*1
MONTANA,
STATE OF
Respondent,
Plaintiff
SETTERS,
ROBERT
Appellant.
Defendant
No. 99-110.
on
March
2000.
Submitted
Briefs
Decided
June
For William Mazurek, Attorney Joseph Hon. P. Montana Respondent: For General, Plubell, Attorney General, Tammy K. Montana Assistant Office, Helena; County Attorney’s Lake Christopher, Deborah Kim Poison. Opinion Court.
JUSTICE NELSON delivered *2 (Setters) in the Court for the 1 Robert Setters was convicted District District, County, Judicial Lake on a of Twentieth charged been public records or information. Setters had also public by accountability theft for benefits received under various a pursuant was dismissed to programs, assistance but requiring Setters the District Court's order to agreement. appeals to Health and Human Department of Public pay (DPHHS) charge. We in connection with the dismissed Services reverse. are: appeal The issues on
¶2 pay erred in to requiring 1. the District Court Whether ¶3 restitution. ability Court Setters’ properly considered Whether the amount of
to when it established in assessing penalty erred in a Whether addition to restitution. exceeded its we hold in issue 1 that District Court Because by ordering count, in unnecessary question it for us address the in issue question restitution or the ability
issue of Setters' said the civil regarding penalty. Background Factual and Procedural by was determined the Veterans Setters is a Vietnam veteran who (VA) traumatic stress suffering post to be from Administration (PTSD) obtain and, result, and unable to disorder as a is 100%disabled determination, disability the PTSD employment. a result of gainful As $100,000 pay in 1995 and continues to over in back Setters received benefits, $2,368 disability subject cost per receive month in veteran’s family in Arlee lives at the home adjustments. Setters now living of during claims that and four of his five children. Setters with his wife here, he at issue did his wife assistance period public received family. with his reside wife November of Setters’ July through From including public assistance and received various forms applied for Stamps, (AFDC), Food Aid for Dependent Families With Children Medicaid, totaling $93,000. approximately Several individuals in the community expressed Arlee their concerns to local authorities regarding public Setters, assistance received by the precipitating an investigation by County Attorney’s the Lake office. These individuals alleged that Setters in fact living was with his wife in Arlee and that the amount of public assistance paid family Setters’ improper. $93,000 Of the public by assistance received Setters’ wife, Deborah, $73,689.16 was later determined the Montana (DOJ) Department of Justice Criminal Investigations Bureau to be overpayment. Pursuant investigation, DOJ charged by Setters was August 1997,
information in with the accountability offense of theft, 45-2-302(3) scheme, a common 45-6-301(4)(a), under §§ MCA. The alleged that Deborah “purposely or knowingly obtained or exerted unauthorized control” over assistance benefits when she claimed that did not reside in her home resulting higher payments to her than she was entitled. Setters pleaded charge. The State charges also filed against Deborah, but dismissed charges those with prejudice in a subsequent plea agreement with Robert. proceeded case to trial January two-day trial, 1998. After a *3 jury
the they indicated that hopelessly were deadlocked. The District Court declared a mistrial. In an amended 1998, information filed in September the State
again charged Setters with offense of accountability theft, for a scheme, common and added the charge tampering of information, records or felony, a 45-7-208(1), under MCA. This § unrelated charge stemmed from Setters’ 1996 application for a liquor license, Montana wherein he stated that he had indeed lived with his wife in Arlee past years. for the 11 Setters admitted guilt on the tampering charge, while
continuing to maintain his innocence on the of charge accountability. Consequently, part as of a plea agreement, agreed Setters plead exchange for the moving State dismiss the of theft accountability. The State agreed also that judgment after against Setters, was entered the State would dismiss prejudice the charges pending against In Setters' wife. addition, agreed the State to recommend that the court a impose five- year sentence to Montana State all suspended Prison with of that time upon conditions, certain that including Setters make restitution to end, DPHHS. plea agreement To specified: 256 responsible
The Defendant be for restitution the victim shall offense, of Health and Human Department of the Public Services, sentencing in an at the amount to be determined hearing. Investigation probation In officer Report, the Pre-Sentence imposition five-year a sentence and that suspended
recommended of $20,025 per at the month. The restitution rate of $334 he had the chief auditor and probation officer noted that contacted DPHHS compliance manager reported who had that while program restitution, willing prefer they receive full would be DPHHS would $40,000. $20,000 an compromise on amount between and sentencing, the that Setters be ordered to At State recommended $73,698.16, statutorily- of a plus full restitution the amount $15,040.54, for a prescribed penalty 25% in the amount of total $88,729.70, repaid monthly The resultant to be 58 months. within $1,539 costs, approximately per month. payment, including court imposed five- The District Court concurred with the State a in the year sentence and ordered Setters to suspended $88,729.70. pronouncement amount of In its oral sentence both that the judgment, explained its reasons written are that restitution to the victim of the provide sentence it will opportunity an for rehabilitation. offense and it will afford Setters Court appeals and asks this to vacate judgment. District Court's requirement contained in the Standard of Review imposition a district court's of a sentence for This Court reviews 6, 297 23, 6, 284, v. 1999 MT Mont. 989 legality only. Hilgers, State ¶ ¶ 322, (1997), 324, 948 866, (citing 6 v. Richards 285 P.2d State Rennick, 155, 7, 240, 241). MT 295 Mont. P.2d See also State v. 97, 907, 7; (1995), 272 Mont. 7, P.2d State v. Graves legality of review the of sentence standard Rennick, In court abused its discretion. sentencing whether restitution, of fact as to the amount of reviewing findings the court's clearly findings those are erroneous. our standard ofreview is whether Hilgers, (citing Perry 283 Mont. 1327).
Issue erred requiring Whether statutory its District Court exceeded argues
257 crime authority by requiring him to full restitution for a which he committing did not admit he was not convicted. He also for which that, contrary to the District argues reasoning, Court's purpose. condition does have a rehabilitative (1995), 11, 16, Relying on State v. Blanchard 270 Mont. 889 P.2d 1180, 1183, argues the State that an order of restitution for uncharged appropriate bargained plea agreement. conduct is when it is for in a The State contends that Setters has reaped benefit of charges against and his wife and that he should not now escape obligations plea agreement. be allowed to of his plea agreement A is a subject contract which is to contract law Keys, 10, 18, 81, 18, standards. State 1999 MT 293 Mont. ¶ ¶ 812, (1995), 286, P.2d 18 (citing 291, State v. Butler 272 Mont. ¶ 908, 911). law, P.2d Under contract one party relinquishes some rights in reliance upon promise reason, of the other party. For that this consistently Court has held that it will assist a defendant escaping the obligations plea agreement of a once the defendant has Keys, received its benefit. 19 (citing (1947), State v.Nance ¶ 120 Mont. 561). 152, 166, 554, 184 P.2d Nevertheless, it is also well established that a district court's
authority to impose sentences in criminal cases is defined and constrained Nelson, 227, 24, statute. State v. 1998 MT 291 Mont. ¶ 15, 24, 133, (citing 966 P.2d (1996), State v. Wilson 279 Mont. 714). 34, 37, 712, Moreover, 926 P.2d "a district court no power has impose a sentence in the absence specific statutory authority." Nelson, (1993), 24 (quoting 340, 346, 846 State v. 256 Mont. Hatfield 1025, 1029). for the payment ofrestitution in this case 46-18-201(2), (1997), is found at MCA which provides pertinent § part as follows: any
In addition to penalties imposed pursuant to subsection (1), if the court finds that the victim the has sustained offense loss, a pecuniary court shall require payment offull restitution to the victim as provided in through 46-18-241 [Emphasis added.] 46-18-249. Hence, limited statutorily restitution is to the "victim"of the crime for 100, which defendant is 25, convicted. State v. 2001 MT 305 Mont. 25 P.3d 25 (citing State v. Brown 1101). 263 Mont. In a case similar appeal, to the case before us on charged felony (DUI),
defendant was driving under the influence *5 revoked, and driving suspended felony while license was or his $47,000 in support. owed back child nonsupport. The defendant over agreement, pleaded guilty to a Horton to the traffic Pursuant dismissing felony nonsupport in for the the exchange offenses and, probationary as of the and conditions of his charge part terms sentence, arrearage. Horton, agreed pay support Horton his child pay At the District Court ordered Horton to his sentencing, 8-11. ¶¶ an monthly obligation along child with additional amount support Horton, the as restitution. arrearages toward he appeal, argued pleaded guilty On Horton that since to certain to, of, nor plead guilty offenses he did not was he convicted traffic and charge felony nonsupport, there was no "victim"ofthe crimes for to pay he was and whom he could ordered which convicted be agreed 27. We Horton and held that the with statutory in that did not District Court's order case meet imposition suspended restitution on a requirements for sentence. Similarly, judice, in the case sub Setters was convicted of information giving public records or for false to, He did not liquor plead guilty
information obtain a license. nor of, accountability. he of theft by was convicted Consequently, the "victim" of the crime for which Setters was convicted-tampering public records or information-was not DPHHS DPHHS and Setters cannot be ordered to restitution to crime for he was by accountability-a the offense of theft which not convicted. that, contrary to the District Court's statement argues also judgment, and in sentencing hearing
at the its written purpose. agree. does have a rehabilitative We condition 46-18-202(l)(e), that provides Section MCA "reasonably or sentencing may impose any court condition restriction and the of the objectives protection related to the of rehabilitation However, in State interpreting provision and that society." victim Ommundson, MT sentencing or must have some
11, we held that a limitation condition underlying for which the or offense correlation connection correlation or sentenced. There is no such defendant the tampering conviction on this case between Setters' connection alleged to DPHHS ordering and restitution for. Consequently, the District Court's benefits. theft of assistance imposition statutory requirements order did meet sentence. suspended on a that Court exceeded its Accordingly, we hold for a authority by ordering Hence, reverse the dismissed count as a condition of his sentence. we that of the as to restitution and we order determination District Court sentence portion of Setters' vacated. Reversed. GRAY,
CHIEF JUSTICE JUSTICES REGNIER and TRIEWEILER concur. dissents. specially
JUSTICE COTTER concurs and I concur with the Court’s conclusion a district court’s impose sentences criminal cases is defined statute, agree constrained and I with the Court’s conclusion that there was of the crime of which no “victim” convicted *6 objection. to whom Setters could be ordered to restitution over However, concurring dissenting for the reasons forth in my set opinion MT 100, 305 I respectfully striking dissent from this Court’s order provisions Judgment from District Court’s and Order of Sentence. I Court, As I would proposed remand given directions the State be option accepting either or, Court, alternative, sentence as amended this rescinding the plea agreement for failure of consideration. Should rescind, State elect to would parties pre-plea be returned to their agreement status, with withdrawing plea and all charges previously reinstated. State and Setters could either negotiate agreement thereafter proceed new or trial. special
JUSTICE LEAPHART concurs in the foregoing concurrence and dissent.