IN THE MATTER OF: K.E.G., A Youth Under the Age of 18.
No. DA 12-0364.
Supreme Court of Montana
Decided April 2, 2013.
2013 MT 82; 369 Mont. 375; 298 P.3d 1151
Submitted on Briefs January 16, 2013.
For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena; Scott Twito, Yellowstone County Attorney; Christopher Morris, Deputy County Attorney; Billings.
JUSTICE BAKER delivered the Opinion of the Court.
¶1 K.E.G. appeals a commitment order from the Montana Thirteenth Judicial District Youth Court, Yellowstone County, which ordered him to pay $78,702.09 in restitution. We reverse in part and remand with directions to the Youth Court to hold a new restitution hearing.
¶2 We restate the issue on appeal as follows: Did the Youth Court commit plain error when it concluded that K.E.G. was jointly and severally liable for the full amount of restitution for damages caused
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Between December 22, 2011, and January 1, 2012, the Billings Police Department responded to over 200 reports of vandalism. During this eleven-day period, vandals shot the windows out of homes and vehicles with air guns, damaged vehicles with baseball bats, and set two cars on fire. An investigation led by local school resource officers indicated that K.E.G., a fifteen-year-old male, had taken part in the vandalism.
¶4 On January 10, 2012, K.E.G. and his mother met with Officer Jerry Smidt of the Billings Police Department. K.E.G. waived his rights and provided a statement to Officer Smidt. He admitted to committing acts of vandalism on December 26 and December 27, but stated he did not participate on any other date. According to an affidavit submitted by the Yellowstone County Attorney, K.E.G. admitted that he had “hit two windows with the gun” and “four or five windows with the bat” on the first night and that he had “hit five windows with the BB gun and three with the bat” on the second night.
¶5 Approximately two weeks later, the county attorney filed a petition alleging that K.E.G. was a delinquent youth for having committed criminal mischief (common scheme), a felony, in violation of
¶6 Because K.E.G. contested the State‘s attempt to hold him jointly and severally liable for all damages caused during the eleven-day period of vandalism, the parties briefed the issue of restitution prior to the court‘s dispositional hearing. K.E.G. argued that, since he had admitted to participating in only two of the eleven nights of vandalism, “his restitution should be jointly and severally liable for only December 26th and 27th” in the amount of $16,020.63. The State countered by asserting that the Youth Court should “impose restitution in the amount of $78,702.09” pursuant to
¶7 The Youth Court held a hearing on restitution and disposition on April 23, 2012. K.E.G. and the county attorney presented arguments on the proper amount of restitution. At the hearing, the Youth Court made the following comments:
With regard to restitution, the problem of course is that while you may not have been present at every act of criminal mischief, you have admitted to being responsible as part and parcel of a common scheme, and the common scheme asserted in the petition was the entire common scheme, and all of the days of this criminal mischief that went on with the various participants. And it seems to me that because of that admission, you should in fact be joint[ly] and severally liable with any other defendants that are—or youth that are found to be responsible for the damage caused in this matter. And I am going to order that you be responsible for that restitution in the amount of $78,702.09. Now, I understand that in five years as a youth, it will be nearly impossible, unless some—something befalls upon you financially for you to pay that.
...
And my hope is that you will at least make some payments with restitution to make amends for the problems that you have caused basically unsuspecting people in our community.
(Emphasis added.) The Youth Court did not inquire into the extent of K.E.G.‘s assets or his prospects for future earnings.
¶8 After the hearing, the court entered a dispositional order that adjudicated K.E.G. a delinquent youth for having committed criminal mischief (common scheme), a felony, and committed him to the Department of Corrections until his eighteenth birthday, with recommended placement at Pine Hills Youth Correctional Facility. The court also ordered K.E.G. to “pay restitution in the amount of $78,702.09 ... joint and several in monthly payments of not less than $50.00 ... or 50% of his net wages whichever is greater, with the first payment due within 30 days.” The Youth Court retained jurisdiction over K.E.G. for restitution purposes until his twenty-first birthday, or until the restitution is paid in full. K.E.G. appeals from the portion of the dispositional order that ordered him to pay $78,702.09 in restitution.
STANDARD OF REVIEW
¶9 The court‘s determination of the appropriate measure of restitution is a question of law, reviewed for correctness. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578 (citing State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1, 11 P.3d 539).
DISCUSSION
¶10 Did the Youth Court commit plain error when it concluded that K.E.G. was jointly and severally liable for the full amount of restitution for damages caused by the youths, without considering K.E.G.‘s ability to pay that restitution?
¶11 K.E.G. argues that he should be responsible tо pay restitution for the amount of damage that was caused only on the nights during which he participated in the vandalism and that the joint and several liability for restitution imposed under the criminal mischief statute should not be applied to youthful offenders. The State argues that, pursuant to
¶12 The Montana Youth Court Act states that restitution is to be ordered by the youth court in “appropriate cases.”
¶13 In this case, the Youth Court determined that restitution was appropriate and that K.E.G. should be held jointly and severally liable pursuant to
¶14 K.E.G. admitted to committing the offense of criminal mischief pursuant to a common scheme, which is “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense ....”
¶15 In re T.M.R. does not counsel a different result. In that case, we noted that the adult sentencing statutes did not apply to a disposition under the Youth Court Act, and thus the Court was compelled to “fill in the gap left by the legislature” in determining the amount of restitution that should be imposed. In re T.M.R., ¶¶ 16-18. In this case, the District Court did not apply adult sentencing statutes and there is no gap. Rather, aggregation of damages is allowed by the criminal statute defining “the offense for which the youth is disposed,” for which the Youth Court Act expressly authorizes restitution.
¶16 Nonetheless, while the aggregation of damage may well be appropriate to achieve the accountability goals of the Youth Court Act, both that Act and the applicable criminal law call for an examination of the offender‘s ability to pay.
¶17 We generally “refuse to review on appeal an issue to which the party failed to object at the trial court.” State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892 (citing State v. Lenihan, 184 Mont. 338, 341, 602 P.2d 997, 999 (1979)). While we have recognized an exception to this general rule for review of an illegal sentence, Lenihan, 184 Mont. at 343, 602 P.2d at 1000, we do not apply that exception here, since the failure to consider a defendant‘s ability to pay amounts only “to an objectionable sentence,” which we have refused to consider absent a contemporaneous objection. Kotwicki, ¶ 13.
¶18 Despite the absence of contemporaneous objection, we will conduct “plain error” review if an alleged error “implicate[s] a defendant‘s fundamental constitutional rights and if our failure to review the claimed error 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.” In the Matter of C.T.P., 2004 MT 63, ¶ 15, 320 Mont. 279, 87 P.3d 399.
¶19 The Dissent correctly points out that we have reserved plain error review for questions implicating constitutional rights rather than statutory-based claims. Dissent, ¶ 30. The issue in this case, however, does have constitutional implications. Under Montana‘s Constitution, a person under eighteen has “all the fundamental rights of [an adult] unless specifically precluded by laws which enhance the protection of such persons.”
¶20 The criminal mischief statute expressly provides that, before a court may impose restitution, it must “determine the manner and amount of restitution after full consideration of the convicted person‘s ability to pay the restitution.”
¶21 Other courts have recognized the importance of a realistic, defined restitution order for juvenile offenders to “permit the juvenile to feel that he or she is gainfully making amends for past transgressions.” In re Laurance S., 742 N.W.2d 484, 489 (Neb. 2007) (citing State v. Kristopher G., 500 S.E.2d 519, 522 (W. Va. 1997) (stating that “[a]ny restitution award should ... be set in an amount that is within the realistic ability of the children to pay within a reasonable period of time, so that they can complete a probationary period, put ... events behind them, and move forward“)). The “salutary purpose” an appropriate restitution order serves by “‘making the offender understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to’ the victim ..., would be directly undermined by the imposition of a restitution order that the juvenile is financially unable to pay.” In re Laurance S., 742 N.W.2d at 489 (quoting In re Brian S., 181 Cal. Rptr. 778, 780 (Cal. Ct. App. 1982)). Restitution may take on constitutional dimension in a youth case when the imposition fails to consider the enhanced protections embodied in the Youth Court Act‘s objectives of promoting the development of youth and providing a program of supervision and rehabilitation that avoids retribution and keeps youth from becoming adult offenders.
¶22 Given the significant amount of restitution at issue in this case, the youth‘s commitment to Pine Hills, and the potential long-term consequences of the restitution order, K.E.G.‘s future earning capacity and any assets available to immediately put toward restitution were key considerations to determining whether his disposition would meet the objectives of the Youth Court Act and the
¶23 For the foregoing reasons, the Youth Court‘s April 25, 2012 order is reversed in part and remanded with directions to the Youth Court to hold a new restitution hearing pursuant to
CHIEF JUSTICE McGRATH, JUSTICES COTTER, WHEAT and RICE concur.
JUSTICE McKINNON, concurring in part and dissenting in part.
¶24 I concur in the Court‘s decision to reverse the Youth Court‘s order and remand for the entry of a corrected restitution amount. I respectfully dissent, however, from the Court‘s analysis in reaching this conclusion. First, I believe the Court has improperly resolved this case based on a legal theory that K.E.G. neither raised in the Youth Court nor relied on in his appeal before this Court. Second, I disagree with the Court‘s application of adult sentencing statutes to youth cases, where the Montana Youth Court Act has not expressly authorized the application of adult statutes. Finally, with respect to the legal theory that K.E.G. actually did raise in this appeal, it is my view that, under our caselaw and applicable statutes, K.E.G. cannot be required to pay restitution for damages which he did not admit he caused and which the State never proved he caused. I address these three points in turn.
I. The Court‘s Sua Sponte “Plain Error” Review
¶25 “It is perhaps our most fundamental rule of appellate review that, with rare exception, we will not consider an issue or claim that was not properly preserved for appeal.” State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d 737. To properly preserve an issue for appeal, it is necessary that the issue be timely raised in the first instance in the trial court. Norman, ¶ 16. One oft-stated reason for this rule is that “it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683 (internal quotation marks omitted); see also e.g. State v. Clary, 2012 MT 26, ¶ 19, 364 Mont. 53, 270 P.3d 88 (“[W]e will not put a district court in error for failing to address an issue or an argument that was not made before it.” (internal quotation marks omitted));
¶26 One of the “rare” and “narrow” exceptions to the timely-objection rule is the doctrine of plain error review. West, ¶¶ 19-20; Norman, ¶ 16. This doctrine is founded on the principle that “‘appellate courts have the inherent duty to interpret the constitution and to protect individual rights set forth in the constitution and necessarily have the correlative authority to invoke the plain error doctrine in order to carry out those duties.‘” West, ¶ 23 (brackets omitted) (quoting State v. Finley, 276 Mont. 126, 134, 915 P.2d 208, 213 (1996)). Given our “inherent power and paramount obligation to interpret Montana‘s Constitution and to protect the various rights set forth in that document,” we may discretionarily review “claimed errors that implicate a criminal defendant‘s fundamental constitutional rights.” West, ¶ 23 (internal quotation marks omitted). We use this doctrine “sparingly, on a case-by-case basis,” and only where failing to review the claimed error “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.” West, ¶ 23 (internal quotation marks omitted).
¶27 The Court today mistakenly applies the plain error doctrine in two ways. First, the “claimed error” the Court identifies is the Youth Court‘s failure to consider K.E.G.‘s ability to pay the aggregate restitution.1 The Court cites the ability-to-pay requirement contained in
¶28 K.E.G. admitted in the Youth Court that he engaged in criminal
Whether the district court erred when it concluded that K.E.G. was joint and severally liable for the full amount of restitution for damage that occurred over the course of ten consecutive nights where K.E.G. admitted to committing acts of Criminal Mischief (Common Scheme) but only admitted to being present for two nights.
As he did in the Youth Court, K.E.G. argues on appeal that there must be a causal connection between his unlawful conduct and his restitution obligation. K.E.G. does not invoke plain error review of this issue, given that he preserved the issue in the Youth Court by raising it there.
¶29 In the vast majority of cases where the defendant-appellant has actually requested plain error review of an unpreserved claim, this Court routinely has denied that request, noting that we apply the doctrine sparingly. See e.g. Evans, ¶¶ 24-28; State v. Lacey, 2012 MT 52, ¶¶ 14, 21-26, 364 Mont. 291, 272 P.3d 1288; State v. Daniels, 2011 MT 278, ¶¶ 29-33, 362 Mont. 426, 265 P.3d 623; State v. Wilson, 2011 MT 277, ¶¶ 27-29, 362 Mont. 416, 264 P.3d 1146; State v. Roundstone, 2011 MT 227, ¶¶ 29-33, 362 Mont. 74, 261 P.3d 1009. In the present case, as explained, K.E.G. has not requested that we exercisе plain
¶30 There is a second reason the Court‘s application of plain error review in this case is mistaken. That doctrine applies to the review of alleged errors that implicate a defendant‘s fundamental constitutional rights. State v. Taylor, 2010 MT 94, ¶ 13, 356 Mont. 167, 231 P.3d 79; accord Opinion, ¶ 18. We do not apply the doctrine to statutory-based claims because the Legislature has enacted two statutes (specifically,
¶32 For the foregoing reasons, I dissent from our decision to “restate” the issue on appeal so that we may sua sponte exercise plain error review. Opinion, ¶ 2. The Court‘s “restated” issue was not raised in the Youth Court or in K.E.G.‘s opening brief on appeal, and the Court‘s ensuing analysis misapplies our plain error doctrine.
II. The Court‘s Application of Adult Sentencing Statutes to a Youth
¶33 Three statutes within the Youth Court Act authorize the youth court to impose a restitution obligation upon a youth:
In determining whether restitution ... is appropriate in a particular case, the following factors may be considered in addition to any other evidence:
(a) the age of the youth;
(b) the ability of the youth to pay;
(c) the ability of the parents, guardian, or those that contributed to the youth‘s delinquency or need for intervention to pay;
(d) the amount of damage to the victim; and
(e) legal remedies of the victim. However, the ability of the victim or the victim‘s insurer to stand any loss may not be considered.
¶34 Any restitution obligation in youth court proceedings imposed pursuant to in the adult criminal statutes and sentencing provisions of Titles 45 and 46 of the Montana Code Annotated directly conflicts with these specific provisions of the Youth Court Act. Indeed, we have previously refused to apply adult sentencing statutes to a restitution obligation imposed on a delinquent youth under the Youth Court Act. Our decision in In re T.M.R., 2006 MT 246, 334 Mont. 64, 144 P.3d 809, involved a youth (T.M.R.) who had been adjudicated delinquent. He was placed on probation and ordered to pay restitution pursuant to
¶35 The Court‘s attempts at distinguishing T.M.R. from the present case fall short. First, the Court states that the Youth Court did not apply adult sentencing statutes to K.E.G.‘s disposition. Opinion, ¶ 15. But that is exactly what the Youth Court did. The purported authority for the Youth Court to impose an aggregated restitution obligation on
- Subsection (2) provides that a person who has been “convicted” of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. As the Court concedes, and as I discuss below, K.E.G. has not been “convicted” of criminal mischief. Opinion, ¶ 13;
§ 41-5-106, MCA . - Subsection (3) provides that a person who has been “convicted” of criminal mischief shall be fined not to exceed $1,500, imprisoned in the county jail for any term not to exceed six months, or both; but if the offender causes “pecuniary loss” in excess of $1,500, then the offender shall be fined an amount not to exceed $50,000, imprisoned in the state prison for a term not to exceed ten years, or both.
- Subsection (4) provides that, in determining “pecuniary loss,” amounts involved in criminal mischiefs committed pursuant to a common scheme or the same transaction may be aggregated.
- Lastly, subsection (5) provides that a person “convicted” of criminal mischief involving property owned or administered by the Department of Fish, Wildlife, and Parks shall forfeit any current hunting, fishing, or trapping license issued by the State and the privilege to hunt, fish, or trap in the State for at least 24 months.
It is clear, then, that by applying subsection (4) of
¶36 The Court‘s second attempted distinction between the present case and T.M.R. is that the Youth Court Act authorizes restitution for damages that result from the offense for which the youth is disposed, and “[t]he offense for which K.E.G. was disposed was
¶37 We have recognized that there is more than an “artificial distinction” between a disposition imposed under the Youth Court Act and a sentence imposed under the Montana Criminal Code. See In re B.L.T., 258 Mont. 468, 473, 853 P.2d 1226, 1229 (1993). The special treatment afforded youths under the Act is reflected in the express legislative purposes set forth in
¶38 The Youth Court Act exists to address youth delinquency through a mechanism distinct and apart from the adult criminal justice system. See
1. to preserve the unity and welfare of the family whenever possible, and to provide for the care, protection, and wholesome mental and physical development of the youth;
2. to prevent and reduce youth delinquency through a system that does not seek retribution, but that provides: consequences for the youth‘s actions; a program of supervision, care, rehabilitation, detention, competency development, and community protection for the youth before he becomes an adult offender; restitution in appropriate cases; and, if removal from the home is necessary, the ability of the youth to maintain ethnic, cultural, or religious heritage whenever appropriate;
3. to achieve these purposes in a family environment if possible,
separating the youth from the parents only when necessary for the welfare of the youth or for the safety and protection of the community; and
4. to provide judicial procedures in which the parties are ensured a fair, accurate hearing and recognition and enforcement of their constitutional and statutory rights.
The youth courts were established to fulfill these purposes.
¶39 That the Legislature intended youths to be treated differently than adult offenders is apparent from various facets of the Youth Court Act. For example, no youth may be charged with or convicted of any crime in any court except as provided in the Act.
¶40 As discussed, the statute this Court cites as authority for K.E.G.‘s restitution obligation provides, in pertinent part: “A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person‘s ability to pay the restitution.”
¶41 The dispositions that the youth court may impose on a delinquent youth are set forth in
¶42 For all of these reasons, I disagree with the Court‘s contention that it is not applying adult sentencing provisions to K.E.G., and I respectfully dissent from the Court‘s decision to apply those provisions to the disposition of a youth adjudicated as delinquent under the Youth Court Act. I instead would apply the provisions set forth in the Youth Court Act itself.
III. The Court‘s Failure to Apply the Causal Requirement
¶43 This brings me to the issue argued by K.E.G. on this appeal: that there is no causal connection between his unlawful conduct and his restitution obligation for the aggregate damagеs.
¶44 Within the context of criminal offenses, we have consistently 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. We will not hold an offender accountable for restitution for offenses he or she did not commit.” City of Billings v. Edward, 2012 MT 186, ¶ 26, 366 Mont. 107, 285 P.3d 523 (citations and internal quotation marks omitted); accord State v. Brownback, 2010 MT 96, ¶ 20, 356 Mont. 190, 232 P.3d 385; State v. Breeding, 2008 MT 162, ¶ 13, 343 Mont. 323, 184 P.3d 313; State v. Beavers, 2000 MT 145, ¶¶ 9-11, 300 Mont. 49, 3 P.3d 614. As the statutes referenced in these cases require restitution for damages that “arise out of” or are “a result of” the offender‘s unlawful conduct (see
¶45 Given this precedent, the Court‘s reliance on the criminal mischief statute for the proposition that “‘amounts involved in criminal mischiefs committed pursuant to a common scheme ... may be aggregated in determining pecuniary loss‘” is unpersuasive. Opinion, ¶ 13 (quoting
¶46 Unlike the adult sentеncing statutes cited above, the youth disposition statutes do not mandate restitution in all cases. Rather, a restitution obligation “may” be imposed on a youth in an “appropriate” case. See
¶47 The dispositive question in this appeal, then, is what damages occurred “as a result of” K.E.G.‘s unlawful conduct. In the Petition filed with the Youth Court, the County Attorney alleged that:
from about December 22, 2011, to January 1, 2012, the Youth, [K.E.G.], knowingly or purposely injured, damaged, or destroyed property of another or public property without consent, and did so in a series of acts motivated by a purpose or plan which resulted in the repeated commission of the same offense or that affected the same person or persons or their property ... [in] violation of
Sections 45-6-101 and45-2-101(8), Montana Code Annotated .
Four youths were identified in the Petition as participating with K.E.G. to damage vehicles. But the State did not allege a conspiracy among the youths,
¶48 At his initial appearance, K.E.G. denied the County Attorney‘s allegations in the Petition. At a subsequent hearing, however, K.E.G. admitted that he did engage in criminal mischief (common scheme) within the alleged timeframe, though not over the entire timeframe. The Court‘s assertion that K.E.G. “acknowledged that he acted as part of a common criminal plan that resulted in 200 reports of vandalism against homes and vehicles in Billings between December 22, 2011, and January 1, 2012,” Opinion, ¶ 14, is factually incorrect. K.E.G. never admitted to acting as part of such a “plan“—which is essentially a mischaracterization of the charge here аs one of “conspiracy.” While admitting that he had damaged or destroyed property on December 26 and 27, K.E.G. continued to deny engaging in such activity on any other night between December 22 and January 1.
¶49 This is reflected in the following colloquy among K.E.G., his counsel (Mr. Duke), and the Youth Court:
MR. DUKE: He is going to admit to the petition that he was involved with two days on the criminal mischief....
THE COURT: All right. So—well, [K.E.G.], based on what your counsel has related to me, I need to make sure that you understand what your rights are. [The court proceeded to advise K.E.G. of his rights.]
...
THE COURT: Okay. If you make admissions today, there isn‘t going to be a trial, and you are, in essence, waiving your right to a trial. You understand that?
THE YOUTH: Yes.
THE COURT: And the State isn‘t going to have to prove anything. You understand that?
THE YOUTH: (Nods.) For the—for the two other days that I
wasn‘t involved or what?
THE COURT: For—well, for what you were admitting to. Okay?
MR. DUKE: Right, if you admit, they don‘t have to prove those two days.
THE YOUTH: Okay.
MR. DUKE: Do you understand that?
THE YOUTH: Yes.
¶50 K.E.G.‘s admission to only two days is also reflected in the factual basis he provided for the admission:
THE COURT: Okay. In the petition, you are alleged to be a delinquent youth by virtue of committing the offense of criminal mischief, common scheme, a felony, alleged to have occurred on or about December 22nd, 2011, to January 1st, 2012. With regard to that offense, how do you plead?
THE YOUTH: Guilty.
THE COURT: Do you admit or deny it?
THE YOUTH: I admit.
THE COURT: Okay. And, Mr. Duke, are you going to—would you like to assist your client in having him tell me what it is he did?
MR. DUKE: Yes, just a few questions, Your Honor.
EXAMINATION BY MR. DUKE:
Q. [K.E.G.], on December 26th and December 27th, were you here in Billings, Yellowstone County?
A. Yes.
Q. And you were riding around in a vehicle with other youths, whose initials are J.E., L.P., K.G.?
A. Mm-hmm.
Q. And perhaps T.B.?
A. Yes.
Q. And on those two nights you participated by breaking various windows from vehicles?
A. Yes.
Q. And what did you use to break the windows?
A. A bat and a couple of them with a co2 bb gun.
Q. And you believe that the amount of loss on those two days exceeds $1,500?
A. Yes.
Q. And if you would estimate, how many vehicles that were
damaged during those two?
A. Myself or altogether?
Q. Well, with the group that was—you are with that night? Of those two days, excuse me.
A. Both nights put together, I would say around 30 cars, 30 windows.
MR. DUKE: I have no further questions, Your Honor.
THE COURT: Well, [K.E.G.], based on that description, it does appear to me that you in fact did commit these—this offense and I‘m going to accept your admission.
¶51 In imposing the aggregate restitution amount, the Youth Court stated that “while you may not have been present at every act of criminal mischief, you have admitted to being responsible as part and parcel of a common scheme, and the common scheme asserted in the petition was the entire common scheme, and all of the days of this criminal mischief that went on with the various participants.” K.E.G. pointed out that he had not admitted to “the entire common scheme” alleged in the Petition. In response, the court stated: “I am not functioning under the belief that [K.E.G.] was present at every act of criminal mischief alleged in the restitution matters. I believe that he was there two days, as he has said. I do believe that he, however, did admit to that common scheme.”
¶52 Based upon this record, I believe the Youth Court‘s and this Court‘s determination that K.E.G. admitted to (as the Court puts it) “a common criminal plan that resulted in 200 reports of vandalism against homes and vehicles in Billings between December 22, 2011, and January 1, 2012,” is not correct. While the State alleged that K.E.G.‘s common scheme occurred “from about December 22, 2011, to January 1, 2012,” the transcript of the proceeding clearly establishes that K.E.G. never admitted to a common scheme spаnning those dates. K.E.G. and his counsel were very clear—both before making his admission and during the recitation of the factual basis for the admission—that his offense took place on December 26 and 27, and only those two nights. K.E.G. maintained his denial as to the other eight nights and brought alibi witnesses to the disposition hearing to establish that he was not present on those other nights.
¶53 Significantly, the State chose to accept K.E.G.‘s admission to only a portion of the delinquent acts alleged in the Petition. The State chose not to proceed with an adjudicatory hearing in which the State might prove K.E.G.‘s involvement in more than just two nights. Despite this decision, however, the State has sought to hold K.E.G. accountable for
¶54 In its Sentencing Memorandum Regarding Restitution (filed in the Youth Court on April 23, 2012), the State argued that K.E.G. had “encourag[ed]” the other youths to commit the vandalism on all ten nights and that K.E.G. thus bore responsibility for the other youths’ actions on nights when K.E.G. was not present—i.e., as the State put it, “In for a penny, in for a pound.” The fact remains, however, that the State did not charge K.E.G. under an accountability theory. See
¶55 I believe the Court errs in affirming the Youth Court‘s imposition of a restitution obligation for the aggregate damages that occurred over the entire ten-day period. I would reverse the Youth Court‘s order and remand with instructions to impose restitution in the amount of $16,020.63. This is the total pecuniary loss on December 26 and 27. As noted, K.E.G. conceded that he is jointly and severally liable for this amount, and he did not challenge his ability to pay it.
¶56 In conclusion, based on the foregoing, I concur in the Court‘s decision to reverse, but I dissent from the Court‘s analysis in reaching that decision and from the Court‘s instruction to the Youth Court to consider on remand K.E.G.‘s ability to pay the full $78,702.09.5