04/29/2025
DA 23-0748 Case Number: DA 23-0748
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 83
STATE OF MONTANA,
Plaintiff and Appellant,
v.
JONATHAN PARTAIN,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-22-711 Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Matthew Jennings, Missoula County Attorney, Mark M. Handelman, Deputy County Attorney, Missoula, Montana
For Appellee:
Kathleen Foley, Attorney at Law, Missoula, Montana
Submitted on Briefs: January 30, 2025
Decided: April 29, 2025
Filed: ir--6--if __________________________________________ Clerk Chief Justice Cory J. Swanson delivered the Opinion of the Court.
¶1 The State of Montana appeals from the January 9, 2024 Amended Judgment of the
Fourth Judicial District Court. Sua sponte at sentencing, the District Court dismissed the
charge of Sexual Abuse of Children, to which Partain had already pleaded guilty and which
the court had already accepted. The court then reinstated and found Partain guilty of the
previously dismissed charge of Surreptitious Visual Observation or Recordation in a
Residence. We reverse and remand for resentencing.
¶2 We restate the issue on appeal as follows:
Whether the District Court lawfully sentenced Partain after it sua sponte revoked his guilty plea, reinstated a dismissed charge without a prosecutor’s motion, and found him guilty without a new guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On July 26, 2022, Partain left his cell phone in his 15-year-old daughter’s room.1
When she went to change her clothes, Partain remotely triggered his phone to begin video
recording her. She noticed the phone was recording her with her clothes partially or fully
removed, showed the video to her mom, deleted it, and confronted Partain. Partain
admitted to his conduct.
¶4 On November 22, 2022, the State charged Partain with Sexual Abuse of Children,
Victim Under Age of 16, in violation of § 45-5-625(1)(b), and (2)(b), MCA, and
Surreptitious Visual Observation or Recordation in a Residence, in violation of
1 Because Partain pleaded guilty, we state the facts as charged in the State’s Information and as admitted to at Partain’s change of plea hearing. 2 § 45-5-223(1)(b), MCA. Because the victim was under age 16, the State sought an
enhanced minimum sentence of at least four years pursuant to § 45-5-625(2)(b), MCA.
¶5 Partain pleaded guilty to one count of Sexual Abuse of Children. In exchange, the
State agreed to dismiss Count II, Surreptitious Visual Observation or Recordation in a
Residence, and to amend Count I to “victim under 18” so Partain faced no mandatory
minimum sentence. The parties agreed to recommend a 10-year sentence to the
Department of Corrections, all suspended. Under the plea agreement, Partain
acknowledged he “underst[ood] all potential lesser included offenses and waive[d] any
right to be found guilty of a lesser included offense.”
¶6 At the change of plea hearing on August 15, 2023, Partain admitted he propped up
a phone in his daughter’s room and started recording when she went to change her clothes
“with the purpose to arouse or gratify [his] own sexual response or desire.” The court
found Partain made a knowing, voluntary, and intelligent admission. It accepted Partain’s
guilty plea, dismissed “Count II without prejudice, pending sentencing,” and ordered a
presentence investigation report (PSI).
¶7 Before sentencing on October 30, 2023, the District Court reviewed the PSI, a
psychosexual evaluation of Partain, and numerous letters sent by friends and family of
Partain, including from his daughter. The court began the sentencing hearing with a long
statement that it “should’ve put a stop to this [case at the change of plea hearing]. I should
not have let this case go to the extent it has. I think it was overcharged. I think that this
crime here is, at best, the count that was dismissed, which is surreptitious recording.” The
court discussed that it had not read the psychosexual evaluation before it accepted Partain’s
3 guilty plea, which included a recommendation that Partain could receive effective
treatment in the community as an alternative to the mandatory minimum sentence. Finally,
the court discussed the many letters that came in support of Partain, including from his
wife and daughter. The court thus concluded:
This was, again, a bad, stupid, foolish thing that Mr. Partain did, but he was -- this family had everything under control, and I don’t know why it even got charged. I really don’t. And so -- because if you’ve read all these letters like I have, you see that what we’ve done is caused more harm to this family by bringing these charges. And I want to put a stop to it. So at this point in time, I do definitely reject the plea bargain. I -- I’m gonna take it upon myself to reduce the charge to . . . surreptitious visual observation based on all the evidence before me . . . .
The State interrupted at this point to request the court hear an updated victim impact
statement. After hearing the updated statement, the court said it would issue a two-year
deferred sentence for the surreptitious recording charge. The court concluded it “do[es]
have the authority under the law to reduce the charge, and that’s what I’m doing. . . . Mr.
Partain, I find you guilty of surreptitious recordation, a misdemeanor.” The court deferred
imposition of sentence for two years and placed him under misdemeanor probation with
supervision conditions. In its written judgment, the court cited § 46-16-702(3)(c), MCA,
as its authority “to modify or change the finding to a lesser included offense.”
¶8 Two days after the court filed its written judgment, the State filed a Petition for Writ
of Supervisory Control with this Court, arguing it had no remedy of appeal. We denied the
petition, holding “the State has a right to appeal the final judgment under
§ 46-20-103(2)(h), MCA, which provides that the State may appeal from any court order
4 or judgment if the substantive effect results in imposing a sentence that is contrary to law.”
State v. Fourth Jud. Dist., No. OP 23-0685, Order (Mont. Dec. 27, 2023).
¶9 The day after we issued the denial, the State petitioned this Court for an out-of-time
appeal. We granted the State an out-of-time appeal, holding “it would be unjust for this
Court, having denied the State’s petition for writ on the basis that the [S]tate had a right to
appeal, to deny the State the right to appeal.” State v. Partain, No. DA 23-0748, Order
(Mont. Jan. 9, 2024).
¶10 The same day we granted the State an out-of-time appeal, the District Court issued
an Amended Judgment.2 The court proposed it had “authority under MCA §46-13-401 to
sua sponte dismiss a charge in the furtherance of justice, and . . . authority under MCA
§46-16-702(3)(c) [to] modify or change the finding to a lesser included offense, based upon
the evidence in the charging documents, the pre-sentence report, the psychosexual
evaluation, the victim impact statements, and in the interest of justice.”
¶11 The State appeals the District Court’s sua sponte dismissal of the Sexual Abuse of
Children charge and the court’s reinstatement, conviction, and sentence on the
Surreptitious Visual Observation or Recordation charge. Pursuant to § 46-20-103(2)(h),
MCA, the State may appeal from a court judgment which results in an imposition of
sentence contrary to law.
2 Neither party contested the District Court’s jurisdiction to issue an Amended Judgment contemporaneously with our grant of the State’s appeal. 5 STANDARD OF REVIEW
¶12 The parties disagree on our standard of review in this case. Without citation to
authority, Partain suggests our standard of review should be limited to whether the District
Court abused its discretion by reducing or dismissing a felony charge and deferring
imposition of sentence on a misdemeanor charge that had been dismissed. E.g., State v.
Pinkerton, 270 Mont. 287, 290, 891 P.2d 532, 535 (1995). The State argues our review
should be de novo as to whether the sentence imposed by the court was legal. See City of
Whitefish v. Curran, 2023 MT 118, ¶ 8, 412 Mont. 499, 531 P.3d 547. We agree.
¶13 We determined in 1999 that we will review sentences only for legality with narrow
exceptions not applicable here. State v. Hafner, 2010 MT 233, ¶ 13, 358 Mont. 137,
243 P.3d 435 (citing State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937).
This holds especially true here, where the State is appealing a criminal sentence, which is
allowed only in narrow circumstances. Section 46-20-103(1), (2)(h), MCA (“(1) Except
as otherwise specifically authorized, the state may not appeal in a criminal case. (2) The
state may appeal from any court order or judgment the substantive effect of which results
in: . . . (h) imposing a sentence that is contrary to law.” (emphasis added)). The State does
not have statutory authority to appeal a sentence it merely disagrees with or finds
objectionable under subsection (2). Instead, under subsection (2)(h) at issue here, it only
has authority to appeal a sentence which is contrary to law. Whether a sentence is contrary
to law (i.e., legal) is a question of law, which is reviewed de novo to determine whether
the court’s interpretation of the law is correct. Curran, ¶ 8; see also State v. Rambold,
2014 MT 116, ¶¶ 10, 12, 375 Mont. 30, 325 P.3d 686; State v. Brummer, 1998 MT 11,
6 ¶ 31, 287 Mont. 168, 953 P.2d 250; State v. Morse, 2015 MT 51, ¶ 18, 378 Mont. 249,
343 P.3d 1196. We also review a district court’s interpretation of the law de novo. State
v. Webb, 2005 MT 5, ¶¶ 8–9, 325 Mont. 317, 106 P.3d 521.
DISCUSSION
¶14 Whether the District Court lawfully sentenced Partain after it sua sponte revoked his guilty plea, reinstated a dismissed charge without a prosecutor’s motion, and found him guilty without a new guilty plea.
¶15 The State argues Partain’s sentence was illegal because the District Court had no
statutory authority to sua sponte dismiss a charge to which Partain had pleaded guilty and
the court had accepted, and to find Partain guilty of a charge the court had already
dismissed. The State argues this was illegal under either of the District Court’s offered
methods to accomplish its sentence: either by reducing a felony to a misdemeanor that is
not a lesser included offense, or by reimposing an already dismissed charge.
¶16 Imposing a sentence not authorized by statute is illegal. State v. Souther, 2022 MT
203, ¶ 12, 410 Mont. 330, 519 P.3d 1. “‘The sentencing authority of a court exists solely
by virtue of a statutory grant of power and therefore cannot be exercised in any manner not
specifically authorized.’” Souther, ¶ 12 (quoting State v. Lenihan, 184 Mont. 338, 342,
602 P.2d 997, 1000 (1979)).
¶17 We address the legality of the sentence by examining each component of the District
Court’s action: (a) the District Court’s authority to dismiss or reduce a charge after a guilty
plea; (b) the District Court’s finding that Surreptitious Visual Observation or Recordation
was a lesser included offense of Sexual Abuse of Children; and (c) the District Court’s
authority to reinstate a dismissed charge.
7 (a) The District Court’s authority to dismiss or reduce a charge after a guilty plea.
¶18 The District Court relied in its Amended Judgment upon § 46-16-702(3)(c), MCA,
as authority to dismiss or amend the charge to which Partain had pleaded guilty. That
statute states:
(1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice. A new trial may be ordered by the court without a motion or may be granted after motion and hearing.
. . .
(3) On hearing the motion for a new trial, if justified by law and the weight of the evidence, the court may: (a) deny the motion; (b) grant a new trial; or (c) modify or change the verdict or finding by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.
Prior to the enactment of the second sentence of subsection (1), we held in Brummer, ¶ 46,
that “absent a lawful enactment by the Montana Legislature withholding the trial court’s
inherent power to grant a new trial sua sponte, the court’s power stands.” In response, the
Legislature added the second sentence to subsection (1), clarifying that our holding in
Brummer was correct. 1999 Mont. Laws ch. 301; see also Morse, ¶ 26.
¶19 The State objects to the District Court’s reliance upon this law for its actions,
arguing correctly that the Defendant had pleaded guilty and there was no trial. When we
previously addressed a judge’s sua sponte reversal of a defendant’s guilty plea by invoking
this statute, we held his “reliance on the provision for granting a new trial in § 46-16-702,
MCA, is misplaced. . . . Here, no trial occurred.” City of Billings ex rel. Friedt v. Billings
Mun. Ct., 2008 MT 174, ¶ 8, 343 Mont. 386, 184 P.3d 1032.
8 ¶20 The provisions of § 46-16-702, MCA, expressly apply to a court’s authority
following a trial, not a guilty plea. The logic behind this statute is likely that the court has
seen all the relevant and admissible evidence, either through a jury trial or a bench trial,
and is in the best position to weigh the overall interests of justice toward the defendant. In
contrast, a guilty plea is a bargain between the Defendant and the State, in which they agree
on a resolution after their review of the evidence and weighing of risk. The court is not as
informed of all the evidence and is more reliant upon the parties for their estimation of the
best outcome. Since Partain was not convicted at a trial, but pleaded guilty, this statute is
inapplicable to his case.
¶21 The District Court modified its reasoning when it entered an Amended Judgment
and added the legal authority of § 46-13-401(1), MCA, to justify its orders: “The court
may, either on its own motion or upon the application of the prosecuting attorney and in
furtherance of justice, order a complaint, information, or indictment to be dismissed.” This
statute vests the District Court with significant authority to prevent a miscarriage of justice.
See State v. Schwictenberg, 237 Mont. 213, 217, 772 P.2d 853, 856 (1989) (balancing the
constitutional rights of the defendant with the interests of society). The District Court
relied on this statute to dismiss Partain’s guilty plea on Sexual Abuse of Children. But the
plain language of the statute does not vest the court with authority to amend a charge or
reinstate a previously dismissed charge.
¶22 Another possible statute allowing the District Court to withdraw Partain’s guilty
plea is § 46-16-105(2), MCA. A court may, “for good cause shown, permit the plea of
guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.” This statute
9 applies after the guilty plea but before sentencing, or within one year after the judgment
has become final, subject to limitations. It allows the court to address a circumstance when
it initially accepted the parties’ bargain but later receives information which prompts it to
allow the defendant’s withdrawal of a guilty plea. “Good cause” to allow a plea withdrawal
includes involuntariness of the guilty plea, inadequate colloquy demonstrating a knowing
and intelligent plea, ineffective assistance of counsel, discovery of new evidence, and other
factors. See, e.g., State v. Wise, 2009 MT 32, ¶ 15, 349 Mont. 187, 203 P.3d 741; State v.
Terronez, 2017 MT 296, ¶ 27, 389 Mont. 421, 406 P.3d 947; State v. Warclub, 2005 MT
149, ¶ 18, 327 Mont. 352, 114 P.3d 254 (citing Brady v. United States, 397 U.S. 742, 755,
90 S. Ct. 1463, 1472 (1970)).
¶23 But this statute does not authorize the District Court’s dismissal of the guilty plea.
Partain never actually asked to withdraw his plea, which is what the statute contemplates;
the District Court simply ordered a withdrawal. “Nothing in the plain language of
§ 46-16-105(2), MCA, authorizes a court, in essence, to forcibly withdraw a defendant’s
plea sua sponte under any circumstance.” Friedt, ¶ 9. The District Court did not state it
was relying upon this statute for its actions. And even if it had, that would only get the
court halfway to its destination; the statute does not permit a finding of guilt to a new or
amended charge without a Defendant’s subsequent plea.
¶24 Partain argues the District Court was within its authority to reject his plea bargain.
This is correct. The parties entered the plea agreement pursuant to § 46-12-211(1)(b),
MCA, in which the prosecutor agreed that the specific recommended sentence was “the
10 appropriate disposition of the case.” A court may accept or reject a plea agreement made
pursuant to subsection (1)(b). Section 46-12-211(2), MCA. But:
If the court rejects a [(1)(b)] plea agreement . . . , the court shall, on the record, inform the parties of this fact and advise the defendant that the court is not bound by the plea agreement, afford the defendant an opportunity to withdraw the plea, and advise the defendant . . . the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
Section 46-12-211(4), MCA.
¶25 The State concedes the District Court had authority to impose a lesser sentence than
the parties had negotiated but argues it did not have authority to amend a felony charge to
a misdemeanor. We agree. The District Court could have sentenced Partain to a lesser
sentence than contemplated in the plea agreement, within its statutory authority. But the
court’s rejection of the plea agreement does not give it authority to remake the entire plea
deal and charging decisions. Instead, an agreement reached pursuant to subsection (1)(b)
that is rejected affords the defendant an opportunity to withdraw his or her plea. This
returns the parties to the situation before they reached their plea agreement. See State v.
Munoz, 2001 MT 85, ¶ 18, 305 Mont. 139, 23 P.3d 922. Here, that would mean Partain
would go to trial on his Sexual Abuse of Children and Surreptitious Observation or
Recordation charges (or presumably enter into a new plea agreement with the State).
(b) The District Court’s finding that Surreptitious Visual Observation or Recordation was a lesser included offense of Sexual Abuse of Children.
¶26 After this thorough search, the only statute which purports to give the District Court
authority to amend a charge is the original one upon which it relied: § 46-16-702, MCA.
In addition to our holding that it applies to post-trial and not post-guilty plea situations, we
11 also conclude it is inapplicable here because Surreptitious Visual Observation or
Recordation is not a lesser-included offense of Sexual Abuse of Children.
¶27 A lesser-included offense includes an offense that “‘is established by proof of the
same or less than all the facts required to establish the commission of the offense charged.’”
State v. Brown, 2022 MT 176, ¶ 8, 410 Mont. 38, 517 P.3d 177 (quoting § 46-1-202(9)(a),
MCA). Partain argues “[w]hether or not Surreptitious Observation or Recordation is
deemed to be a lesser included offense of [Sexual Abuse of Children], Mr. Partain admitted
to the elements of the misdemeanor when he pled guilty to the felony.” However, the term
“facts” in § 46-1-202(9)(a), MCA, refers to the statutory elements of the offenses, not the
individual facts of the case. Brown, ¶ 9. Thus, a lesser-included offense is one that is
established by proof of the same or less than all the elements required to establish the
commission of the offense charged. Brown, ¶ 9.
¶28 We addressed a similar issue in Brown, when we held that Privacy in
Communications under § 45-8-213(1)(a), MCA, was not a lesser-included offense of
Sexual Abuse of Children. Brown, ¶¶ 13–15. Here, Surreptitious Visual Observation or
Recordation pursuant to § 45-5-223(1)(b), MCA, requires proof that a person:
(1) purposely or knowingly
(2) hides, waits, or otherwise loiters
(3) by means of a remote electronic device
(4) within a private dwelling house
(5)for the purpose of surreptitiously observing or recording the visual image of any occupant in the residence without the occupant’s knowledge.
12 ¶29 As charged here, Sexual Abuse of Children, pursuant to § 45-5-625(1)(b), MCA,
requires proof that a person:
(1) knowingly
(2) photographs, films, or videotapes
(3) a child engaging in sexual conduct, actual or simulated.
The statute defines “sexual conduct” to include the depiction of a child in a state of partial
undress with the purpose to arouse or gratify the person’s own sexual response or desire.
Section 45-5-625(5)(b)(ii), MCA.
¶30 Comparing the offenses, each requires at least one element of proof the other does
not. For example, Surreptitious Visual Observation or Recordation requires someone to
“hide, wait, or otherwise loiter.” There is no such requirement to be convicted of Sexual
Abuse of Children. On the other hand, Sexual Abuse of Children (as charged here) requires
a child engaging in sexual conduct. Surreptitious Visual Observation or Recordation
merely requires an occupant, which could be a child or an adult, and says nothing about
sexual conduct. Surreptitious Visual Observation or Recordation is not a lesser-included
offense of Sexual Abuse of Children as the crimes were charged here. It does not matter
that the conduct Partain admitted to in his plea colloquy supports guilt for both offenses:
“Even when a defendant’s conduct could meet the elements of more than one crime, he is
not entitled to an instruction on an offense the State did not charge unless it is a lesser-
included offense.” Brown, ¶ 15. Similarly, even when Partain’s conduct supported guilt
13 for both offenses, the District Court did not have authority to sentence3 him to Surreptitious
Observation or Recordation unless it was a lesser-included offense.
(c) The District Court’s authority to reinstate a dismissed charge.
¶31 Without authority to amend the charge, as discussed above, the only way for the
District Court to do what it did would be to become prosecutor, jury, and judge by assuming
the powers of the state prosecutor in charging Partain with a crime; the jury in convicting
him of said crime; and the judge in sentencing. This it may not do. “No person or persons
charged with the exercise of power properly belonging to one branch shall exercise any
power properly belonging to either of the others, except as in this constitution expressly
directed or permitted.” Mont. Const. art. III, § 1.
¶32 We begin by acknowledging the State had already moved for, and the District Court
had granted, dismissal of the Surreptitious Visual Recordation or Observation charge. The
fact it was “without prejudice” does not grant the court authority to unilaterally re-charge
it. Instead, a criminal prosecution may only be commenced by (1) a complaint; (2) an
information following a preliminary examination or waiver of a preliminary examination;
(3) an information after leave of court has been granted; or (4) an indictment upon a finding
by a grand jury. Section 46-11-101, MCA; Mont. Const. art. II, § 20. Importantly, a
3 Partain argues, without citation to authority, that because the District Court imposed a deferred sentence, it did not actually sentence him. Thus, by extension, Partain argues the District Court could not impose an illegal sentence. Although the term “deferred sentence” can be understood that way, we have recognized “a deferred imposition of sentence is in fact a sentence.” State v. Kortan, 2022 MT 204, ¶ 17, 410 Mont. 336, 518 P.3d 1283 (citing State v. Thibeault, 2021 MT 162, ¶ 21 n.16, 404 Mont. 476, 490 P.3d 105); see also § 46-1-202(26), MCA (defining sentence to include a “judicial disposition of a criminal proceeding”). The District Court’s judgment, imposing a deferred sentence, was certainly a judicial disposition of his case which the State argues was contrary to law. Section 46-20-103(2)(h), MCA. 14 prosecutor, not a judge applies to the district court for permission to file an information.
Section 46-11-201(1), MCA. Only upon probable cause to believe a crime has been
committed may the judge approve the prosecutor’s application. Section 46-11-201(2),
MCA. Here, by effectively re-charging Partain with a crime the State and court had
dismissed, the court usurped the role of the prosecutor in charging crimes.
¶33 In Montana, county attorneys direct under what conditions a criminal action is
commenced, and they supervise and control such action until completion, subject only to
restrictions imposed by law. State ex rel. Fletcher v. Dist. Ct., 260 Mont. 410, 414,
859 P.2d 992, 995 (1993). “[W]hen the facts of a case support a possible charge of more
than one crime, the crime to be charged is a matter of prosecutorial discretion.” Fletcher,
260 Mont. at 415, 859 P.2d at 995. In Fletcher, the district court violated the separation of
powers when it denied the State’s motion to dismiss indictments. The State’s motion was
supported by good cause and was in the furtherance of justice. Fletcher, 260 Mont. at 417,
859 P.2d at 996. The District Court here also violated the separation of powers by charging
and convicting Partain of a crime that had been dismissed by the State pursuant to a valid
plea agreement: without statutory authority and without Partain pleading guilty to the
newly reinstated charge. Cf. Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106
(1986) (directing verdict unconstitutional no matter how overwhelming guilt is; “the error
in such a case is that the wrong entity judged the defendant guilty.”); State v. Porter,
No. DA 16-0251, Order (Mont. July 11, 2017) (reversing directed guilty verdict upon
State’s concession).
15 ¶34 In State v. David, 266 Mont. 365, 369, 880 P.2d 1308, 1311 (1994), we found no
violation of the separation of powers by a court commenting on other charges that might
be brought after denying a motion for leave to file an information based upon a lack of
probable cause. Here, however, there was probable cause—and indeed guilt—of a crime
to which Partain pleaded guilty. The District Court accepted his knowing, voluntary, and
intelligent plea. The court then unilaterally decided the prosecutor should have instead
brought a different charge that also fit the facts of the case and dismissed the Sexual Abuse
of Children charge. This action infringed on prosecutorial discretion and violated the
separation of powers.
¶35 Though Partain will not be heard to complain here, this Court cannot permit a
district court judge to unilaterally charge crimes, convict defendants without a trial or plea,
and sentence them. This system of checks and balances is vital to ensure protection of a
defendant’s rights. For the same reason, a prosecutor may not unilaterally amend charges
without leave of court. See State v. Cardwell, 187 Mont. 370, 375, 609 P.2d 1230, 1233
(1980) (holding unconstitutional statute authorizing amended information without leave of
court).
CONCLUSION
¶36 Under the facts of this case, the District Court had no statutory authority to dismiss
a felony charge Partain had already pleaded guilty to and amend or re-charge it with a
misdemeanor charge. The court exceeded its lawful authority and invaded the province of
the prosecutor in making charging decisions. The sentence is illegal.
16 ¶37 Reversed and remanded for resentencing on the Sexual Abuse of Children
conviction consistent with this Opinion.
/S/ CORY J. SWANSON
We Concur:
/S/ KATHERINE M BIDEGARAY /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE
Justice Ingrid Gustafson, concurring.
¶38 This is a difficult case and it is unfortunate the District Court did not fully assess or
understand the situation until it had accepted the defendant’s guilty plea and convened a
sentencing hearing. It is apparent the defendant engaged in rehabilitative and restorative
justice advocated by the victim and in which the victim participated. In this regard, privacy
in dealing with the situation was of utmost concern to the victim to permit her to address
the situation on her own terms within her own timeline. It is clear Judge Deschamps,
having been a county attorney with a decades-long career in prosecuting, had a good
understanding that public charging and sentencing is not the only means to bring about
rehabilitation and public safety, and, at times, charging or over-charging does more harm
than good for a victim and society. Regardless of the District Court’s best intentions, at
the time of sentencing, the District Court was constrained to: dismissing the felony charge
in furtherance of justice; rejecting the plea agreement and giving the defendant the
opportunity to withdraw his plea; or imposing a sentence—which could have been a
17 deferred imposition of sentence. Upon remand for resentencing, the District Court will
have the same constraints. The District Court did not have the authority to resurrect a
dismissed charge and then sentence on that charge.
/S/ INGRID GUSTAFSON
Justice Katherine Bidegaray joins in the concurring Opinion of Justice Ingrid Gustafson.
/S/ KATHERINE M BIDEGARAY