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                                                                No. 99-166



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 148N




STATE OF MONTANA,

Plaintiff and Respondent,



v.



KIM CONRAD WARDELL,



Defendant and Appellant.




APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

Honorable Ted O. Lympus, Judge Presiding



COUNSEL OF RECORD:




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For Appellant:



John R. Quatman, Quatman, Wilson & Quatman, Whitefish, Montana



For Respondent:



Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler,

Assistant Attorney General, Helena, Montana



Thomas Esch, County Attorney, Kalispell, Montana




Submitted on Briefs: May 4, 2001

Decided: August 9, 2001



Filed:




__________________________________________

Clerk



Chief Justice Karla M. Gray delivered the Opinion of the Court.


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    1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules,
       the following decision shall not be cited as precedent. It shall be filed as a public document with
       the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number
       and result to the State Reporter Publishing Company and to West Group in the quarterly table of
       noncitable cases issued by this Court.
    2. ¶Kim Conrad Wardell was convicted by a jury in the Eleventh Judicial District
         Court, Flathead County, of failure to register as a sexual offender. He appeals. We
         affirm.
    3.   ¶Wardell raises four issues on appeal:
    4.   ¶1. Whether the persistent felony offender statute, § 46-18-501, MCA, violates
         double jeopardy protections when applied to a conviction for failing to register as a
         sex offender under § 46-23-507, MCA.
    5.   ¶2. Whether application of the persistent felony offender statute to increase
         Wardell's sentence by 40 years, for a total of 45 years, creates a sentence so
         disproportionate that it violates his right against cruel and unusual punishment.
    6.   ¶3. Whether application of the 1995 amendment to § 46-23-507, MCA, increasing
         the penalty for failure to register from a misdemeanor to a felony violates the state
         and federal prohibitions against ex post facto legislation.
    7.   ¶4. Whether the 1995 amendment to § 46-23-507, MCA, violates equal protection
         by creating the potential for grossly disparate sentences being imposed on similarly
         situated defendants.
    8.   ¶The State of Montana raises the threshold question of whether Wardell raised any
         of these issues in the District Court. Montana law generally precludes this Court
         from considering an alleged error unless the defendant made a timely objection
         before the trial court. Section 46-20-701, MCA. None of the exceptions to the rule
         set forth at § 46-20-701(2), MCA, is present, or is claimed to be present, in this case.
         While Wardell suggests that this contemporaneous objection rule applies only as to
         matters which occur during trial, and not as to matters which occur during
         sentencing, he is incorrect. We previously have followed the rule as to alleged errors
         in sentencing. See State v. Swoboda (1996), 276 Mont. 479, 481, 918 P.2d 296, 298
         (citations omitted).

    1. ¶Wardell's sentencing brief in the District Court included the following comment:

Further, there seems to be a double punishment issue in this matter. [The probation/parole
officer] is suggesting that the same prior conviction be used to establish the status of
unregistered offender and then to be used to establish persistent offender status. It is our

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contention that having sentenced Mr. Wardell as an unregistered sex offender, the Court
cannot then use the same prior to boot strap Mr. Wardell to a higher sentence i.e.
persistent offender.



In addition, Wardell's counsel made the following comment at the sentencing hearing:



The whole deal with sentencing him as a persistent felony offender almost smacks of a
double punishment issue, where you use the prior conviction to form a status where you
have to register, and you sentence him on that, and then you use the prior conviction to
form another status, which is called persistent felony offender, and you sentence him on
that.



These two comments constitute the entire reference by Wardell in the District Court to any
of the constitutional issues he now raises on appeal.

    1. ¶The above written and oral comments by Wardell's counsel did not even remotely
       place at issue any constitutional question about whether or not Wardell's sentence
       violated the cruel and unusual punishment, ex post facto effect, and equal protection
       clauses. As to those issues, Wardell's counsel made absolutely no reference, motion
       or objection. We conclude Wardell totally failed to raise the matters he sets forth on
       appeal as his Issues 2, 3, and 4 in the District Court.
    2. ¶Wardell's written and oral comments in the District Court did, however, allude to
       the question he raises as Issue 1 on appeal. However, an objection must be specific
       in order to preserve the issue for appeal. State v. Huerta (1997), 285 Mont. 245, 261,
       947 P.2d 483, 493. A trial objection which is general in nature and does not specify
       what authority, rule, statute, or constitutional provision might be violated by the
       court's decision is insufficient to preserve that issue for appeal. State v. Loh (1996),
       275 Mont. 460, 479, 914 P.2d 592, 603-04. In State v. Weeks (1995), 270 Mont. 63,
       85, 891 P.2d 477, 490-91, we held that an objector has an obligation to make the
       basis and grounds for his or her objection clear to the trial court so that the court has
       an opportunity to correct itself, and that broad, general objections do not suffice.
    3. ¶Even though the State notified Wardell two and one-half months before trial that it


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         would seek to treat him as a persistent felony offender, the record establishes his
         only objection and argument were the above-referenced broad, general comments;
         he provided the District Court no briefing, no analysis, and no citation to supporting
         authority. We conclude that Wardell did not preserve a double jeopardy issue in the
         District Court for review on appeal.
    4.   ¶With regard to his failure to preserve for appeal any of the issues now raised,
         Wardell requests plain error review of the constitutional issues he raises on appeal.
         He argues, pursuant to State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, that
         failure to resolve those issues would result in a manifest miscarriage of justice and/
         or would compromise the integrity of the judicial process. Indeed, the dissenters
         apply plain error review and embrace Wardell's disproportionality/cruel and unusual
         punishment argument. While that argument might more appropriately be raised
         before the Sentence Review Board or in a petition for postconviction relief alleging
         ineffective assistance of counsel, we all agree it could be resolved here only via
         plain error review. We cannot properly apply the plain error doctrine in the present
         case, however.
    5.   ¶Wardell did not request plain error review in this Court until page 14 of his 15-
         page reply brief. Legal theories raised for the first time in an appellant's reply brief
         are outside the scope of such a brief and this Court does not address them. See Rule
         23(c), M.R.App.P.; Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont.
         506, 512, 905 P.2d 158, 162. More specifically, we previously have declined to
         engage in plain error review where the request was first raised in an appellant's reply
         brief. See State v. Hagen (1997), 283 Mont. 156, 159, 939 P.2d 994, 996; State v.
         Raugust, 2000 MT 146, ¶¶ 18-20, 300 Mont. 54, ¶¶ 18-20, 3 P.3d 115, ¶¶ 18-20. We
         decline to do so again here.
    6.   ¶We hold that Wardell has waived Issues 1, 2, 3, and 4 by failing to properly raise
         them in the District Court.
    7.   ¶Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART



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Justice Jim Rice specially concurring:



¶17 I concur in the Court's opinion affirming the District Court on all issues raised in the
appeal. However, on the double jeopardy issue, I conclude that Wardell's argument fails
under a different rationale than that employed by the majority.

¶18 In both his sentencing brief and his argument at the sentencing hearing, Wardell's
counsel argued that application of the persistent felony offender statute constituted "a
double punishment issue," and on each occasion proceeded to explain the basis of his
objection to the statute's application. I believe Wardell's counsel sufficiently raised the
issue in the District Court to preserve it for appeal.

¶19 Wardell contends that the persistent felony offender statute, § 46-18-501, MCA
(1997), is unconstitutional as applied to him. Relying on State v. Guillaume, 1999 MT 29,
293 Mont. 224, 975 P.2d 312, Wardell argues that his prior sexual crime conviction was
an element of his second conviction for failure to register as a sex offender, and that it is
violative of the double jeopardy protections of Article II, Section 25, Montana
Constitution, to also use the prior conviction to enhance his sentence under the persistent
felony offender statute.

¶20 In 1989, Wardell was convicted in South Dakota of Sexual Contact with a Child
Under Sixteen, a felony. That conviction classified him as a sexual offender under § 46-23-
502, MCA (1997). He was then convicted of knowingly failing to register as a sexual
offender under § 46-23-507, MCA (1997). Wardell's prior sexual offense and his present
offense for failure to register involve separate and distinct acts and constitute separate
felonies. It was the fact of Wardell's convictions of these two separate felonies which
subjected him to the persistent felony offender statute, a sentence enhancement provision
applied without regard to the nature or elements of the particular felonies committed. As
such, this case is not analogous to Guillaume, which invalidated the application of a
sentencing enhancement provision for use of a weapon to a single offense which had
already been elevated from a misdemeanor to a felony based upon proof of the same act.
Thus, application of the persistent felony statute was appropriate here and did not violate
the constitutional prohibition against double jeopardy.


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¶21 For these reasons, the District Court is properly affirmed.

/S/ JIM RICE



Justice Terry N. Trieweiler concurring in part and dissenting in part.



    1. ¶I dissent from the majority's conclusion that the Defendant, Kim Conrad Wardell,
       did not adequately raise the issue of double jeopardy in the District Court to
       preserve the issue for appeal. The purpose of the contemporaneous objection rule is
       to put the district court and opposing party on notice of a potential error so that it
       can be avoided if possible. Here, the defendant's attorney specifically advised the
       District Court that there was ". . . a double punishment issue in this matter." Nothing
       more than that was required to bring the issue of double jeopardy to the District
       Court's and the State's attention. While a more specific objection may have been
       more persuasive to the District Court, to require a more specific objection for the
       purpose of preserving the issue for appeal is unrealistic and simply ignores the
       manner in which issues are raised as a practical matter in trial courts.
    2. ¶However, having concluded that the issue of double jeopardy was properly raised
       in the District Court, I also conclude that the double jeopardy protection afforded by
       Article II, Section 25 of the Montana Constitution has not been offended. The
       prohibition against double jeopardy protects against the imposition of more than one
       punishment for the same act. In this case Wardell was punished separately for three
       separate acts. First, he was punished in South Dakota for sexual assault. Second, he
       was punished in Montana for failure to register as a prior offender. Finally, his
       punishment was enhanced because of the commission of two different felonies
       within a specified period of time. Although both prior felonies form the basis for
       sentence enhancement, it is the combination of those felonies for which the
       additional penalty was imposed rather than for either separate offense. For these
       reasons, I conclude that the prohibition against multiple punishments for the same
       offense has not been offended.
    3. ¶I concur with the majority's conclusion that Wardell made no specific objection to
       his sentence based on the prohibitions against ex post facto laws and cruel and
       unusual punishment or based on his right to equal protection of the law. However, I
       dissent from the majority's refusal to review his claim that his punishment was cruel

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        and unusual based on the plain error doctrine. In State v. Finley (1996), 276 Mont.
        126, 137, 915 P.2d 208, 215, we held that:

This court may discretionally review claimed errors that implicate a criminal defendant's
fundamental constitutional rights even if no contemporaneous objection is made . . . where
failing to review the claimed error at issue may result in a manifest miscarriage of justice,
may leave unsettled the question of the fundamental fairness of the trial or proceeding or
may compromise the integrity of the judicial process.



    1. ¶Because I conclude that a 45-year sentence for failure to register as a sex offender
       was disproportionate to the offense committed and therefore cruel and unusual, I
       also conclude that refusal to review this sentence would result in a "manifest
       miscarriage of justice" and that the sentence should, therefore, be reviewed pursuant
       to the plain error doctrine.
    2. ¶Article II, Section 22 of the Montana Constitution prohibits imposition of
       punishment by the State which is cruel and unusual. In State v. Vernon Kills On Top
       (1996), 279 Mont. 384, 928 P.2d 182, we held that sentences which are grossly
       disproportionate to the crime for which a defendant is convicted are a violation of
       this prohibition. In State v. Tadewaldt (1996), 277 Mont. 261, 271, 922 P.2d 463,
       469, we held that when a sentence is so disproportionate to the crime for which it is
       imposed that it shocks the conscience and the moral sense of the community or of
       justice, it constitutes cruel and unusual punishment.
    3. ¶I conclude that the 45-year sentence imposed on Wardell for failure to register as a
       sex offender is so grossly disproportionate to his offense that it outrages any
       acceptable sense of justice and therefore constitutes cruel and unusual punishment.
       In arriving at that conclusion, I have considered the following facts:
    4. ¶Wardell's only other conviction for a felony offense occurred on December 1,
       1989, when he was convicted of sexual contact with a child under the age of 16 in
       South Dakota. However, he was sentenced and punished for that offense and
       discharged his sentence in 1997. He moved to Kila, Montana, in mid-1997 and was
       charged a year later with failure to register in this State as a sex offender in violation
       of § 46-23-507, MCA. However, that offense when originally enacted was a simple
       misdemeanor. Its primary purpose was informative, not preventative. It is a non-
       violent offense and in this case there was no victim. There is a clear legislative
       intention that courts consider alternatives to imprisonment for non-violent felonies.
       See § 46-18-201(11), MCA. Furthermore, counsel for the defendant argued, and it

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       was not denied, that the only four others convicted of a similar crime in Montana
       have received suspended sentences and none have served time in jail.
    5. ¶Taking up scarce and expensive prison space for potentially 45 years because of a
       person's simple failure to notify others of a crime for which he has already paid his
       debt to society is truly outrageous, and a waste of state resources.
    6. ¶The majority refuses to consider whether the District Court's sentence was
       disproportionate to the offense committed because the issue was not raised in the
       District Court and was raised for the first time on appeal in Wardell's reply brief. In
       other words, the majority refuses to consider Wardell's constitutional argument
       pursuant to the common law plain error doctrine based on its conclusion that
       Wardell is procedurally barred from asserting plain error.
    7. ¶In addition to the fact that plain error would logically be asserted in a reply brief
       after a respondent alleges that an issue raised for the first time on appeal is
       procedurally barred, the majority's conclusion is inimical to the whole idea of
       common law plain error. The common law plain error doctrine is based on the
       principle that courts have an obligation to enforce the constitution when the
       fundamental fairness of a judicial proceeding is placed at issue and that courts will
       not shirk that responsibility based on procedural omissions of a party's attorney. The
       whole idea is that if an issue is of sufficient constitutional significance and affects
       the very integrity of the proceeding being reviewed, this Court can consider the
       issue at any time without regard to normal procedural bars. The purpose of and
       history behind common law plain error was thoroughly considered by this Court in
       State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. In that case we were asked to
       decide on appeal whether the defendant's right to due process and privilege against
       self-incrimination had been violated when the prosecutor commented on his post-
       arrest silence. The defendant conceded that his counsel did not object to the
       prosecutor's comments at trial and that he did not meet the requirements of statutory
       plain error set forth at § 46-20-701(2), MCA. We characterized the issue as follows:

Accordingly, in this case we are faced squarely with the question of whether the doctrine
of common law plain error review can continue to survive given the existence of
Montana's plain error statute. We conclude that it can and must.

276 Mont. at 132.

    1. ¶We pointed out that, ". . . The federal judiciary and many state courts invoke the
        common law doctrine of plain error to prevent manifest injustice. (Citations

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        omitted)," 276 Mont. at 134. We cited the following federal authority with approval:

The United States Supreme Court adopted the common law doctrine of plain error in order
to correct errors that affect the fundamental constitutional rights of defendants. Noting that
the doctrine of plain error "confers a discretion that may be exercised at any time, no
matter what may have been done at some other time," the Court stated that the doctrine is
most appropriately invoked when "rights are asserted which are of such high character as
to find expression and sanction in the Constitution or Bill of Rights." Weems v. United
States (1910), 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793, 796; see also United
States v. Smith (11th Cir. 1983), 700 F.2d 627, 633 (stating a court is more likely to review
errors of constitutional magnitude). Adoption of the federal rules of criminal procedure
ratified a federal appellate court's inherent power to notice errors that are obvious, or
would seriously affect the fairness, integrity, or public reputation of judicial proceedings.
United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557.
(Italics and underlining added for emphasis).



276 Mont. at 134.



      1. ¶We gave the following rationale for the plain error doctrine:

Moreover, the power of such review is inherent in the appellate process itself. Appellate
courts have the inherent duty to interpret the constitution and to protect individual rights
set forth in the constitution and necessarily have the correlative authority to invoke the
plain error doctrine in order to carry out those duties. See Marbury v. Madison (1803), 5 U.
S. (1 Cranch) 137, 173-74, 2 L.Ed. 60; Laurence H. Tribe, American Constitutional Law §
3-5, at 21-34 (2 ed. 1987). This power to interpret the constitution and to protect
individual rights stems from the constitution being the "fundamental and paramount law of
the nation," that courts recognize and apply. Marbury, 5 U.S. at 177.



...




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Thus, the Montana Supreme Court has the inherent power and obligation to interpret the
constitution, to protect individual rights, and, correspondingly, to review lower court
decisions and actions for error.



276 Mont. at 135.



    1. ¶Refusing to consider a constitutional issue which affects the very integrity of the
       underlying judicial proceeding based on a procedural bar such as failure to raise the
       issue until the appellant's reply brief, is completely inconsistent with the rationale
       that we gave in Finley for adopting the common law plain error doctrine in spite of a
       more restrictive statutory plain error rule. That is, perhaps, why the majority opinion
       provides no discussion nor analysis of Finley. Instead, the majority make
       perfunctory reference to State v. Hagen (1997), 283 Mont. 156, 159, 939 P.2d 994,
       996, and State v. Raugust, 2000 MT 156, ¶¶ 18-20, 300 Mont. 54, ¶¶ 18-20, 3 P.3d
       115, ¶¶ 18-20. However, neither case involves rights of similar magnitude; neither
       case includes any analysis of the common law plain error doctrine; and neither case
       provides a rationale for creating a procedural bar to a doctrine which is, in itself, an
       exception to procedural bars. Therefore, neither case should be relied on.
    2. ¶Hagen appealed from a conviction of driving under the influence of alcohol. On
       appeal he contended for the first time that his due process rights were violated
       through introduction of evidence obtained by an improperly calibrated intoxilyzer.
       He raised the issue based not on evidence at trial but on newspaper articles
       published subsequent to trial. In his original appellate brief he relied on statutory
       plain error for his right to raise the issue. However, in his reply brief, he relied on
       common law plain error as set forth in State v. Finley. With no discussion nor
       analysis, we simply stated that an issue raised for the first time in a reply brief
       cannot be considered on appeal. We cited State v. Mummey (1994), 264 Mont. 272,
       281, 871 P.2d 868, 873. However, Mummey was not relevant authority because it
       had nothing to do with common law plain error nor in that case was a constitutional
       issue raised for the first time in the defendant's reply brief.
    3. ¶State v. Raugust is equally unpersuasive. In that case the defendant, who was
       convicted of deliberate homicide and arson, argued for the first time on appeal that
       the district court erred when it instructed the jury that it could not consider evidence
       of intoxication. Although not argued in his opening brief, he contended for the first

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       time at the end of his reply brief that the issue should be reviewed based on the
       common law plain error doctrine. Citing our prior decision in State v. Hagen, this
       Court refused to consider plain error for the reason that it was raised for the first
       time in appellant's reply brief. However, beyond reliance on State v. Hagen, there
       was no analysis in the Raugust decision of how or why courts which have inherent
       constitutional authority to consider constitutional violations which affect substantial
       rights "at any time" can be procedurally barred from doing so.
    4. ¶To the extent that State v. Hagen and State v. Raugust hamper this Court from
       effectively performing its constitutional obligation to correct errors that affect the
       fundamental constitutional rights of defendants "at any time, no matter what may
       have been done at some other time," I decline to follow those decisions and would
       overrule them.
    5. ¶For these reasons I would conclude that the District Court's sentence violated the
       constitutional prohibition against cruel and unusual punishment. I would vacate that
       sentence and remand to the District Court for further proceedings consistent with the
       constitution.



/S/ TERRY N. TRIEWEILER




Justices Jim Regnier and Patricia O. Cotter join in the foregoing concurring and dissenting
opinion.



/S/ JIM REGNIER



/S/ PATRICIA COTTER



Justice Patricia Cotter specially concurring:


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¶39 I join in Justice Terry N. Trieweiler's dissenting opinion in its entirety, and offer the
following additional ground for reversal.

¶40 As Justice Trieweiler points out in ¶ 7 of his dissent, counsel for the defendant argued,
and it was not denied by the State, that the only four other persons convicted of a similar
crime in Montana have received suspended sentences and none have served time in jail.

¶41 Wardell was sentenced in December 1998. In 1997, the Montana Legislature amended
§ 46-18-101, MCA, with respect to correctional and sentencing policy, by adding the
following provision:

(3) To achieve the policy outlined in (2) [subsection (2) sets out the correctional and
sentencing policy of the State of Montana], the State of Montana adopts the following
principles:

(a) Sentencing and punishment must be certain, timely, consistent, and understandable.

(b) Sentences should be commensurate with the punishment imposed on other persons
committing the same offenses. . . .



¶42 It is inarguable that a 45-year sentence for failure to register as a sex offender is
completely inconsistent with and disproportionate to the suspended sentences received by
the other persons convicted of committing the same offense. Therefore, not only does the
45-year sentence imposed on Wardell constitute cruel and unusual punishment, it is also in
absolute violation of this State's correctional and sentencing policies as outlined in § 46-
18-101(3)(a) and (b), MCA. For these reasons and those articulated by Justice Trieweiler,
I would vacate Wardell's sentence and remand to the District Court for further proceedings
consistent with Montana's declared correctional and sentencing policies, as well as the
Montana Constitution.

/S/ PATRICIA COTTER



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