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State v. Hardground

Supreme Court of Montana

January 22, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
TERRENCE FELIX HARDGROUND, Defendant and Appellant.

          Submitted on Briefs: December 5, 2018

          District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DC-14-28 Honorable John C. McKeon, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana.

          Kelsie W. Harwood, Blaine County Attorney, Chinook, Montana.

          OPINION

          JAMES JEREMIAH SHEA JUSTICE.

         ¶1 Terrence Felix Hardground appeals from the jury verdict and sentence of the Seventeenth Judicial District Court, Blaine County, for Failure of Sexual Offender to Provide Notice of Change of Residence.

         ¶2 We review the following issue on appeal and reverse:

         Whether the District Court abused its discretion by granting the State's Motion to Amend the Information on the day of trial, immediately prior to opening statements.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶3 On September 2, 2014, the State initially charged Hardground by Information with one count of Failure of Violent Offender to Provide Notice of Change of Residence, a felony in violation of §§ 46-23-504(1)(c), -505, -507, MCA. The Information stated that on or before December 19, 2013, Hardground failed to appear in person and give notification of his change of residence to the registration agency within three business days. On October 20, 2014, the State filed an Amended Information, adding "Sexual Offender" to the offense description but leaving December 19, 2013, as the offense date. On February 4, 2015, the State filed a Second Amended Information. On February 23, 2015, the District Court held a hearing for Hardground's initial appearance on the Second Amended Information. The District Court expressed concern that the facts constituting probable cause to charge Hardground with the offense were not recited in the charging documents and requested that the State file another amended information. On February 25, 2015, the State filed a Third Amended Information, which still included the December 19, 2013 offense date but added the predicate offense warranting sexual offender registration-a 1994 conviction in the Northern Cheyenne Tribal Court.[1] After Hardground was arraigned on the Third Amended Information and entered a plea of not guilty, the District Court set a trial date for June 4, 2015.

         ¶4 On June 4, 2015, the District Court presided over a one-day jury trial. Following the preliminary jury instructions, and immediately prior to breaking for a lunch recess, the State moved orally to amend the Information, pursuant to § 46-11-205(3), MCA, to reflect the proper date of the alleged offense: August 5, 2014. The State contended the change of date was not a substantive amendment and instead characterized the correction as a "typographical error." The State represented to the District Court that the proper date was set forth in the State's original Motion for Leave to File an Information, which described that Blaine County Sexual or Violent Offender Registry Administrator Debbie Gomke received a phone call on or around August 5, 2014, with information that Hardground was out of compliance with his offender registration requirements.

         ¶5 Hardground objected to the proposed amendment, arguing that the jury was empaneled and defense counsel was prepared to proceed "based on the fact that Mr. Hardground was arraigned on the December 19[], 2013[] date" and "on that specific set of facts." Hardground argued that the requirement to register at a particular address in a three-day window was specific to the offense charged. He pointed out that the Information was amended four times, and in each version the December 19, 2013 date appeared.

         ¶6 The District Court concluded, "there's certainly no different offense charged, and there's no additional offense charged. It's the same charge." The District Court allowed the State to amend the Information to reflect the August 5, 2014 date. During trial, the State offered testimony as to where Hardground lived during August of 2014; the State did not offer direct testimony as to where Hardground lived in December of 2013. On June 4, 2015, the jury convicted Hardground of Failure of Sexual Offender to Provide Notice of Change of Residence. On November ...


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