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State v. Webb1/25/2005
that subsection. A defendant must show a direct, personal injury resulting from application of the law in question in order to successfully challenge the constitutionality of a criminal statute. State v. Krantz (1990), 241 Mont. 501, 506, 788 P.2d 298, 301. We have previously declined to address alleged constitutional violations where the statute complained of was not applied to the complainant. State v. Goodwin (1984), 208 Mont. 522, 530, 679 P.2d 231, 235. Webb has not been affected by the alleged constitutional infirmities in the statutory examples he provides, so we will not address this issue.
Finally, Webb argues the statute "violates substantive due process because it arbitrarily and capriciously prohibits the kind of individual sentencing typical of the modern criminal justice system, except in a very limited number of cases . . . ." In other words, Webb maintains that mandatory minimum sentences negatively affect the fair administration of justice. He asserts that sentencing should be left to judicial discretion and not placed into the hands of the Legislature, which at least through this statute, has imposed unfair and arbitrary sentencing classifications. He alleges that statutes which impose mandatory minimum sentences generally deny the judge the legal power to depart and give a lesser sentence, no matter how unusual the special circumstances that call for leniency and, in reality, basically transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring against the offender. However, a review of the record demonstrates this is a case where the District Court analyzed the exception found at § 46-18-222(3), MCA, and found it did not apply to Webb.
We conclude the sentencing court correctly interpreted § 46-18-219, MCA, and afforded Webb due process when it sentenced him within the statutory sentencing limits to life in prison without the possibility of parole.
ISSUE THREE
Whether the mandatory minimum sentence set forth in § 46-18-219, MCA, violates the prohibition against cruel and unusual punishment under Article II, Section 22, of the Montana Constitution both on its face and as applied.
Webb argues the mandatory minimum sentence set forth in § 46-18-219, MCA, violates the prohibition against cruel and unusual punishment because, although it falls within the statutory maximum, it is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of justice. See State v. Tadewaldt (1996), 277 Mont. 261, 270-71, 922 P.2d 463, 469. He asserts this is particularly true because the statute does not give him an opportunity for parole, even if he rehabilitates himself. The statute, Webb contends, is cruel and unusual in that, once rehabilitated, it does not allow him an opportunity to return to the community.
Webb is a serial rapist and has demonstrated it is not likely he will be rehabilitated. The District Court listened to testimony by the defendant, victim, social worker and a probation and parole officer during the sentencing hearing. It also considered factors contained in the State's correctional and sentencing policy in light of the facts of this case. The District Court noted the following observations which supported its sentence and the inapplicability of the exception to the mandatory minimum sentence:
This Defendant served over 6 years for the identical crime. He went through Phases I and II of the Montana State Prison Sex Offender Program. Yet within 4 months of release, he reoffended. The psychosexual evaluation of Dr. Scolatti offers virtually no hope of rehabilitation. Mr. Webb is found to be in the
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