Submitted on Briefs: August 9, 2017
FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Big Horn, Cause No. DC-15-18
Honorable Blair Jones, Presiding Judge
Appellant: Craig Kevin Shannon, Attorney at Law, Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Kraus, Assistant Attorney General, Helena, Montana Gerald
"Jay" Harris, Big Horn County Attorney, Hardin,
Jeremiah Shea Justice.
Defendant Kerstyn Jade Old Bull appeals from the sentence and
judgment of the Twenty-Second Judicial District Court, Big
Horn County. The District Court sentenced Old Bull to ten
years in the Montana Women's Prison (MWP), parole
restricted for the entire term, on her conviction for
criminal endangerment in violation of § 45-5-207, MCA;
and ten years in MWP, parole restricted for seven and
one-half years, on her conviction for obstructing justice in
violation of § 45-7-303, MCA, to be served consecutively
to her criminal endangerment sentence.
We address the following issues:
Issue One: Whether the District Court erred by imposing a
parole eligibility restriction on Old Bull's sentence for
Issue Two: Whether the District Court erred by requiring
Old Bull to register as a violent offender.
AND FACTUAL BACKGROUND
On March 2, 2015, Old Bull and her boyfriend Clint Hogan took
Hogan's unresponsive six-year-old daughter, K.H., to
Hardin Hospital. K.H. was then transported to Denver
Children's Hospital where she died from her injuries.
When interviewed separately, Hogan and Old Bull independently
reported that K.H. was in good health when Hogan left to go
to the store, that she was unresponsive when Hogan returned,
and that she never regained consciousness. According to the
Presentence Investigation Report (PSI) ordered by the
District Court, Old Bull and Hogan waited roughly two hours
before seeking medical attention for K.H. During the
State's investigation into K.H.'s death, Old Bull
told law enforcement that K.H. fell in the shower, which led
to her injury. This account conflicted with the treating
hospital assessment that K.H.'s injuries resulted from a
traumatic forceful blow to the head and blunt force trauma
that could not have been caused by an accidental fall. K.H.
also "had evidence of both fresh and historical bruising
over her entire body, consistent with habitual abuse."
Old Bull later admitted that she provided false information
to law enforcement regarding Hogan's involvement in the
crime because she was scared to stand up to Hogan.
The State initially charged Old Bull with deliberate homicide
of K.H. On November 13, 2015, the State amended these
charges, pursuant to a plea agreement, to criminal
endangerment and obstructing justice. Old Bull pled guilty to
these charges. As part of the plea agreement, Old Bull
admitted that she "engaged in conduct that created a
substantial risk of death or serious bodily injury to
another, specifically [K.H]." She also admitted to
providing the police with false information regarding
Hogan's role in K.H.'s death. At sentencing, Old Bull
never disputed that K.H. died due to blunt force trauma;
however, Old Bull did dispute whether she had been the cause
of K.H.'s injury.
Due to what the District Court characterized as Old
Bull's "heinous" conduct that resulted in
K.H.'s death, the Court restricted Old Bull's parole
eligibility for the entire ten-year sentence for criminal
endangerment and for seven and one-half years of the
consecutive ten-year sentence for obstructing justice. Hogan
received a ten-year suspended sentence for obstructing
justice during the investigation into K.H.'s death.
At Old Bull's sentencing, the District Court stated on
the record-without distinguishing between the criminal
endangerment charge and the obstructing justice charge-its
rationale for the parole restrictions. The Court stated:
"You have a child who is dead here; [she] has passed
away. And there is evidence that this child endured habitual
abuse. The Court will not turn a blind eye to that." The
Court further stated that it could see no "justification
for treating a child the way this child was treated or
engaging in conduct that would allow for such treatment"
and found it "appropriate . . . [to] impose an equally
severe sentence." The Court also emphasized the lasting
trauma to the family and community caused by K.H.'s
death. Further, the District Court stated that the parole
restrictions would ensure that Old Bull have access to
programs while in MWP to help address anger and emotional
issues and, therefore, have a chance at rehabilitation. The
District Court specified that the ...