APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC-10-0190 Honorable G. Todd Baugh, Presiding Judge
The opinion of the court was delivered by: Mike McGRATH
Submitted on Briefs: October 17, 2012
Decided: November 21, 2012
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 Jimmy Jay Gauna (Gauna) appeals a judgment from the Thirteenth Judicial District Court, Yellowstone County, which convicted him of sexual intercourse without consent and sentenced him to 100 years in the Montana State Prison with fifty years suspended. The judgment also prohibited Gauna from becoming eligible for parole for the first twenty-five years of his imprisonment as required by § 45-5-503(4)(a)(i), MCA. Gauna argues that he received ineffective assistance of counsel because his trial counsel did not seek an exception under § 46-18-222(2), MCA, to the twenty-five year parole restriction. We affirm.
¶3 Gauna was charged with sexual assault and two counts of sexual intercourse without consent for an incident involving an eleven-year-old boy on March 3, 2010. Gauna was twenty-four years old at the time. Gauna met the victim at a video store two weeks before the assault. After meeting him, Gauna talked with the victim on the phone or over the internet nearly every day for two weeks preceding the assault. Some of Gauna's conversations with the victim were sexual in nature. Gauna had attempted to meet with the victim once before the day of the assault, but the victim forgot about the meeting. On March 3, 2010, Gauna met the victim at his school and took him to a drainage ditch where the assault occurred.
¶4 Pursuant to a plea agreement, Gauna pled guilty to one count of felony sexual intercourse without consent, and the other charges of sexual intercourse without consent and of sexual assault were dismissed. Gauna reserved his right to seek exceptions under § 46-18-222, MCA, to the statutory mandatory minimum sentences.
¶5 A psychosexual evaluation that was conducted as part of the pre-sentence investigation revealed that Gauna suffers from a number of mental conditions. Gauna was born premature and with hydrocephalus. He also suffered from infant apnea until he was five years old. Additionally, Gauna has been diagnosed with a number of mental disorders, including Cognitive Disorder and Impulse Disorder, which likely originated with his organic brain dysfunction.
¶6 The psychosexual evaluation also revealed a pattern of sexual abuse in Gauna's youth. Gauna was sexually abused by an older boy when he was ten years old. Shortly after being abused himself, he began sexually abusing young children. When Gauna was ten years old he sexually assaulted a four- or five-year-old relative, and when he was twelve he molested a three-year-old girl who was staying at his house. When Gauna was fifteen years old, he was arrested and convicted of sexually assaulting a five-year-old boy.
¶7 The psychosexual evaluation classified Gauna as a morally indiscriminate, situational offender. This type of offender looks for opportunity and vulnerability and often uses lure, force, or manipulation. The psychosexual evaluation concluded that the March 3, 2010 assault was a premeditated offense and not an act of impulse. The psychosexual evaluation determined that Gauna had a high risk of a committing a future sexual or violent offense and recommended designating him as a Tier III Sex Offender.
¶8 The State recommended a sentence of 100 years in the Montana State Prison with fifty years suspended and imposition of the mandatory minimum twenty-five year parole restriction. Gauna acknowledged at the sentencing hearing that he needs help and that he should be incarcerated. After apologizing for the assault, he told the judge "I can't take back what I did. The only thing that I can do is just . . . get locked up and do my time, do therapy . . . ." Accordingly, Gauna's trial counsel argued for a 100-year sentence with seventy-five ...