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                                                              No. 99-295

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2000 MT 255

                                                           301 Mont. 466

                                                             10 P.3d 832

                                                   STATE OF MONTANA,

                                                      Plaintiff/Respondent,

                                                                      v.

                                          ALEXANDRIA NICOLE TUCKER

                                                    a/k/a ALEX TUCKER,

                                                      Defendant/Appellant.


                      APPEAL FROM: District Court of the First Judicial District,

                                     In and for the County of Lewis and Clark,

                            The Honorable Jeffrey M. Sherlock, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

                   William F. Hooks, Appellate Defender Office, Helena, Montana

                                                          For Respondent:


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  Joseph P. Mazurek, Montana Attorney General, Jennifer Anders, Assistant Montana
 Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney,
                                  Helena, Montana

                                         Submitted on Briefs: February 3, 2000
                                            Decided: September 26, 2000

                                                                   Filed:

                              __________________________________________

                                                                    Clerk


Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Alexandria Nicole Tucker (Tucker) appeals from the sentence entered by the First
Judicial District Court, Lewis and Clark County, that he serves ten years, with seven
suspended, for attempted aggravated assault and an additional two years for the use of a
weapon in the commission of the offense, to be served consecutively. We affirm.

¶2 We restate the issues on appeal as follows:

        1. Did Tucker waive his right to appeal the District Court's sentence by failing to
        object?

        2. Did the District Court fail to adequately comply with § 46-18-223(3), MCA, by
        not stating its reasons why it chose not to apply one of the § 46-18-222(3), MCA,
        exception to the § 46-18-221, MCA, weapons enhancement statute?

                                               FACTUAL BACKGROUND

¶3 Tucker arrived in Helena after a 600-mile trip originating in Canada and forced Joseph
Fisher, the former husband of Tucker's fiancé into his care at knife point. After a
discussion, Tucker proceeded to attacked his victim and repeatedly stabbed him. Tucker
was charged with the offense of attempted deliberate homicide and kidnaping.

¶4 Tucker retained counsel and entered a plea of not guilty at his August 13, 1998

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arraignment. After plea negotiations, the parties orally agreed that Tucker would plead
guilty to the amended charge of attempted aggravated assault. The parties further agreed
that the state would ask the court to order a presentence investigation and a psychological
evaluation prior to sentencing. The District Court accepted Tucker's guilty plea and
ordered a psychological evaluation and a presentence investigation.

¶5 A sentencing hearing was held on January 27, 1999. At the start of the hearing, the
court and the parties agreed to combine the hearing on whether § 46-18-221, MCA,
applied with the sentencing hearing. Section 46-18-221, MCA, requires a mandatory
minimum two-year term of incarceration for use of a weapon unless one of the exceptions
under § 46-18-222, MCA, applies. Both sides called witnesses and presented evidence.

¶6 Tucker argued that his "gender dysphoria" (commonly known as transsexualism)
combined with the stress of his fiancé's custody battles caused sufficient impairment of his
mental capacities to qualify him under § 46-18-222(3), MCA, to be excepted from the
mandatory minimum two-year term of incarceration required by § 46-18-221, MCA.
Under § 46 -18-222(3), MCA, the minimum mandatory two-year term for use of a weapon
does not apply if:

        (2) defendant's mental capacity at the time of commission of the offense was
        "significantly impaired" although not so impaired as to constitute a defense to the
        prosecution.

        (3) the defendant, at the time of the commission of the offense for which the
        defendant is to be sentenced, was acting under unusual and substantial duress,
        although not such duress as would constitute a defense to the prosecution.

The state probation officer recommended that the court impose the minimum mandatory
two-year term for Tucker's use of a knife in the commission of the offense.

¶7 At the close of arguments, the court orally pronounced its sentence. Tucker was
sentenced to ten years, with seven suspended, for the attempted aggravated assault with an
additional two-year term, to be served consecutively, for the use of a weapon in the
commission of the offense. The District Court explained why it chose not to exempt
Tucker for the weapons enhancement statute as follows:

        As I think has been pointed out by the county attorney, you traveled a long distance,


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        a lot of time to think, and you brought a weapon into a dangerous situation. You
        committed a violent act against a man, and you've injured him seriously, apparently.
        And it sounds like from the wounds he could have died. So I have to weigh those
        two things.

¶8 Tucker made no objection to the sentence at the time it was given. Now for the first
time on appeal, Tucker argues that the District Court erred by failing to adequately state
the reasons why it chose not to apply one of the § 46-18-222(3), MCA, exceptions to § 46-
18-221, MCA, as required by § 46-18-223(3), MCA.

        If it appears by a preponderance of the information, including information submitted
        during the trial, during the sentencing hearing, and in so much of the presentence
        report as the court relies on, that none of the exceptions at issue apply, the court
        shall impose the appropriate mandatory sentence. The court shall state the reasons
        for its decision in writing and shall include an identification of the facts relied upon
        in making its determination. The statement shall be included in the judgment.


Section 46-18-223(3), MCA (emphasis added).

                                                 STANDARD OF REVIEW

¶9 We review a criminal sentence on appeal to determine legality. State v. Montoya , 1999
MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. Criminal sentencing alternatives
are strictly a matter of statute in Montana. State v. Swoboda (1996), 276 Mont. 479, 481,
918 P.2d 296, 297. Our review is whether the District Court correctly interpreted and
applied the applicable statutes. Montoya, ¶ 12.

                                                            DISCUSSION

¶10 Did Tucker waive his right to appeal the District Court's sentence by failing to object?

¶11 Tucker argues that because the statutory exception to the weapons enhancement
statute was addressed by both sides during the sentencing hearing, the issue was preserved
for appellate review. Tucker argues that it is an unwarranted restriction to require a party
to object to a judge's ruling in order to preserve the issue for appeal if that party has
already presented evidence and argument on the issue.


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¶12 Tucker's argument fails, because he is arguing a distinctly different issue on appeal
than the one addressed during the sentencing hearing. Although the parties argued the
merits of whether one of the § 46-18-222(3), MCA, exceptions applied, Tucker is alleging
error on appeal because the District Court failed to specially set forth its reasons with
identified facts for its decision as required by § 46-18-223(3), MCA. The issue of whether
the District Court adequately complied with § 46-18-223(3), MCA, was not presented to
the District Court. This difference in issues distinguishes this case from State v. Sprinkle,
2000 MT 188, ___ Mont. ___, ___P.2d ____, where on appeal the defendant argued the
merits of his mandatory minimum sentence and we concluded that pursuant to § 46-18-223
(3), MCA, findings were necessary for us to reach the merits. Furthermore, in Sprinkle, the
State did not contend that the defendant had waived his right to object to the District
Court's failure to enter findings.

¶13 Because Tucker attacked his victim with a knife, the District Court had to consider
§ 46-18-221, MCA, during sentencing. Section 46-18-221, MCA, requires the imposition
of at least a minimum two-year term to a sentence when a weapon was used in the
commission of the offense. Section 46-18-222(3), MCA, however, provides certain
exceptions which allow the sentencing judge to avoid the minimum two-year term for use
of a weapon. Tucker argued during the sentencing hearing that one of the § 46-18-222(3),
MCA, exceptions applied to him because of his transsexualism combined with the stress
of his fiancé's custody battles sufficiently impaired his mental capacities. The District
Court disagreed, and added the minimum two-year term, under the weapons enhancement
statute, to his sentence.

¶14 Tucker is not appealing this decision. Rather, he is claiming that "[t]he sentencing
court erred as a matter of law in failing to state the reasons why the exception to the
otherwise mandatory sentence enhancement did not apply." This constitutes an issue of
whether the District Court complied with § 46-18-223(3), MCA. This statute requires the
sentencing court to state its reasons in writing why it chose to impose the weapons
enhancement in the face of the defendant's argument that an exception applies. State v.
Sprinkle, 2000 MT 188, ¶ 12, ___ Mont. ___, ___ P.2d ___, (remanded for entry of
findings to support district court's conclusion that an § 46-18-222(4), MCA, exception did
not apply). At no time, however, did Tucker complain to the District Court that its findings
were inadequate under § 46-18-223(3), MCA.

¶15 We refuse to remand for resentencing when a defendant failed to bring the allegations
of sentencing errors to the district court's attention in a timely fashion. Swoboda, 276

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Mont. at 481, 918 P.2d at 298. We will not review issues that where not preserved for
appeal in a district court. Sections 46-20-205, 701, MCA. The only exception to the
waiver rule is where the sentence imposed is illegal or exceeds statutory mandates, in
which case this Court may review for errors even if no objection is registered at the time
of sentencing. Swoboda, 276 Mont. at 482, 918 P.2d at 299. That exception is inapplicable
here, because Tucker does not allege that his sentence was illegal, excessive, or otherwise
improper.

¶16 The purpose of the contemporaneous objection requirement is to give a district judge
the first opportunity to correct any error. See, State v. Whaley (1895), 16 Mont. 574, 41 P.
852. Since this was not done here, Tucker waived his right to appeal this issue. Since this
issue is dispositive, we need not address the remaining issue.

¶17 Affirmed.

                                                /S/ WILLIAM E. HUNT, SR.

                                                              We Concur:

                                                         /S/ JIM REGNIER

                                                /S/ TERRY N. TRIEWEILER

                                                    /S/ JAMES C. NELSON

                                                     /S/ KARLA M. GRAY




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