                                                                                                 10/25/2016


                                           DA 15-0707
                                                                                             Case Number: DA 15-0707

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 271



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

JAMES JOHN HARRISON,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 15-5
                        Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy
                        County Attorney, Hamilton, Montana

                For Appellee:

                        John D. Greef, Attorney at Law, Hamilton, Montana



                                                     Submitted on Briefs: September 14, 2016

                                                                 Decided: October 25, 2016


Filed:

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

¶1     The State of Montana appeals an order of the Twenty-First Judicial District Court,

Ravalli County, denying the State’s motion to conform the District Court’s written

judgment to its oral pronouncement of James John Harrison’s sentence for convictions

related to poaching nine black bears. We address:

       1. Whether the District Court correctly determined that Harrison may petition for
       early termination of his lifetime prohibition on hunting, fishing, and trapping.

       2. Whether the District Court correctly determined that Harrison may petition for
       early termination of his lifetime prohibition on accompanying any hunter, angler,
       or trapper.

¶2     We affirm in part and reverse in part.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     On June 25, 2015, Harrison pled guilty to—and was convicted of—five felony

charges: unlawful possession, shipping, or transportation of a game fish, bird, game

animal, or fur-bearing animal pursuant to a common scheme in violation of

§ 87-6-202(1), (5), and (6)(f), MCA; tampering with witnesses and informants in

violation of § 45-7-206(1)(a), MCA; tampering with or fabricating physical evidence in

violation of § 45-7-207, MCA; and two counts of tampering with public records or

information in violation of § 45-7-208, MCA. The charges all stemmed from Harrison’s

illegal baiting, killing, and transportation or assistance in illegal baiting, killing, and

transportation of nine black bears between May 2009 and June 2014. On August 28,

2015, the District Court orally sentenced Harrison to ten years in prison, all suspended,

with several conditions, including a “lifetime loss of hunting, trapping and



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accompaniment privileges.” On September 9, 2015, the District Court issued its written

judgment, imposing a ten-year suspended prison sentence and twenty-six conditions. The

two conditions at issue in this appeal, Conditions 23 and 24, provide:

       23.    The Defendant shall be prohibited from hunting, fishing, or trapping
              in the State of Montana during his lifetime. Pursuant to §46-18-208,
              the Defendant may file a petition for early termination of this
              sentence and/or this condition after 2/3 of the suspended sentence
              time has elapsed.

       24.    The Defendant shall be prohibited from accompanying in the field
              any hunter, angler, or trapper in the State of Montana during his
              lifetime. Pursuant to §46-18-208, the Defendant may file a petition
              for early termination of this sentence and/or this condition after 2/3
              of the suspended sentence time has elapsed.

¶4     On October 5, 2015, the State filed a motion to conform the District Court’s

written judgment to its oral pronouncement of Harrison’s sentence. The State argued that

the District Court’s written judgment did not conform to its oral pronouncement of

Harrison’s sentence because the District Court never mentioned at sentencing that

Harrison could seek an early termination of his lifetime hunting, fishing, trapping, and

accompaniment prohibitions.     The State further argued that Harrison’s loss of these

privileges is an independent criminal penalty, not a condition of his suspended sentence.

According to the State, allowing Harrison to petition for an early termination of his

lifetime prohibitions would render the sanctions meaningless because, “when a [d]istrict

[c]ourt terminates the time remaining on a sentence pursuant to § 46-18-208, MCA, all of

the conditions that were imposed as a condition of that sentence are also terminated.” On

October 26, 2015, the District Court issued an order denying the State’s motion. The

District Court concluded that the lifetime prohibitions were conditions of Harrison’s


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sentence, not independent penalties, and therefore modifiable pursuant to § 46-18-208,

MCA. The State appealed.

                               STANDARDS OF REVIEW

¶5     We generally review a criminal sentence for legality; “that is, whether the

sentence falls within the statutory parameters.” State v. Duong, 2015 MT 70, ¶ 11, 378

Mont. 345, 343 P.3d 1218. A district court’s interpretation of a statute is a question of

law, which we review for correctness. Duong, ¶ 11.

                                       DISCUSSION

¶6     1. Whether the District Court correctly determined that Harrison may petition for
       early termination of his lifetime prohibition on hunting, fishing, and trapping.

¶7     Pursuant to § 87-6-202(6)(f), MCA, a person convicted of possessing, shipping, or

transporting an unlawfully killed game fish, bird, game animal, or fur-bearing animal

worth more than $1,000 “shall forfeit . . . the privilege to hunt, fish, or trap in this state

for not less than 3 years up to a revocation for life from the date of conviction.”

¶8     Section 46-18-208(1), MCA, provides:

       When imposition of a sentence has been deferred or execution of a sentence
       has been suspended, the . . . defendant may file a petition to terminate the
       time remaining on the sentence if:
                                      . . .
       (b) in the case of a suspended sentence:
       (i) the defendant has served two-thirds of the time suspended; and
       (ii) the defendant has been granted a conditional discharge from supervision
       under 46-23-1011 and has demonstrated compliance with the conditional
       discharge for a minimum of 12 months.

¶9     The oral pronouncement of a criminal sentence in the presence of the defendant is

the “legally effective sentence and valid, final judgment.”             State v. Claassen,



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2012 MT 313, ¶ 16, 367 Mont. 478, 291 P.3d 1176 (quoting State v. Lane, 1998 MT 76,

¶ 40, 288 Mont. 286, 957 P.2d 9).         In the event of a conflict between the oral

pronouncement and the written judgment, the oral pronouncement of a sentence controls.

Claassen, ¶ 16.

¶10    The State contends that Harrison’s lifetime hunting, fishing, and trapping

prohibition is not subject to early termination under § 46-18-208, MCA, because it is a

separate penalty, not a condition of his suspended sentence.        We agree.     Statutory

interpretation “must be reasonable,” § 1-3-233, MCA, and “should not lead to absurd

results if a reasonable interpretation would avoid it.” State v. Sommers, 2014 MT 315,

¶ 22, 377 Mont. 203, 339 P.3d 65. Section 46-18-208, MCA, applies to early termination

of “the time remaining” on a suspended sentence.           Section 87-6-202(6)(f), MCA,

provides a separate, independent penalty, that allows for a lifetime prohibition on

hunting, fishing, or trapping. It is not subject to early termination under § 46-18-208,

MCA.     Holding otherwise would lead to the absurd result of rendering Harrison’s

“lifetime” prohibition meaningless, because it would end not with Harrison’s lifetime, but

with the termination or expiration of his sentence.

¶11    The District Court incorrectly applied the law when it denied the State’s petition to

conform its written judgment to its oral pronouncement by striking the provision in

Condition 23 that allows Harrison to petition for early termination of his lifetime hunting,

fishing, and trapping prohibition.




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¶12   2. Whether the District Court correctly determined that Harrison may petition for
      early termination of his lifetime prohibition on accompanying any hunter, angler,
      or trapper.

¶13   Unlike his lifetime hunting, fishing, and trapping prohibition, Harrison’s lifetime

prohibition on accompanying any hunter, angler, or trapper is not provided for by statute.

Because there is no independent statutory basis for it, the accompaniment prohibition

would necessarily be a condition of Harrison’s sentence, not an independent penalty.

Although the District Court did not expressly advise Harrison that he had the right to

petition for early termination of this condition during its oral pronouncement, in denying

the State’s motion to alter or amend the judgment, the District Court correctly noted that

petitioning for early termination of a suspended sentence pursuant to § 46-18-208, MCA,

“is a statutory right, enacted by the Legislature, and therefore has no need to be orally

expressed.” Whether or not the District Court orally advised Harrison of his statutory

right to seek early termination of his suspended sentence—including the lifetime

prohibition on accompanying any hunter, angler, or trapper—does not change the fact

that Harrison has that right. The District Court merely advised him of that right in the

written judgment. It did not substantively alter the oral pronouncement or create a

conflict between the oral pronouncement and the written judgment.

                                    CONCLUSION

¶14   We affirm in part and reverse in part the District Court’s order. We remand for

the District Court to strike the following sentence from Condition 23 of its written

judgment:    “Pursuant to §46-18-208, the Defendant may file a petition for early




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termination of this sentence and/or this condition after 2/3 of the suspended sentence time

has elapsed.”



                                                   /S/ JAMES JEREMIAH SHEA


We Concur:

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


Justice Patricia Cotter, dissenting.

¶15    I dissent. I would uphold the order of the District Court in all respects.

¶16    The Court states at ¶ 10 that it agrees with the State’s contention that the lifetime

hunting, fishing, and trapping prohibition imposed pursuant to § 87-6-202(6)(f), MCA, is

a separate penalty and not a condition of Harrison’s suspended sentence. While the

lifetime ban is indeed a penalty, it is also clearly a condition of Harrison’s suspended

sentence, as the Court itself notes in ¶ 3. This being so, the provisions of § 46-18-208,

MCA, permitting early termination of a suspended sentence may apply.

¶17    There is no language in § 87-6-202, MCA, to support the proposition that a

penalty which is imposed as a condition of sentence may not be terminated early pursuant

to § 46-18-208, MCA. Section 87-6-202(6)(f), MCA, requires only that, if the value of

the game exceeds a certain dollar figure, the person shall forfeit his privilege to hunt, fish,

or trap for not less than 3 years. Here, the sentence imposed was a prison sentence of 10

years with all time suspended. Thus, the earliest opportunity in this case for either the



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prosecutor or defendant to invoke the benefit of § 46-18-208, MCA, would be after

two-thirds of the suspended time—or 6 years and 8 months—has been served. This

penalty would exceed by 3 years and 8 months the minimum forfeiture requirements of

§ 87-6-202(6)(f), MCA.

¶18    Similarly, § 46-18-208, MCA, contains no language precluding its application to

sentences involving conditions of suspended sentences that can also be considered

penalties. Therefore, neither statute supports the Court’s categorical statement in ¶ 10

that the penalty imposed under Title 87 is not subject to early termination under

§ 46-18-208, MCA, nor does the Court cite any statutory reference or case law for its

conclusion. The Court’s conclusion is ipse dixit and nothing more.

¶19    Finally, I would conclude that the fact that the oral pronouncement of sentence did

not reference § 46-18-208, MCA, or the possibility of early termination of the suspended

sentence is of no consequence. The written sentence merely informed Harrison of his

right to seek early termination of his suspended sentence—a statutory right that every

defendant enjoys regardless of whether it is referenced by a court at sentencing.

¶20    For the foregoing reasons, I dissent.

                                                   /S/ PATRICIA COTTER




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