*1 332 MONTANA, OF
STATE Respondent, and Plaintiff v. THOMPSON, LEE NORMAN Appellant. Defendant 03-215. No. 30, 2003. on Briefs October Submitted 21,May 2004. Decided MT 131.
For Respondent: Attorney General; Hon. Mike Ilka Becker, General, Attorney Helena; Assistant Light, Brant Cascade County Weber, Attorney; Susan Deputy Comity Chief Cascade Attorney; Parker, Deputy County Attorney, John Great Falls.
JUSTICE Opinion REGNIER delivered the of the Court. On April Lee Norman Thompson (Thompson) *2 Theft, charged by Felony Information with in violation of 45-6- §§ (8) (2001). 301(l)(a), (9), and MCA He plea agreement, entered into a February 26, 2003, and on the District Court sentenced him to a three year deferred $4,337 sentence and ordered him pay to in victim restitution. He appeals and we affirm. The presented issue on review is whether the District Court abused its discretion it when ordered Thompson to pay rekey the cost to the commercial building from which he committed theft.
BACKGROUND (Albrecht), Fran Albrecht manager of the Columbus Center Falls, Great testified that she hired Thompson in November 2000 to perform maintenance duties building. for the The Columbus Center has approximately forty tenants. As a maintenance man for the building, Thompson keys had for the entire building, including individual tenant employed units. While Center, at the Columbus Thompson allegedly stole numerous tools pawned and them at a local pawn shop. discovered, Once Albrecht fired him and eventually filed a complaint against him. On August Thompson pled guilty and the court
scheduled a sentencing hearing and ordered preparation of a Pre- (PSI). Sentence Investigation Report Regarding restitution, the PSI recommended that Thompson pay $2,142. However, Albrecht sent a victim impact letter after probation officer submitted the PSI to the court requesting that the court consider imposing restitution for rekeying the Columbus Center due to the theft. She was unsure if Thompson had duplicate keys necessary made and felt it rekey to building whole security to insure existing for the tenants. At hearing, Thompson stipulated to restitution for $1,697
the stolen items the amount of to Columbus Center and $355 Pawn, however, First National objected $2,285 he to the cost of rekeying the common doors at the Columbus Center. Albrecht testified theft, that since the tenants have indicated that security their level of has been reduced as a result of Thompson’s Subsequently, management found it necessary higher to reinstate a security. level of Thompson accessed during employ, his
She also testified call, and personal phone make a permission tenant’s officewithout building. presented She theft, vacated the this tenant after rekeying the the cost of the court to substantiate documentation to keys common doors and replacement of four building: one bid for key system $2,285, an electronic and another bid for to this at $5,000. at Center had the Columbus While Albrecht testified discovery system prior of the
contemplated replacement only theft, and now forced to Thompson’s she was doors, not rekeying the common in the amount of asked for restitution key system. electronic expensive the more testimony, the District Court Thompson’s After Albrecht’s in the pay for the Columbus required $2,285 stipulated regarding he in addition to the amount amount of guise rekeying requirement that the the tools. It did so under theft, the tenants in the a direct result had and the fact that he building, have deserved to for the tenants to space tenant’s was a valid reason entered one of the building. to the Thompson’s access have some concerns about Thompson appeals. *3 REVIEW
STANDARD OF for imposition of a sentence reviews a district court’s This Court ¶7 117, 19, Mason, 371, 19, 2003 MT 319 Mont. only. ¶ v. legality ¶ State legality the of a sentence 903, of review of 82 P.3d 19. The standard ¶ Meeks, v. its discretion. State the court abused is whether 126, 15, 167, 15. In 246, 15, 58 P.3d ¶ MT 312 Mont. ¶ 2002 ¶ restitution, fact to the amount of findings of as reviewing the court’s clearly are erroneous. findings whether those our standard ofreview is 253, 16, 893, 25 P.3d Setters, MT 305 Mont. ¶ v. ¶ State 16. ¶
DISCUSSION when it ordered abused its discretion Whether the District Court building from which rekey the commercial Thompson pay the cost he committed plain case law and the according that argues Thompson any from statute, only entitled to recover victims are
language of the such, crime, and as of his as a result loss sustained pecuniary beyond building the went rekeying for mandating restitution its Central to beyond damages. loss and enriched the victim pecuniary guilty only that he to theft of argument, Thompson pled his clarifies Center, not tools taken from the maintenance area of the Columbus lock anything damage theft of from the tenants to the door or exemplifies the individual tenant He this on or offices. the by highlighting that neither Information nor the evidence presented or theft allege case to locks from tenants. Therefore, he claims the restitution ordered must not be in excess of damages conduct, by damages the caused his and here the suffered property. Thompson were those related to stolen adds that the victim already contemplating replacing system prior was the to the theft, and this award the rekeying restitution for is excess of damages by caused his criminal conduct. claim, support To further his court Thompson states that the the rekeying solely upon
ordered of a alleged feeling based tenants’ security. lessened sense of He asserts that Albrecht never stated or attempted quantify the economic loss sustained from this vulnerable feeling. physical damage lock, Absent to the that maintains every statute does not for rekeying simply allow victim’s doors a theft it again. because occurred and could happen Conversely, Brewer, 269, relies upon State State v. 1999 MT 453, 989 407, to support P.2d its that argument entire building remedy in order to the Columbus Center’s loss security directly resulted from criminal conduct. It asserts quantified such economic loss by replacing the cost of keys. Furthermore, locks and tenants’ maintains the State that it as installing irrelevant to whether Columbus contemplated a key system prior new electronic incidents; to the theft it became necessary the Columbus Center a result of Thompson’s as criminal conduct. MCA, Section directs a district court to mandate when pecuniary
restitution the victim has sustained or economic Brewer, MCA, 46-18-243(l)(a), losses. pecuniary Section defines special damages, loss as “all but not damages, general substantiated record, person against evidence could recover arising in a civil or constituting offender action out of the facts events *4 activities, criminal the without ... including offender’s limitation out-of-pocket losses ....” This Court has said that a restitution order is court’s pecuniary
based where it of the facts or events upon loss arose out (1989), constituting Korang the defendant’s criminal State v. activities. 396, 326, Brewer, 390, 329-30. we a 773 P.2d In examined out-of-pocket expenses of within the definition of victim’s claim proceeded pecuniary working bookkeeper, While as a Brewer to loss. $96,000. Brewer, her employer’s checks on account excess of forge ¶ restitution her pleading guilty, pay 4. After the court ordered her to to $128,610.15 on the total amount in the amount of based of employer checks, paid wages in addition to invoices and to forged previous Brewer, firms, to paid accounting wages paid employees, amounts contractors, paid company to labor and amounts to a software paid fees Brewer, and a locksmith. 5.¶ employer had detailed the to the court as expenses Brewer’s costs by through her repair damage the caused Brewer theft.
disbursed Brewer, such, 17. As determined from the record that the this Court ¶ the particularity out-of-pocket court had with district described Brewer, made. being for which the restitution expenses ¶ Therefore, paid with the the amount to Brewer over the exception of Court employment, agreed of her we with the District that the course out-of-pocket exemplified expenses balance ofBrewer’s the employer’s out ofthe events of arising total loss suffered them facts or Brewer’s activities; specific damages under the restitution criminal allowed Brewer, 19. statute. the sentencing hearing, necessity At the Albrecht testified to
of as a result of rekeying heighten security Thompson’s Furthermore, $2,285 provided a quote she testified as as buying keys common door locks well as for replacing cost of The District again. locks in order secure the Court those chose to specifically found the reason Columbus Center Thompson’s a direct conduct. building was result of Therefore, expense out-of-pocket we conclude that such is an loss activity. This is not a directly resulting from criminal as general damage, special contemplated but statute. cognizant Thompson’s slippery MCA. is See This Court § however, vulnerability, as to tenant we fail to see slope argument under specific these circumstances Columbus Therefore, included this properly unreasonable. the District Court in the restitution calculation. expense its We conclude the District Court did not abuse discretion upon out-of-pocket restitution based losses requiring pay by evidence in the record. We affirm. substantiated NELSON, WARNER, GRAY, JUSTICE JUSTICES CHIEF and RICE concur. COTTER
JUSTICE LEAPHART dissenting. I18 dissent. The cost of rekeying the entire commercial legitimate not a out-of-pocket expense occasioned activity. criminal Section MCA. As Thompson correctly out, points there any was no evidence of to the lock nor any evidence of theft from any of the The tenants. sole basis for imposing the cost of alleged “feeling” tenants’ insecurity. allaying subjective If feelings insecurity suffices as a restitution, basis for no doubt the next theft request victim will salary for a full-time guard or a system. state-of-the-art alarm