Mont._State-v-District-Court-13th-Judicial_Pet-for-Writ

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ORIGINALI fIN THE SUPREME COURT OF THE STATE OF MONTANA

No. _

STATE OF MONTANA,Petitioner,

v.

DISTRICT COURT OF THE THIRTEENTHJUDICIAL DISTRICT OF MONTANA,YELLOWSTONE COUNTY, THE HONORABLEG. TODD BAUGH, PRESIDING JUDGE,

Respondent.

FILEDSEP 05 2013'Ed Smitli

CLERK OF THE SUPREME COURTSTATE OF MONTANA

EMERGENCY PETITION FORWRIT OF PROHIBITION

Pursuant to Mont. Code Ann. 27-27-101, et seq., and Mont. R. App. P. 14,the Plaintiffand Appellant State ofMontana, by and through the AttorneyGeneral's Office, requests that the Court grant a writ of prohibition arresting theSeptember 6,2013, hearing set in State v. Rambold, Cause No. DC-08-628,Montana Thirteenth Judicial District Court, Yellowstone County, the HonorableG. Todd Baugh, presiding, by its order of September 3, and, order furtherproceedings stayed, and direct the district court to show cause demonstratingjurisdiction exists to hold a hearing to address or correct an illegal sentence.

EMERGENCY PETITION FORWRIT OF PROHIBITIONPAGE 1

September 5


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BACKGROUNDOn August 26, 2013, Defendant and Appellee Stacey Dean Rambold

(Rambold) appeared before the district court for sentencing, following the entry ofhis guilty plea, for the offense of Sexual Intercourse without Consent. (See Ex. 1,Case No. DC-08-628, 8/26/13 Sent. Hr'g Tr.; copy attached.) The State argued for20 years Montana State Prison (MSP) with 10 years suspended. Rambold arguedfor 15 years MSP with all but 30 days suspended. Rambold based his

recommendation on Mont. Code Ann. 46-18-205(1). The district court followedRambold's recommendation, and imposed a sentence of 15 years MSP with all but31 days suspended, giving Rambold one day of credit for time previously served.(ld. at 45-47.) On August 30,2013, the State's trial counsel, in the regular courseof his duties and pursuant to law,1 submitted to the district court a proposed writtenjudgment that conformed to the oral pronouncement. (See Ex. 2, 8/30/13 Letter toJudge Baugh from Scott Twito, with proposed written judgment; copy attached.)The district court did not sign the proposed judgment.

On September 3, 2013, the district court entered an order effectivelyannouncing its intention to enter a nonconforming written judgment. (See Ex. 3,

1See State v. Waters, 1999 MT 229, ~ 26,296 Mont. 101,987 P.2d 1142(stating the written sentence is "mere evidence" of the oral sentence and in theevent a conflict exists between the oral sentence and the written judgment, the oralsentence controls) (citing State v. Lane, 1998 MT 76, ~ ~ 35-40,48,288Mont. 286,957 P.2d 9).



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Case No. DC-08-628, 9/3/13 Notice & Order; copy attached.) The district courtopined that "imposing a sentence which suspends more than the mandatoryminimum would be an illegal sentence." (Id. at 1.) The court declared that sincestatutory mandatory minimum provisions had not been "given effect and taken intoconsideration" at the oral pronouncement, and the court would, "if necessary andappropriate . . . amend the mandatory minimum portion of the sentence" at ahearing set for Friday, September 6, 2013, at 1:30 p.m. Based on the district

court's 9/3/13 Order, it appears the district court intends to resentence Rambold atthe September 6 hearing.

On September 4, 2013, the State in this Court filed a Notice ofAppeal.(9/4/13 Notice ofAppeal.) In its notice, the State notified the Court and opposingcounsel: 1) the State sought to preserve its right under Mont. Code Ann. 46-20-103(2)(h) to appeal the controlling judgment of the district court rendered August26 in its oral pronouncement of sentence; and, 2) the State has been impeded in itseffort to perfect its appeal by the usual means, which is the filing of a notice ofappeal upon the entry ofa written judgment. (Id.)

Later on September 4, the State in the district court filed a Motion to Vacateand Brief in Support asserting: 1) the September 6 re-sentencing hearing should bevacated because such a procedure apparently intended to correct an illegal sentenceis prohibited by statute and case law; and, 2) the proper avenue to address the



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illegal sentence is an appeal before this Court. (See Ex. 4, at 2-3; attached.) OnSeptember 5, Rambold through his attorney filed Defendant's Response to State'sMotion to Vacate Hearing concurring with the State's request for vacatur. (See Ex.5, attached.) At time of the filing of the instant petition, the parties' motions havenot been ruled upon.

ARGUMENT

Article VII, Section 2 of the Montana Constitution grants the Supreme Court"original jurisdiction to issue, hear, and determine writs of habeas corpus and suchother writs as may be provided by law." One such writ is the writ of prohibition.See Mont. Code Ann. 3-2-202(1). "The writ of prohibition is an extraordinaryjudicial writ which issues, not as a matter of right, but only in the sound legaldiscretion of the court," and it should be used "sparingly." State ex rei. Myersick v.District Court, 53 Mont. 450, 452-53, 164 P. 546, 547 (1917). A writ ofprohibition "arrests the proceedings of any tribunal, corporation, board, or personexercising judicial functions when such proceedings are without or in excess of thejurisdiction of such tribunal, corporation, board, or person." Mont. Code Ann. 27-27-101. The writ "command[s] the party to desist or refrain from furtherproceedings in the action or matter specified in the writ." Mont. Code Ann. 27-27-104. The writ will issue only where the party seeking the writ

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demonstrates that the ongoing proceedings are "clearly unlawful." Bitterroot RiverProtection Ass 'n v. Bitterroot Conservation Dist., 2002 MT 66, ~ 9, 309 Mont.207, 45 P.3d 24. The nature of the writ is "preventative, not remedial" and it"cannot undo that which has been done." State v. Beadle, 90 Mont. 24, 26-27,300 P. 197, 198 (1931) (per curiam). It should not replace an appeal or performthe function of a writ of review. Bitterroot River, ~ 9.

The only procedure to correct an illegal sentence is appeal to this Court.

A district court "may correct a factually erroneous sentence or judgment at anytime. Illegal sentences must be address in the manner provided by law for appealand post-conviction relief." Mont. Code Ann. 46-18-116 (2011). The presentsentence is an illegal sentence, as the district court has opined its order setting theSeptember 6 hearing; however, the only remedy is appeal.

This Court analyzed section 46-18-116 in State v. Petersen, 2011 MT 22,359 Mont. 200,247 P.3d 731. The Petersen case is on point. This Court prohibitsthe correction of an illegal sentence by the district court.

Petersen pled guilty to Deliberate Homicide. Petersen, ~ 1. The pleaagreement contemplated a 100-year Montana State Prison sentence. At sentencing,the district court imposed a 1OO-year term for the homicide and added a 10-yearconsecutive weapon enhancement. Petersen ultimately appealed when the district

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court later determined the sentence was illegal and entered an amended judgmentso as to prevent Petersen's withdrawal of guilty plea.

On appeal, Petersen argued that the district court lacked jurisdiction tomodify the original sentence. Petersen, ~ 11. Petersen relied on Section 46-18-116 (3), MCA, and argued that only this Court maintains the authority to correct anillegal sentence. This Court agreed.

First, the district court found that the imposition of the weapons

enhancement was an illegal sentence. Petersen, 13. Turning to remedy, thedistrict court found that pursuant to Mont. Code Ann. 46-18-116 (3), the plainlanguage of the statute requires an illegal sentence to be reviewed by this Court onappeal or during postconviction proceedings. Petersen, ~ 14. The district courtstated that the district court could not "correct" the illegal sentence. Id. Of note,this Court acknowledged that its remand with instruction to strike the weaponsenhancement reached the same result as the district court's amended judgment.

However, this Court still required the proper procedure be followed.We acknowledge that this decision appears to elevate form oversubstance, as the effect of remand with instructions to strike theweapon enhancement sentence in the original judgment is the same

as intended by the District Court when it entered its amendedjudgment . . . the District Court did not have authority to amend itsown unlawful judgment. We on the other hand do have the authorityto review and correct an illegal aspect of a sentence.



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Petersen, ~ 17. Section 46-18-116 (3) and Petersen clearly prohibit the districtcourt from engaging in a sentence review process.

A writ of prohibition is warranted to prevent the September 6 proceedingswhich are in excess of the jurisdiction of the district court. Mont. Code Ann. 27-27-101. The proceedings set for September 6 are "clearly unlawful." SeeBitterroot, ~ 9, and the State's request here is preventative, not remedial. The Statehere seeks to preserve and implement the correct process, not argue its appeal. The

State acknowledges the district court's effort to correct the error at the trial courtlevel. However, Mont. Code Ann. 46-18-116(3) and State v. Petersen, 2011 MT22,359 Mont. 260, 247 P.3d 731, prohibit a resentencing hearing to correct anillegal sentence. The only remedy prescribed by statute and case law is appealbefore this Court.

Further, the September 6 hearing, if permitted to be conducted, willundermine the State's appeal and otherwise frustrate the just and orderlyadministration of ordinary appeal processes. In other instances involving statutorylimitations on postjudgment remedies, this Court has indicated the necessity ofpreserving the integrity of the judicial process and securing the orderlyadministration ofjustice. See State v. Maine, 2011 MT 90, ~ 46,360 Mont. 182,255 P.3d 64 (Baker, J., concurring) (construing general criminal appeal limitationsunder Mont. Code Ann. 46-21-101, -105; stating Court has "consistently



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applied these limits in the interest of finality of judgments, preserving the integrityof the judicial process, and securing the orderly administration of justice") (citingState v. Rosales, 2000 MT 89, 299 Mont. 226, 999 P.2d 313, and Davis v. State,2008 MT 226, ~ ~ 23-26,344 Mont. 300, 187 P.3d 654); cf, e.g., Mont. R. App. P.7(7)(c) (stating the "exclusive and sole purposes of . . . notices to be filed with theclerk of the supreme court" are, among other things, "to ensure orderly compliancewith the process required by [the mediation] rule, and to provide a mechanism for

returning the case to the ordinary appeal process where mediation has not resolvedthe case.").

Here, the need to preserve the integrity of the judicial process and secure theorderly administration of justice serves as additional grounds for prohibiting theSeptember 6 hearing. The State has lawfully instituted an appeal under expressstatutory authority permitting the State to challenge a sentence imposed contrary tolaw. Mont. Code Ann. 46-20-103 (2)(h) (2011). To preserve its right underMont. Code Ann. 46-20-103(2)(h) to appeal the controlling judgment of thedistrict court rendered August 26 in its oral pronouncement of sentence, the Statewas forced to file its Notice ofAppeal prematurely. The State's effort to prosecuteits appeal in the ordinary procedural course has been stymied by the district court'srefusal to enter a lawful written judgment the State proposed on August 30. Ratherthan sign and enter the conforming written judgment, the district court on

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September 3,2013, entered an order effectively announcing its intention to enter anonconforming written judgment at a new hearing. (See Ex. 3, Case No. DC-08-628,9/3/13 Notice & Order.)

While Rambold disagrees with the State's substantive position that thedistrict court entered an illegal sentence on August 26, Rambold maintains theAugust 26 oral pronouncement is the only "legal sentence . . . that should remain ineffect" pending appeal by the State. (Id. at 3.) (See Ex. 5, at 2, Defendant's

Response to State's Motion to Vacate Hearing.) The August 26 oralpronouncement is thus the sole basis ofparties' contentions, but neither parties'respective positions regarding the August 26 oral pronouncement have been heardby this Court.

A plain, speedy, and adequate remedy in the ordinary course of law is notavailable for the very reason that the presently scheduled September 6 hearing willobstruct pending appeal processes. Permitting additional trial court proceedingswould cause a gross injustice to an orderly appeal and directly impede the interestsof justice and fairness to both the State and Rambold.

The State respectfully requests this Court prohibit the September 6 hearing,and, pursuant to Mont. Code Ann. 27-27-103, order the district court to refrainfrom conducting any additional proceedings, and direct the district court to show



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cause demonstrating by what authority the district court has jurisdiction to hold ahearing to address or correct an illegal sentence.

Counsel for Rambold, Mr. Jay F. Lansing, reports that he poses no objectionto the Petition for Writ ofProhibition in so far as Mr. Lansing agrees this Courtshould prohibit the September 6 hearing from taking place.

Respectfully submitted this 5th day of September, 2013.TIMOTHY C. FOXMontana Attorney GeneralJustice Building215 North SandersP.O. Box 201401Helena, ~ T 59620-1421By: { l l i l i ' ~C. MARK OWLERAssistant Attorney General

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CERTIFICATE OF SERVICEI hereby certify that I caused a true and accurate copy of the foregoing

Emergency Petition for Writ ofProhibition to be mailed to:Honorable G. Todd Baugh217 North 27th Street, Rm. 601P.O. Box 35042Billings, MT 59107-5042Mr. Ed Smith, ClerkMontana Supreme Court215 North SandersHelena, MT 59620Ms. Kristie Lee Boelter, ClerkYellowstone County District CourtP.O. Box 35030Billings, MT 59107-5030Mr. Jay F. LansingAttorney at Law175 North 27th StreetBillings, MT 59101Mr. Scott TwitoYellowstone County AttorneyMr. Rod SouzaYellowstone Deputy County Attorney217 North 27th, Rm. 701P.O. Box 35025Billings, MT 59107-5025

DATED: _ - - - - L 7 ~ ! _ 4 5 j-I-3---EMERGENCY PETITION FORWRIT OF PROHIBITIONPAGE 11


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CERTIFICATE OF COMPLIANCEPursuant to Rules 11 and 14 of the Montana Rules ofAppellate Procedure, I

certify that this petition is printed with a proportionately spaced Times NewRoman text typeface of 14 points; is double-spaced except for footnotes and forquoted and indented material; and the word count calculated by Microsoft Wordfor Windows is not more than 4,000 words, excluding certificate of service andcertificate of compliance.

C.MA

EMERGENCY PETITION FOR WRIT OF PROHIBITIONPAGE 12

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Mont._State-v-District-Court-13th-Judicial_Pet-for-Writ