No. 14786
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS.
JAMES LENIHAN,
Defendant and ~ ~ ~ e l i a n t .
Appeal from: District Court of the Eighth Judicial District,
Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
Sandra K. Watts argued, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Sheri K. Sprigg, argued, Assistant Attorney General,
Helena, Montana
Submitted: November 2, 1979
Decided :a2 I (L- '
&
r -<
Filed: -,$,
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
his is an appeal from the District Court of the Eighth
Judicial ~istrict,Cascade County. Defendant was charged by
information on September 1, 1978, with burglary, a felony,
and criminal possession of dangerous drugs, a misdemeanor.
At his arraignment on September 12, 1978, defendant entered
a plea of not guilty to both offenses. On January 2, 1979,
defendant moved to withdraw his not guilty plea and entered
a plea of guilty to the charge of burglary, a felony in
violation of section 45-6-204, MCA. The county attorney's
office moved to dismiss the misdemeanor possession of danger-
ous drugs charge, and the court dismissed that charge.
After a presentence report and testimony were presented to
the court, sentence was imposed.
Defendant's three-year sentence was deferred on the
following conditions:
(1) That defendant was to serve sixty days in the
Cascade County jail with no release privileges;
(2) That defendant was placed under the rules and
regulations of the adult probation and parole bureau;
(3) That defendant was forbidden to use or have in his
possession any alcohol or drugs;
(4) That defendant was ordered not to associate with
any individuals on probation or parole;
(5) That defendant was subject to search and seizure
without warrant by any law enforcement officer who had
reasonable suspicion to believe that defendant had incrimi-
nating evidence; and
(6) That defendant was to pay the Cascade County attor-
ney's office the sum of $250 as reimbursement for his attor-
ney fees with the payment schedule to be worked out by his
probation officer.
The defendant in this case was found to be indigent and
was appointed counsel through the Cascade County public
defender's office. Appointed counsel represented defendant
through all stages of the case. It is from the condition
requiring defendant to pay $250 as reimbursement for his
attorney fees ordered in the deferred imposition of sentence
that defendant appeals.
Two issues have been presented to this Court for review:
1. Is the issue raised by defendant properly review-
able on appeal?
2. Did the District Court err in ordering an indigent
defendant to reimburse the county for attorney fees as part
of a condition of deferred imposition of sentence?
Defendant first argues that because Montana does not
have a recoupment statute, the District Court's order to
reimburse the attorney fees is invalid. He contends that
section 46-18-201, MCA, does not grant authority to a dis-
trict judge to impose such a condition.
Defendant cites State v. Babbit (1978), - Mont. ,
574 P.2d 998, 35 St.Rep. 154, and State v. Cripps (1978),
Mont. , 582 P.2d 312, 35 St.Rep. 967, for the
proposition that the imposition of a fine is not specified
as an allowable restriction or condition upon deferred
imposition of sentence or upon suspended execution of sen-
tence. The argument is made that an order for reimbursement
of fees and a fine are indistinguishable and that in the
absence of a recoupment statute, the District Court has no
authority to make such an order.
Defendant g o e s on t o c i t e two Supreme C o u r t c a s e s ,
J a m e s v. S t r a n g e ( 1 9 7 2 ) , 407 U.S. 128, 92 S.Ct. 2027, 32
L.Ed.2d 600, and F u l l e r v . Oregon ( 1 9 7 4 ) , 417 U.S. 40, 94
S.Ct. 2116, 4 0 L.Ed.2d 642, i n v o l v i n g s t a t e recoupment
s t a t u t e s , f o r t h e p r o p o s i t i o n t h a t t h e r e must be a recoup-
ment s t a t u t e t o make s u c h a n o r d e r b e c a u s e o n l y t h e n c a n t h e
c o u r t measure whether o r n o t a d e q u a t e s a f e g u a r d s w e r e pro-
v i d e d f o r t h e p r o t e c t i o n o f t h e d e f e n d a n t d u r i n g t h e recoup-
ment p r o c e s s .
F i n a l l y , t h e ABA S t a n d a r d s a t P a r t V I , S e c t i o n 6.4, and
a 1976 Washington S t a t e Bar r e p o r t a r e c i t e d by d e f e n d a n t
f o r t h e p r o p o s i t i o n t h a t t h e p r o c e s s o f recoupment r a i s e s
serious c o n s t i t u t i o n a l questions. Therefore, without a
s t a t u t e p r o v i d i n g a d e q u a t e s a f e g u a r d s , recoupment i s n o t
recommended.
The S t a t e ' s f i r s t argument c h a l l e n g e s t h i s C o u r t ' s
power t o r e v i e w , c o n t e n d i n g t h a t d e f e n d a n t d i d n o t o b j e c t t o
t h e challenged condition i n t h e D i s t r i c t Court. The S t a t e ' s
main c o n t e n t i o n i s t h a t reimbursement of a t t o r n e y fees i s a
reasonable condition of deferred imposition of sentence
under s e c t i o n 46-18-201 (1)( a ) ( v ) , MCA. The argument i s made
t h a t l a c k of s p e c i f i c a u t h o r i t y f o r any c o n d i t i o n imposed
d o e s n o t b a r i m p o s i t i o n o f t h a t c o n d i t i o n under t h e above
s t a t u t e as long as it i s reasonable. The S t a t e d i s t i n -
g u i s h e s B a b b i t and a r g u e s t h a t a c o n d i t i o n o f reimbursement
i s a n a l o g o u s t o r e s t i t u t i o n t o a c r i m e v i c t i m and d i f f e r e n t
from t h e payment o f a f i n e .
The S t a t e c i t e s S t a t e v. Smith ( 1 9 7 8 ) , 118 A r i z . 345,
576 P.2d 533, f o r t h e p r o p o s i t i o n t h a t a c o n d i t i o n o f pay-
ment t o t h e government o f t h e c o s t s o f i n c a r c e r a t i o n i s
v a l i d d e s p i t e t h e l a c k o f s p e c i f i c s t a t u t o r y a u t h o r i t y and
argues t h a t t h e s i t u a t i o n i n t h e i n s t a n t c a s e i s similar.
I t i s a r g u e d t h a t a c o n d i t i o n of payment f o r c o s t s t o s o c i -
e t y r e l a t e s d i r e c t l y t o t h e r e f o r m a t i o n o f t h e o f f e n d e r and
i s therefore valid. The S t a t e a g r e e s , however, t h a t t h e
a u t h o r i t y on t h i s m a t t e r i s d i v i d e d .
Before reaching t h e substantive i s s u e involved herein,
it i s f i r s t necessary t o discuss t h e S t a t e ' s contention t h a t
defendant's f a i l u r e t o o b j e c t t o h i s sentence i n the t r i a l
c o u r t precludes our reviewing t h i s matter.
I n t h i s c a s e , t h e C o u r t h a s been p l a c e d i n a n u n d e s i r -
a b l e p o s i t i o n , more s o b e c a u s e t h i s i s a c r i m i n a l p r o c e e d i n g .
Our h e a r i n g t h e matter h a s been c h a l l e n g e d b e c a u s e no o b j e c -
t i o n was r e c o r d e d i n t h e D i s t r i c t C o u r t . Defense c o u n s e l
r e l a t e s t h a t o b j e c t i o n s w e r e made i n chambers where t h e
f i r s t d i s c u s s i o n o f t h e s e c o n d i t i o n s w a s had, b u t no r e c o r d
was t a k e n and s o none i s a v a i l a b l e t o t h i s C o u r t . There i s
no need f o r t h e s e problems, and w e have commented on t h i s
t y p e of m a t t e r on p r e v i o u s o c c a s i o n s . This Court i s n o t
g o i n g t o w i l l i n g l y c o n t i n u e t o be p l a c e d i n t h i s k i n d o f
c i r c u m s t a n c e and c a n n o t emphasize t o o s t r o n g l y t h a t a p r o p e r
r e c o r d must be had a t a l l s t a g e s o f t h e p r o c e e d i n g s w i t h
p a r t i c u l a r emphasis on c r i m i n a l matters.
T r a d i t i o n a l l y , i n b o t h c i v i l and c r i m i n a l m a t t e r s , t h i s
C o u r t h a s n o t a c c e p t e d f o r r e v i e w i s s u e s which were n o t
objected t o a t the t r i a l level. S t a t e v. Armstrong ( 1 9 7 7 ) ,
172 Mont. 296, 562 P.2d 1129; S t a t e v . ~ a d i 1 9 7 5 ) , 168
(
Mont. 320, 542 P.2d 1206; S t a t e v. P a u l s o n ( 1 9 7 5 ) r 167 Mont.
310, 538 P.2d 339.
T h i s C o u r t , however, h a s n e v e r s p e c i f i c a l l y r u l e d on
t h e question presented here. T h a t i s , whether a n o b j e c t i o n
a t t h e t r i a l l e v e l i s a p r e r e q u i s i t e t o t h e challenging of a
s e n t e n c i n g o r d e r on a p p e a l . T h i s i s s u e h a s been r u l e d on i n
o t h e r j u r i s d i c t i o n s with varying r e s u l t s . A p o l l of such
j u r i s d i c t i o n s r e v e a l s t h a t Arkansas (Haynie v . S t a t e ( 1 9 7 5 ) ,
257 Ark. 542, 518 S.W.2d 4 9 2 ) , I d a h o ( P u l v e r v . S t a t e ( 1 9 6 8 ) ,
92 I d a h o 627, 448 P.2d 2 4 1 ) , and Kansas ( P e t e r s o n v. S t a t e
( 1 9 6 7 ) , 200 Kan. 1 8 , 434 P.2d 5 4 2 ) , have h e l d t h a t a n a p p e l -
l a t e c o u r t c a n n o t r e v i e w a s e n t e n c e i f t h e r e was no o b j e c -
t i o n t o it a t t h e t r i a l level. I l l i n o i s ( P e o p l e v. D e p r a t t o
( 1 9 7 6 ) , 36 I l l . A p p . 3 d 338, 343 N.Ed.2d 628), Indiana (Klein-
r i c h e r t v. S t a t e ( 1 9 7 3 ) , 260 I n d . 537, 297 N.E.2d 822),
F l o r i d a (Kohn v . S t a t e (19741, - F l a .App. , 289 So.2d
4 8 ) , P e n n s y l v a n i a (Commonwealth v. Lane ( 1 9 7 5 ) , 236 Pa.Super.
462, 345 A.2d 2 3 3 ) , and Oregon ( S t a t e v . Braughton (19771,
28 0r.App. 891, 561 P.2d 1 0 4 0 ) , on t h e o t h e r hand, do n o t
r e q u i r e a n o b j e c t i o n b e f o r e t h e v a l i d i t y of a s e n t e n c e c a n
b e reviewed.
S t a t e v. Braughton, s u p r a , i s s i m i l a r t o t h e i n s t a n t
case. Braughton i n v o l v e d a p l e a agreement w h e r e i n t h e
d e f e n d a n t was s e n t e n c e d t o t e n y e a r s i n p r i s o n , which was
suspended on t h e c o n d i t i o n t h a t h e make r e s t i t u t i o n t o f i v e
b u s i n e s s e s which w e r e t h e v i c t i m s o f crimes f o r which he had
n e v e r been charged. Defendant o b j e c t e d t o t h i s p o r t i o n of
h i s s e n t e n c e on t h e grounds t h a t t h e c o u r t exceeded i t s
s t a t u t o r y a u t h o r i t y i n imposing t h i s c o n d i t i o n . Before
r e a c h i n g t h e m e r i t s of t h e c a s e , t h e s t a t e r a i s e d t h e ques-
t i o n o f whether t h e s e n t e n c i n g o r d e r e n t e r e d w a s s u b j e c t t o
r e v i e w a t a l l i n l i g h t o f t h e f a c t t h a t t h e d e f e n d a n t made
no o b j e c t i o n t o t h e o r d e r a t t h e t i m e of i t s e n t r y . The
court s t a t e d:
". . . The s e n t e n c i n g a u t h o r i t y of a c o u r t
e x i s t s s o l e l y by v i r t u e of a s t a t u t o r y g r a n t
of power and t h e r e f o r e c a n n o t be e x e r c i s e d i n
any manner not specifically authorized . ..
Where, as in this case, it is alleged that a
sentencing court has exceeded its statutory
authority in imposing a specific sentence, an
objection below is not a prerequisite to the
challenging of the sentencing order alleged
to be void." Braughton, 561 P.2d at 1041,
note 2. (Citations omitted.)
It appears to be the better rule to allow an appellate
court to review any sentence imposed in a criminal case, if
it is alleged that such sentence is illegal or exceeds
statutory mandates, even if no objection is made at the time
of sentencing. As a practical matter, this may be a defen-
dant's only hope in cases involving deferred imposition of
sentence. If a defendant objects to one of the conditions,
the sentencing judge could very well decide to forego the
deferred sentence and send him to prison. To guard against
this possibility, a defendant often times must remain silent
even in the face of invalid conditions. We, therefore,
accept jurisdiction in this matter.
While the substantive issue involved in this case is
claimed to be one of first impression, it is only a varia-
tion of State v. Babbit, supra, and others.
Babbit involved a defendant who was convicted of crim-
inal possession of dangerous drugs and given a deferred
imposition of sentence. As one of the conditions of his
sentence, defendant was ordered to pay $200 to the County of
Missoula to be placed into a drug enforcement fund and was
in the nature of a fine. The offense Babbit was convicted
of provided for imposition of a prison term upon conviction,
but not for the imposition of a fine. This Court ruled that
under what is now section 46-18-201(1), MCA, a fine could
not be imposed as a condition of a deferred imposition of
sentence where there was not a reasonable association between
the fine imposed and the crime committed or where it was not
found to be a reasonable or necessary condition of probation
or for the protection of the public. 574 P.2d at 1001,
1002. Under the circumstances in Babbit, this Court held
that a fine could not be imposed as a condition of the
deferred imposition of sentence.
In deciding Babbit, this Court relied heavily on an
Arizona case, State v. Pitts (1976), 26 Ariz.App. 390, 548
P.2d 1202, citing the following rationale:
II I ...
Imposition of a fine is the passing of
a sentence and not the suspension of sentence.
The fact that the court terms it a condition of
probation does not render it any the less a
sentence. We - - -here dealins with a condi-
- are not d - -
- -of probation which requires the defendant
tion
to make restitution - - crime victim. That
-- to the
would be a whollv different matter.' ...
"The Arizona court further reasoned that if a
fine (as here and not related to our guidelines)
were to be allowed as merely a condition of pro-
bation, the default in payment could result in
revocation of probation and imprisonment - -
for the
maximum period allowed by the statute for the
crime £0; which defendant was convicted. In
that event the failure to pay a small fine may
result in defendant's imprisonment far exceeding
the period ordinarily permitted." State v. Bab-
bit, 574 P.2d at 1001. (Emphasis supplied.)
The State attempts to distinguish Babbit and argues
that a condition requiring reimbursement of attorney fees is
analogous to restitution to a crime victim and distinguish-
able from the payment of a fine. Various cases are cited
for the proposition that reimbursement of attorney fees is
permissible under statutes similar to our section 46-18-201,
MCA, if certain constitutional guidelines are met. State v.
Foust (1972), 13 N.C.App. 382, 185 S.E.2d 718; State v.
Smith (1978), 118 Ariz.App. 345, 576 P.2d 533; State v.
Rogers Iowa r State v.
Barklind (1975), 12 Wash.App. 818, 532 P.2d 633.
The leading case on the above guidelines is Fuller v.
Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642.
The United States Supreme Court in Fuller upheld an Oregon
recoupment statute which placed certain limitations on the
actual recoupment process. They were as follows:
(1) A requirement of repayment may be imposed only upon
a convicted defendant;
(2) A court may not order a convicted person to pay
these expenses unless he is or will be able to pay them; the
sentencing court must take account of the financial resources
of the defendant and the nature of the burden that payment
of costs will impose; no requirement to pay may be imposed
if it appears at the time of sentencing that there is no
likelihood that a defendant's indigency will end;
( 3 ) A convicted person under an obligation to repay may
at any time petition the court which sentenced him for
remission of the payment of costs or of any unpaid portion
thereof; and
(4) No convicted person may be held in contempt for
failure to repay if he shows that his default was not attri-
butable to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith
effort to make the payment. Fuller v. Oregon, 40 L.Ed.2d at
650.
There is no statute in Montana which specifically
enumerates the Fuller guidelines. Further, the District
Court makes no mention in its order of those guidelines.
Failure to do so revives the fears espoused by this Court in
Babbit :
". . . the default in payment could result in
revocation of probation and imprisonment - -
for the
maximum period allowed by the statute for the
crime which defendant was convicted. In that
event the failure to pay a small fine may result
in defendant's imprisonment far exceeding the
period ordinarily permitted." 574 P.2d at 1001.
This Court is aware of the financial burden placed on
the counties and the State by the criminal justice system.
We do not disagree with the proposition of reimbursement to
the State. On the contrary, we applaud the trial judge for
his efforts. However, we feel that recoupment provisions
should be made to operate with considerations given to
ability to repay, and in the event of default, the penalty
should be a form of civil liability rather than possible
criminal sanctions. Recoupment is not a magic word, and it
may be possible and desirable to perfect a system outside
that kind of legislation.
The judgment of the deferred imposition of sentence is
remanded to the District Court with instructions to vacate
the repayment of attorney fees condition complained of and
enter its order accordingly.
We concur:
FA^ J,%@4&
Chief Justice