                                                                                  May 27 2014


                                   DA 13-0482

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  2014 MT 133



IN THE MATTER OF:

A.S.M.,

           A Youth.



APPEAL FROM:      District Court of the Eleventh Judicial District,
                  In and For the County of Flathead, Cause No. DJ 07-005(A)
                  Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                  Andrée Larose; Morrison, Sherwood, Wilson & Deola, PLLP;
                  Helena, Montana

            For Appellee:

                  Timothy C. Fox, Montana Attorney General; Brenda K. Elias,
                  Assistant Attorney General; Helena, Montana

                  Ed Corrigan, Flathead County Attorney; Tara R. Fugina, Deputy
                  County Attorney; Kalispell, Montana



                                            Submitted on Briefs: April 23, 2014
                                                       Decided: May 27, 2014


Filed:

                  __________________________________________
                                   Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     The Eleventh Judicial District Court, Flathead County, partially denied A.S.M.’s

motion to modify a transfer order under § 41-5-208, MCA (§ 208 order).           A.S.M.

appeals. We affirm.

¶2     A restatement of the dispositive issue on appeal is:

¶3     Did the District Court err when it did not modify the § 208 order to suspend

A.S.M.’s sentence and terminate supervision by the Department of Corrections?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     A.S.M. is presently a 21 year-old male who has been diagnosed with significant

developmental disabilities and mental illnesses, including Autism Spectrum Disorder

(Asperger’s syndrome). On February 16, 2007, A.S.M. admitted that he had committed

the offense of sexual intercourse without consent, a felony, while he was a minor. The

Youth Court declared A.S.M. a delinquent youth and a serious juvenile offender. A.S.M.

was placed on formal probation until the age of 18 and until all conditions were met. The

Youth Court ordered A.S.M. to successfully complete sex offender treatment, and

between June 2007 and May 2010, he attended treatment programs in Texas and

Colorado. However, he failed to successfully complete treatment.

¶5     On May 6, 2011, the Youth Court issued a § 208 order transferring jurisdiction

over A.S.M. from the Youth Court to the District Court and transferring supervisory

responsibility of A.S.M. to the Department of Corrections (DOC). Pursuant to the order,

A.S.M. was transferred from Pine Hills Youth Correctional Facility to Montana State

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Prison (MSP) on his eighteenth birthday. A.S.M. was not eligible for parole until he

completed phases one and two of MSP’s sexual offender program. The District Court

retained jurisdiction over the matter until A.S.M. reached the age of 25.

¶6     On December 7, 2012, A.S.M. filed a motion to modify the § 208 order. A.S.M.

requested that the court (1) give the DOC authority to place him in an appropriate

residential treatment and educational program and (2) recommend that the DOC send him

to Whitney Academy in Massachusetts (the Academy).               The Academy is a private

residential school and treatment facility that specializes in providing special education

instruction and related services to adolescent and young adult males with developmental

disabilities and trauma histories who have exhibited sexually abusive behavior. The State

opposed A.S.M.’s motion, arguing that the court did not have the authority to grant the

requested relief under § 41-5-208(5), MCA, which states in relevant part that “the district

court may order that the youth . . . (a) be incarcerated in a state adult correctional facility,

boot camp, or prerelease center; or (b) be supervised by the department.”

¶7     The court held a hearing on the motion on January 18, 2013. At the hearing,

expert witnesses testified that placement at the Academy was appropriate for A.S.M. The

Director of Admissions at the Academy testified that A.S.M. had been screened for

admission and accepted by the Academy. A DOC probation and parole officer testified

that commitment to the DOC with placement at the Academy would be difficult, and that

the transfer process to Massachusetts could take months. He further testified that if the



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court granted A.S.M.’s motion, A.S.M. would be immediately released from MSP even

though it was unclear whether appropriate supervision would be available.

¶8    After receiving a request on behalf of A.S.M. for a due process hearing against the

DOC, the Office of Public Instruction appointed Hearing Officer Leslie Halligan

(Halligan) to determine whether A.S.M. was being denied a free appropriate public

education while incarcerated. On May 15, 2013, Halligan issued an order concluding that

A.S.M. had been denied a free and appropriate education by the DOC in violation of the

Individuals with Disabilities Education Improvement Act of 2004, and that he was

entitled to an award of compensatory services.

¶9    On June 10, 2013, the District Court issued its findings of fact, conclusions of law,

and order on A.S.M.’s motion. The court found that A.S.M. was an untreated sex

offender. The District Court took judicial notice of Halligan’s order but determined that

remedial education issues were not within its jurisdiction, and that Halligan’s

recommendations were purely advisory. The court concluded modification of the § 208

order was appropriate given A.S.M.’s difficulties in completing sex offender treatment;

the court accordingly removed the parole restriction requiring A.S.M. to complete phases

one and two of the sexual offender program. According to the District Court, this would

“allow the [DOC] and Parole Board to fashion an appropriate program that protects the

community, provides [A.S.M.] with the treatment he needs, and complies with the

remedial education requirements imposed by Hearings Officer Halligan.” The court

noted that “the DOC is now required to provide [A.S.M.] compensatory educational

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services, whether that be placement at Whitney Academy or services within the State of

Montana or elsewhere,” and that “[r]elease on parole does not necessarily preclude

attendance at Whitney Academy, but rather ensures that, through the DOC and the Parole

Board, an appropriate plan is in place at all times.”

¶10    A.S.M. timely appealed the court’s order. A.S.M. seeks a remand of the case with

instructions that the District Court modify its order to facilitate A.S.M.’s placement at the

Academy by: (1) suspending his sentence on the condition that he participate in treatment

at the Academy and in any recommended aftercare; and (2) terminating supervision by

the DOC. A.S.M. concedes that release to the community is not appropriate for him.

A.S.M. argues the District Court abused its discretion by keeping him in the adult

corrections system, which may limit his chances of being accepted for supervision by

Massachusetts. A.S.M. further argues the District Court’s decision was contrary to the

express purposes of the Youth Court Act, was not based on the evidence in the record,

and was based on a mistake of law, namely the court’s conclusion that imposition of the

disposition sought by A.S.M. would require A.S.M.’s immediate release without

conditions for appropriate supervision and treatment.

¶11    The State counters that the District Court had no statutory authority to release

A.S.M., an untreated sex offender, from MSP without an appropriate discharge plan to

ensure community safety.      According to the State, the court’s June 10, 2013 order

“represents an act of grace to which A.S.M. may not have been entitled in the first place”

and actually facilitates A.S.M.’s placement at the Academy. The State maintains that the

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court reasonably found that MSP was the only appropriate placement for A.S.M. to

comply with his youth disposition and complete sex offender treatment.           The State

contends that A.S.M. should retain his adult inmate status, and that the court’s decision

not to impose a supervisory disposition requiring A.S.M.’s immediate release from MSP

to the DOC adult probation services was not in error.

                               STANDARD OF REVIEW

¶12    This Court reviews conclusions of law to determine if they are correct. In re

M.W., 2012 MT 44, ¶ 9, 364 Mont. 211, 272 P.3d 112 (citation omitted).

                                      DISCUSSION

¶13    Did the District Court err when it did not modify the § 208 order to suspend

A.S.M.’s sentence and terminate supervision by the Department of Corrections?

¶14    As an initial matter, we emphasize that the District Court did in fact modify the

order by eliminating the parole eligibility requirement. However, A.S.M. argues the

District Court should have gone even further and modified the order to remove A.S.M.

from the adult corrections system. We note that A.S.M. has never been convicted as an

adult and is only in the adult corrections system because of the § 208 order.

¶15    A district court’s authority, including authority to modify an order, is dictated by

the state and federal constitutions and by statute. In the absence of a specific grant of

authority, a lower court does not have the jurisdiction to act. See e.g. State v. Ringewold,

2001 MT 185, ¶ 21, 306 Mont. 229, 32 P.3d 729 (citations omitted) (“[A] district court’s

authority to impose sentences in criminal cases is defined and constrained by statute,”

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and “a district court has no power to impose a sentence in the absence of specific

statutory authority.”); State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133.

A transfer of jurisdiction and supervisory authority under § 41-5-208, MCA, terminates a

youth court’s jurisdiction. State v. Andersen-Conway, 2007 MT 281, ¶ 15, 339 Mont.

439, 171 P.3d 678 (citing § 41-5-205(2)(a), MCA). However, § 41-5-1422(1), MCA,

provides: “An order of the [youth] court may be modified at any time.” When the youth

is committed to the DOC, “an order pertaining to the youth may be modified only upon

notice to the department and a subsequent hearing.” Section 41-5-1422(2), MCA.

¶16   Though § 41-5-1422, MCA, is within the Youth Court Act, the plain language of

the statute does not preclude a district court from modifying a youth court order

following the appropriate hearing. It is consistent with the scheme of the Youth Court

Act that a dispositional order may be modified, including by a district court, even though

the youth is no longer a minor. See e.g. § 41-5-208(4), MCA (allowing a district court to

impose conditions if a youth violates a disposition previously imposed by a youth court);

§ 41-5-102(2)(b), MCA (The Youth Court Act must be interpreted and construed to

“[provide] a program of supervision, care, rehabilitation, detention, competency

development, and community protection for youth before they become adult offenders.”).

Because the May 6, 2011 order was “[a]n order of the [youth] court,” the District Court

had authority to modify the order pursuant to § 41-5-1422(1), MCA.

¶17   The District Court did not err by refusing to further modify the § 208 order,

however. There is no evidence in the record that A.S.M. has been approved for transfer

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to Massachusetts through the interstate compact process, which is a prerequisite to his

placement at the Academy. The District Court heard testimony that if the court modified

the order as requested, A.S.M. would be immediately released from MSP, possibly before

appropriate arrangements could be made by the DOC. The court heard further testimony

that if Massachusetts denied supervision, A.S.M. would be in the community, perhaps

without appropriate treatment options.

¶18   When a case involves a youth offender who was sentenced pursuant to the Youth

Court Act, a court may consider the “express legislative purposes” of the Act, even after

a § 208 transfer. See e.g. In re D.A.S., 2008 MT 168, ¶ 11, 343 Mont. 360, 184 P.3d 349

(citing § 41-5-102(2)(b), MCA). The court’s order is consistent with the Youth Court

Act policy of ensuring there is oversight over a youth completing treatment.         See

§ 41-5-102(2)(a)-(b), MCA. The District Court clearly fashioned a remedy in light of the

facts and circumstances before it, balancing the youth’s need of treatment and the safety

and protection of the community. Our review of the record clearly indicates that A.S.M.

is not ready for release into the community and requires further treatment. Importantly,

the court’s order does not preclude attendance at the Academy or at an alternative

program such as Opportunities Resources, Inc. in Missoula. Halligan noted that “[t]he

roadblock to implementation of this appropriate and necessary remedy [of placement at

the Academy] is the District Court Order that places A.[S.]M. at MSP and requires that

he complete Phases one and two of the sex offender program at MSP before he is eligible

for parole.” This roadblock no longer exists. We conclude the District Court did not err

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by partially modifying the order to remove the parole eligibility requirement but refusing

to further modify the order.

                                    CONCLUSION

¶19    For the foregoing reasons, we affirm the District Court’s order partially modifying

the § 208 transfer order.


                                                /S/ PATRICIA COTTER

We concur:

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




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