                                           No. 05-165

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 225N

                                                _______________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

MATTHEW OLSON,

              Defendant and Appellant.

                                                 ______________________________________

APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade, Cause No. BDC 04-221-2
                     The Honorable Julie Macek, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Carl B. Jensen, Jr., Attorney at Law, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney
                     General, Helena, Montana

                     Brant Light, County Attorney, Great Falls, Montana

                                                   ____________________________________

                                                        Submitted on Briefs: November 22, 2005

                                                                   Decided: September 8, 2006

Filed:

                       ______________________________________
                                        Clerk
Justice John Warner delivered the Opinion of the Court.

¶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 its case title, Supreme

Court 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     Matthew Curtis Olson (Olson) appeals from the imposition of a sentencing

requirement that he register as a violent offender. We affirm.

¶3     Law enforcement officers arrested Olson on May 15, 2004. This arrest followed a

tip that he and two other people made suspicious cold medicine purchases the previous

three days. The State charged Olson by Information with multiple counts, including

operation of an unlawful clandestine laboratory in violation of § 45-9-132, MCA.

¶4     Olson entered a plea agreement with the State wherein he agreed to plead guilty to

the charge of operation of an unlawful clandestine laboratory. The State agreed to

recommend a ten-year commitment to the Department of Corrections with five years

suspended, and to dismiss the remaining two counts.

¶5     The District Court imposed the sentence recommended by the State pursuant to the

plea agreement. The District Court’s judgment required that Olson, in part, “register as a

Violent Offender in compliance with Title 44, Chapter 23, Part 5 M.C.A. and give

appropriate notice of any address change.” Olson appeals the requirement that he register

as a violent offender.

¶6     This Court reviews a District Court’s sentence for legality only. State v. Johnson,

2005 MT 48, ¶ 5, 326 Mont. 161, ¶ 5, 108 P.3d 485, ¶ 5; State v. Eaton, 2004 MT 283, ¶

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11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11.

¶7     Olson urges this Court to excuse his failure to object to the registration

requirement during sentencing pursuant to either State v. Lenihan (1979), 184 Mont. 338,

602 P.2d 997 or State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, abrogated in part

on other grounds by State v. Gallagher, 2001 MT 39, & 21, 304 Mont. 215, & 21, 19

P.3d 817, & 21. He then presents three arguments against imposition of the registration

requirement. First he argues that this requirement has no correlation or connection to the

underlying offense as required by State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974

P.2d 620. Next he argues that the registration requirement violates his right to due

process, violates fundamental fairness, and is an unjust punishment. He concludes by

arguing that the registration requirement violates his right to equal protection under both

the Fourteenth Amendment of the United States Constitution and Article II, Section 4 of

the Montana Constitution.

¶8    We need not determine whether Olson’s failure to object to the registration

requirement is excused by either Lenihan or Finley.

¶9    Regarding his first argument, the provision of a sentence that was found illegal in

Ommundson was a discretionary condition placed on a probationary sentence.

Ommundson, ¶ 3. On the other hand, the registration requirement in this case is a part of

the sentence required by law pursuant to § 46-23-504, MCA. The sentencing judge

lacked the discretion to omit the registration requirement pursuant to § 46-18-201(7),

MCA. Ommundson is inapposite.




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¶10   Olson provides neither sufficient argument nor supporting authority for his

constitutional arguments that the registration requirement violates his right to due

process, violates fundamental fairness, and is an unjust punishment.          We therefore

decline to consider these arguments. Johnson, ¶ 11; M. R. App. P. 23(a)(4); State v.

Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, ¶ 22.

¶11   Olson’s equal protection argument is without merit.          He suggests that those

persons convicted of non-predatory felonies are a class. He then argues that those

convicted of operating a clandestine laboratory are members of this class that are treated

differently because they are required to register as violent offenders. He provides no

supporting authority for this position. This Court has previously held that “individuals

convicted of different offenses are not similarly situated for purposes of equal

protection.” State v. Davison, 2003 MT 64, ¶ 15, 314 Mont. 427, ¶ 15, 67 P.3d 203, ¶ 15.

Olson has not been denied equal protection of the law.

¶12   Affirmed.

                                          /S/ JOHN WARNER

We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ BRIAN MORRIS




Justice James C. Nelson specially concurs.

¶13   I agree with the result the Court reaches in this case, but not with its reasoning.




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¶14    Generally, this Court will not consider an issue to which a timely objection was

not made in the lower court. See §§ 46-20-104(2) and -701(2), MCA. However, we have

recognized exceptions to this rule in State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997,

1000 (1979) (permitting challenges to sentences that are alleged to be illegal or beyond

statutory mandates, even if no objection was made at the time of sentencing), and State v.

Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996) (stating that we may

discretionarily review claimed errors that implicate a criminal defendant’s fundamental

constitutional rights, even if no objection was made in the lower court, where failing to

do so may result in a manifest miscarriage of justice, may leave unsettled the question of

the fundamental fairness of the trial or proceedings, or may compromise the integrity of

the judicial process), overruled in part on other grounds by State v. Gallagher, 2001 MT

39, ¶ 21, 304 Mont. 215, ¶ 21, 19 P.3d 817, ¶ 21. Where the prerequisites for invoking

the Lenihan exception or plain error review under Finley are satisfied, we will proceed to

the merits of the defendant’s claim.

¶15    In the case at hand, the Court states that we need not determine whether Olson’s

failure to object to the registration requirement is excused by either Lenihan or Finley

because his sentencing challenges, apparently, are without merit. I disagree with this

approach. In my view, we should not be reaching the merits of Olson’s sentencing

challenges.

¶16    It is not logical to state on the one hand that we will not reach the merits of a

sentencing claim to which no objection was raised in the lower court unless Lenihan or

Finley apply, but then to state on the other hand that we need not determine whether

Lenihan or Finley apply because we went ahead and considered the merits of the

                                            5
unpreserved claim anyway and determined that it is without merit. Such reasoning puts

the proverbial cart before the horse.     Contrary to the Court’s approach, we must

determine whether Olson’s failure to object is excused by Lenihan or Finley before

considering the merits of his claim.

¶17    In this regard, I note that in order to obtain review of an otherwise procedurally

barred sentencing claim by way of Lenihan or Finley, a defendant must conform to our

rules and precedents requiring proper argument and citation. See M. R. App. P. 23(a)(4);

In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6

(“[W]e will not consider unsupported issues or arguments. Similarly, this Court is under

no obligation to locate authorities or formulate arguments for a party in support of

positions taken on appeal.” (internal citation omitted)). This requirement is independent

of the respective prerequisites for invoking Lenihan and Finley.        For instance, an

otherwise valid allegation that the lower court lacked authority to impose the challenged

sentence is insufficient to invoke the Lenihan exception if it rests on an incoherent

analysis or lacks supporting authority. Such is the case here with Olson’s sentencing

challenges.

¶18    In his first argument, Olson contests the requirement that he register as a violent

offender on the ground that this registration requirement does not have a correlation or

connection to the offense of operation of an unlawful clandestine laboratory. However,

he cites no relevant authority for the underlying proposition that the registration

requirement has to have such a correlation or connection.        Granted, he directs our

attention to State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620; yet, as the

Court observes, Ommundson is entirely inapposite, given that we were interpreting a

                                            6
statutory provision that authorized sentencing restrictions or conditions “reasonably

related to the objectives of rehabilitation and the protection of the victim and society,”

Ommundson, ¶ 11 (internal quotation marks omitted), whereas here the sentencing

restriction is both specific and mandatory. In particular, § 46-18-201(7), MCA, mandates

that in imposing a sentence on an offender convicted of a violent offense—as was Olson,

see § 46-23-502(9)(a), MCA (listing § 45-9-132 as a “[v]iolent offense”)—“the

sentencing judge may not waive the registration requirement provided in Title 46, chapter

23, part 5” (emphasis added). On its face, this statutory language contains no limitation

on its application to only those offenses which have a correlation or connection to the

registration requirement, and Olson cites no pertinent authority for such a limitation.

¶19    Likewise, Olson has provided insufficient argument and supporting authority for

his constitutional arguments that the registration requirement violates due process,

fundamental fairness, and equal protection and is an unjust punishment. Cf. State v.

Johnson, 2005 MT 48, ¶ 11, 326 Mont. 161, ¶ 11, 108 P.3d 485, ¶ 11 (“It is unclear to us

whether Johnson intends his argument to be construed as a constitutional challenge to

§ 44-6-103, MCA. Assuming that he does, we cannot make such a determination on the

basis of the abbreviated arguments before us.”).

¶20    Accordingly, I conclude that Olson did not articulate persuasive and properly

supported arguments on appeal which would demonstrate that his challenges to the

registration requirement may be reviewed under the Lenihan exception or the plain error

doctrine as explained in Finley.


                                                                /S/ JAMES C. NELSON


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