STATE OF MONTANA, Plaintiff and Appellee, v. JESSE TYLER THORPE, Defendant and Appellant.
No. DA 14-0072.
SUPREME COURT OF THE STATE OF MONTANA
Decided January 20, 2015.
Submitted on Briefs December 3, 2014.
2015 MT 14 | 378 Mont. 62 | 342 P.3d 5
For Appellee: Timothy C. Fox, Montana Attorney General; Mark Fowler, Appellate Services Bureau Chief; Helena; Kristen Pabst, Missoula County Attorney; Patricia Bower, Deputy County Attorney; Missoula.
JUSTICE BAKER delivered the Opinion of the Court.
¶1 Jesse Tyler Thorpe appeals the Fourth Judicial District Court’s order that he pay $3,143 in restitution following his conviction for violating an order of protection. The sole issue on appeal is whether the restitution order was proper. We conclude that it was not. We vacate and remand.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 In December 2009, Ericka L., the mother of then four-year old A.L., sought an order of protection restraining Thorpe from being near A.L. The petition relied on A.L.’s statements suggesting that Thorpe sexually abused her. On December 4, 2009, the Missoula Municipal Court granted the petition
¶3 On multiple occasions in the spring of 2012, Erika saw Thorpe’s car parked outside a house near the school that A.L. attends. On one occasion, A.L’s grandmother saw Thorpe on the house’s back deck. Erika contacted law enforcement authorities who in turn contacted Thorpe. Thorpe explained that his girlfriend lived at the house where the car was parked. A.L. did not know of these incidents until at least November 8, 2012. On that date, Erika drove with A.L. past the house and saw Thorpe’s car parked there. Erika called 9-1-1 while A.L. was still in the car, alerting A.L. that Thorpe was nearby.
¶4 On November 16, 2012, the State filed an Information charging Thorpe with six counts of violating
¶5 Thorpe appeals the restitution order.
STANDARDS OF REVIEW
¶6 The meaning of a restitution statute as applied to the facts of a case is a mixed question of law and fact that we review de novo. We will uphold a district court’s findings of fact unless they are clearly erroneous. State v. Cerasani, 2014 MT 2, ¶ 11, 373 Mont. 192, 316 P.3d 819.
DISCUSSION
¶7 A district court’s power to impose a criminal sentence is constrained to specific statutory authority. State v. Breeding, 2008 MT 162, ¶ 12, 343 Mont. 323, 184 P.3d 313.
¶8 Thorpe argues that the District Court erred by ordering him to pay restitution for losses that were not caused by his violation of the order of protection. Thorpe maintains that he was convicted for his conduct on April 25, 2012, that violated the order of protection, yet the court ordered restitution for counseling costs beginning in December 2009. The State responds that Thorpe’s actions caused A.L.’s psychological distress and her need for counseling, and precipitated the order of protection in 2009. Under the State’s theory, the alleged sexual abuse is either a criminal offense in its own right or part of the facts or events constituting the violation of the order of protection.
¶9 Thorpe was found guilty of one count of violating
¶10 The State cites several cases in which we upheld restitution for losses that were not the immediate result of the actions for which the defendant was prosecuted. In State v. McIntire, 2004 MT 238, 322 Mont. 496, 97 P.3d 576, we concluded that a defendant who pleaded guilty to burglary for stealing checks was liable for restitution for losses resulting from the forgery of those checks. McIntire, ¶¶ 6, 19. McIntire relied on the “causal relation” between the crime to which the defendant pleaded his guilt and the loss for which restitution was ordered. McIntire, ¶ 17. Here, by contrast, there is no evidence that Thorpe was found guilty of the sexual abuse that had the alleged causal relation with A.L.’s need for counseling beginning in December 2009.
¶11 In State v. Ness, 2009 MT 300, 352 Mont. 317, 216 P.3d 773, the defendant struck the victim with his car, drove off from the scene of the crime, and repaired his car. The victim died. Ness, ¶¶ 3-4. After the defendant pleaded guilty to tampering with evidence and admitted in his plea agreement that he hit the victim with his car, we concluded that the defendant was liable for restitution for the victim’s funeral expenses. Ness, ¶¶ 16-17. Ness likewise does not support the State’s argument: there, although it was not the crime for which he was convicted, the defendant admitted the criminal act that caused the loss (striking the victim with his vehicle). Ness, ¶ 16. We reasoned that, because Ness had admitted the act without which there could have been no tampering, there was a sufficient connection to support restitution of the victim’s funeral expenses. Ness, ¶¶ 16-17. Here, by contrast, there is no evidence that Thorpe ever admitted the alleged sexual abuse or agreed to pay restitution for it. Because, under
¶12 The State offers no authority that supports defining “the facts or events constituting the offender’s criminal activities,”
¶13 The State also calls our attention to State v. Perkins, 2009 MT 150, 350 Mont. 387, 208 P.3d 386, in which we upheld a restitution award that was “reasonably related to the objectives of rehabilitation and the protection of the victim and society.” Perkins, ¶ 12 (citing
¶14 The restitution statutes did not grant the District Court the authority to impose restitution for A.L.’s counseling costs in the absence of a causal relation between Thorpe’s offense and those costs, or an admission by Thorpe that he committed the criminal acts that led to those costs, or an agreement by Thorpe to pay those costs. We therefore conclude that the District Court erred by ordering restitution for counseling expenses that did not result from Thorpe’s violation of the order of protection. At sentencing, Thorpe argued that “the only parts of that therapy that can stem from this crime [are] November and December of 2012.” We agree. As noted above, it appears undisputed that A.L. did not learn of Thorpe’s violation until November 8, 2012. Whether any of the counseling sessions after that date related to Thorpe’s violation is a factual determination that must be made by the District Court. We remand for the District Court to consider that factual issue and to order restitution in an amount consistent with its findings.
CONCLUSION
¶15 We vacate and remand for recalculation of the restitution owed.
CHIEF JUSTICE McGRATH, JUSTICES SHEA, McKINNON and COTTER concur.