State v. Johnson, 2011 MT 286

Johnson appeals a judgment for intimidation, a felony, challenging restitution and two sentencing conditions restricting contact with places where children congregate and private gatherings with minors and alcohol/drugs.
The State proposed a ten-year DOC commitment with five years suspended; court ordered Johnson to pay past counseling costs ($11,250) and future counseling costs, and imposed conditions restricting places he may frequent.
Johnson’s stepdaughter testified about years of sexually abusive conduct starting when she was 12; she incurred ongoing counseling costs since age 19.
At sentencing, the court treated the offense as sexual in nature and explained a harsher sentence than the plea recommendation.
Issues center on: (a) whether restitution was properly ordered, especially future counseling restitution and applicable restitution statutes/retroactivity, and (b) whether the conditions restricting movement and attendance at events involving children were proper given Johnson’s offense.
This Court remands for calculation of future restitution to comply with statute, and otherwise affirms the sentence with guidance on appellate preservation of certain conditions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Restitution legality and retroactivity	Johnson argues 1999 restitution statute applies; 2003 amendments not retroactive to him.	State contends 2003 amendments retroactively apply to offenders with unpaid restitution obligations as of Oct. 1, 2003.	Remand to calculate future restitution; past restitution review foregone due to forfeiture rules; retroactivity resolved in favor of remand guidance.
Restitution for future counseling complies with statute	Johnson contends future restitution was not specified with amount/method/time.	State concedes noncompliance with § 46-18-244, MCA (1999).	Vacate future restitution condition and remand to correct per § 46-18-244.
Validity of not-to-frequent-other-places condition	Condition is overly broad and burdensome without nexus to offense.	Conditions reasonably related to rehabilitation and protection with potential flexibility via court relief.	Appellate review deferred due to lack of objection; remand for potential relief if unduly burdensome.
Validity of private gatherings where alcohol/drugs present condition	Condition too restrictive and not clearly tied to offense.	Condition serves protection objectives; may be adjusted by court.	Appeal not addressed on merits due to preservation issue; remand/relief possible if burdensome.

State v. Essig, 353 Mont. 99 (2009 MT 340) (restitution amount review standards)
State v. Sadowsky, 347 Mont. 192 (2008 MT 405) (two-step review of sentencing conditions)
State v. Kotwicki, 151 P.3d 892 (2007 MT 17) (Lenihan exception and review limits)
State v. Guill, 359 Mont. 225 (2011 MT 32) (remand for restitution computation under § 46-18-244)
State v. Heafner, 231 P.3d 1087 (2010 MT 87) (remedies when restitution/criteria noncompliant)