to the prior adjudication. He was a party to the underlying

divorce decree, and all subsequent appeals relating to that adjudication. Finally, the

district courts and this Court have provided Lance with a full and fair opportunity to

litigate the legitimacy of his divorce decree and, in turn, the property sale. All four issue

preclusion elements are met; therefore, we will not analyze the merits of Lance’s issues

regarding his divorce decree or sale of the property.

¶10    Lance also contends issue preclusion is inapplicable when the validity of a

judgment is appealed. We decline to address this argument again, as we have already

done so in our June 19, 2013 Order, where we stated:

              Lance has repeatedly sought to vacate the decree of dissolution and
       correspondingly nullify the [property] foreclosure. Lance attempts to
       vacate the decree of dissolution and thereby nullify the sale of the
       [property] so Lance could pursue his actual innocence claim in order to set
       aside his felony Intimidation convictions.
              Simply referring to the decree of dissolution as “void” does not
       make it so. Lance has made similar claims in other proceedings.

Lance, 2013 Mont. LEXIS 284.

¶11    Lance contends his restitution and restitution surcharge fee are legally deficient

because the District Court failed to state its findings related to the §§ 46-18-241

through -249, MCA, requirements. At the March 25, 2015 sentencing hearing, Lance

objected to moving forward with sentencing before the District Court considered his

motion for retrial. Lance did not object to the court-ordered restitution, but raises this


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issue for the first time on appeal.          Generally, when a defendant has not made a

contemporaneous objection to the trial court’s alleged error, we will not review the

alleged error on appeal.         Section 46-20-104(2), MCA.             The objection must be

contemporaneous and specific. State v. Johnson, 2011 MT 116, ¶ 21, 360 Mont. 443,

254 P.3d 578 (declining to address a measurement of restitution because the defendant

failed to specifically object to its lack of victim affidavits below, even though he did

object to the sentencing date). Although illegal sentences are reviewable for the first time

on appeal, “a sentencing court’s failure to abide by a statutory requirement rises to an

objectionable sentence, not necessarily an illegal one . . . .” State v. Kotwicki, 2007 MT

17, ¶ 13, 335 Mont. 344, 151 P.3d 892. Here, Lance appeals the District Court’s alleged

failure to adhere to statutory requirements. As we held in Johnson, the District Court’s

alleged failure to follow statutory requirements results in an objectionable sentence.

Lance has waived this issue for appellate consideration because he failed to object

below.1

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear




1
  Lance also requests this Court to review his restitution issue using the common law plain error
doctrine. Lance raised the doctrine for the first time in his Reply Brief and failed to state the
doctrine’s requisite elements. Legal theories raised for the first time in an appellant’s reply brief
are outside the scope of such a brief and an appellate court does not address them. See M. R.
App. P. 12(3); Loney v. Milodragovich, Dale & Dye, P.C., 273 Mont. 506, 512, 905 P.2d 158,
162 (1995).


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application of applicable standards of review. The District Court’s ruling was not an

abuse of discretion. We affirm.

                                             /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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