State v. Noel , 2006 MT 221N ( 2006 )

No. 05-322
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 221NSTATE OF MONTANA,
Plaintiff and Respondent,
v.
GEORGE NOEL,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DC 98-94
Honorable Michael C. Prezeau, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kevin E. Vainio, Attorney at Law, Butte, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Ilka Becker,
Assistant Attorney General, Helena, Montana
Bernard G. Cassidy, Lincoln County Attorney, Libby, Montana
Submitted on Briefs: August 8, 2006
Decided: September 6, 2006
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 George Noel (Noel) appeals from the order entered by the Nineteenth Judicial District
Court, Lincoln County, denying his “Motion For Nunc Pro Tunc Order.” We affirm.
¶3 In March of 2000, Noel pled guilty pursuant to a plea agreement to the felony offense
of sexual assault. The District Court sentenced Noel in September of 2002. As part of the
sentence, the District Court designated Noel as a level 3 sex offender based on
recommendations contained in both the presentence investigation report and Noel’s sex
offender evaluation. In March of 2005, Noel moved the District Court for an order nunc pro
tunc, requesting the court to change his sex offender designation from a level 3 to a level 1 or
2. Noel asserted, in part, that his level 3 designation was erroneous because the court did not
find that he was a sexually violent predator as required by § 46-23-509, MCA. The District
Court denied the motion pursuant to § 46-18-116, MCA, concluding that it had no
jurisdiction to enter such an order because the original sentence was not factually erroneous.
Noel appeals.
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¶4 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that the appeal is without
merit because the issues are clearly controlled by settled Montana law which the District
Court correctly interpreted.
¶5 Section 46-18-116(3), MCA, provides that a “court may correct a factually erroneous
sentence or judgment at any time. Illegal sentences must be addressed in the manner
provided by law for appeal and postconviction relief.” An amendment under the “factually
erroneous” portion of this statute “may only be made to correct an error that is apparent on
the face of the record so as to insure that the correction does not in effect set aside a judgment
actually rendered nor change what was originally intended.” State v. Megard, 2006 MT 84, ¶
19, 332 Mont. 27, ¶ 19, 134 P.3d 90, ¶ 19. It is clear from the record that the District Court’s
original intent in sentencing Noel was to designate him as a level 3 sex offender and,
therefore, that designation was not factually erroneous. We conclude that the District Court
did not err in denying Noel’s motion for an order nunc pro tunc.
¶6 Noel also asserts that the District Court erred in denying his request for transcripts,
which he apparently requested following the court’s denial of his motion for a nunc pro tunc
order. However, neither Noel’s request for transcripts nor the District Court’s denial of that
request are contained in the District Court record. It is an appellant’s obligation to provide
this Court with a complete and accurate record on appeal. State v. Arlington, 265 Mont. 127,
145, 875 P.2d 307, 318 (1994); M. R. App. P. 9(a). In the absence of a sufficient record on
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appeal, we have no choice but to affirm the District Court in this regard. Arlington, 265
Mont. at 146, 875 P.2d at 318.
¶7 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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