State prosecutors want to make sure poacher never hunts again
By Moosetrack Megan


State prosecutors want to make sure that a man who avoided prison time for baiting and poaching nine black bears never gets the right to hunt again. The prosecutors note James John Harrison avoided prison time when he was sentenced last year, with the judge saying that him not being allowed to hunt was enough of a punishment.

Prosecutors spotted a loophole that could possibly lead to Harrison one day getting his license back and they’ve filed an appeal to the Montana Supreme Court to see if they can quash it.

The entire text of the lawsuit can be found below.

STATEMENT OF THE ISSUE Is there a conflict between the oral pronouncement of sentence and the
written judgment?
STATEMENT OF THE CASE On January 14, 2015, State charged the Appellant James John Harrison
(Harrison) with unlawful possession, shipping, or transportation of game fish, bird,
game animal, or fur-bearing animal by common scheme, a felony, in violation of
Mont. Code Ann. §§ 87-6-202(1), (5), (6)(f); tampering with witnesses and/or
informants, a felony, in violationof Mont. Code Ann. § 45-7-206(1)(a); two counts
of tampering with public records or information, felonies, in violation of Mont. Code
Ann. § 45-7-208; and tampering with or fabricating physical evidence, a felony, in
violation of Mont. Code Ann. § 45-7-207. The charges stemmed from Harrison
illegally baiting and then poaching or participating in the poaching of nine black
bears. (D.C. Docs. 1, 4.)
On June 25, 2015, Harrison appeared in district court with counsel and pled
guilty to all of the charged offenses. The district court accepted the guilty pleas
and ordered a Presentence Investigation Report (PSI). (D.C. Doc. 26.)
On August 28, 2015, the PSI was filed with the district court. (D.C. Doc.
33.) In the PSI, Probation and Parole Officer Matt Moorereported that Harrison
had four prior misdemeanor fish and game offenses in Beaverhead County. Those
offenses were (1) knowingly attempting to hunt a game animal by use or aid of a
bait, (2) violating Department Commission rules and regulations by use ofa game
camera to scout and locate game animals during hunting season, (3) failing to wear
orange while hunting, and (4) violating Department Commission rules and
regulations by using an ATV to drive off road on DNRC land. (D.C. Doc. 33 at 2.)
Moore recommended a five-year suspended prison sentence and $9,000 in
restitution for the offense of unlawful possession, shipping, or transportation of
game fish, bird, game animal, or fur-bearing animal;a ten-year suspended prison
sentence for the offense of tampering with witnesses and/or informants;a five-year
suspended prison sentence for the two counts of tampering with public records or
information;and a ten-year suspended prison sentence for the offense of tampering
with or fabricating physical evidence. Id. at 10. Moore recommended that all of
the sentences run concurrently and that Harrison spend 45 days in the Ravalli
County Detention Center within six months of sentencing. Id. Moore
recommended a number of sentencing conditions, including the following:
23. The Defendant shall be prohibited from hunting, fishing, or trapping in the State of Montana during his lifetime.
24. The Defendant shall be prohibited from accompanying in the field any hunter, angler, or trapper in the State of Montana during his lifetime. Id. at 12.
The district court conducted a sentencing hearing on August 28, 2015.
Harrison admitted that he killed multiple bears over bait piles and that he tried to
cover up his bear baiting practices by moving bears from kill sites and falsifying
records. (8/28/15 Tr. at 58-59.) He also admitted that during the investigation he
tampered with a witness and destroyed physical evidence. (8/28/15 Tr. at 59.)
After listening to the testimony and counsels’ recommendations, the district
court orally imposed a five-year suspended prison sentence and $9,000 in restitution
for the offense of unlawful possession, shipping or transportation of game fish, bird,
game animal or fur-bearing animal by common scheme, a ten-year suspended
prison sentence for the offense of tampering with witnesses and/or informants, a
five-year suspended prison sentence for the two counts of tampering with public
records or information, and a ten-year suspended prison sentence for the offense of
tampering with or fabricating physical evidence. (8/28/15 Tr. at 73-75.) The
district court ordered all the sentences to run concurrently. (8/28/15 Tr. at 74-75.)
The district court suspended Harrison’s prison time on conditions 1 through 24 in
the PSI. Id.
In explaining why it was only imposing suspended prison sentences, the
district court noted it was imposing a lifetime loss of Harrison’s hunting, fishing
and trapping privileges and a lifetime prohibition on Harrison accompanying any
hunter, angler or trapper. (8/28/15 Tr. at 81.) The district court specifically stated:
I view Mr. Jimmy Harrison, with his ten years’ prison sentence and all those conditions placed on him, including conditions 23 and 24, which are lifetime loss of hunting, trapping and accompaniment privileges, asbeing–as contributions here, and as contributions to the community, as being enough of a means of attempting to address the problem that we had with this.
I’m thinking as well of having Mr. Harrison speak at some of these events, the Miss Rodeo event, about he made a mistake, or in some way he should talk to the younger people, including his grandson who’s going to know he can’t hunt, fish or trap or accompany him, why, he should be able to come up with some process that educates everybody else, Ithink that’s a fairer punishment for an intelligent man that takes responsibility, than just housing him in jail. The jail is tempting and I have no problem with putting people in jail, I’m not sure that that sufficiently tailors what we need to accomplish here with what message we need to send out either as a warning or as a punishment.
So I’m thinking that the ten years suspended will be plenty of time for the [S]tate to watch Mr. Harrison, if he does blow through a Stop sign, if he does exceed the speed limit, if he does accompany–that’s the worst one, Mr. Harrison, it will be quite a temptation for you, if he does accompany somebody hunting, fishing or trapping, then the State can revoke him and he’ll know why he’s sitting in jail or prison, and it won’t do any good if his friends show up again, because we’ll all agree that we talked about this. (8/28/15 Tr. at 81-83.)
On September 9, 2015, the district court issued its written judgment.
(D.C.Doc. 39, attached as App. A.) The district court’s written judgment did not
mirror the oral pronouncement of sentence concerning Harrison’s lifetime loss of
his hunting, fishing and trapping privileges and the lifetime prohibition on his
accompanying any hunter, angler and trapper. The district court’s written
judgment stated:
23. The Defendant shall be prohibited from hunting, fishing, or trapping in the State of Montana during his lifetime. Pursuant to § 46-18-208, the Defendant may file a petition for early termination of this sentence and/or this condition after 2/3 of the suspended sentence time has elapsed.
24. The Defendant shall be prohibited from accompanying in the field any hunter, angler, or trapper in the State of Montana during his lifetime. Pursuant to § 46-18-208, the Defendant may file a petition for early termination of this sentence and/or this condition after 2/3 of the suspended sentence time has elapsed. (App. A at 10.) (Emphasis in the original.)
On October 5, 2015, pursuant to Mont. Code Ann. § 46-18-116, the State
filed a motion to conform the written judgment to the district court’s oral
pronouncement of sentence. (D.C. Doc. 40.) The State noted that the oral
pronouncement of sentence is the legal effective sentence and valid final judgment
and that the written judgment is merely evidence of the oral sentence. Id. at 3,
citing State v. Simpson1999 MT 259, ¶ 6, 296 Mont. 335, 989 P.2d 361, citing
State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, 957 P.2d 9. The State also noted
that in the event of conflict between the district court’s oral pronouncement of
sentence and the written judgment, the oral pronouncement controls. Id.
The State argued that the district court should modify the written judgment
to conform to the oral pronouncement of sentence because the district court
expressly stated at sentencing that Harrison should lose his hunting privileges for
the remainder of his life and the court never mentioned that Harrison could seek an
early termination of the lifetime ban. Id. at 4. The State noted Mont. Code Ann.
§87-6-202(6)(f) provided the district court with the statutory authority to impose a
lifetime loss of hunting privileges. Id.
The State further argued that allowing Harrison to petition under Mont. Code
Ann. § 46-18-208 for an early termination of the lifetime hunting ban would render
the statutory lifetime sanction utterly meaningless. Id. The State contended:
The State anticipates that the Defendant will argue that he retained the right to seek an early termination of the hunting privilege condition pursuant to § 46-18-208, MCA. However, such an argument would render the life sanction in § 87-6-202(6)(f), MCA, utterly meaningless. The maximum sentence that can be imposed for a violation of § 87-6-202, MCA, is a five year commitment to the Montana State Prison. Using the Defendant’s logic, any defendant could seek the restoration of his or her hunting privileges after only 3.33 years, despite the fact that § 87-6-202(6)(f), MCA, provides that the privileges may be banned for life. It is well settled that particular statutory intent will control over the more general one. § 1-2-102, MCA. The life ban is the more particular. The District Court must modify the written judgment to conform to the oral pronouncement. Id. at 4.
On October 14, 2015, Harrison filed a response to the State’s motion, arguing
the written judgment merely sets forth the statutory right to petition for the
termination of the time remaining on a sentence pursuant to Mont. Code Ann.
§46-18-208. (D.C. Doc. 42 at 2-3.) Harrison also argued that “[e]ven if the specific
right to petition to terminate the remainder of the sentence were not included in the
Judgment, the rights as defined in M.C.A. § 46-18-208 would still remain.” Id. at 3.
Harrison contended that the district court’s pronouncing in the written judgment his
“specific statutorily created right to terminate the remaining portion of the
suspended sentence” is not barred by this Court’s holdings in Laneand Simpson. Id.
On October 16, 2015, the State filed a reply, arguing that the procedure to
terminate the time remaining on a suspended sentence under Mont. Code Ann.
§46-18-208 is inapplicable in this case because the lifetime loss hunting privileges
authorized by Mont. Code Ann. § 87-6-202(6)(f) is an independent criminal
penalty and not a condition of a suspended sentence. (D.C. Doc. 43 at 1-2.) The
State explained:
In pertinent part, § 46-18-208(1)(b), MCA, provides that a defendant may file a petition to terminatethe time remaining on a suspended sentence if: (1) the defendant has served two-thirds of the time suspended; and (2) the defendant has been granteda conditional discharged from supervision. When a [suspended] sentence expires, or when a District Courtterminates the time remaining on a sentence pursuant to § 46-18-208, MCA, all of the conditions that were imposed as a condition of that sentence are also terminated. The loss of the Defendant’s hunting privileges cannot therefore be a condition of his suspended sentence. The District Court unequivocallystated that the Defendant would lose his hunting privileges for the remainder of his life. The loss is specifically authorized by § 87-6-202(6)(f), MCA. (D.C. Doc. 43 at 1-2.)
On October 26, 2015, the district court issued a written opinion and order,
denying the State’s motion to conform the written judgment to the oral
pronouncement of sentence. (D.C. Doc. 44, attached as App. B.) The district court
acknowledged that when imposing the sentence, it orally pronounced that “Harrison
would lose his hunting, fishing, trapping, and accompanying privileges for life
[collectively referred to as “hunting privileges”] pursuant to § 87-6-202(6)(f),
MCA.” Id. at 1.
The district court found the State’s motion was premature, stating:
It is premature, because under the time period of Harrison’s 10 years suspended sentence, the earliest Harrison could file a termination petition is in 6 2/3 years. Harrison’s age is 62. Harrison is currently in fair health, and recently underwent a spinal laminectomy. Harrison’s future health condition in 6 2/3 years from now is unknown. He may be incapable of hunting, fishing, trapping or accompanying with anyone 6 2/3 years from now. Id. at 4.
The district court rejected the State’s argument that the lifetime loss of
hunting privileges is an independent penalty, rather than a condition of a suspended
sentence, and that the life time loss of hunting privileges cannot be shortened by a
petition filed pursuant to Mont. Code Ann. § 46-18-208. The district court stated:
Importantly, neither parties’ brief precisely address whether loss of hunting privileges is a condition of the sentence, or an independent penalty or forfeiture. Certainly, § 46-18-208, MCA permits the District Court to modify any suspended sentence including any condition of a suspended sentence upon petition of “the prosecutor or defendant . . . [after] the defendant has served two-thirds of the time suspended.” “A condition of a suspended sentence represents a requirement that the Montana Code permits a court to place upon its order suspending an offender’s sentence.[”] State v. Letasky, 2007 MT 51, ¶ 15, 336 Mont. 178, 152 P.3d 1288. If, as the
State appears to concede, the lifetime ban is a condition of Harrison’s sentence, the Court may modify it.
Neither of the parties briefs focused on the word “time” in §46-18-208. The overall time of a suspended sentence clearly may be shortened under the wording of 46-18-208(1). The State argues that Harrison’s lifetime hunting is an independent penalty imposed under 87-6-202(6)(f)which runs along a parallel non-modifiable time track which extends past the end of Harrison’s 10-year suspended sentence. The State contends the lifetime ban of this independent penalty of forfeiture of hunting privileges may never be shortened. The State offers no authority for this absolutistcontention. Id. at 4-5.
On November 13, 2015, the State appealed the district court’s September 9,
2015 judgment, and the district court’s October 26, 2015 opinion and order
denying the State’s motion to conform the written judgment to the oral
pronouncement of sentence.
STATEMENT OF THE FACTS Since Harrison pled guilty to all of the charged offenses, the following facts
are taken directly from the State’s Motion for Leave to File Information and
Affidavit in Support. (D.C. Doc. 1.)
On the morning of June 5, 2014, Warden Lou Royce of Montana Fish
Wildlife & Parks (“MFWP”) received a telephone call from the Defendant,
JAMESJOHN HARRISON, stating that his two friends, Kyle Whyard and Richard
Sublette, had each killed a black bear the previous evening in the Trail Creek area of
the Big Hole Valley, located in Beaverhead County, Montana. The Defendant stated
that the bears were a male and female pair that were shot in close proximity to each
other. Warden Royce made arrangements to inspect the bears on the morning of
June 6, 2014, at Big Bear Taxidermy in Darby, Montana. (D.C. Doc. 1 at 2.)
Later that evening, MFWP received an anonymous callinforming them that
the Defendant was in possession of a black bear just off West Fork Road in Ravalli
County, Montana. Warden Royce responded to the area and located two bear
carcasses dumped together near Hart Bench Road and Trapper Creek Road, in
Ravalli County, Montana. The carcasses were a male and female pair, had large
chunks of meat removed, but still possessed large quantities that would have been
fit for human consumption. One of the bears had a Montana bear license taped to
the rear leg, which identified it as belonging to Kyle Whyard. The bear carcasses
were taken into custody. Id.
On June 6, 2014, Warden Royce had the bear carcasses inspected by
MartyAuch, a professional butcher and owner of the Hamilton Packing Company.
Auch inspected the carcasses and determined that only 30-40percentof the
consumable meat from the first bear, and only 50percentof the consumable meat
from the second bear, had been removed. Auch confirmed that the remaining meat
on both bears had been wasted and was no longer fit for human consumption. Id.
Warden Royce then reviewed Whyard’s Facebook page and observed
several photographs labeled “Spring Bear Hunt 2014.” One photograph depicted
Whyard with two bears strapped to an ATV. A second photograph depicted the
Defendant driving the same ATV onto the back of a truck. Neither of the bears
appeared to have been gutted in the photographs. Id. at 3.
Warden Royce then met with Whyard at the Tripple Creek Ranch in Ravalli
County, Montana. During the interview, Whyard stated that his bear was killed in
the Trail Creek area of Beaverhead County, Montana. Whyard traveled with
Warden Royce to the alleged kill site, and located two gut piles. On the drive back
to the Triple Creek Ranch, Warden Royce showed Whyard the photographs that
were posted on Whyard’s Facebook page. Whyard stated the photographs were
taken from the Trail Creek area in Beaverhead, County, Montana. Warden Royce
pointed out the absence of any truck or ATV tracks atthe alleged kill site, and the
fact that the bears in the pictures did not appear to have been gutted. Whyard then
declined to speak anyfurther without an attorney. Id.
Warden Royce thereafter met with the Defendant on June 6, 2014. Initially,
the Defendant stated that the bears had been killed in the Trail Creek area of
Beaverhead County, Montana. However, on June 9, 2014, Warden Royce spoke
with the Defendant a second time. The Defendant then changed his story and
admitted to moving the animals from the actual kill site to another location. Id.
Warden Royce thereafter showed the Defendant a photograph that he received
from Warden Regan Dean on June 2, 2014. The photograph was taken from a game
camera that was positioned near a bear baiting station that had recently been found
in Beaverhead County, Montana. The Defendant admitted that he was the individual
who was depicted in the photograph, and he admitted to setting up the bear baiting
station. The Defendant also admitted to destroying photographic evidence of his
bear baiting activities after Warden Royce contacted him on June 4, 2014. Id. at 3-4.
The Defendant thereafter detailed nine bears that he was involved in killing
with use or aid of bait in Ravalli and Beaverhead Counties:
– On June 4, 2014, the Defendant assisted Kyle Whyard, who shot and killed a black bear near the Hirschy Ranch located in Beaverhead County, Montana. The bear was takenusing the aid of bait. The Defendant assisted in the transportation of the bear. The skin was ultimately recovered from Big Bear Taxidermist in Ravalli County, Montana.
– On June 4, 2014, the Defendant assisted Richard Sublette who shot and killed a black bear near the Hirschy Ranch located in Beaverhead County, Montana. The bear was taken using the aid of bait. The Defendant assisted in the transportation of the bear. The skin was ultimately recovered from Big Bear Taxidermist in Ravalli County, Montana.
– On June 9, 2013, the Defendant shot and killed a black bear in the Moose Creek area located in Beaverhead County, Montana. The bear was taken using the aid of bait. The Black Bear Harvest Formthat the Defendant filled out on June 11, 2013, and which was filed with the MFWP, reported that the bear was taken at another location in Beaverhead County, Montana. The bear was taken to a taxidermist and was given a full body
13
mount. The mount was ultimately recovered in the Defendant’s business in Ravalli County, Montana.
– On June 15, 2012, the Defendant shot and killed a black bear near the Hirschy Ranch located in Beaverhead County, Montana. The bear was taken using the aid of bait. The Black Bear Harvest Formthat the Defendant filled out on June 15, 2011, [sic] and which was filed with MFWP, reported that the bear was taken at another location in Beaverhead County, Montana. The bear was taken to a taxidermist and was given a full body mount. The mount was ultimately recovered in the Defendant’s business in Ravalli County, Montana.
– On May 18, 2012, the Defendant assisted Kyle Whyard, who shot and killed a black bear near Pasture Draw located in Ravalli County, Montana. The bear was taken using the aid of bait. The Defendant assisted in the transportation of the bear. The bear skin rug was ultimately recovered from Whyard’s office at Triple Creek Ranch, in Ravalli County, Montana.
– On May 31, 2011, the Defendant assisted Richard Sublette, who shot and killed a black bear near Pasture Draw located in Ravalli County, Montana. The bear was taken using the aid of bait. The Defendant assisted in the transportation of the bear. The bear skin rug was ultimately recovered from Sublette’s residence in Ravalli County, Montana.
– On May 5, 2009, the Defendant assisted Robert Adair, who shot and killed a black bear near Pasture Draw located in Ravalli County, Montana. The bear was taken using the aid of bait. The bear was taken to a taxidermist and was given a half body mount. The mount was ultimately recovered in the Defendant’s residence in Ravalli County, Montana.
– On May 17, 2009, the Defendant assisted Wolfgang Kuhn, who shot and killed a black near Pasture Draw located in Ravalli County, Montana. The bear was taken using the aid of bait. The Defendant assisted inthe transportation of the bear. The bear skin rug was ultimately recovered from Kuhn’s residence in Ketchum, Idaho.
– On May 23, 2009, the Defendant shot and killed a black near Pasture Draw located in Ravalli County, Montana. The bear was taken to a taxidermist and was given a full body mount. The mount was ultimately recovered in the Defendant’s residence in Ravalli County, Montana. Id. at 4-5.
On June 19, 2014, Warden Royce met with Wolfgang Kuhn in Darby,
Montana. Kuhn confirmed that he had killed a bear on May 17, 2009, in Ravalli
County, Montana. Kuhn also stated that the Defendant called him between June 4,
2014 and June 19, 2014, and told him that he was in trouble for bear baiting.
During that conversation, the Defendant asked Kuhn to tell Warden Royce that he
killed his 2009 bear in Beaverhead County, Montana. Id. at 5.
SUMMARY OF THE ARGUMENT The district court erred in denying the State’s motion to conform the written
judgment to the district court’s oral pronouncement of sentence. Atthe oral
pronouncement of sentence the district court never stated that Harrison could seek
an early termination of the lifetime forfeiture of his hunting, fishing and trapping
privileges or the lifetime prohibition on his accompanying any hunter, angler or
trapper in the field. The district court’s written judgment conflicts with the oral
pronouncement of sentence. The district court’s permitting Harrison to petition for
the suspension of his lifetime forfeiture of his privileges and the prohibition on his
accompanying others in the field after serving only two-thirds of his ten year
suspended sentenceis invalid.
ARGUMENT I. STANDARD OF REVIEW On appeal, “this Court reviews a criminal sentence for legality; that is, whether
the sentence falls withinthe statutory parameters.” State v. Duong, 2015 MT 70,
¶11, 378 Mont. 345, 343 P.3d 1218. Also, a district court’s statutory interpretation is
a question of law, which this Court reviews to determine whether it is correct. Id.
II. THE DISTRICT COURT ERRED IN DENYING THE STATE’S MOTION TO MODIFY THE WRITTEN JUDGMENT TO CONFORM TO THE ORAL PRONOUNCMENT OF SENTENCE. The oral pronouncement of a criminal sentence in the presence of the
defendant is the “‘legally effective sentence and valid, final judgment.’” State v.
Claassen, 2012 MT 313, ¶ 16, 367 Mont. 478, 291 P.3d 1176;Lane, ¶ 40. In the
event of a conflict between the oral pronouncement of sentence and the written
judgment, the oral pronouncement of sentence controls. Claassen, ¶ 16; Lane, ¶ 48.
Harrison pled guilty to and was convicted of unlawful possession, shipping,
or transportation of game fish, bird, game animal or fur-bearing animal for his
unlawfully possessing or transporting all or part of nine illegally killed black bears.
(D.C. Docs. 1, 26, 39.) The penalty for Harrison’s unlawful possession offense is
set forth in Mont. Code Ann. § 87-6-202(6)(f), which provides:
If a person is convicted under this section or forfeits bond or bail after being charged with a violation of this section and if the value of all or part of the game fish, bird, game animal, or fur-bearing animal or combination thereof exceeds $1,000, the person shall be fined not more than $50,000 or be imprisoned in the state prison for a term not to exceed 5 years, orboth. In addition, the person shall forfeit any current hunting, fishing, or trapping license or permit issued by this state and the privilege to hunt, fish, or trap in this state for not less than 3 years up to a revocation for life from the date of conviction. (Emphasis added.)
At the oral pronouncement of sentence, pursuant to Mont. Code Ann.
§87-6-202(6)(f), the district court imposed a five-year suspended prison sentence
for the unlawful possession offense and pronounced that Harrison would lose his
hunting, fishing and trapping privileges for life. The district court also orally
imposed a lifetime prohibition on Harrison from accompanying any hunter, angler or
trapper. (8/28/15 Tr. at 73-74, 81.)
In the written judgment, the district court imposeda five-year suspended
sentence for the unlawful possession offense and a total overall ten-year suspended
sentence. (App. A at 4-6.) The Court included the lifetime hunting, trapping and
fishingban as a condition of Harrison’s overall ten-year suspended sentence. Also,
as a condition of Harrison’s suspended sentence, the district court prohibited
Harrison from accompanying any hunter, angler or trapper during his lifetime.
After imposing both conditions, the district court wrote: “Pursuant to § 46-18-208,
the Defendant may file a petition for early termination of this sentence and/or this
condition after 2/3 of the suspended sentence time has elapsed.” (App. A at 10.)
At the oral pronouncement of sentence, the district court never stated that
Harrison could seek an early termination of the lifetime loss of his hunting, fishing
and trapping privileges or the lifetime prohibition of accompanying any hunter,
angler or trapper. The district court’s written judgment conflicts with the district
court’s oral pronouncement of sentence. The district court’s granting Harrison
permission to petition for an early termination of the lifetime loss of his hunting,
fishing and trapping privileges and the lifetime prohibition of accompanying others
in the field, substantiallychanges the oral pronouncement of sentence.
Accordingly, the blanket lifetime hunting, fishing and trapping privileges ban and
the ban on accompanying others in the field announced by the court during the oral
pronouncement of sentence is controlling and the district court’s permitting
Harrison to petition for the suspension of those lifetime bans in the written
judgment is invalid. Claassen, ¶ 16; Lane, ¶ 48.
In denying the State’s motion to conform the written judgment to the oral
pronouncement of sentence, the district court found that the State’s motion was
premature because the earliest Harrison could file a petition to terminate his
suspended sentence and the lifetime loss of his hunting, fishing and trapping
privileges and the lifetime prohibition on his accompanying other hunters, anglers
or trappers would be in 6 2/3 years and the district court believed by that time
Harrison might not be healthy enough to hunt, fish or trap. (App. B at 4.)
Harrison’s future heath and whether he is physically able to hunt, fish or trap
in the future, does not change the fact that the oral pronouncement of sentence
conflicts with the written judgment and that the oral pronouncement is the legally
effective sentence. Claassen, ¶ 16; Lane, ¶ 48. Harrison’s health and whether he
is going to hunt, fish, and trap in the future should play no role in analyzing
whether the oral pronouncement of sentence conflicts with the written judgment.
Also, it is highly likely that Harrison, a lifetime avid hunter, a man who even
hunted while on crutches (8/28/15 Tr. at 57), will continue to hunt if given the
chance to do so. At sentencing, Harrison even stated that he should be able to
hunt, fish and trap again and that he wanted to take his grandson hunting. (8/28/15
Tr. at 61, 63-64.) Harrison was only 62 years old at the time of sentencing. Many
people hunt, fish, and trap into their late sixties and beyond.
In denying the State’s motion to conform the written judgment to the oral
pronouncement of sentence, the district court concluded that the lifetime loss of
hunting, fishing, and trapping privileges imposed under Mont. Code Ann.
§87-6-202(6)(f) is a condition of Harrison’s suspended sentence(App. Bat 5) and
that Mont. Code. Ann. § 46-18-208, permits a district court “to modify any
suspended sentence including any condition of a suspended sentence upon petition
of ‘the prosecutor or defendant . . . [after] the defendant has served two-thirds of
the time suspended.’” (App. A. at 4.)
The district court’s conclusion overlooks the fact that the oral pronouncement
of sentence, which makes no mention of allowing Harrison to petition to modify the
lifetime loss of his hunting, fishing and tapping privileges, is the valid and controlling
legal sentence. Also, the district court incorrectly concluded that lifetime loss of
Harrison’s hunting, fishing and trapping privileges imposed under Mont. Code Ann.
§ 87-6-202(6)(f) is a condition of Harrison’ssuspended sentence and one that can be
modified upon a petition filed under Mont. Code Ann. § 46-18-208,
In addition to a fine and a maximum prison sentence of five years,
Mont. Code Ann. § 87-6-202(6)(f) mandates that a person convicted of unlawful
possession shall forfeit “the privilege to hunt, fish, or trap in this state for not less
than 3 years up to a revocation of life from the date of conviction.” The forfeiting
of hunting, fishing and trapping privileges is not imposed as a condition of a
suspended sentence, but instead as an independent penalty mandated by Mont. Code
Ann. § 87-6-202(6)(f). There is no provision in Mont. Code Ann. § 87-6-202which
allows a district court to shorten the hunting, fishing, and trapping forfeiture period.
Becausethe lifetime forfeiture of Harrison’s hunting, fishing and trapping
privileges is a statutorily imposed independent penalty and not a condition of his
suspended sentence, there can be no modification of the lifetime forfeiture
pursuant to Mont. Code Ann. § 46-18-208. To hold that otherwise would render a
lifetime forfeiture of hunting, fishing and trapping privileges for serial poachers
like Harrison meaningless.
Construing Mont. Code Ann. § 46-18-208 to allow the modification of
Harrison’s statutorily imposed lifetime forfeiture of his hunting, fishing and
trapping privileges “would be an absurd result, and statutory construction should
not lead to absurd results if a reasonable interpretation would avoid it.” State v.
Sommers, 2014 MT 315, ¶ 22, 377 Mont. 203, 339 P.3d 65. If this Court were to
accept the district court’sreasoning that the forfeiture of hunting, fishing, and
trapping privileges under Mont. Code Ann. § 87-6-202(6)(f) is not an independent
penalty, but a condition of a suspended sentence, Harrison’s lifetime forfeiture
would expire as soon as he served his ten-year suspended sentence. In other
words, a lifetime forfeiture of hunting, fishing and trapping privileges would only
last as long as the suspended sentence. Also, if the lifetime forfeiture of hunting,
fishing, and trapping privileges is not an independent penalty, but only a condition
of a suspended sentence, a poacher who receives a straight prison sentence with no
time suspended could never have his or her privileges forfeited.
The State requests that the Court remand this case to the district court with
instructions to strike the provisions in sentencing conditions number 23 and 24 of
the written judgment which allow Harrison to petition for the termination of the
lifetime loss of his hunting, fishing and trapping privileges and for the termination
of the lifetime prohibition on Harrison accompanying any hunter, angler or trapper.
Also, since the lifetime loss of Harrison’shunting, fishing and trapping privileges
is a statutorily imposed independent penalty and not a condition of a suspended
sentence, this Court should instruct the district court to amend sentencing condition
number 23 by removing the phrase “during his life time.” Sentencing condition
number 23 should state: “The Defendant shall be prohibited from hunting, fishing,
or trapping in the State of Montana.” Sentencing condition number 24 should
state: “The Defendant shall be prohibited from accompanying in the field any
hunter, angler or trapper in the State of Montana during his lifetime.”
Finally, in order to comply with the oral pronouncement of sentence and the
statutorily mandated forfeiture penalty in Mont. Code Ann. § 87-6-202(6)(f), this
Court should instruct the district court to set forth the lifetime forfeiture of
Harrison’s hunting, fishing and trapping privileges as an independent sentencing
penalty or provision in the written judgment.
CONCLUSION The district court’s oral pronouncement of sentence conflicts with the
written judgment. The district court should have granted the State’s motion to
conform the written judgment to the oral pronouncement of sentence. The State
respectfully requests that the Court remand the case to the district court with
instructions to amend the written judgment as set forth in the State’s argument.
Respectfully submitted this 2ndday of June, 2016.
TIMOTHY C. FOX Montana Attorney General 215NorthSanders P.O. Box 201401 Helena, MT59620-1401
By: /s/ Micheal S. Wellenstein MICHEAL S. WELLENSTEIN Assistant AttorneyGeneral CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify
that this principal brief is printed with a proportionately spaced Times New Roman
text typeface of 14 points; is double-spaced except for footnotes and for quoted and
indented material; and the word count calculated by Microsoft Word for Windows
is 5,530words, excluding certificate of service and certificate of compliance.
/s/ Micheal S. Wellenstein MICHEAL S. WELLENSTEIN
23
IN THE SUPREME COURT OF THE STATE OF MONTANA






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