In re A.S.M.

2014 MT 133, 325 P.3d 1251, 375 Mont. 147
CourtMontana Supreme Court
DecidedMay 27, 2014
DocketNo. DA 13-0482
StatusPublished
Cited by1 cases

This text of 2014 MT 133 (In re A.S.M.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.S.M., 2014 MT 133, 325 P.3d 1251, 375 Mont. 147 (Mo. 2014).

Opinion

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 The Eleventh Judicial District Court, Flathead County, partially denied A.S.M.’s motion to modify a transfer order under § 41-5-208, MCA (§ 208 order). A.S.M. appeals. We affirm.

¶2 A restatement of the dispositive issue on appeal is:

¶3 Did the District Court err when it did not modify the § 208 order to suspend A.S.M.’s sentence and terminate supervision by the Department of Corrections?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 A.S.M. is presently a 21 year-old male who has been diagnosed with significant developmental disabilities and mental illnesses, including Autism Spectrum Disorder (Asperger’s syndrome). On February 16,2007, A.S.M. admitted that he had committed the offense of sexual intercourse without consent, a felony, while he was a minor. The Youth Court declared A.S.M. a delinquent youth and a serious juvenile offender. A.S.M. was placed on formal probation until the age of 18 and until all conditions were met. The Youth Court ordered A.S.M. to successfully complete sex offender treatment, and between June 2007 and May 2010, he attended treatment programs in Texas and Colorado. However, he failed to successfully complete treatment.

¶5 On May 6,2011, the Youth Court issued a § 208 order transferring jurisdiction over A.S.M. from the Youth Court to the District Court and transferring supervisory responsibility of A.S.M. to the Department of Corrections (DOC). Pursuant to the order, A.S.M. was transferred from Pine Hills Youth Correctional Facility to Montana State Prison (MSP) on his eighteenth birthday. A.S.M. was not eligible for parole until he completed phases one and two of MSP’s sexual offender program. The District Court retained jurisdiction over the matter until A.S.M. reached the age of 25.

[149]*149¶6 On December 7,2012, A.S.M. filed a motion to modify the § 208 order. A.S.M. requested that the court (1) give the DOC authority to place him in an appropriate residential treatment and educational program and (2) recommend that the DOC send him to Whitney Academy in Massachusetts (the Academy). The Academy is a private residential school and treatment facility that specializes in providing special education instruction and related services to adolescent and young adult males with developmental disabilities and trauma histories who have exhibited sexually abusive behavior. The State opposed A.S.M.’s motion, arguing that the court did not have the authority to grant the requested relief under § 41-5-208(5), MCA, which states in relevant part that “the district court may order that the youth... (a) be incarcerated in a state adult correctional facility, boot camp, or prerelease center; or (b) be supervised by the department.”

¶7 The court held a hearing on the motion on January 18,2013. At the hearing, expert witnesses testified that placement at the Academy was appropriate for A.S.M. The Director of Admissions at the Academy testified that A.S.M. had been screened for admission and accepted by the Academy. A DOC probation and parole officer testified that commitment to the DOC with placement at the Academy would be difficult, and that the transfer process to Massachusetts could take months. He further testified that if the court granted A.S.M.’s motion, A.S.M. would be immediately released from MSP even though it was unclear whether appropriate supervision would be available.

¶8 After receiving a request on behalf of A.S.M. for a due process hearing against the DOC, the Office of Public Instruction appointed Hearing Officer Leslie Halligan (Halligan) to determine whether A.S.M. was being denied a free appropriate public education while incarcerated. On May 15, 2013, Halligan issued an order concluding that A.S.M. had been denied a free and appropriate education by the DOC in violation of the Individuals with Disabilities Education Improvement Act of 2004, and that he was entitled to an award of compensatory services.

¶9 On June 10, 2013, the District Court issued its findings of fact, conclusions of law, and order on A.S.M.’s motion. The court found that A.S.M. was an untreated sex offender. The District Court took judicial notice of Halligan’s order but determined that remedial education issues were not within its jurisdiction, and that Halligan’s recommendations were purely advisory. The court concluded modification of the § 208 order was appropriate given A.S.M.’s difficulties in completing sex offender treatment; the court accordingly removed the parole restriction requiring A.S.M. to complete phases one [150]*150and two of the sexual offender program. According to the District Court, this would “allow the [DOC] and Parole Board to fashion an appropriate program that protects the community, provides [A.S.M.] with the treatment he needs, and complies with the remedial education requirements imposed by Hearings Officer Halligan.” The court noted that “the DOC is now required to provide [A.S.M.] compensatory educational services, whether that be placement at Whitney Academy or services within the State of Montana or elsewhere,” and that “[r]elease on parole does not necessarily preclude attendance at Whitney Academy, but rather ensures that, through the DOC and the Parole Board, an appropriate plan is in place at all times.”

¶10 A.S.M. timely appealed the court’s order. A.S.M. seeks a remand of the case with instructions that the District Court modify its order to facilitate A.S.M.’s placement at the Academy by: (1) suspending his sentence on the condition that he participate in treatment at the Academy and in any recommended aftercare; and (2) terminating supervision by the DOC. A.S.M. concedes that release to the community is not appropriate for him. A.S.M. argues the District Court abused its discretion by keeping him in the adult corrections system, which may limit his chances of being accepted for supervision by Massachusetts. A.S.M. further argues the District Court’s decision was contrary to the express purposes of the Youth Court Act, was not based on the evidence in the record, and was based on a mistake of law, namely the court’s conclusion that imposition of the disposition sought by A.S.M. would require A.S.M.’s immediate release without conditions for appropriate supervision and treatment.

¶11 The State counters that the District Court had no statutory authority to release A.S.M., an untreated sex offender, from MSP without an appropriate discharge plan to ensure community safety. According to the State, the court’s June 10,2013 order “represents an act of grace to which A.S.M. may not have been entitled in the first place” and actually facilitates A.S.M.’s placement at the Academy. The State maintains that the court reasonably found that MSP was the only appropriate placement for A.S.M. to comply with his youth disposition and complete sex offender treatment. The State contends that A.S.M. should retain his adult inmate status, and that the court’s decision not to impose a supervisory disposition requiring A.S.M.’s immediate release from MSP to the DOC adult probation services was not in error.

STANDARD OF REVIEW

¶12 This Court reviews conclusions of law to determine if they are [151]*151correct. In re M.W., 2012 MT 44, ¶ 9, 364 Mont. 211, 272 P.3d 112 (citation omitted).

DISCUSSION

¶13 Did the District Court err when it did not modify the § 208 order to suspend A.S.M.’s sentence and terminate supervision by the Department of Corrections?

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of A.S.M.
2014 MT 133 (Montana Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2014 MT 133, 325 P.3d 1251, 375 Mont. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asm-mont-2014.