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State v. Hamilton

Supreme Court of Montana

October 16, 2018

STATE OF MONTANA, Plaintiff and Appellee,
JEFFERY ELEC HAMILTON, Defendant and Appellant.

          Submitted on Briefs: August 15, 2018

          APPEAL FROM District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDC 13-560 Honorable Julie Macek, David Cybulski, Presiding Judges

          For Appellant: Chad Wright, Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Daniel Guzynski, Special Deputy County Attorney, Helena, Montana



         ¶1 A jury convicted Jeffery Elec Hamilton (Hamilton) of two counts of incest. The Eighth Judicial District Court, Cascade County, sentenced Hamilton to 100 years imprisonment with 75 years suspended and 25 years of parole ineligibility on each count. Hamilton appeals, and we address the following issues:

1. Did Hamilton waive his statutory vagueness claims by failing to raise them before trial?
2. Did Hamilton waive his objections to the District Court's sentence by failing to raise them below?
3. Did the District Court err when it issued a written judgment that conflicted with its oral pronouncement of the sentence?

         ¶2 We affirm in part and reverse and remand in part. On remand, we instruct the District Court to correct its written judgment to reflect that Hamilton's sentences are to run concurrently.


         ¶3 On January 2, 2014, Hamilton pleaded not guilty to charges of incest against his daughter in violation of § 45-5-507, MCA. That day, the District Court signed an order scheduling an omnibus hearing for February 19, 2014, and notifying Hamilton that "[p]re-trial motions not noticed at the omnibus hearing will be allowed only for good cause and reasonable diligence shown." When the District Court held Hamilton's omnibus hearing the following month, Hamilton listed the motions he planned to file. Although he reserved the right to file a general motion "to dismiss," he did not state that he planned to challenge the constitutionality of Montana's statute defining "sexual contact." In March 2014, the State filed an Amended Information charging Hamilton with two counts of sexual intercourse without consent and two counts of incest. The District Court arraigned Hamilton on the Amended Information on April 24, 2014. Between his arraignment and the first day of trial on October 6, 2014, Hamilton filed numerous motions with the District Court in anticipation of trial, but none of them challenged the constitutionality of Montana's statute defining "sexual contact."

         ¶4 Before trial, when Hamilton and the State settled jury instructions, Hamilton did not object to the District Court's instruction on the definition of "sexual contact," which was identical to the definition found in § 45-2-101(67), MCA. Moreover, Hamilton did not argue that the statutory definition of "sexual contact" was unconstitutionally vague.

         ¶5 Beginning October 6, 2014, the District Court held a three-day jury trial. Late in the evening on the final day of trial, the jury informed the District Court that it could not reach a consensus on two of Hamilton's charges. The District Court then gave the jury a Norquay instruction-an instruction given to deadlocked juries that we adopted in State v. Norquay, 2011 MT 34, ¶ 43, 359 Mont. 257, 248 P.3d 817. After further deliberation, the jury found Hamilton guilty on both counts of incest and not guilty on both counts of sexual intercourse without consent.

         ¶6 On October 10, 2014, a juror contacted Hamilton's defense counsel. She told him that in retrospect, she believed the jury instruction defining "sexual contact" was misleading. Based on the juror's statements, Hamilton filed a motion to dismiss on November 14, 2014, arguing for the first time that the definition of "sexual contact" found in § 45-2-101(67)(a), MCA, was unconstitutionally vague. The State responded to Hamilton's motion to dismiss by arguing that it was time-barred and that the definition of "sexual contact" was constitutional. The State also objected to allowing Hamilton to call a juror to testify at a hearing on the motion.

         ¶7 The District Court conducted a hearing to rule on Hamilton's motion to dismiss in March 2015. Over the State's continued objections, the District Court heard testimony from Hamilton's former juror. Ultimately, the District Court denied Hamilton's motion to dismiss. It found that Hamilton's motion was untimely and that there were no deficiencies in the jury instructions based on the juror's testimony.

         ¶8 After denying Hamilton's motion to dismiss, the District Court immediately moved on to his sentencing hearing. During Hamilton's sentencing hearing, the State called Probation and Parole Officer Tim Hides, and Hamilton called Dr. Michael Scolatti, who had performed a psychosexual evaluation of Hamilton. The District Court also allowed Hamilton's victim to give a statement.

         ¶9 At the time of Hamilton's offense, § 45-5-507(5)(a), MCA (2009 and 2011), set a mandatory minimum sentence of 100 years imprisonment with 25 years of parole ineligibility for the crime of incest when the victim was 12 years of age or younger and the offender was 18 years of age or older. The statute allowed for an exception to the mandatory minimum through § 46-6-222(6), MCA (2009 and 2011), if a district court determined, based on a psychosexual evaluation of the defendant, that an alternative sentence afforded a better opportunity for the defendant's rehabilitation and "for the ultimate protection of the victim and society . . . ."

         ¶10 During Hamilton's sentencing hearing, both parties argued extensively about whether the above exception applied. After considering the testimony and arguments, the District Court found that the exception was inapplicable and sentenced Hamilton:

I'm going to give you the 100 years for both counts. I'm going to suspend 75 years of each of the counts and make you ineligible for parole for the 25 years on the Count III because that's what the legislature said. I don't quite see the exception.

         ¶11 At the end of the hearing, the District Court asked both parties whether they had any questions. Hamilton asked for clarification on whether his sentences would run consecutively or concurrently. The District Court stated they would run concurrently. Hamilton raised no other issues at the time, and the sentencing hearing concluded.

         ¶12 On March 15, 2015, the District Court issued its judgment of conviction and sentencing order. The sentencing order did not restate the District Court's prior oral pronouncement that Hamilton's sentences would run concurrently. The order also omitted any reasoning for why the District Court declined to apply the exception from § 46-6-222(6), MCA (2009 and 2011), to Hamilton's mandatory minimum sentence, as ...

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