State v. E. Fernandez, 2016 MT 311N

In 2006 Fernandez was convicted of felony incest and given a 20-year sentence with 16 years suspended.
In 2013 the State sought revocation of the suspended sentence and charged Fernandez with failure to register as a sexual offender and issuing bad checks.
Fernandez entered an open no-contest plea in December 2013 to the bad-checks charge and signed a plea form acknowledging the court could order restitution.
In January 2014 Fernandez and the State entered a global § 46-12-211(1)(b) plea agreement covering all charges that listed “$00.00” for restitution, and the court adopted the agreement as to sentencing range.
At sentencing the court ordered $2,731.17 in restitution plus a 10% administrative fee as recommended by the PSI; Fernandez did not object and stated he could and would pay restitution within two years.
Fernandez appealed, arguing the court’s imposition of restitution rejected the (1)(b) plea agreement and triggered statutory procedures allowing withdrawal of the plea; the State argued waiver and that the plea was not rejected.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court’s imposition of restitution rejected the § 46-12-211(1)(b) plea agreement and required the court to follow § 46-12-211(4) procedures	The State: the plea agreement was not rejected; restitution was part of sentencing and defendant acquiesced	Fernandez: restitution contradicted the agreement’s $0 restitution term and thus amounted to rejection requiring advising and opportunity to withdraw	Court held Fernandez waived the argument by failing to object at sentencing and by stating willingness/ability to pay; no § 46-12-211(4) relief was triggered

State v. Walker, 167 P.3d 879 (Mont. 2007) (appellate review limited when defendant failed to object below; WAIVER principle for sentencing issues)
State v. Zunick, 339 P.3d 1228 (Mont. 2014) (explains court duties when rejecting a § 46-12-211(1)(b) plea agreement)
State v. Eaton, 99 P.3d 661 (Mont. 2004) (defendant’s acquiescence can preclude appellate relief)
State v. Micklon, 65 P.3d 559 (Mont. 2003) (same; defendant participation waives error)
State v. Harris, 983 P.2d 881 (Mont. 1999) (court will not reverse for actions to which defendant acquiesced)