                                                                                            December 27 2012


                                           DA 12-0162

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 313



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

LESLIE JON CLAASSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Hill, Cause No. DC 04-031
                        Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Gina Dahl, Hill County Attorney, Havre, Montana


                                                    Submitted on Briefs: October 24, 2012

                                                                Decided: December 27, 2012



Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Leslie Jon Claassen (Claassen) appeals from the judgment of the Twelfth Judicial

District Court, Hill County, revoking his suspended sentence for sexual abuse of children

and imposing a two-year commitment to the Department of Corrections (DOC) to run

consecutively to his federal sentence. The court also ordered that Claassen be designated

a Level 3 sexual offender. We affirm.

                                         ISSUE

¶2    Claassen raises the following issue on appeal:

¶3    Did the District Court err by elevating Claassen’s sexual offender level

designation from Level 1 to Level 3 upon revocation?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4    On March 25, 2004, the State charged Claassen by Information with one count of

Sexual Abuse of Children, a felony, in violation of § 45-5-625(1)(e), MCA. Claassen

pled guilty to the charge on April 8, 2005, pursuant to a plea agreement with the State.

Prior to sentencing, the District Court ordered the completion of a psychosexual

evaluation and a presentence investigation report (PSI).

¶5    Dr. Michael Scolatti completed the psychosexual evaluation of Claassen. Dr.

Scolatti determined that Claassen was a Level 1 sexual offender with a low risk to re-

offend. The PSI offered several treatment recommendations, and indicated that Claassen

was an appropriate candidate for outpatient sexual offender treatment.

¶6    Probation and Parole Officer Heather Ostwalt compiled Claassen’s PSI, and

concluded that the plea agreement’s recommendation of a seven-year sentence to the
                                            2
DOC, with two years suspended, was an appropriate sentence.            Among the many

conditions she recommended for the period of community supervision was the

requirement that Claassen follow all of the recommendations of Dr. Scolatti’s evaluation,

engage in sexual offender treatment, and refrain from using or possessing pornography.

¶7     At the sentencing hearing, the District Court sentenced Claassen to the DOC for a

period of seven years, with two years suspended upon several terms and conditions. One

of these conditions required that Claassen “not use or possess any pornography, erotica,

x-rated videos, adult books or magazines . . . .” During the oral pronouncement of the

sentence on August 30, 2005, the District Court designated Claassen a Level 1 sexual

offender in accordance with Scolatti’s evaluation and recommendation. The court did not

include the level designation in its written judgment.

¶8     Claassen was discharged to serve his two-year suspended sentence in July, 2010.

On December 15, 2010, Claassen’s probation officers conducted a routine home visit at

Claassen’s motel room and found Claassen in possession of child pornography. On

December 21, 2010, Claassen was terminated from his community-based sexual offender

treatment. In the termination letter, Claassen’s treatment provider, Dr. Bob Bakko, stated

that Claassen was a “danger to supervise and or treat in the community and should be

incarcerated.” Dr. Bakko recommended that based on the evidence seized on December

15 and Claassen’s treatment progress, Claassen should be designated a Level 3 sexual

offender.   Probation Officer Michelle Downey, who filed the report of violation

pertaining to the home visit on December 15, 2010, submitted the letter from Dr. Bakko

to the court with her report.
                                             3
¶9       On January 4, 2011, the State petitioned the District Court to revoke Claassen’s

suspended sentence, alleging, in part, that Claassen violated the no-pornography

condition of his sentence. Prior to the District Court’s hearings on the matter, the federal

government got involved and charged Claassen with receipt of child pornography based

on the discovery during the home visit on December 15, 2010. Claassen pled guilty to

this charge and was sentenced in December, 2011, to serve a 20-year term in federal

prison, which was ordered to run consecutively to any sentence imposed by the State

District Court.

¶10      On January 17, 2012, the District Court held an evidentiary hearing at which it

found Claassen in violation of the conditions of his sentence. At the disposition hearing

held two days later, Officer Downey testified and recommended the court revoke

Claassen’s suspended sentence. Further, she stated that she agreed with Dr. Bakko’s

recommendation that Claassen be designated a Level 3 sexual offender.

¶11      At the conclusion of the disposition hearing, the State asked the court to revoke

Claassen’s suspended sentence and modify his sexual offender level designation,

elevating it from Level 1 to Level 3. Claassen responded by arguing, in part, against

altering his level designation. Specifically, he stated:

         And the level in terms of the tier level, we simply ask the Court to not to
         [sic] adjust the tier level that was previously ordered here in Court.
         Defendant is in federal custody and I imagine they’ll make their own
         decision on what tier he is. He’s on their supervision now at this point.
         And we object to the tier level being modified as there has been an expert
         who testified regarding the increase in tier level space. 1
1
  Both parties note in their appellate briefs that, in actuality, there was no expert testimony at the hearings.
Therefore, as the State contends, the statement in the transcript from the disposition hearing stating that “there has
been an expert who testified regarding . . . .” was likely a stenographic or transcription error.
                                                          4
¶12    The court revoked Claassen’s suspended sentence and committed him to the DOC

for a period of two years to run consecutively to his federal sentence. It also ordered,

“[b]ased on the report of Dr. Bob Bakko, . . . Defendant is designated a Tier Level III Sex

Offender.” During the revocation proceedings, the District Court did not order the

completion of a new PSI or sexual offender evaluation report.

¶13    Claassen timely appeals.

                               STANDARD OF REVIEW

¶14    We review criminal sentences that include at least one year of actual incarceration

for legality only, which is generally a review for correctness. State v. Wilson, 2011 MT

277, ¶ 18, 362 Mont. 416, 264 P.3d 1146 (citing State v. Ariegwe, 2007 MT 204, ¶¶ 174-

75, 338 Mont. 442, 167 P.3d 815). As a question of law, we review de novo whether the

sentencing court had statutory authority to impose the sentence, the sentence falls within

the statutory parameters, and the court adhered to the statutory mandates. Wilson, ¶ 18

(citing Ariegwe, ¶¶ 174-75).

                                     DISCUSSION

¶15    Did the District Court err by elevating Claassen’s sexual offender level

designation from Level 1 to Level 3 upon revocation?

¶16    As an initial matter, both parties agree the oral pronouncement of Claassen’s 2005

sentence is the valid, final judgment. “[T]he sentence orally pronounced from the bench

in the presence of the defendant is the legally effective sentence and valid, final

judgment.” State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. In situations in

which a conflict exists between the oral or written judgments, the oral judgment controls.
                                            5
State v. Kroll, 2004 MT 203, ¶ 18, 322 Mont. 294, 95 P.3d 717. Here, when the District

Court orally pronounced its sentence for Claassen’s 2005 sexual abuse of children

conviction, it designated Claassen a Level 1 sexual offender. Although this designation

was not incorporated in the court’s written order, it was nonetheless still a part of the

legally effective and valid judgment. Therefore, the District Court’s oral pronouncement

designating Claassen a Level 1 sexual offender on August 30, 2005, remained a part of

his sentence until the court revoked Claassen’s sentence and designated him a Level 3

offender at the disposition hearing on January 19, 2012.

¶17    On appeal, Claassen challenges the District Court’s modification of his sexual

offender level designation during his revocation.         Specifically, Claassen claims the

District Court exceeded its statutory authority by elevating him from a Level 1 to a Level

3 without ordering a new PSI and psychosexual evaluation prior to the disposition

hearing.

¶18    In response, the State first argues that Claassen’s challenge to the District Court’s

modification of his sexual offender level is not reviewable on appeal because he failed to

properly preserve the issue. Although the State acknowledges that Claassen objected to

the modification of his tier level before the District Court, it claims the objection was too

general to preserve his argument for appeal. Claassen counters that his objection was

sufficiently detailed and, moreover, that he is allowed to bolster his preserved issue on

appeal.

¶19    In Montana, we generally refuse to consider issues presented for the first time on

appeal because it is “ ‘fundamentally unfair to fault the trial court for failing to rule on an
                                              6
issue it was never given the opportunity to consider.’ ” State v. Baze, 2011 MT 52, ¶ 9,

359 Mont. 411, 251 P.3d 122 (quoting State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244,

194 P.3d 683). In order to preserve an objection for appeal, a party must state grounds

for the objection that are sufficiently specific. In re B.I., 2009 MT 350, ¶ 16, 353 Mont.

183, 218 P.3d 1235. A general objection to an alleged error is not sufficient. In re B.I.,

¶ 16. However, we have held that parties may “bolster their preserved issues with

additional legal authority or to make further arguments within the scope of the legal

theory articulated to the trial court.” State v. Montgomery, 2010 MT 193, ¶ 12, 357

Mont. 348, 239 P.3d 929 (citing Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 18,

345 Mont. 368, 191 P.3d 435 (“While some specific arguments Becker offers on appeal

were not offered in the District Court, we cannot conclude that Becker’s overall theory or

claim has significantly changed.”)).

¶20    Here, Claassen objected to the District Court’s modification of his tier level during

the disposition hearing. The grounds raised in his objection were: 1) that Claassen was

in federal custody for his new conviction and subject to a federal determination of his tier

level; and 2) that the District Court did not hear any expert testimony regarding an

increase in his tier level prior to modifying it. On appeal, the focus of Claassen’s

argument is that it was not within the District Court’s statutory authority to change his

tier level because the court did not consider a new PSI and psychosexual evaluation. We

determine that Claassen’s appeal “does not amount to such a significant change in legal

theory that we must decline to consider his appeal.” Becker, 2008 MT 285 ¶ 18; accord



                                             7
H & H Dev., LLC v. Ramlow, 2012 MT 51, ¶ 15, 364 Mont. 283, 272 P.3d 657. We now

turn to the merits of Claassen’s argument.

¶21    Claassen first argues that pursuant to Montana’s sentencing statutes—specifically,

§ 46-18-111(1), and § 46-23-509(3)(a), (b), MCA—the District Court was required to

consider a PSI and psychosexual evaluation before sentencing him and designating his

tier level. Although he recognizes these mandates are not included in § 46-18-203,

MCA, the statute that governs revocation proceedings, he claims “specific statutes

regarding tier level designations control over the general revocation statute.” Claassen

cites § 1-2-102, MCA, to support his assertion, which provides that “[i]n the construction

of a statute, the intention of the legislature is to be pursued if possible. When a general

and particular provision are inconsistent, the latter is paramount to the former, so a

particular intent will control a general one that is inconsistent with it.”      Our role is

simply to interpret and apply the statutes as written and consistent with legislative intent.

Ford v. Sentry Cas. Co., 2012 MT 156, ¶ 68, 365 Mont. 405, 282 P.3d 687 (citing § 1-2-

101, -102, MCA).

¶22    Here, the plain language of the statutes at issue shows the Legislature intended for

them to apply to different situations. Section 46-18-111(1), MCA, requires the district

court order a PSI report “[u]pon the acceptance of a plea or upon a verdict or finding of

guilty to one or more felony offenses . . . .” An “offense” is defined in Title 46 as “a

violation of any penal statute of this state or any ordinance of its political subdivisions,”

§ 46-1-202(15), MCA, and does not include a probation violation in this context,

because conditions of a suspended sentence are not penal statutes or ordinances. State v.
                                             8
Boulton, 2006 MT 170, ¶ 16, 332 Mont. 538, 140 P.3d 482 (citing State v. Watts, 221

Mont. 104, 107, 717 P.2d 24, 26 (1986)).

¶23    Section 46-23-509(2), MCA, provides that “[p]rior to sentencing of a person

convicted of a sexual offense,” a sexual offender evaluation must be completed. Section

46-23-509(3), MCA, further requires that “[u]pon sentencing the offender,” the district

court must review the report and designate the offender a Level 1, 2, or 3. In probation

revocation hearings involving defendants previously convicted of a sexual offense, the

defendants are not being sentenced for their violation of the sexual offender law, but

rather their violation of the conditions of their parole or probation. As we have stated on

numerous occasions, a revocation proceeding is not a criminal adjudication designed to

punish a defendant for violation of a criminal law, but rather a “ ‘purely administrative

action designed to determine whether a parolee or probationer has violated the conditions

of his parole or probation . . . .’ ” State v. Cook, 2012 MT 34, ¶ 16, 364 Mont. 161, 272

P.3d 50 (quoting State v. Haagenson, 2010 MT 95, ¶ 15, 356 Mont. 177, 232 P.3d 367).

Section 46-23-509(2), (3), MCA, applies to the sentencing proceeding when the district

court is sentencing “a person convicted of a sexual offense,” not a person who violated

their conditions of parole or probation.

¶24    By contrast, § 46-18-203, MCA, applies later when the district court decides if a

defendant violated the terms of the original suspended sentence. See State v. Roberts,

2010 MT 110, ¶ 12, 356 Mont. 290, 233 P.3d 324. The statute states, in relevant part:

       46-18-203 Revocation of suspended or deferred sentence.

       ...
                                            9
        (7) (a) If the judge finds [at the hearing on revocation] that the offender has
        violated the terms and conditions of the suspended or deferred sentence, the
        judge may:

                 ...

                 (iii) revoke the suspension of sentence and require the offender to
                 serve either the sentence imposed or any sentence that could have
                 been imposed that does not include a longer imprisonment or
                 commitment term than the original sentence . . .

        (9) The provisions of this section apply to any offender whose suspended
        or deferred sentence is subject to revocation regardless of the date of the
        offender’s conviction and regardless of the terms and conditions of the
        offender’s original sentence.2

The statute specifically describes the requirements that must be followed in revocation

proceedings, and provides what judges may do if they find the offender violated the terms

and conditions of a suspended sentence. “The revocation of a suspended sentence is

‘particularly and expressly governed’ by § 46-18-203, MCA . . . and that statute defines

the district court’s options in a revocation proceeding.” State v. Roberts, 2010 MT 110,

¶ 12, 356 Mont. 290, 233 P.3d 324 (quoting State v. Seals, 2007 MT 71, ¶ 15, 336 Mont.

416, 156 P.3d 15) (citing State v. Letasky, 2007 MT 51, ¶¶ 16-17, 336 Mont. 178, 152

P.3d 1288).

¶25     We therefore determine that Claassen’s revocation hearing was governed by § 46-

18-203, MCA, and not by §§ 46-18-111(1), and 46-23-509(2), MCA.



2
 The State argues that because Claassen committed the underlying offense between December 2002 and September
2003, the 2001 version of the MCA governs his original sentence and his revocation. However, § 46-18-203, MCA
(2011), contains an express retroactivity provision. Therefore, all references to § 46-18-203, MCA, are to the 2011
version. Because we generally apply the law in effect at the time a crime was committed, State v. Stoner, 2012 MT
162, ¶ 12, 365 Mont. 465, 285 P.3d 402, all other statutory references in this Opinion are to the 2001 MCA.
                                                        10
¶26    Claassen argues in his reply brief that even under § 46-18-203, MCA, the District

Court’s elevation of his tier level was in error.     He claims the statute prohibits an

increased restriction on an offender’s liberty upon revocation beyond the term of the

original sentence. Citing State v. Samples, 2008 MT 416, 347 Mont. 292, 198 P.3d 803,

Claassen maintains that increasing an offender’s tier level upon revocation imposes a

greater restriction on the offender’s liberty and is therefore not within the court’s

statutory authority. Claassen’s interpretation of § 46-18-203, MCA, is incorrect, and his

argument therefore flawed.

¶27    The plain language of § 46-18-203(7)(a)(iii), MCA, provides that if an offender

violates the terms of a suspended sentence, a judge can revoke the suspended sentence

and order the offender “to serve either the sentence imposed or any sentence that could

have been imposed that does not include a longer imprisonment or commitment term

than the original sentence . . . .” (Emphasis added). Claassen correctly points out that in

Samples, we recognized there is a liberty interest at stake when a person is designated a

sexual offender level. Samples, ¶ 34. A level designation “places a burden on offenders

to update their registration or face criminal sanctions.” Samples, ¶ 34. The extent of the

burden depends on their level. Samples, ¶ 34. However, although an increase in tier

level increases the burden on the offender, it does not increase the imprisonment or

commitment term, which is what § 46-18-203(7)(a)(iii), MCA, expressly prohibits.

¶28    Here, the District Court did not impose a longer imprisonment or commitment

term at the revocation hearing. Its order that Claassen be designated a Level 3 sexual

offender is a sentence that “could have been imposed” during his original sentencing for
                                            11
sexual abuse of children. Therefore, the District Court did not err by elevating Claassen’s

sexual offender level designation upon revocation.

                                    CONCLUSION

¶29    For the reasons stated above, we affirm the District Court’s Order designating

Claassen a Level III sexual offender.

¶30    Affirmed.

                                                 /S/ MICHAEL E WHEAT



We Concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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