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State v. Hernandez

Supreme Court of Montana

July 9, 2019

STATE OF MONTANA, Plaintiff and Appellee,
JUSTIN CHARLES HERNANDEZ, Defendant and Appellant.

          Submitted on Briefs: May 29, 2019

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 16-444D Honorable Dan Wilson, Presiding Judge

          For Appellant: Lane K. Bennett, Attorney at Law, Kalispell, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana

          Travis R. Ahner, Flathead County Attorney, Kalispell, Montana



         ¶1 Pursuant to Section I, Paragraph 3(c), 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 Justin Charles Hernandez appeals the sentence imposed by the Eleventh Judicial District Court, Flathead County, for his conviction, upon guilty plea, of the crime of sexual assault, in violation of § 45-5-502, MCA. Hernandez was originally charged in October 2016 with sexual intercourse without consent for allegedly engaging in sexual intercourse with his niece between January 1, 2014, and August 16, 2016, when she was about seven to eight years old. Pursuant to a plea agreement, Hernandez' charge was reduced to sexual assault, to which he pled guilty.

         ¶3 At Hernandez' sentencing hearing, and in accordance with the plea agreement, the State recommended that Hernandez be sentenced to a 40-year commitment in the Montana State Prison, with 20 years suspended and a 15-year parole restriction. In support of its recommendation, the State cited the nature of the offense, Hernandez' classification as a sexual addict, the effect of his crime on the victim's family, the wishes of the families regarding sentencing, and the burdens on the prison system. Hernandez recommended that his entire sentence be suspended and that he be placed on probation, describing the State's recommendation as "way too harsh" and based upon "parental hysteria[.]" The District Court did not adopt the recommendations of either party, but, rather, sentenced Hernandez to a 40-year term in the Montana State Prison, with no time suspended and a 15-year restriction on parole eligibility. Hernandez appeals, arguing his sentence is illegal because it was based on retribution and constituted cruel and unusual punishment under the Montana and U.S. Constitutions, and, further, he was entitled to an exception to the mandatory minimum sentencing restriction under § 46-18-222(6), MCA.

         ¶4 As an initial matter, Hernandez did not make any objections to his sentence during the sentencing hearing, and does not argue entitlement to review of his sentence pursuant to State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). Indeed, it would appear that some of Hernandez' arguments are not reviewable under Lenihan, for they go to a sentence that is objectionable, not facially invalid. See State v. Whalen, 2013 MT 26, ¶¶ 19-22, 368 Mont. 354, 295 P.3d 1055. Consequently, we consider Hernandez' arguments to be a request to exercise plain error review of his sentence. See State v. Coleman, 2018 MT 290, ¶ 12, 393 Mont. 375, 431 P.3d 26 ("We may choose to review a claim under the common law plain error doctrine when a criminal defendant's fundamental rights are invoked and where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.")

         ¶5 This Court's appellate review of sentences beyond one year of incarceration is for legality, which "is limited to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. Whether a sentence is legal is a question of law, which we review de novo for correctness. A sentence is legal if it falls within statutory parameters and is constitutional." State v. Martin, 2019 MT 44, ¶ 12, 394 Mont. 351, 435 P.3d 73 (internal quotations and citations omitted).

         Legality of Hernandez' sentence

         ¶6 Hernandez argues his sentence was illegal because it was "based solely on the perceived need of the paternal side of the victim's family for retribution," including a parole restriction not recommended by the pre-sentence investigation report. As Hernandez acknowledges, we have previously held that retribution is permissible as a sentencing factor. State v. Kirkbride, 2008 MT 178, ¶¶ 11-13, 343 Mont. 409, 185 P.3d 340 ("[t]he Court has repeatedly said retribution is a component of punishment"); State v. Rickman, 2008 MT 142, ¶¶ 24-27, 343 Mont. 120, 183 P.3d 49 (affirming a sentence based on statements by the victim's family, the pre-sentence investigation, the possibility for rehabilitation, the safety of the public, and retribution). However, the District Court, in light of the victim's family's strong advocacy, went to extra lengths to explain that Hernandez' sentence was not premised upon retribution, stating it was "not the job of a judge under our system of laws, bound by constitution, to impose a sentence that is driven by or based primarily upon a desire for vengeance[;]" rather, the "job of a judge is to do justice." The court provided its sentencing rationale, explaining it had considered the arguments, evidence, statements by the victim, the victim's family, and Hernandez, the plea agreement, the impact on the victim, the need for "just punishment . . . commensurate with the seriousness of the offense," and the goal of Hernandez' self-improvement, restitution, rehabilitation, and reintegration back into the community. With regard to the parole restriction, the court stated that

[Hernandez] will not be eligible for parole until he has served 15 years of that sentence for these reasons: The Defendant is a sexual addict who committed a crime that violated the humanity of a family member who trusted him, and although he is considered amenable to treatment his selection of such a young victim, when his sexual preferences indicate he should be attracted to adult women, demonstrate that he poses ...

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