In re M.W.

2012 MT 44

272 P.3d 112

364 Mont. 211

In the Matter of M.W., A Youth Under the Age of 18.

No. DA 10–0547.

Supreme Court of Montana.

Submitted on Briefs Nov. 30, 2011.Decided Feb. 28, 2012.

For Appellant: Nancy G. Schwartz; NG Schwartz Law, PLLC; Billings, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Micheal S, Wellenstein, Assistant Attorney General; Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney; Helena, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[364 Mont. 212] ¶ 1 The Youth Court of the First Judicial District, Lewis and Clark County, required then-juvenile M.W. to register as a sexual offender. The case was subsequently transferred to District Court, which later denied M.W.'s petition to be relieved of the registration requirement. M.W. appeals the denial of his petition. We affirm.

¶ 2 Did the District Court err by denying M.W.'s petition to relieve him from the requirement to register as a sexual offender?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In June 2007, the State filed a petition in Youth Court alleging M.W. was a delinquent youth. M.W. admitted that he committed sexual assault, in violation of § 45–5–502, MCA (2005), by touching his sister's genital area. At the time of the offense, M.W. was 14 and was three or more years older than his sister. The Youth Court adjudged M.W. as delinquent and placed him on probation until the age of 18, subject to numerous conditions. M.W. was not required to register as a sexual offender.

¶ 4 In May 2008, the State filed a revocation petition, alleging that M.W. had violated probationary conditions. M.W. admitted to several of the allegations. The Youth Court committed M.W. to the Department of Corrections (DOC) for placement at Pine Hills Youth Correctional Facility until the age of 18, but suspended the commitment upon conditions, including that he complete a sexual offender treatment program. M.W. was not required to register as a sexual offender.

¶ 5 In April 2009, the State filed another revocation petition after M.W. was unsuccessfully discharged from sexual offender treatment. Describing M.W. as “a serious juvenile offender,” and reasoning that, despite all reasonable efforts to keep M.W. in his home and community, placement outside the community was necessary, the Youth Court committed M.W. to the DOC for placement at Pine Hills. The court stated that M.W. was to fully comply with sexual offender treatment at Pine Hills and “shall not be discharged prior to completion of the program.” In the event that M.W. failed to successfully complete the program by age 18, the State “shall request that jurisdiction of the matter be transferred to District Court for Lewis and Clark County, pursuant to Montana Code Ann. Section 41–5–208.” The court also ordered that M.W. “shall register as a sexual offender at Level I,” stating “ [t]he statute tells me you have to register unless I can say that it's not necessary for the protection of the public and that registration is not in the public's best interest. And I don't believe I can find that at this point, so I'm going to require registration.” While M.W. argued against imposition of the registration requirement, he did not appeal from the Youth Court's July 2009 dispositional order.

¶ 6 In August 2009, the State moved to transfer M.W.'s case to District Court and his supervision to adult probation and parole pursuant to § 41–5–208, MCA, because he was approaching age 18 and had not completed sexual offender treatment. The Youth Court granted the motion, and the District Court entered an order that M.W. was “transferred to adult supervision under the Montana Department of Corrections until he reaches the age of 25, subject to the following:

1. The Defendant shall participate in a program of Sexual Offender Treatment with an MSOTA affiliated counselor as approved by the Adult Probation Department and successfully complete the program; said treatment program shall be evaluated on an on-going basis by his treatment team to determine that it is meeting the defendant's treatment needs;

2. The Defendant shall register as a sexual offender at Level I....”

¶ 7 In February 2010, the State moved to amend the transfer order to add language stating: “Should the youth complete all of his probation requirements prior to his 25th birthday, consideration may be given for an early release from supervision.” The court granted the motion and amended the order accordingly.

¶ 8 In March 2010, M.W. filed a petition to terminate the remainder of his suspended sentence, stating he had completed sexual offender treatment and all probation requirements. The District Court granted M.W.'s petition, ordering that M.W. “shall be released from supervision by the Department of Corrections for the remaining portion of his suspended sentence.” In July 2010, M.W. petitioned for an order relieving him of his duty to register as a sexual offender. The District Court denied the request, reasoning “[t]he Court concludes that it has no authority at this time to modify the sentence and grant Defendant's request. Notwithstanding its lack of authority, the Court has no inclination to grant Defendant's request.” M.W. appeals.

STANDARD OF REVIEW

¶ 9 “We review conclusions of law to determine if they are correct.” In re C.D.H., 2009 MT 8, ¶ 21, 349 Mont. 1, 201 P.3d 126 (citation omitted).

DISCUSSION

¶ 10 Did the District Court err by denying M.W.'s petition to relieve him from the requirement to register as a sex offender?

¶ 11 M.W. first challenges the original imposition of the registration requirement. He notes that, while the 2007 version of the MCA mandated registration except in limited circumstances, the 2005 version made registration discretionary with the Youth Court. Because his offense was committed in 2006, M.W. argues that the 2005 version applies, and that the discretionary provisions and associated procedures within that version “cannot be retroactively denied to him.” M.W. argues that this Court's decision in United States v. Juvenile Male, 2011 MT 104, ¶ 9, 360 Mont. 317, 255 P.3d 110, does not operate to retroactively apply the 2007 Sexual or Violent Offender Registration Act (SVORA) amendments to him because the “procedural protections” under the 2005 Act “cannot be deleted after-the-fact” without violating ex post facto protections. Thus, M.W. argues that, because he was not afforded the protections of the 2005 law when the registration requirement was originally imposed, he cannot be validly required to register.

¶ 12 However, as the State notes, M.W. did not appeal from the order imposing the registration requirement entered by the Youth Court in July 2009. Under M.R.App. P. 5 (now M.R.App. P. 4(5)), M.W. had 60 days to appeal, but that time has long passed, and the challenge he now attempts to make to the original imposition of the requirement has been forfeited. See State v. Muhammad, 2002 MT 47, ¶ 22, 309 Mont. 1, 43 P.3d 318 (citation omitted) (“Muhammad first filed his notice of appeal on July 26, 2000, more than one year after the imposition of the banishment condition in the May 28, 1999, Order. Therefore, since Muhammad failed to timely file a notice of appeal from the May 28, 1999, Order, he is precluded from now challenging the legality of the conditions therein imposed.”).

¶ 13 Alternatively, M.W. argues that, even if the 2007 amendments are retroactively applicable to him, he is no longer under a duty to register because the requirement was imposed as a condition of his sentence, and he has now been released from supervision. Although no precedent is offered in support of this proposition, M.W. reasons that he “has complied with all of the terms of his probation and has been relieved of his probationary sentence, [and] is now entitled to be relieved from the probationary condition that he register as a sexual offender.” The State responds that M.W. waived this argument because he is raising it for the first time on appeal, and even if this Court chooses to address M.W.'s argument, sexual offender registration is an independent requirement under Montana law.

¶ 14 “ ‘The general rule is that issues not raised before the trial court and new legal theories are not considered by this Court on appeal because it is unfair to fault the trial court on an issue it was never given an opportunity to consider.’ ” State v. Montgomery, 2010 MT 193, ¶ 11, 357 Mont. 348, 239 P.3d 929 (quoting State v. Courville, 2002 MT 330, ¶ 5, 313 Mont. 218, 61 P.3d 749); see also Whitehorn v. Whitehorn Farms, Inc., 2008 MT 361, ¶ 21, 346 Mont. 394, 195 P.3d 836. However, if an appellate argument is a change in emphasis, rather than an entirely new theory, we have considered such arguments. See Whitehorn, ¶ 23; see also Becker v. Rosebud Operating Servs., Inc., 2008 MT 285, ¶ 18, 345 Mont. 368, 191 P.3d 435. It is correct, as the State points out, that M.W. did not argue in the District Court that, because of his release from supervision, he was relieved of the duty to register as a matter of law. He did argue that §§ 46–23–506(3) and 41–5–1513, MCA, provided discretion to the District Court to relieve him from the registration requirement because he had registered “for a sufficient time period.” Further, the District Court denied M.W.'s petition, in part, upon the conclusion that it was without authority to grant relief from registration, and thus the court had the opportunity to rule on the issue. Therefore, we conclude that M.W.'s appellate argument is appropriately made.

¶ 15 M.W.'s argument assumes that sexual offender registration is a general sentencing condition which operates only as long as the probationary sentence is in effect. Generally, probation conditions cannot continue beyond the time of supervision. See State v. Grana, 2009 MT 250, ¶ 17, 351 Mont. 499, 213 P.3d 783 (emphasis added) (an internet restriction as a condition of sentence “applies only so long as Grana is...