Sunday, February 04, 2007
No. 05-178 State v. RAMON KOTWICKI,2007 MT 17 Justice James C. Nelson, concurring in part and dissenting in part I agree with the Court that the threshold question before us is whether Kotwicki has raised “a plausible allegation that his sentence is illegal” under State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). See Opinion, ¶ 18. However, I disagree with the Court’s ultimate answer to this question. If we were to adhere to the doctrine of stare decisis and to our recent decision in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, we would reach the merits of Kotwicki’s sentencing claim. Unfortunately, the Court embarks on a new course that rests on erroneous interpretations of our Lenihan cases and conflicts with our decision in Garrymore, thereby creating further confusion and unpredictability in our Lenihan jurisprudence. I therefore dissent from the Court’s decision. Because Kotwicki alleges that the District Court lacked statutory authority to impose the $25,000 fine because it failed to make the ability-to-pay determination required by § 46-18-231(3), MCA, he has raised a plausible allegation that his sentence is illegal and he may obtain review of his sentencing claim on appeal.Justice James C. Nelson, concurring in part and dissenting in part.