ORIGINAL

September 5 2013
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~.

IN THE SUPREME COURT OF THE STATE OF MONTANA No. _

STATE OF MONTANA, Petitioner,

v.
DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF MONTANA, YELLOWSTONE COUNTY, THE HONORABLE G. TODD BAUGH, PRESIDING JUDGE, Respondent.

FILED
SEP 05 2013
'Ed Smitli
CLERK OF THE SUPREME COURT STATE OF MONTANA

EMERGENCY PETITION FOR WRIT OF PROHIBITION

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

EMERGENCY PETITION FOR WRIT OF PROHIBITION PAGE 1

BACKGROUND
On August 26, 2013, Defendant and Appellee Stacey Dean Rambold (Rambold) appeared before the district court for sentencing, following the entry of his 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 for 20 years Montana State Prison (MSP) with 10 years suspended. Rambold argued for 15 years MSP with all but 30 days suspended. Rambold based his recommendation on Mont. Code Ann. 46-18-205(1). The district court followed Rambold's recommendation, and imposed a sentence of 15 years MSP with all but 31 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 course
of his duties and pursuant to law,1 submitted to the district court a proposed written judgment that conformed to the oral pronouncement. (See Ex. 2, 8/30/13 Letter to Judge 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 effectively announcing 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 the event a conflict exists between the oral sentence and the written judgment, the oral sentence controls) (citing State v. Lane, 1998 MT 76, ~~ 35-40,48,288 Mont. 286, 957 P.2d 9).
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Case No. DC-08-628, 9/3/13 Notice & Order; copy attached.) The district court opined that "imposing a sentence which suspends more than the mandatory minimum would be an illegal sentence." (Id. at 1.) The court declared that since statutory mandatory minimum provisions had not been "given effect and taken into consideration" at the oral pronouncement, and the court would, "if necessary and appropriate ... amend the mandatory minimum portion of the sentence" at a hearing 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 at the September 6 hearing. On September 4, 2013, the State in this Court filed a Notice of Appeal.

(9/4/13 Notice ofAppeal.) In its notice, the State notified the Court and opposing
counsel: 1) the State sought to preserve its right under Mont. Code Ann. 46-20103(2)(h) to appeal the controlling judgment of the district court rendered August 26 in its oral pronouncement of sentence; and, 2) the State has been impeded in its effort to perfect its appeal by the usual means, which is the filing of a notice of appeal upon the entry ofa written judgment. (Id.) Later on September 4, the State in the district court filed a Motion to Vacate

and Briefin Support asserting: 1) the September 6 re-sentencing hearing should be

vacated because such a procedure apparently intended to correct an illegal sentence is 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.) On September 5, Rambold through his attorney filed Defendant's Response to State's

Motion 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 have not 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 such other 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 extraordinary

judicial writ which issues, not as a matter of right, but only in the sound legal discretion 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 of
prohibition "arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person." Mont. Code Ann. 27-27-101. The writ "command[s] the party to desist or refrain from further proceedings 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 River

Protection 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 perform the 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 any time. Illegal sentences must be address in the manner provided by law for appeal and post-conviction relief." Mont. Code Ann. 46-18-116 (2011). The present sentence is an illegal sentence, as the district court has opined its order setting the September 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 prohibits the correction of an illegal sentence by the district court. Petersen pled guilty to Deliberate Homicide. Petersen,
~

1. The plea

agreement 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-year consecutive weapon enhancement. Petersen ultimately appealed when the district

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court later determined the sentence was illegal and entered an amended judgment so as to prevent Petersen's withdrawal of guilty plea. On appeal, Petersen argued that the district court lacked jurisdiction to modify the original sentence. Petersen, ~ 11. Petersen relied on Section 46-18116 (3), MCA, and argued that only this Court maintains the authority to correct an illegal 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, the district court found that pursuant to Mont. Code Ann. 46-18-116 (3), the plain language of the statute requires an illegal sentence to be reviewed by this Court on appeal or during postconviction proceedings. Petersen,
~

14. The district court

stated that the district court could not "correct" the illegal sentence. Id. Of note, this Court acknowledged that its remand with instruction to strike the weapons enhancement 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 over substance, as the effect of remand with instructions to strike the weapon enhancement sentence in the original judgment is the same as intended by the District Court when it entered its amended judgment ...the District Court did not have authority to amend its own unlawful judgment. We on the other hand do have the authority to 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 district
court from engaging in a sentence review process. A writ of prohibition is warranted to prevent the September 6 proceedings which 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." See

Bitterroot,

9, and the State's request here is preventative, not remedial. The State

here 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 court level. However, Mont. Code Ann. 46-18-116(3) and State v. Petersen, 2011 MT 22,359 Mont. 260, 247 P.3d 731, prohibit a resentencing hearing to correct an illegal sentence. The only remedy prescribed by statute and case law is appeal before this Court. Further, the September 6 hearing, if permitted to be conducted, will undermine the State's appeal and otherwise frustrate the just and orderly administration of ordinary appeal processes. In other instances involving statutory limitations on postjudgment remedies, this Court has indicated the necessity of preserving the integrity of the judicial process and securing the orderly administration ofjustice. See State v. Maine, 2011 MT 90, ~ 46,360 Mont. 182, 255 P.3d 64 (Baker, J., concurring) (construing general criminal appeal limitations under Mont. Code Ann. 46-21-101, -105; stating Court has "consistently

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applied these limits in the interest of finality ofjudgments, preserving the integrity of the judicial process, and securing the orderly administration ofjustice") (citing

State 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 the clerk of the supreme court" are, among other things, "to ensure orderly compliance with 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 resolved the case."). Here, the need to preserve the integrity of the judicial process and secure the orderly administration of justice serves as additional grounds for prohibiting the September 6 hearing. The State has lawfully instituted an appeal under express statutory authority permitting the State to challenge a sentence imposed contrary to law. Mont. Code Ann. 46-20-103 (2)(h) (2011). To preserve its right under Mont. Code Ann. 46-20-103(2)(h) to appeal the controlling judgment of the district court rendered August 26 in its oral pronouncement of sentence, the State was forced to file its Notice of Appeal prematurely. The State's effort to prosecute its appeal in the ordinary procedural course has been stymied by the district court's refusal to enter a lawful written judgment the State proposed on August 30. Rather than 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 a nonconforming written judgment at a new hearing. (See Ex. 3, Case No. DC-08628,9/3/13 Notice & Order.) While Rambold disagrees with the State's substantive position that the district court entered an illegal sentence on August 26, Rambold maintains the August 26 oral pronouncement is the only "legal sentence ... that should remain in effect" 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 oral

pronouncement is thus the sole basis of parties' contentions, but neither parties' respective positions regarding the August 26 oral pronouncement have been heard by this Court. A plain, speedy, and adequate remedy in the ordinary course of law is not available for the very reason that the presently scheduled September 6 hearing will obstruct pending appeal processes. Permitting additional trial court proceedings would cause a gross injustice to an orderly appeal and directly impede the interests ofjustice 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 refrain from 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 a hearing to address or correct an illegal sentence. Counsel for Rambold, Mr. Jay F. Lansing, reports that he poses no objection to the Petition for Writ ofProhibition in so far as Mr. Lansing agrees this Court should prohibit the September 6 hearing from taking place. Respectfully submitted this 5th day of September, 2013. TIMOTHY C. FOX Montana Attorney General Justice Building 215 North Sanders P.O. Box 201401

Helena,
By:

C. MARK OWLER Assistant Attorney General

{llili'~

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59620-1421

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CERTIFICATE OF SERVICE
I hereby certify that I caused a true and accurate copy of the foregoing Emergency Petition for Writ of Prohibition to be mailed to: Honorable G. Todd Baugh 217 North 27th Street, Rm. 601 P.O. Box 35042 Billings, MT 59107-5042 Mr. Ed Smith, Clerk Montana Supreme Court 215 North Sanders Helena, MT 59620 Ms. Kristie Lee Boelter, Clerk Yellowstone County District Court P.O. Box 35030 Billings, MT 59107-5030 Mr. Jay F. Lansing Attorney at Law 175 North 27th Street Billings, MT 59101 Mr. Scott Twito Yellowstone County Attorney Mr. Rod Souza Yellowstone Deputy County Attorney 217 North 27th, Rm. 701 P.O. Box 35025 Billings, MT 59107-5025

DATED:

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CERTIFICATE OF COMPLIANCE
Pursuant to Rules 11 and 14 of the Montana Rules of Appellate Procedure, I certify that this petition is printed with a proportionately spaced Times New Roman text typeface of 14 points; is double-spaced except for footnotes and for quoted and indented material; and the word count calculated by Microsoft Word for Windows is not more than 4,000 words, excluding certificate of service and certificate of compliance.

C.MA

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