Matter of Z.L., Youth ( 2021 )

01/26/2021
DA 19-0606
Case Number: DA 19-0606
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 19N
IN THE MATTER OF
Z.L.,
A Youth.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Meagher, Cause No. DJ-17-01
Honorable Randal I. Spaulding, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Lippert, Jim Lippert Attorney at Law, P.C., Big Timber, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Burt N. Hurwitz, Meagher County Attorney, White Sulphur Springs,
Montana
Submitted on Briefs: January 6, 2021
Decided: January 26, 2021
Filed:
Vir-641.-if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 Z.L. appeals from an August 20, 2019 Dispositional Judgment in the Montana
Fourteenth Judicial District Youth Court, Meagher County, committing Z.L. to the custody
of the Montana Department of Corrections (DOC) until the age of 21 and ordering Z.L. to
register as a sexual offender pursuant to § 41-5-1513, MCA. We affirm.
¶3 On May 25, 2017, the State filed a Youth Court Petition alleging that Z.L. was a
delinquent youth and had committed incest and sexual abuse of children between June 1,
2016, and January 28, 2017. Pursuant to a 2017 pretrial diversion agreement and consent
decree, Z.L. pled true to the charges and formal proceedings in Youth Court were
suspended. A psychosexual evaluation was conducted in September 2017, placing Z.L. in
the moderate risk category for reoffending. In 2019, the State moved to reinstate the Youth
Court Petition because it was no longer possible for Z.L. to complete sexual offender
treatment—a condition of the diversion agreement—before the expiration of the consent
decree on Z.L.’s 18th birthday. Z.L. stipulated to the reinstatement, as his reportedly
“manipulative and other delinquent behaviors” at treatment had made him ineligible to
graduate from the program.
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¶4 At an August 2019 dispositional hearing, the State asked that Z.L. be designated a
level-two sexual offender, based on the 2017 psychosexual evaluation, and be ordered to
register as a sexual offender. Z.L.’s counsel argued for designating Z.L. as a level-one
sexual offender, claiming that the 2017 psychosexual evaluation might no longer be
accurate. Counsel also argued that Z.L. should not be required to register as a sexual
offender. He stated that Z.L. would request an updated evaluation before his transfer
hearing to be held prior to Z.L.’s 18th birthday.
¶5 The Youth Court committed Z.L. to DOC custody until age 21 and designated Z.L.
a level-two sexual offender with a moderate risk to reoffend. The Youth Court also applied
the prior version of the sexual offender registration statute, despite the parties’ positions to
the contrary, as Z.L. had committed the offending acts before the effective date of the new
statute. The Youth Court ruled that Z.L. failed to carry his burden of showing that
registration as a sexual offender was not appropriate, as required under the prior version of
the statute. This appeal followed.
¶6 On appeal, Z.L. argues that the Youth Court erred by applying the version of the
statute that was in place at the time of the offense, which required Z.L. to demonstrate that
registration was not appropriate. Z.L. also argues that he was entitled to a more
recently-conducted psychosexual evaluation prior to disposition.
¶7 We review a district court’s conclusions of law for correctness. In re W.G., 1999
MT 2, ¶ 5, 293 Mont. 16, 973 P.2d 217. We review sentences of less than one year of
incarceration for legality and for an abuse of discretion. State v. Herd, 2004 MT 85, ¶ 22,
320 Mont. 490, 87 P.3d 1017.
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¶8 A person convicted of sexual abuse of children is required to register as a sexual
offender. Sections 46-23-502(9), -504(1), MCA. Under the 2015 version of the Youth
Court Act, a court may:
exempt the youth from the duty to register if the court finds that:
(i) the youth has not previously been found to have committed or been
adjudicated for a sexual offense, as defined in 46-23-502; and
(ii) registration is not necessary for protection of the public and that relief
from registration is in the public’s best interest.
Section 41-5-1513(1)(d), MCA (2015). In 2017, the provision was modified to read:
the youth is exempt from the duty to register as a sexual offender pursuant to
Title 46, chapter 23, part 5, unless the court finds that:
(i) the youth has previously been found to have committed or been
adjudicated for a sexual offense, as defined in 46-23-502; or
(ii) registration is necessary for protection of the public and that
registration is in the public’s best interest.
Section 41-5-1513(1)(d), MCA (2017).
¶9 In essence, the 2017 amendment reversed the presumption from one in favor of
registration to one against registration, moving the burden from the juvenile to the State.
The amendment contained an applicability date providing that the act “applies to offenses
committed on or after [the effective date of this act].” 2017 Mont. Laws ch. 208, § 2
(brackets in original). The amendment became effective on October 1, 2017. Z.L.
committed his offenses between June 1, 2016, and January 28, 2017, before the date of
applicability chosen by the Legislature. Under the Legislature’s plain language, Z.L. was
not eligible to claim the benefit of the 2017 edition of the law, which applied only to
conduct occurring after October 1, 2017.
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¶10 Defendants may receive the benefit of a repeal or amendment of a sentencing statute
before sentencing where the Legislature provided no guidance regarding the applicability
of the change to current cases. See State v. Wilson, 279 Mont. 34, 40, 926 P.2d 712, 716
(1996) (citing In re Estrada, 408 P.2d 948, 953 (Cal. 1965)); see also State v. Thomas,
2019 MT 155, ¶ 12, 396 Mont. 284, 445 P.3d 777. However, where the statutory plain
language unambiguously demonstrates the Legislature’s intent to apply these amendments
only to offenses occurring after a specified date, the Court’s inquiry is completed.
See Thomas, ¶ 10 (holding that defendant could not claim benefit of amendment to
sentencing statute stating that it “applies to offenses committed after June 30, 2017” for
crimes committed before that date).
¶11 The amendment at issue here clearly states that the amendment applies to offenses
committed after October 1, 2017. Thomas applies.
¶12 Z.L. also argues that the psychosexual evaluation conducted two years before the
disposition hearing was insufficient under § 41-5-1513(2)(a), MCA, which provides that
the court shall, “prior to disposition, order a psychosexual evaluation.” However,
arguments not raised at the trial court level are deemed waived on appeal. State v.
Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, 67 P.3d 307. Z.L. concedes that he did not
specifically argue below that the requirements of § 41-5-1513(2)(a), MCA, had not been
met. Z.L. instead points to counsel’s argument before the Youth Court that it should not
rely on the two-year-old evaluation for purposes of determining the proper tier designation
for Z.L. However, arguing that an evaluation’s age should render it less persuasive as a
matter of evidentiary weight is not the same as arguing that it fails to meet statutory
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requirements. Z.L. does not argue that the sentence was illegal rather than merely
objectionable and is therefore not entitled to the Lenihan exception for challenging
sentences not objected to below. See State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344,
151 P.3d 832 (citing State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979)). Because this
issue was not preserved, we do not address it here.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶14 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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