concluding that Garrymore’s argument under Article II, Sections 24 and 26 was “too undeveloped to undertake a distinctive application of state constitutional principles”
How later courts described this case
- concluding that Garrymore’s argument under Article II, Sections 24 and 26 was “too undeveloped to undertake a distinctive application of state constitutional principles”
- applying Lenihan exception to unpreserved objection that statutorily authorized parole restriction violated § 46-1-401, MCA, and related federal and state constitutional rights
- declining to address argument that was “too undeveloped to undertake a distinctive application of state constitutional principles”
Written by the judges who cited it.
Distinguished
Distinguished by State v. Christopher Lewis, 365 Mont. 431 (2012)
State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, is inapposite because the issue was not whether the proper statutory requirements were followed -as it is here -but whether the parole eligibility restriction in and of itself violated Garrymore’s federal and state constitutional and statutory rights.
The opinion
CHIEF JUSTICE GRAY
specially concurring.
¶41 I concur in the Court’s opinion on both issues. I write separately to caution criminal defense attomeys-public defenders, appellate public defenders and privately retained counsel-that I, at least, will expect more from them in future cases asserting Lenihan.
¶42 As is apparent from the Court’s discussion of the State’s arguments about Lenihan’s applicability, the application of that case is far from automatic. Not every sentence to which no objection is made at the time of sentencing may successfully be appealed under Lenihan. Thus, it is my view that the party asserting the “Lenihan exception” bears the burden of establishing her or his entitlement to that exception. A mere reference and citation to Lenihan will not suffice in the future, at least for me.
¶43 Here, in the standard of review section of Garrymore’s opening brief, counsel merely cited to Lenihan and its progeny for the proposition that a “criminal sentence may be reviewed on appeal if it is alleged to be illegal or in excess of statutory mandates.” Counsel then stated, without analysis, that “[a] failure to raise a contemporaneous objection to an illegal sentence at the time of hearing does not result in a waiver of the defendant’s objection!,]” and cited to four of our cases for that proposition. The problem with this approach is that we have other cases refusing to apply the Lenihan exception. It is my view that counsel must present more in the way of discussion and analysis regarding entitlement to the exception.
¶44 When appellate counsel fails to do so, the result is a discussion such as that contained in our opinion here: the burden of establishing an appellant’s entitlement to the Lenihan exception improperly shifts. Under this shift, the State becomes responsible for establishing why Lenihan does not-or should not-apply in a given case. While this has been our approach in the past, it is an approach I am unwilling to continue to follow. Therefore, I encourage criminal defense counsel to clearly establish entitlement to the exception in their opening brief, or risk a determination that-because they have not done so-they have not met their burden on appeal.