State v. Sedler ( 2020 )

10/02/2020
DA 18-0476
Case Number: DA 18-0476
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 248STATE OF MONTANA,
Plaintiff and Appellee,
v.
JESSE DAVID SEDLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 17-59
Honorable Matthew J. Cuffe, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
Attorney General, Helena, Montana
Marcia Boris, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: August 5, 2020
Decided: October 2, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Defendant and Appellant Jesse David Sedler (Sedler) appeals from the Judgment
and Sentence entered on June 22, 2018, by the Nineteenth Judicial District Court, Lincoln
County, and challenges the constitutionality of the petition process set forth in
§ 46-23-506(2)(a) and (3)(a), MCA, for an offender to be relieved of the requirement to
register as a violent offender.
¶2 We restate the issue on appeal as follows:
Whether the petition requirement set forth in § 46-23-506(3)(a), MCA, applicable
to violent offenders required to register for a ten-year period, unfairly extends the
maximum time a violent offender must be on the registry such that it violates
substantive due process rights and is facially unconstitutional.
¶3 We reverse and remand to the district court to vacate Sedler’s conviction and
dismiss the failure to register charge against him with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In September 2002, Sedler was convicted of assault with a weapon for allegedly
hitting his neighbor with a stick. Due to his mental health problems, he was sentenced to
ten years in Department of Health and Human Services (DPHHS) custody. In February
2004, Sedler’s DPHHS sentence was amended to a suspended sentence, and he was
released. Prior to release, Sedler registered as a violent offender. He then remained offense
free and maintained his registration on the violent offender registry (VOR) until 2015. In
November 2016—fourteen years after his original conviction—Sedler’s neighbor, a deputy
sheriff, reported Sedler to be non-compliant with the VOR. In March 2017, Sedler was
2
charged with failure to register as a violent offender under § 46-23-504 and -507, MCA.
The charges were refiled in June 2017 after the prosecutor agreed they should be severed
from two pending charges related to a separate incident. Sedler signed a plea agreement
on April 6, 2018. On that same day, he filed a petition with the District Court to relieve
him of the duty to register. The State responded that it had no legal basis on which to
oppose the petition. The court granted the petition on April 11, 2018. On April 17, 2018,
Sedler reluctantly entered an Alford plea to the failing to register as a violent offender
charge, asserting that a jury could find him guilty of the offense due to “a technical bias
against me that we can’t overcome with the way things are going.” On June 18, 2018,
sixteen years after his initial conviction and nearly two years after his neighbor reported
him non-compliant with the VOR, Sedler was sentenced to a five-year commitment to the
Department of Corrections, all suspended, for the failure to register offense. The severed
charges were dismissed with prejudice. On August 13, 2018, Sedler filed a pro se appeal.
This Court appointed Sedler counsel. Sedler challenges the constitutionality of being
sentenced for a failure to register offense, asserting the petitioning process applicable to all
§ 46-23-506(2)(a), MCA, offenders—those required to register for ten years—is facially
invalid, violates substantive due process rights, and is unconstitutional.1
1
This petitioning process is separate and distinct from the petitioning process required of § 46-23-
506(2)(b), MCA, for those required to register for life by virtue of being convicted of a registration
violation or felony during the ten-year period post-release from confinement or, if no confinement,
post-sentencing.
3
STANDARD OF REVIEW
¶5 With respect to questions of constitutional law, this Court's review is plenary, and
we examine the district court's interpretation of the law for correctness. See State v. Egdorf,
2003 MT 264, ¶ 12, 317 Mont. 436, 77 P.3d 517; State v. Bedwell, 1999 MT 206, ¶ 4,
295 Mont. 476, 985 P.2d 150; In re S.L.M., 287 Mont. 23, 32, 951 P.2d 1365, 1370 (1997).
“In reviewing constitutional challenges to legislative enactments, the constitutionality of a
legislative enactment is prima facie presumed, and every intendment in its favor will be
made unless its unconstitutionality appears beyond a reasonable doubt.” Egdorf, ¶ 12
(internal quotations omitted). Thus, the party challenging a statute bears the burden of
proving it is unconstitutional beyond a reasonable doubt and, if any doubt exists, it must
be resolved in favor of the statute. Egdorf, ¶ 12; State v. Price, 2002 MT 229, ¶¶ 27-28,
311 Mont. 439, 57 P.3d 42.
DISCUSSION
¶6 Whether the petition requirement set forth in § 46-23-506(3)(a), MCA, applicable
to violent offenders required to register for a ten-year period, unfairly extends the
maximum time a violent offender must be on the registry such that it violates
substantive due process rights and is facially unconstitutional.
¶7 Section 46-23-506, MCA, prescribes the period of time a violent offender must
register. Under this statute, a violent offender is required to register either for a period of
ten years or for life—depending on whether the offender has been convicted of a
registration violation or a felony during the ten-year period post-release from confinement
or, if no confinement, from sentencing. If the offender has not been convicted of a
registration violation or felony during this ten-year period, the offender is required to
4
register for ten years, after which she or he may petition to be relieved of the requirement.
See § 46-23-506(2)(a), MCA. If an offender is convicted of a registration violation or
felony during this ten-year period, the offender is required to register for life, but may
petition to be relieved of the requirement. See § 46-23-506(2)(b), MCA. The petition
process associated with offenders required to register for ten years is ministerial and vastly
different than the judicial determination requiring discretionary considerations that applies
to offenders required to register for life. See § 46-23-506(3), MCA.
¶8 Here, Sedler was charged with failing to register as a violent offender two years
after the maximum time he was required to be on the VOR pursuant to § 46-23-506(2)(a),
MCA, (1997).2 Sedler asserts the petitioning process to be relieved of the requirement to
register as a violent offender for an offender with a ten-year registration requirement as
provided for in § 46-23-506(2)(a) and (3)(a), MCA (2005)— added to the statute in 2005
and applied to him in this case—is arbitrary and capricious, facially invalid, violates
substantive due process rights, and is thus unconstitutional. Although Sedler could have
been clearer in his briefing, it appears he is asserting a facial challenge to the statutory
petition process set forth in § 46-23-506(3)(a), MCA, which requires an offender required
to register for ten years post-release from confinement or, if no confinement,
2
The relevant subsections of the 2001 version of the statute in effect at the time Sedler was
charged, convicted, and sentenced on his original violent offense were unchanged from the 1997
amendments to the statute.
5
post-sentencing, to file a petition to be relieved of the requirement to register.3 Sedler
asserts we should undertake plain error review as the petition process contained in
§ 46-23-506(2)(a) and (3)(a), MCA, is facially invalid or void and failing to review it will
result in a manifest miscarriage of justice. Sedler asserts the legislative history of
§ 46-23-506, MCA, explains how the process to be removed from the requirement to
register as a violent offender has turned into an arbitrary and capricious requirement.
Further, Sedler asserts the petition process violates substantive due process as it is not
reasonably related to the goal of the VOR nor does it promote community safety.
¶9 The State asserts that as Sedler pleaded guilty and received the benefit of a plea
bargain, he waived his right to appeal and that Sedler has failed to meet his burden of
establishing that failure to exercise plain error review would result in a manifest
miscarriage of justice, leave unsettled the fundamental fairness of the trial process, or
compromise the integrity of the judicial proceedings. The State further asserts that even if
this Court undertakes plain error review, Sedler has failed to establish the petition process
is unconstitutional as it is reasonably related to the “goal of promoting public safety by
3
The State claims that Sedler raises an as-applied challenge to the petition requirement because
Sedler does not show § 46-23-506(3)(a), MCA, can never be constitutional and the State may not
enforce the statute under any circumstances. Rather, the State alleges Sedler argues the petition
requirement is unconstitutional in this situation. We disagree. Sedler challenges the validity of
the petition process applicable to all offenders with a ten-year registration requirement under any
circumstances, maintaining the petition process is not rationally related to the State’s expressed
goals of enhancing community safety.
6
providing the public with accurate information about offenders who pose a greater risk to
the public.”
¶10 Generally, an appellate court does not address issues raised for the first time on
appeal. See State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531, 408 P.3d 142; State v.
Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126. Plain error review is an
exception to this general rule where we may consider issues raised for the first time on
appeal. Akers, ¶ 10; Favel, ¶ 13. Courts invoke plain error review to correct error not
objected to at the lower court level but that affects the fairness, integrity, and public
reputation of judicial proceedings. Akers, ¶ 10; State v. Finley, 276 Mont. 126, 134,
915 P.2d 208, 213 (1996). To reverse a decision for plain error, the appellant must:
(1) demonstrate that the claimed error implicates a fundamental right; and (2) firmly
convince this Court that a failure to review the claimed error would result in a manifest
miscarriage of justice, leave unsettled the question of the fundamental fairness of the
proceedings, or compromise the integrity of the judicial process. Akers, ¶ 10; Favel, ¶ 23.
¶11 As noted by Sedler, we have exercised plain error review where illegal plea
provisions are at issue, such that participation in plea negotiations and failing to object to
the conviction itself does not necessarily foreclose review of illegal provisions of the
sentence or conviction. See State v. Langley, No. DA 17-0730, Order (Mont. Nov. 12,
2019); State v Hansen, 2017 MT 280, 389 Mont. 299, 405 P.3d 625. “A defendant’s facial
constitutional challenge is based on the defendant’s allegation that the statute upon which
his sentence was based is unconstitutional—i.e. his sentence is illegal.” State v Coleman,
7
2018 MT 290, ¶ 9, 393 Mont. 375, 431 P.3d 26. Facial constitutional challenges to
sentencing statutes are addressed even if they are raised for the first time on appeal.
Coleman, ¶ 9. Sedler’s challenge to the petition process for offenders with a ten-year
registration requirement contained in § 46-23-506(3)(a), MCA, is similar to a challenge of
a sentencing statute rather than merely an objectionable condition within a valid sentence.
If the petition process for offenders with a ten-year registration requirement contained in
§ 46-23-506(3)(a), MCA, is facially unconstitutional, Sedler would have been immune
from prosecution or sentence for failure to register as a violent offender as he had no
requirement to register beyond the ten years after his release from DPHHS custody and the
current conviction and sentence would be illegal. An illegal conviction and sentence is
itself a manifest miscarriage of justice, fundamentally unfair, and compromises the
integrity of the judicial process. Thus, we conclude review of Sedler’s facial constitutional
challenge based on violation of substantive due process rights is warranted.
¶12 We now turn to whether the petition process applicable to all offenders with a
ten-year registration requirement to be relieved from registration as a violent offender
contained in § 46-23-506(3)(a), MCA, violates substantive due process and is facially
unconstitutional.
¶13 In 1995, through House Bill 214, the Legislature amended the title of the Sexual
Offender Registration Act to the Sexual or Violent Offender Registration Act (SVORA)
and extended registration requirements to not only sexual offenses but to a small group of
violent crimes, including assault with a weapon, and made registration as a violent offender
8
a lifetime requirement. Section 46-23-506(1), MCA (1995). At that time, there was a
petition process which provided an offender a potential means to be relieved from
registration by filing a petition for such.4 The statute required the county attorney and the
victim to be notified of the petition. The district court was granted discretion to grant or
deny the petition upon consideration and balancing of the offender’s postconviction
law-abiding conduct, public safety, and the best interests of society. Section 46-23-506(2),
MCA (1995).
¶14 In 1997, the Legislature separated out the relief from registration requirements for
violent and sexual offenders:
46-23-506. Duration of registration. (1) A sexual offender required to
register under this part shall register for the remainder of the offender’s
life, except as provided in subsection (3) or during a period of time during
which the offender is in prison.
(2) A violent offender required to register under this part shall register:
(a) for the 10 years following release from confinement or, if not confined
following sentencing, for the 10 years following the conclusion of the
sentencing hearing; or
(b) if convicted during the 10-year period provided in subsection (2)(a) of
failing to register or keep registration current or of a felony, for the
remainder of the offender’s life unless relieved of the duty to register as
provided in subsection (3).
Section 46-23-506(1)-(2), MCA, (1997) (emphasis added). Pursuant to this statute, upon
an offender not being convicted of failing to register or of a felony offense for ten years
4
From the statutory language it was not clear that a violent offender could petition for relief from
registering as a violent offender as the statute provided the offender could petition ten years after
“the offender’s last conviction of a sexual assault.” Section 46-23-506(2), MCA (1995).
9
post-release from confinement or sentencing, the registration requirement automatically
ended without any petitioning requirement. This version of the statute was in effect at the
time Sedler was sentenced on his original violent offense. Thus, Sedler had a reasonable
expectation he did not need to continue registering as a violent offender upon expiration of
ten years after he was released from DPHHS custody if he maintained his registration and
incurred no felony conviction.
¶15 In 2005, the Legislature amended § 46-23-506, MCA, again adding a petition
process to obtain release from the requirement to register as a violent offender. Unlike the
prior petition process existing in 1995, if the offender had a ten-year registration
requirement, which had expired, the district court had no discretion to deny the petition
under the 2005 amendments.5 See § 46-23-506(3)(a), MCA (2005). Expiration of the ten
years was in itself the determinant condition for relief from registration for offenders with
a ten-year registration requirement. This petitioning process has not been further amended
since its enactment in 2005.
¶16 Over three years after expiration of Sedler’s registration requirement and over
fourteen years after his original violent conviction, Sedler was charged with the offense of
failing to register as a violent offender. Sedler asserts pursuant to § 46-23-506(2)(a), MCA,
5
A different, discretionary petition process requiring court consideration and discretion is provided
for offenders with a lifetime registration requirement—which includes those convicted of a
registration violation or felony conviction withing the ten-year period post-release from
confinement or, if no confinement, post-sentencing.
10
he was only required to register for a period of ten years post his release from DPHHS
custody—as he had no registration or felony convictions during that time. As of February
2014, but for the petition process, he would not be subject to prosecution or conviction of
a failure to register offense. Sedler asserts and the State does not dispute, as he was only
required to register for the ten-year period post his release from DPHHS custody, this
offense was occasioned solely by the petition process enacted by the Legislature and
codified in § 46-23-506(2)(a) and (3)(a), MCA (2005). Finally, Sedler asserts that as there
is no discretion to deny a petition to relieve an offender required to register for ten years
pursuant to § 46-23-506(2)(a), MCA, the statutory petition process is arbitrary and
capricious, does not reasonably relate to the Legislature’s goal of public safety, and violates
substantive due process.
¶17 Sedler does not argue this case involves the State infringing on a fundamental right.
“Where a fundamental right is not implicated, ‘[s]ubstantive due process analysis requires
a test of the reasonableness of a statute in relation to the State’s power to enact
legislation.’” Mont. Cannabis Indus. Ass’n v. State, 2016 MT 44, ¶ 21, 382 Mont. 256,
368 P.3d 1131 (quoting Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 33,
353 Mont. 265, 222 P.3d 566). In State v. Egdorf, we set forth the legal framework for
consideration of substantive due process issues:
Both the Fourteenth Amendment to the United States Constitution and
Article II, section 17 of the Montana Constitution provide that no person shall
be deprived of life, liberty, or property without due process of law. The
guarantee of due process has both a procedural and a substantive component
. . . Substantive due process bars arbitrary governmental actions regardless
11
of the procedures used to implement them and serves as a check on
oppressive governmental action.
The theory underlying substantive due process reaffirms the
fundamental concept that the due process clause contains a
substantive component which bars arbitrary governmental
actions regardless of the procedures used to implement them,
and serves as a check on oppressive governmental action. . . .
Substantive due process primarily examines underlying
substantive rights and remedies to determine whether
restrictions are unreasonable or arbitrary when balanced
against the purpose of the legislature in enacting the statute.
Egdorf, ¶ 19 (quoting Newville v. State, Dept. of Family Services, 267 Mont. 237, 249,
883 P.2d 793, 800 (1994)) (internal citations omitted) (second alteration in original).
A substantive due process analysis requires a test of reasonableness of a
statute in relation to the State’s power to enact such legislation. The essence
of substantive due process is that the State cannot use its police power to
take unreasonable, arbitrary or capricious action against an individual. In
order to satisfy substantive due process guarantees, a statute enacted under
a state’s police power must be reasonably related to a permissible legislative
objective.
State v. Webb, 2005 MT 5, ¶ 22, 325 Mont. 317, 106 P.3d 521 (quoting Egdorf, ¶ 21)
(internal quotation omitted). “To prevail on a facial challenge, the party making the
challenge must show that ‘no set of circumstances exists’ under which the statute would
be valid or that the statute lacks any ‘plainly legitimate sweep.’” In re S.M., 2017 MT 244,
¶ 10, 389 Mont. 28, 403 P.3d 324 (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449, 128 S. Ct. 1198, 1190 (2008)); see also Mont. Cannabis Indus.
Ass’n, ¶ 14.
¶18 In this case, Sedler asserts the petitioning process applicable to offenders required
to register for a ten-year period post-release from confinement or, if no confinement,
12
post-sentencing, which requires the filing of a petition as provided in § 46-23-506(2)(a)
and (3)(a), MCA, to obtain a purely ministerial act, violates substantive due process by
needlessly extending the VOR registration beyond ten years. The State contends the
registration is related to the legitimate goals of public safety such that it “is reasonable for
the Legislature to require Sedler to petition and involve the district court in the decision of
whether to remove him from the violent offender registry.”6 While we agree the legislative
goal for registration is based on community safety and registration for a particular period
may reasonably be related to the goal of community safety, we do not agree the petition
process required enhances public safety.7 For offenders with a ten-year registration
requirement, the legislative history of the SVORA does not support that the particular
petition process now existing furthers any of the legislative goals set forth in the Act’s
preamble. As pointed out by Sedler, “In 1997, when the preamble on which the State so
heavily relies was issued, there was no removal petitioning requirement . . . . The 10-year
registry period for violent offenders . . . ended after 10 years without any petitioning
requirement.” (Footnote and emphasis omitted.) Under the current petition process for
6
The State also suggests this Court has reviewed and approved the removal petition requirement
in State v. Brooks, 2012 MT 263, 367 Mont. 59, 289 P.3d 105. In Brooks, the defendant challenged
the constitutionality of the SVORA, arguing it violated his right to privacy. With regard to the
defendant’s right to privacy we concluded the SVORA was narrowly tailored. We were not asked
to consider the constitutionality of the petition process itself and did not do so.
7
Ideally, violent offenders should be required to register for the period of time in which they are
most likely to recidivate or re-offend based on reliable data regarding violent offender recidivism
and re-offense.
13
offenders required to register for a ten-year period, the district court retains no discretion
as to whether to remove an offender from the registration requirement—removal is purely
ministerial. The State tracks offenders and has the ability to know which offenders are
required to register for ten years and which offenders are required to register for life.8
There is no legitimate reason to require an offender to petition to obtain a purely ministerial
act in the absence of which he is subject to additional criminal penalties. The petition
requirement lacks a plainly legitimate sweep. Filing a petition does nothing to enhance
community safety but instead is an unreasonable, arbitrary, and capricious procedural
roadblock which needlessly extends an offender’s registration and inappropriately subjects
an offender to prosecution for failure to register during the extended time. We conclude
the petition process applicable to offenders required to register for a ten-year period is not
reasonably related to assuring public safety and is an unconstitutional provision of an
otherwise legitimate act.
CONCLUSION
¶19 The petition process requiring an offender subject to a ten-year registration
requirement to file a petition to be removed from the requirement to register as a violent
offender set forth in § 46-23-506(2)(a) and (3)(a), MCA, is an unconstitutional provision
8
The State has the ability to track offenders required to register for commission of new offenses,
misdemeanor or felony, similar to how it tracks probationers, parolees, and those under a deferred
imposition of sentence. Further, the State has clearly shown the ability to relieve offenders from
their incarceration, parole, probation, or deferred imposition of sentence status without requiring
offenders to bring a petition for these ministerial acts.
14
in an otherwise legitimate act. As such, it is appropriate to reverse Sedler’s conviction for
failing to register as a violent offender and remand the matter to the district court to vacate
his conviction for failing to register and dismiss the charge against Sedler with prejudice.
¶20 Reversed and remanded.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
Justice Jim Rice dissenting.
¶21 Under the rules governing appellate review, and these particular circumstances, I do
not believe it is prudent for the Court to reach the constitutional challenge raised for the
first time on appeal. Then, on the merits of the constitutional issue and this record, I would
not strike down the statute as facially unconstitutional under the standards governing
application of substantive due process.
¶22 The failure to raise an issue in the District Court is often referred to, both
colloquially and in court opinions, as a “waiver” of the issue for purposes of appellate
review. See State v. Trujillo, 2020 MT 128, ¶ 6, 400 Mont. 124, 464 P.3d 72 (“The failure
to preserve an assertion of error by contemporaneous objection generally waives the right
to subsequent appellate review.”). When necessary, we have explained the distinction
between this failure to act, which is technically a forfeiture, and a true waiver made upon
15
a party’s intentional act. See In re the Petition to Transfer Territory from Poplar
Elementary Sch. Dist. No. 9 to Froid Elementary Sch. Dist. No. 65, 2015 MT 278, ¶ 14,
381 Mont. 145, 364 P.3d 1222 (“We previously noted the distinction between failing to
preserve an issue, or ‘forfeiture,’ and ‘waiver’ of an issue, in Miller v. Eighteenth Jud. Dist.
Ct., 2007 MT 149, ¶ 46, n.5, 337 Mont. 488, 162 P.3d 121 (“‘Forfeiture,’ as opposed to
‘waiver,’ is the correct term in this context, since ‘forfeiture’ refers to ‘the failure to make
the timely assertion of a right,’ whereas ‘waiver’ concerns ‘the intentional relinquishment
or abandonment of a known right.’”)”). This Court may undertake review of forfeited
issues pursuant to the plain error doctrine, which is a “narrow exception” to the rule
requiring issues to be raised in the district court to preserve them for appeal, to be exercised
“only under extraordinary circumstances” as necessary to protect a fundamental
constitutional right and the fundamental fairness of the proceeding, or “the integrity of the
judicial process.” Trujillo, ¶ 6. Here, Sedler did not raise and thus forfeited the issue of
the constitutionality of the statute under which the case proceeded against him to judgment.
“The basis for the general rule is that it is fundamentally unfair to fault the trial court for
failing to rule correctly on an issue it was never given the opportunity to consider.” State
v. Johns, 2019 MT 292, ¶ 12, 398 Mont. 152, 454 P.3d 692 (internal quotes and citation
omitted).
¶23 More, Sedler forfeited the issue in order to use the statute to leverage legal
advantage. In March 2017, Sedler was charged with a new violent offense, assault with a
weapon, a felony, and with a misdemeanor unauthorized use of a motor vehicle. It was
16
alleged that Sedler took a neighbor’s vehicle without permission and, when confronted,
smashed a beer bottle over the neighbor’s head. As a violent offender under a requirement
to register, and facing a new violent felony charge, Sedler found himself in a pickle. Had
he challenged the constitutionality of the registration statute before the District Court and
prevailed, he would nonetheless still have faced new charges, including another violent
felony charge. Instead of challenging the registration statute, Sedler promised to plead
guilty to the registration offense in exchange for the State dismissing the two new pending
charges. The advantage to the State was being able to maintain supervision over an
individual with a violent record, while alleviating the burden of trying new charges.
¶24 Sedler entered a guilty plea1 to the registration charge, the voluntariness and
intentionality of which is not challenged on appeal. Thus, in addition to forfeiting the issue,
Sedler also intentionally waived the issue to gain something in return. The consequences
of Sedler’s intentional act are clear under our precedent:
[A] defendant waives the right to appeal all nonjurisdictional defects upon
voluntarily and knowingly entering a guilty plea, including claims of
constitutional violations which may have occurred prior to the plea. State v.
Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804. Consequently, after
the plea, the defendant may attack only the voluntary and intelligent character
of the plea, any jurisdictional defects, and any specified adverse pretrial
rulings he has reserved the right to appeal.
1
Sedler’s Alford plea was a guilty plea. Lawrence v. Guyer, 2019 MT 74, 395 Mont. 222, 440
P.3d 1.
17
State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104 (internal quotations
omitted) (emphasis added).2 In Pavey, the Defendant attempted to raise the denial of
speedy trial on appeal, a constitutional issue. We rejected the effort, reasoning, “[t]he
alleged violation of the right to a speedy trial is a nonjurisdictional-defect claim.” Pavey,
¶ 11 (citation omitted). There is no plain error review of such waivers because there is no
error; it is a defendant’s choice. Thus, Sedler did more than Pavey: he forfeited the
constitutional challenge to the statute by not raising it, used the statute to secure an
advantageous plea deal, and intentionally waived all issues except jurisdictional ones.
For good measure, we could also note that Sedler failed to reserve the constitutional issue
as part of his plea, which is necessary to preserve the issue for appeal under § 46-12-
204(3), MCA.
¶25 The Court accepts the authority for appellate review of the constitutional challenge
proffered in Sedler’s reply brief, including State v. Langley, No. DA 17-0730 and State v.
Hansen, 2017 MT 280, 389 Mont. 299, 405 P.3d 625. Opinion, ¶ 11. State v. Langley was
not a published opinion, but a short order dismissing an appeal based on the State’s
2
We have also relied upon the holding of the U.S. Supreme Court in Tollett v. Henderson, 411
U.S. 258, 267, 93 S. Ct. 1602 (1973):
[A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea. He may only attack the voluntary and intelligent character
of the plea . . . .
Hagan v. State, 265 Mont. 31, 35, 873 P.2d 1385, 1387 (1994) (emphasis added).
18
concession to strike a sentencing condition, in which the State explained it was not agreeing
with all of Langley’s arguments. This order provided no analysis of constitutionality or
appellate review. State v. Hansen involved a challenge to the sentencing court’s authority
to receive a nolo contendere plea, and we undertook review to enforce the Legislature’s
prohibition upon such pleas, which was essentially a jurisdictional question. These cases
did not involve the procedural posture we face here.
¶26 I acknowledge the Court has inherent authority to undertake review of matters when
necessary to preserve the integrity of the judicial process or ensure fundamental fairness,
including review of a facial constitutional challenge. The question here is whether it is
necessary to do so. The Court has established careful parameters under which we exercise
this appellate authority to ensure a fair and orderly judicial process. Here, reaching the
constitutional challenge requires bypassing multiple of those parameters, but more
critically, rewards the gaming of the judicial system. Sedler gained a benefit from one
court, then switched positions to gain a different benefit on appeal, and now has obtained
dismissal of all charges against him, including a violent felony offense. Sedler’s actions
should not be rewarded under the rules governing appellate review, which essentially
enforce the doctrine of judicial estoppel in the criminal context. See Stanley L. & Carolyn
M. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 33, 321 Mont. 432, 92 P.3d 620 (“The
doctrine of judicial estoppel binds a party to their judicial declarations and precludes a
party from taking a position inconsistent with previously made declarations in a subsequent
action or proceeding.”). In my view, accepting review of the facial constitutional challenge
19
in these circumstances does not serve to preserve the integrity of the judicial system or the
fundamental fairness of the proceeding; indeed, it appears the judicial system as a whole is
being played. The possibility that the dismissed charges against Sedler could be refiled
does not remedy the result of the Court’s action now. I would thus deny the challenge on
these ample procedural grounds as a matter of prudence and judicial restraint.
¶27 Turning to the merits of the facial constitutional challenge to the registration statute,
I would not strike down the statute on substantive due process grounds.
The constitutionality of a legislative enactment is prima facie presumed, and
every intendment in its favor will be presumed, unless its unconstitutionality
appears beyond a reasonable doubt. The question of constitutionality is not
whether it is possible to condemn, but whether it is possible to uphold the
legislative action which will not be declared invalid unless it conflicts with
the constitution, in the judgment of the court, beyond a reasonable doubt.
Powell v. State Comp. Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877(citations omitted). Here, given the posture of the case, I believe it is possible to uphold
the statute.
¶28 Of course, our consideration of the constitutionality of the statute in this case is not
based on a factual record. Had this issued been raised in the District Court, evidence could
have been offered by all parties regarding the operation of the statute. Instead, the Court
makes factual assumptions. See Opinion, ¶ 18, n.8 (“The State has the ability to track
offenders required to register for commission of new offenses, misdemeanor or felony,
similar to how it tracks probationers, parolees, and those under a deferred imposition of
sentence.”). The Court offers its policy preferences. See Opinion, ¶ 18, n.7 (“violent
offenders should be required to register for the period of time in which they are most likely
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to recidivate or re-offend on reliable data regarding violent offender recidivism and
re-offense.”).
¶29 Regarding substantive due process, we are to strongly defer to the Legislature under
a reasonableness review. “[T]he purpose of the legislation does not have to appear on the
face of the legislation or in the legislative history, but may be any possible purpose of
which the court can conceive.” Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368,
¶ 34, 353 Mont. 265, 222 P.3d 566 (internal citation omitted) (emphasis added). The Court
correctly acknowledges a facial challenge requires that a party demonstrate that there are
“no set of circumstances” under the which the statute could be valid. Opinion, ¶ 17.
¶30 Although the Court characterizes the statute as requiring a district court to engage
in a “purely ministerial [act]” for which the court “retains no discretion,” Opinion, ¶ 18,
and we have no factual record to confirm it, I do not believe this would necessarily be true
in all cases. The State could oppose termination of registration for a registrant who is
charged and tried for a qualifying crime before, but not sentenced until after, expiration of
the 10-year registration period, thus requiring a substantive judicial determination of the
application of the statute and eligibility for relief. Such timing challenges are not
unprecedented. See State v. Thomas, 2019 MT 155, 396 Mont. 284, 445 P.3d 777. Or, the
parties may dispute an underlying conviction. A defendant who is challenging on appeal
another conviction for a qualifying crime when the 10-year period expires may seek release
from registration pending the appeal, again requiring substantive judicial review. Such
potential interpretational issues justify the process, set forth in § 46-23-506(3)(a), MCA,
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requiring that a defendant affirmatively petition for relief and that “[t]he petition must be
served on the county attorney.” Service upon the county attorney serves as an important
procedural check so that termination is not ordered in inappropriate cases. If the process
was only ministerial, such service would not be necessary. However, allowing the county
attorney to review the petition for any objection by the State permits a final confirmation
of eligibility before termination of the registration requirement, and thus furthers the
SVORA’s public safety purposes. While these assumptions could be debated, the point is
that, in a facial, substantive due process challenge without a factual record, “any possible
purpose of which the court can conceive” is sufficient to justify the challenged statute.
Satterlee, ¶ 34 (citation omitted).
¶31 I would wait to take up the important question of the constitutionality of the statute
when it is properly preserved, and review is properly assisted by a factual record. Here, I
would affirm.
/S/ JIM RICE
Justice James Jeremiah Shea, dissenting.
¶32 I dissent from the majority’s opinion for the reasons set forth in ¶¶ 21 through 26 of
Justice Rice’s Dissent. Because I dissent on that basis, I decline to address the merits of
the constitutional challenge in this particular case.
/S/ JAMES JEREMIAH SHEA
Justice Baker joins in the Dissenting Opinion of Justice Shea.
/S/ BETH BAKER
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