State v. Swenson

No. 05-434
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 156N_______________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GARY SWENSON, JR.,
Defendant and Appellant.
______________________________________
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland, Cause No. DC-96-005
The Honorable Katherine Irigoin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lyle R. Panasuk, Attorney at Law, Sidney, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney
General, Helena, Montana
Mike Weber, Richland County Attorney, Sidney, Montana
____________________________________
Submitted on Briefs: June 14, 2006
Decided: July 12, 2006
Filed:
______________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), of the Montana Supreme Court 1996
Internal Operating Rules, as amended in 2003, the following memorandum 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 Gary Swenson, Jr., appeals from an order of the Seventh Judicial District Court,
Richland County, denying his motion for transfer of jurisdiction to Youth Court. We
affirm.
¶3 In 1996, Swenson was charged with felony assault and two counts of sexual
intercourse without consent. The case was initially charged in Youth Court, but was
transferred to District Court following a hearing on January 17, 1996. Notice of this
hearing was served upon Swenson, his mother, and his attorney. Thereafter, Swenson
pled guilty to the charges and was committed to the Department of Corrections, for
fifteen years, with seven years suspended.
¶4 In February 2005, Swenson claimed that the District Court had no jurisdiction
over this matter because his father was not given notice of the transfer hearing, as
required by § 41-5-206(1)(c), MCA. He moved that his commitment be vacated and
jurisdiction be transferred back to the Youth Court. The District Court denied the
motion. Swenson appeals.
¶5 We have determined to decide this case according to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
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memorandum opinions.
¶6 Prior to a hearing for transfer of jurisdiction, § 41-5-206(1)(c), MCA (1991),
requires that:
notice in writing of the time, place, and purpose of the hearing is given to
the youth, his counsel, and his parents, guardian, or custodian at least 10
days before the hearing[.]
¶7 Swenson argues that under a plain reading of the statute, the plural articulation of
“parents” must be interpreted as requiring that both parents receive notice of the hearing.
However, we do not find this argument persuasive.
¶8 It is undisputed that notice was given to Swenson’s mother. The record indicates
that his mother was in fact his custodial parent at that time, as evidenced by his parents’
divorce decree. Thus, the notice requirement, as stated in § 41-5-206(1)(c), MCA (1991),
was met in this case, as sufficient notice of the hearing was provided to Swenson, his
counsel, and his custodial parent.
¶9 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
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