APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-07-012(B) Honorable Katherine R. Curtis, Presiding Judge
The opinion of the court was delivered by: Justice Patricia O. Cotter
Submitted on Briefs: June 12, 2012
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 In January 2007, Ralph Fox was charged in the Montana Eleventh Judicial District Court with two counts of felony sexual assault against minor females, CS (Count I) and HS (Count II). In July 2007, a federal grand jury handed down an indictment in the United States District Court charging Fox with three felony offenses: sexual exploitation of children, receipt of child pornography and possession of child pornography. Fox was convicted of all charges, and in October 2008, he was sentenced to federal prison for 110 years. Subsequently, Fox moved to dismiss the State action against him on the ground of double jeopardy.
¶2 The District Court dismissed one count of sexual assault against Fox, and he was convicted of the remaining count. Nevertheless, the court sentenced Fox to two fifty-year sentences-one for each count of sexual assault-and five years for failing to register as a sex offender. The fifty-year sentences were to run concurrently with each other and with the federal sentence. The five-year sentence was to run consecutively to the fifty-year sentences for assault but concurrently with the federal sentence. Fox appeals, arguing the District Court erred when it sentenced him to a term of fifty years for the dismissed assault charge. He also claims the court erred when it denied his motion to dismiss the remaining assault charge. We affirm in part and remand in part.
¶3 A restatement of the issues on appeal is:
¶4 Did the District Court illegally sentence Fox to fifty years for a dismissed sexual assault charge?
¶5 Did the District Court err in denying Fox's motion to dismiss the remaining sexual assault count?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Following an approximate eleven-year incarceration in California after being convicted of committing lewd and lascivious acts upon a seven-year-old female, Fox was discharged in July 1996 and, shortly thereafter, he and his wife moved to Flathead County, Montana. Fox did not register as a sexual offender as required by law.
¶7 Fox met the children involved in this case at some time between mid-2004 and early 2005, and quickly ingratiated himself with the family. CS and HS's parents, who met Fox through a trusted friend and childcare provider, believed that Fox had been physically abused as a child and, as a result, was childlike with the mentality of a fourteen-year old. They allowed their daughters to spend time with him and his ...