CITY OF BILLINGS, Plaintiff and Appellee, v. DARLA EDWARD, Defendant and Appellant.
No. DA 11-0338.
Supreme Court of Montana
August 28, 2012
2012 MT 186 | 366 Mont. 107 | 285 P.3d 523
Decided August 28, 2012.
For Appellant: Wade M. Zolynski, Chief Appellate Defender,
For Appellee: Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena; Brent Brooks, Billings City Attorney, Curtis Bevolden, Deputy City Attorney, Billings.
JUSTICE COTTER delivered the Opinion of the Court.
¶1 Darla Edward (Edward) appeals from the Order Affirming Restitution Obligation (Order), entered by the Thirteenth Judicial District Court of Yellowstone County, Montana, following a collision between her car and a bicyclist and an ensuing Municipal Court trial and sentencing.
¶2 We affirm.
ISSUES
¶3 Edward raises four issues on appeal. We restate the issues as follows:
¶4 1. Did the District Court err when it held that the jury determined causation?
¶5 2. Does substantive evidence in the record support the amount of restitution awarded?
¶6 3. Were Edward’s constitutional rights to a jury and a fair trial violated?
¶7 4. Did Edward receive ineffective assistance of counsel?
FACTUAL AND PROCEDURAL BACKGROUND
¶8 On May 26, 2010, Edward exited a beauty salon in Billings, Montana. As Edward drove out of the parking lot, Karen Zaso (Zaso) was riding her bicycle on the sidewalk, going southbound against traffic. According to two witnesses, a collision occurred between Edward’s car and Zaso’s bicycle. Joseph Desson (Desson), one of the witnesses, testified that Edward’s car hit Zaso’s bicycle and that Zaso was thrown into the street in front of his vehicle. Desson said he stopped abruptly to avoid running over Zaso, and was then rear-ended by the vehicle behind him. Lynsey Hagan (Hagan), the other witness and a passenger in the vehicle behind the vehicle that rear-ended Desson’s vehicle, also testified that Edward’s vehicle hit Zaso’s bicycle. According to Hagan, Edward did not appear to know she had hit someone, and she looked as if she was going to run Zaso over after Zaso fell to the ground. Hagan testified that when Zaso got up, Edward said something to Zaso and then drove away. Hagan memorized Edward’s license plate number and gave it to the police.
¶10 Later that same day the Officer spoke to Edward. Edward denied colliding with the bicyclist, though she saw the rear-end vehicle collision occur when Desson abruptly stopped his vehicle. After she watched the collision, Edward said she first saw Zaso when Zaso walked her bicycle around the front end of Edward’s vehicle. Though Edward knew an accident had occurred, she believed she was not required to remain at the scene as she did not think she was involved in the accident. The Officer examined Edward’s vehicle that same day and found no evidence of impact on the vehicle. The Officer later testified that a collision of this sort would not necessarily be expected to leave marks on the vehicle.
¶11 The Officer cited Edward for failure to remain at an accident involving personal injury (Failure to Remain), a criminal violation under
¶12 A jury trial was held in Billings Municipal Court (Municipal Court) on November 4, 2010, and Edward was convicted of both criminal charges. The jury heard testimony from Edward, Zaso, Desson, Hagan, and the Officer. During deliberations, the jury was initially deadlocked. Without objection, the court delivered an Allen1 charge. After further deliberations, the jury asked to re-hear some testimony. The court denied the jury’s request and told the jury it needed to return a unanimous verdict that evening or it could return
¶13 Meanwhile, in October 2010, Edward’s insurer, State Farm Insurance (State Farm), paid Zaso $21,866.58 for her medical expenses. Zaso also sought reimbursement for the following items: $10 for the accident report, $515 for travel to and from court, $64.13 for lodging when appearing for court, $678.98 for new glasses, $425 for the security deposit for her apartment, $28.57 for Neosporin, gauze pads, and other medical supplies, $4,080 in lost wages, $125 for ink and paper, $15.98 for postage costs, and $150 for her personal time. State Farm declined to pay these costs, as it had already paid Zaso for medical supplies as well as a new bicycle, helmet, and clothing.
¶14 Hearings were held for sentencing and for purposes of establishing restitution. Edward moved to dismiss the restitution hearing, arguing that she had not been found guilty of actually causing the accident, that causation must be tried before a jury, and that Zaso was not entitled to restitution. The Municipal Court rejected Edward’s motion. On her conviction of Failure to Remain, Edward was sentenced to one year in jail with all but thirty days suspended; the thirty days were suspended on the condition that she complete one hundred hours of community service, pay $4,148.60 in restitution to Zaso, and pay court costs and fees.
¶15 On February 1, 2011, Edward formally appealed the Municipal Court’s restitution order to the District Court. She did not challenge the convictions, suspended sentence, or community service requirement. Edward argued that the restitution obligation should be reversed on four grounds: (1) the absence of a causal connection between the offense and the damage; (2) the causation standard of
¶16 Edward appeals.
¶17 We review a sentence of less than one year of actual incarceration for both legality and abuse of discretion. State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313; State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978. A criminal sentence is generally reviewed for “legality to determine whether the sentence is within statutory parameters.” Ness, ¶ 7. “A sentencing court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Breeding, ¶ 10.
¶18 We review the appropriate measure of restitution for correctness. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578. We review a district court’s findings of fact regarding the amount of restitution to determine whether they are clearly erroneous. Johnson, ¶ 13. A finding of fact is “clearly erroneous if [it is] not supported by substantial evidence.” Breeding, ¶ 11. “Substantial evidence is ‘evidence that a reasonable mind might accept as adequate to support a conclusion.‘” Johnston v. Palmer, 2007 MT 99, ¶ 26, 337 Mont. 101, 158 P.3d 998.
¶19 “We invoke plain error review sparingly, on a case-by-case basis, according to narrow circumstances, and by considering the totality of the case’s circumstances.” State v. Wilson, 2011 MT 277, ¶ 16, 362 Mont. 416, 264 P.3d 1146.
¶20 “A claim of ineffective assistance of counsel presents mixed questions of law and fact that we review de novo.” Herman, ¶ 10.
DISCUSSION
¶21 Issue One: Did the District Court err when it held that the jury determined causation?
¶22 Edward argues on appeal that the District Court and the Municipal Court erred when they concluded that Edward caused Zaso’s accident, as the elements of the charges of Failure to Remain and Failure to Notify establish no more than the fact that Edward was involved in an accident. Thus, she argues, causation of the accident was never determined and the court was therefore without authority to award Zaso restitution. Edward maintains that the jury should have been required to determine causation prior to the court awarding restitution, and that because no causal connection exists between the two offenses and the damage to Zaso, the restitution award was improper. Edward also argues that Montana’s law of comparative negligence entitles Edward to have a jury determine contributory
¶23 The State asserts that the jury did determine causation when it found Edward guilty of the two crimes, and therefore a sufficient causal connection existed between Edward’s criminal conduct and Zaso’s loss to support the restitution award. The State also argues that Edward raises the comparative negligence claim for the first time on appeal.
¶24 Edward was convicted of Failure to Remain, pursuant to
(1) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close to the accident as possible but shall then return to and in every event remain at the scene of the accident until the driver has fulfilled the requirements of 61-7-105. Each stop at the scene of the accident must be made without obstructing traffic more than is necessary.
Edward was also convicted of Failure to Notify under
The driver of any vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $500 or more shall immediately by the quickest means of communication give notice of the accident to the local police department if the accident occurs within a municipality, otherwise to the office of the county sheriff or the nearest office of the highway patrol.
¶25 The Municipal Court ordered Edward to pay Zaso restitution.
(1) As provided in 46-18-201, a sentencing court shall, as part of the sentence, require an offender to make full restitution to any victim who has sustained a pecuniary loss, including a person suffering an economic loss. The duty to pay full restitution under the sentence remains with the offender or the offender’s estate until full restitution is paid, whether or not the offender is under state supervision. If the offender is under state supervision, payment of restitution is a condition of any probation or parole.
For purposes of this statute, “victim” means “a person who suffers loss of property, bodily injury, or death as a result of the commission of an offense.”
(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could
recover against the offender in a civil action arising out of the facts or events constituting the offender’s criminal activities, including without limitation out-of-pocket losses, such as medical expenses, loss of income, expenses reasonably incurred in obtaining ordinary and necessary services that the victim would have performed if not injured, expenses reasonably incurred in attending court proceedings related to the commission of the offense, and reasonable expenses related to funeral and burial or crematory services; (b) the full replacement cost of property taken, destroyed, harmed, or otherwise devalued as a result of the offender’s criminal conduct;
(c) future medical expenses that the victim can reasonably be expected to incur as a result of the offender’s criminal conduct, including the cost of psychological counseling, therapy, and treatment; and
(d) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.
¶26 We have previously stated that “a causal relation between the offender’s criminal conduct and the pecuniary loss is the touchstone for determining whether a person or entity is a victim entitled to restitution.” State v. Brownback, 2010 MT 96, ¶ 20, 356 Mont. 190, 232 P.3d 385 (citing Breeding, ¶ 13). We will not hold an offender accountable for restitution for offenses he or she did not commit. Breeding, ¶ 13. Rather, “a sentencing condition must have ‘some correlation or connection to the underlying offense for which the defendant is being sentenced,‘” and the nexus requirement applies “to either the offense for which the offender is being sentenced, or to the offender himself or herself.” Ness, ¶¶ 10, 11 n. 2 (citing State v. Ashby, 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164).
¶27 A victim who “suffer[s] loss of property ‘as a result of the offender’s criminal conduct,‘” is entitled to restitution. Brownback, ¶ 20. We said in Ness that when applying
¶28 Applying the restitution standards as set forth in Ness, the District Court found that the Municipal Court did not abuse its discretion in awarding restitution to Zaso. The District Court reasoned that neither of the offenses for which Edward was convicted included as an element that the defendant must cause injury to the victim. The District Court found the testimony from the neutral third parties “compelling,” and concluded there was overwhelming evidence against Edward. The District Court observed that a sentencing court shall require an offender to make full restitution to any victim who has sustained pecuniary loss, including that which a person could recover against the offender in a civil action “arising out of the facts or events constituting the offender’s criminal activities.”
¶29 Citing Breeding, Edward argues that because the jury did not find that she caused the accident, it was error for the court to require her to pay restitution. This case is easily distinguishable from Breeding. In Breeding, the defendant was convicted of theft of a motor vehicle and ordered to pay restitution for damage to the car. Breeding, ¶¶ 4, 5, 8. Breeding appealed, arguing that the order of restitution against him was improper because the damage to the vehicle was caused by another individual before Breeding became involved in the subsequent theft of the car. Breeding, ¶¶ 1, 3, 5. We agreed, finding no statutory authority for imputing to Breeding the damage caused by a third party. Breeding, ¶ 19. Here, by contrast, the court concluded based upon the evidence that Edward was directly involved in the accident.
¶30 It is undisputed that Zaso incurred losses that arose out of the facts or events of the accident, as substantiated by the evidence in the record and as required by
¶31 Edward also argues on appeal that Zaso broke the law by riding
¶32 The problem is that Edward raises this argument for the first time on appeal. In both the Municipal Court at the restitution hearing and on appeal to the District Court, Edward argued that the court lacked the authority to impose any restitution order against her because the offenses of which she was convicted did not state as an element that she actually caused the accident. In other words, she argued that no causal connection existed between her conduct and the claims for restitution. She did not raise the issue of Zaso’s negligence or comparative fault in either court; she does so for the first time on appeal. We generally decline to consider new issues on appeal. State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694; State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683. This fact distinguishes this case from City of Whitefish v. Jentile, 2012 MT 185, ¶ 28, 366 Mont. 94, 285 P.3d 515, in which we concluded that Jentile had raised the negligence of the other party as a defense at the time of the restitution hearing.
¶33 We conclude that the lower courts did not err in awarding restitution to Zaso, and that the award was legal and not an abuse of discretion.
¶34 Issue Two: Does substantive evidence in the record support the amount of restitution awarded?
¶35 At the restitution hearing on December 21, 2010, the Municipal Court ordered Edward to pay $4,148.60 in restitution to Zaso for lost wages, eyeglasses, a copy of the accident report, and mileage costs. The District Court affirmed the award, and Edward appeals on the basis that the record lacks substantive evidence to support the amount. Edward argues that Zaso failed to provide substantial evidence of her employment, hours and salary, and that she lost her job as a result of the accident, among other things.
¶36 Both parties were represented by counsel at the restitution hearing. Counsel for the City of Billings presented evidence in support
¶37 Under
¶38 Issue Three: Were Edward’s constitutional rights to a jury and a fair trial violated?
¶39 Edward argues that her fundamental constitutional rights to procedural and substantive due process were violated when she was deprived of her property without a jury determining causation and apportionment, when the City of Billings did not cite Zaso for violating the law, and when the Municipal Court administered the Allen charge.
¶40 Our conclusion in Issue One is dispositive of these causation and comparative negligence arguments. As reasoned above, the sentencing court was not required to order the jury to determine causation or comparative negligence under the facts and circumstances of this criminal case, whether for the purpose of awarding restitution or to satisfy Edward’s constitutional rights to a jury and a fair trial. Because causation is not an element of Edward’s criminal convictions and
¶41 After the jury indicated it might be deadlocked, the Municipal Court gave the following instruction:
The judicial process assigns tasks to the various units. It is the task of the witnesses to testify truthfully as they recall the facts. It is the task of the lawyers to prepare the case for final submission to the trier of the facts, the jury. It is the task of the Judge to preside, instruct you as to the law and to rule on the admissibility of the evidence. It is the task of the jury to decide the case. The ultimate responsibility of the jury is to render a verdict in this cause. You are not partisan nor are you advocates in this matter but you are the judges; you are the judges of the facts; it is you and you alone that can render a verdict in this case. There is no reason to believe that any other 6 men and women could possess any more ability, intelligence and courage to do the ultimate task assigned to a jury under the American system of justice.
The final test of the quality of your service will be in the verdict which you return to this Court. It is only by rendering a verdict in this cause that you can make a definite contribution to efficient judicial administration as you arrive at a just and possible verdict. We have never asked, as a matter of fact we have instructed you, that you should not surrender your honest convictions in this matter for the mere purpose of returning a verdict or solely because of the opinion of other jurors, but this does not mean that you should avoid a task assigned to you of rendering a verdict in this cause.
Edward argues that her fundamental constitutional rights to procedural and substantive due process were violated when the
¶42 Under the plain error doctrine’s two-part test, Edward must show that the alleged error implicates a fundamental right and that failing to review it “may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.” Wilson, ¶ 28. Instead, Edward merely asserts that “dynamiting the jury [with the Allen charge] resulted in a conviction where there [otherwise] would have been a hung jury,” and a hung jury would have precluded a restitution hearing. We find insufficient evidence in the record to support this assertion. We have previously stated that “a mere assertion that constitutional rights are implicated or that failure to review the claimed error may result in a manifest miscarriage of justice is insufficient to implicate the plain error doctrine.” State v. Gunderson, 2010 MT 166, ¶ 100, 357 Mont. 142, 237 P.3d 74.
¶43 We have repeatedly upheld application of the Allen charge jury instruction. Norquay, ¶ 36; see State v. Bieber, 2007 MT 262, ¶ 70, 339 Mont. 309, 170 P.3d 444; State v. Cline, 170 Mont. 520, 540, 555 P.2d 724, 736 (1976). Though the language of the instruction was changed in 2011 by Norquay, there is no evidence that the instruction was inappropriately applied at the time it was given, and neither party objected to the court giving the instruction. Norquay, ¶ 43. Edward did not carry her requisite burden, and we therefore decline to review the application of the Allen charge for plain error.
¶44 Issue Four: Did Edward receive ineffective assistance of counsel?
¶45 Finally, Edward argues on appeal that her trial counsel provided ineffective assistance by failing to argue that the restitution hearing violated Edward’s rights to due process, a fair trial, and an impartial jury, and that Zaso did not fit the statutory definition of a victim and was therefore not entitled to restitution. In her reply brief, Edward also argues that if this Court finds that Edward did not preserve for appeal the issue of comparative negligence, then her counsel was
¶46 We generally address only record-based claims for ineffective assistance of counsel on direct appeal. Herman, ¶ 15. “A claim is record-based if ‘the record fully explain[s] why counsel took the particular course of action.‘” Herman, ¶ 15 (quoting State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340). “[I]f there is ‘no plausible justification’ for counsel’s conduct,” we may address a claim that is not record-based on direct appeal, though these situations are “relatively rare.” Herman, ¶¶ 15-16 (quoting State v. Jefferson, 2003 MT 90, ¶ 50, 315 Mont. 146, 69 P.3d 641; State v. Kougl, 2004 MT 243, ¶ 15, 323 Mont. 6, 97 P.3d 1095).
¶47 Edward’s claim of ineffective assistance of counsel is not record-based, as the record does not explain why Edward’s counsel proceeded in the manner to which Edward objects. Because the crucial question of why is not answered by the record, Edward’s claim is not record-based and thus not appropriate for direct appeal.
CONCLUSION
¶48 Based on the foregoing, we affirm the Order of the District Court.
JUSTICES RICE, WHEAT, BAKER and MORRIS concur.