Summary
The Montana Supreme Court affirmed the denial of George Noel’s motion for a nunc pro tunc order seeking to change his level 3 sex offender designation. The court held that the designation was not factually erroneous because it reflected the District Court’s original sentencing intent. The court also affirmed the denial of Noel’s request for transcripts because the relevant request and denial were not included in the appellate record.
Topics
Practice areas
Questions Presented
- Whether the District Court could use a nunc pro tunc order under Montana Code Annotated § 46-18-116(3) to change Noel's level 3 sex-offender designation.
- Whether the District Court erred in denying Noel's request for transcripts when the request and denial were absent from the appellate record.
Holdings
- A nunc pro tunc correction under Montana Code Annotated § 46-18-116(3) is unavailable when the challenged sentence accurately reflects the sentencing court's original intent. Because the record showed that the District Court intended to designate Noel as a level 3 sex offender, the designation was not factually erroneous and the denial of the motion was proper.
- The Supreme Court could not reverse the denial of transcripts because the appellate record did not contain either Noel's request or the District Court's denial, and the appellant bears responsibility for providing a complete and accurate record.
Key quotations
“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.”” (¶ 5)
“It is an appellant’s obligation to provide this Court with a complete and accurate record on appeal.” (¶ 6)
Factual background
Noel pleaded guilty to felony sexual assault under a plea agreement. When sentencing him in September 2002, the District Court designated him a level 3 sex offender based on recommendations in the presentence investigation report and sex-offender evaluation. Noel later sought a nunc pro tunc order changing the designation, asserting that the court had not found him to be a sexually violent predator as required by statute. He also asserted that the District Court improperly denied his request for transcripts, but the request and denial were not included in the appellate record.
Procedural history
Noel pleaded guilty pursuant to a plea agreement to felony sexual assault in March 2000. The District Court sentenced him in September 2002 and designated him a level 3 sex offender. In 2005, he moved for a nunc pro tunc order changing the designation to level 1 or 2; the District Court denied the motion for lack of jurisdiction under Montana law. The Montana Supreme Court affirmed.