In re B.W.

JUSTICE BAKER

dissents.

¶32 Although I do not disagree with most of the general principles of law the Court articulates in its Opinion, those principles do not apply in this case, just as they did not apply in Matter of K.E.G. I do not believe there is sufficient justification to overrule K.E. G. I would affirm the Youth Court’s determination that it had authority under the facts of this case to impose restitution for the aggregate pecuniary loss occasioned by the common scheme to which B.W. admitted. As the Court did in K.E.G., I would remand for a new restitution hearing to consider B.W.’s ability to pay.

¶33 The petition in this case, filed January 23,2012, alleged that B.W. was a Delinquent Youth

for the reason that on or about December 22, 2011, to January 1, 2012, in Yellowstone County, Montana, he committed the following delinquent acts:
CRIMINAL MISCHIEF (COMMON SCHEME) (FELONY)
That from about December 22, 2011, to January 1, 2012, the Youth, [B.W.], 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, to wit: the Youth with L.P. (born in October 1995), T.B. (born in April 1997), J.E. (born in July 1996), and/or J.E. (born in July 1996), damaged several vehicles, and the aggregated pecuniary loss is in excess of $1500.00; in Billings, Yellowstone County, Montana; all of which is a violation of Sections 45-6-101 and 45-2-101(8), Montana Code Annotated, and against the peace and dignity of the State of Montana.

¶34 Attached to the petition was an affidavit providing details about the entire vandalism spree and information gathered by police detectives, together with a twelve-page exhibit, comprising a spreadsheet listing each incident of vandalism alleged to have been part of the common scheme, identifying the date, location, victim number, and the property damaged. The affidavit included a list of the juveniles suspected to have participated on each occasion, noting B.W.’s suspected participation on the dates of December 22 and 29, and again listing all dates and suspected participants for the entire common scheme charged. The petition set forth in substantial detail *419the facts of the charged offense and adequately alerted the youth of the charge and the aggregate damage that resulted. See § 41-5-1402(l)(b), MCA.

¶35 On July 18,2012, B.W. and his counsel appeared before the Youth Court, at which time counsel advised the court that B.W. was prepared “to withdraw his previously entered denial and enter an admission to the petition.” The Youth Court questioned B.W. as to whether he recalled the rights of which he previously had been advised and, following his affirmative response, asked “whether you admit or deny the charge in the Petition of Criminal Mischief, Common Scheme, Felony, alleged to have occurred on or about December 22, 2011, to January 1st, 2012, in Billings, Yellowstone County, Montana?” B.W. answered, ‘Yeah, admit, yes, Ma’am.” Following additional questioning, the Court then asked B.W. to explain what he did “that makes you admit” the charge. Counsel inquired of B.W. whether he went around Billings with a group of other juveniles “on or about December 22nd and the 29th” and damaged property of others. B.W. said “yes” and then agreed with his counsel that “those two nights in question” were “done in furtherance of a common scheme or as part of an action.” After several additional questions to ascertain the voluntariness of his plea and satisfaction with counsel, the court accepted B.W.’s admission and the hearing concluded.

¶36 When the matter of restitution was argued at the disposition hearing, the Youth Court acknowledged the significant amount of aggregate restitution and defense counsel’s argument that the State “could have charged it differently.” The court noted, however, that B.W. “pled to participating in criminal mischief, common scheme, from December 22nd, 2011, to January 1st, 2012.” The court emphasized that “the important thing is you’ve pled to the common scheme, meaning that you pled to being involved in a crime of destroying other people’s property that was motivated by a purpose or plan, and it resulted in the commission repeatedly of this same offense, and that is this criminal mischief.”

¶37 Just as in K.E.G. (¶ 14), B.W.’s admission to the offense as charged is the reason that the imposition of aggregate restitution was lawful in this case. The Court’s lengthy discussion of notice and accountability is academic. B.W. had ample notice of the charges and entered a plea to the inclusive dates charged in the common scheme. The Court does not address the effect of the charging document that specifically alleged all dates of the vandalism spree. The law is clear that, “where a defendant voluntarily and knowingly pleads guilty to an *420offense, the plea constitutes a waiver of all nonjurisdictional defects and defenses ....” State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670. This includes complaints about the adequacy of the charge. State v. Spreadbury, 2011 MT 176, ¶¶ 8-13, 361 Mont. 253, 257 P.3d 392. “The reasoning is that a person pleading guilty is convicted and sentenced on his plea, not on the evidence.” Kelsch, ¶ 8 (quoting State v. Turcotte, 164 Mont. 426, 428, 524 P.2d 787, 788 (1974)). Because of the specific dates charged and the admission to that charge, proof of accountability was not required to hold B.W. responsible for the aggregate offense. B.W.’s testimony at the plea hearing did not affect the charge he admitted, but simply satisfied the Youth Court’s duty to “ascertain, from admissions made by the defendant at the plea colloquy, that the acts of the defendant, in a general sense, satisfy the requirements of the crime to which he is pleading guilty [or admitting].” State v. Frazier, 2007 MT 40, ¶ 20, 336 Mont. 81,153 P.3d 18.

¶38 In light of the fact that both youths were charged identically and both admitted the offense as charged, the Court in my view has not justified why a reexamination of KE.G. is “necessary” and warrants reversing that case, decided less than a year ago. Of course, “[c]ourt decisions are not sancrosanct... and stare decisis is not ‘a mechanical formula of adherence to the latest decision[.]’ ” State v. Gatts, 279 Mont. 42, 51, 928 P.2d 114, 119 (1996) (citing Patterson v. MacLean Credit Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 2370 (1989)). Still, ostensible “concerns for stability, predictability and equal treatment” in the law (Formicove, Inc. v. Burlington N., Inc., 207 Mont. 189, 194, 673 P.2d 469, 472 (1983)) are ill-served by the decision today. The Court crafts a result to address what is an issue only because the youth admitted to the offense as charged instead of either negotiating an amended charge or putting the State to its proof of his participation in the common scheme as charged.

¶39 I concur with the decision to remand, but would do so for the sole purpose of having the Youth Court impose a new restitution obligation after consideration of B.W.’s ability to pay. I dissent from the Court’s holding that the Youth Court lacked authority to impose restitution for the aggregate pecuniary loss resulting from the common scheme charged in the petition.

JUSTICE RICE joins in the dissenting Opinion of JUSTICE BAKER.