No. 02-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 308
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LINDA WELLING,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carl B. Jensen, Deputy Public Defender, Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; James B. Wheelis,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: October 10, 2002
Decided: December 12, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 On January 14, 1991, the Defendant, Linda Welling, pled guilty
to issuing a bad check (common scheme) in violation of § 45-6-316,
MCA (1989), and on February 13, 1991, received a five-year deferred
sentence on several conditions, including that she pay restitution
in the amount of $5,252.36. In January of 1996, her deferred
sentence was revoked and reinstated for a period of six years. On
or about December 27, 2001, the State filed a petition to revoke
Welling's probation for non-payment of restitution. The District
Court for the Eighth Judicial District in Cascade County found that
Welling violated the terms of her probation requiring payment of
restitution, found mitigating circumstances, and ordered that her
deferred sentence be extended two years. Welling appeals the
District Court's order. We reverse the Order of the District
Court.
¶2 The issue on appeal is whether the District Court abused its
discretion when it extended Welling's deferred sentence for two
years.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Welling received a five-year deferred sentence on February 13,
1991, after she pled guilty to one count of issuing a bad check
(common scheme), a felony in violation of § 45-6-316, MCA (1989).
As a condition of her deferred sentence, the District Court ordered
that she pay statutory fees and $5,252.36 as restitution to her
victims within five years.
¶4 On August 25, 1995, Welling's probation officer reported that
since April 1, 1991, Welling had made no payments. Welling
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admitted that she had failed to pay restitution. The District
Court revoked her deferred sentence and then reinstated her
deferred sentence for six more years. The District Court added
additional terms to her original deferred sentence which required
that Welling pay a minimum of $10.00 per month until the contract
on her residence was paid off, or until January 11, 1999,
(whichever came sooner). Thereafter, she was ordered to pay $250
per month until the restitution obligation was satisfied.
¶5 From January 11, 1996, until December 27, 2001, Welling paid
restitution in the total amount of $780. On December 27, 2001, the
State petitioned for revocation of her deferred sentence.
¶6 Along with its report of a probation violation, the State
submitted information regarding Welling's financial situation,
family situation, and her inability to work. Welling is a single
mother and it is undisputed that since October of 1999, she has
been unable to work as a result of "cervicothoracic strain and
cervicogenic headaches," which result from injuries she sustained
in October of 1999. Since October 2000, Welling's total income has
been $220 per month which she receives as workers' compensation
disability benefits. Welling's last restitution payment was made
on September 14, 2000, when she made a $100.00 payment. Patricia
Woolridge, a state probation and parole officer, testified that
Welling's physician had documented her inability to work since
October of 1999; that aside from the money, Welling had been a
model probationer; and, that prior to her injury, Welling had been
making fairly substantial payments for restitution.
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¶7 The District Court concluded that Welling violated her
probation. However, it found that Welling had been a model
probationer and there were mitigating circumstances and extended
the restitution period for two years during which her monthly
obligation was reduced to $10 per month.
STANDARD OF REVIEW
¶8 We review a district court's decision to revoke a probationary
sentence to determine whether the court abused its discretion.
State v. Anderson, 2002 MT 92, ¶ 10, 309 Mont. 352, ¶ 10, 46 P.3d
625, ¶ 10. Before a district court can revoke a suspended
sentence, it must be reasonably satisfied that the probationer's
conduct has not been what she agreed it would be if she were given
liberty. State v. Richardson, 2000 MT 72, ¶ 10, 299 Mont. 102, ¶
10, 997 P.2d 786, ¶ 10.
DISCUSSION
¶9 Did the District Court abuse its discretion when it extended
Welling's deferred sentence for two years?
¶10 The District Court concluded that Welling violated the
restitution condition of her probation, and extended the probation
period for two years, and required that Welling pay at least $10
per month during that period.
¶11 Welling contends that the District Court abused its discretion
when it extended her deferred sentence. She further contends that
the District Court abused its discretion by disregarding § 46-18-
203(6), MCA, which provides that a failure to pay restitution is
excused when the probationer has made a good faith effort to make
payments.
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¶12 The State contends that the District Court did not abuse its
discretion and that excusing Welling from her duty to pay
restitution would result in a "windfall" to her at the expense of
her victims. The State notes that Welling may soon receive a lump
sum workers' compensation settlement from which she could pay the
remaining restitution and that the District Court did not abuse its
discretion when it took this fact into consideration.
¶13 Section 46-18-203(6), MCA, provides:
At the hearing, the prosecution shall prove, by a
preponderance of the evidence, that there has been a
violation of the terms and conditions of the suspended or
deferred sentence. However, when a failure to pay
restitution is the basis for the petition, the offender
may excuse the violation by showing sufficient evidence
that the failure to pay restitution was not attributable
to a failure on the offender's part to make a good faith
effort to obtain sufficient means to make the restitution
payments as ordered. [Emphasis added.]
Section 46-18-247(2), MCA, provides that: "[i]f the court finds
that the offender's default was attributable to the offender's
failure to make a good faith effort to obtain the necessary funds
for payment of the ordered restitution, the court may take any
action provided for in 46-18-203." Section 46-18-203, MCA,
provides for the revocation of deferred sentences.
¶14 It is undisputed that Welling is a single mother with a
monthly income of $220; that prior to her injury she had made
substantial efforts to pay restitution and that she has otherwise
been a model probationer.
¶15 Based on these facts, we conclude that Welling provided
sufficient evidence that her failure to pay restitution was not
caused by her lack of a good faith effort to obtain the means to
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make those payments, and that her income was insufficient to make
even the $10 monthly payment which Welling's probation officer was
apparently willing to accept. Therefore, we conclude that the
District Court abused its discretion when it did not excuse
Welling's failure to pay restitution pursuant to § 46-18-203(6),
MCA.
¶16 We find no merit in the State's argument that Welling will
receive a "windfall" because she will be excused from paying
restitution if her sentence expires before she receives her
workers' compensation settlement. First, disability benefits are,
at most, partial compensation for the loss of earning capacity
caused by a work-related disability and by no means a "windfall."
Second, § 46-18-249(1), MCA, provides:
The total amount that a court orders to be paid to a
victim may be treated as a civil judgment against the
offender and may be collected by the victim at any time,
including after state supervision of the offender ends,
using any method allowed by law, including execution upon
a judgment, for the collection of a civil judgment.
[Emphasis added.]
In addition, § 46-18-241(1), MCA, provides that "[t]he duty to pay
full restitution under the sentence remains with the offender until
full restitution is paid," effectively eliminating any statute of
limitations for recovery of the amount due. Welling has not
received a "windfall:" she is still civilly liable for her past
wrongs and her victims may still recover for their losses,
regardless of when she acquires the ability to make payment.
¶17 For these reasons, the District Court's order extending Linda
Welling's deferred sentence for two years is reversed.
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/S/ TERRY N. TRIEWEILER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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Justice James C. Nelson specially concurs:
¶18 I concur in the result of our Opinion, although I would reach
that result in a different manner on the basis of various
sentencing, revocation and dispositional orders in the record.
¶19 The trial court's original sentence dated February 13, 1991,
deferred Welling's sentencing for five years. Under § 46-18-
201(2), MCA (1989), six years was the maximum deferral allowed.
Accordingly, the six years would have run February 12, 1997. The
court's January 11, 1996 Disposition revoked the first deferred and
reinstated a deferral for six years --again, the maximum under §
46-18-201(3), MCA (1995). Theoretically, this was permissible for
the reasons set out hereafter. This new six-year period would have
run January 10, 2002.
¶20 The next petition to revoke was timely filed in December 2001
(§ 46-18-203(2), MCA (2001)). In the court's April 4, 2002
Dispositional Order on that petition, the court found that Welling
violated the terms of her deferred imposition of sentence; and that
"[Welling] stated no legal reason why sentence should not be
pronounced . . . ." The court then stated that Welling's deferred
imposition of sentence was "extended" for two years and that the
"reason for this sentence is . . . mitigating circumstances. . . ."
Assuming the validity of the additional two years, that means the
new deferred sentence would have run April 3, 2004.
¶21 While we may disagree as to the effect of the unartful
language used by the trial judge--i.e., whether he actually
"revoked" her deferred or not and then, imposed a "sentence," but
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putting the best spin on its language from the court's standpoint--
what the court did was to effectively revoke Welling's deferred
status and then once again defer imposing a sentence for two years.
¶22 Next, it is necessary to focus on § 46-18-203(7)(a), MCA
(2001), which provides:
If the judge finds that the offender has violated
the terms and conditions of the suspended or deferred
sentence, the judge may:
(i) continue the suspended or deferred sentence
without a change in conditions;
(ii) continue the suspended sentence with modified
or additional terms and conditions;
(iii) revoke the suspension of sentence and require
the offender to serve either the sentence imposed or any
lesser sentence; or
(iv) if the sentence was deferred, impose any
sentence that might have been originally imposed.
¶23 Applying § 46-18-203(7)(a), MCA (2001), if the trial court
finds that the defendant violated the terms of the deferred
sentence--which undisputedly the judge did here--then his options
are limited. Under subsection (7)(a)(i) he could continue the
deferred sentence without a change in conditions. The court did
not do this in Welling's case. Rather, it "extended" the deferred
by two years. Subsections (7)(a)(ii) and (iii) apply only to
suspended sentences. And under subsection (7)(a)(iv) the judge
could impose any sentence that might have been originally imposed.
¶24 Setting aside the fact that "deferring" sentencing is not
imposing a sentence, but rather, setting that off to another time--
§ 46-18-201(1), MCA, allows the judge, as one of the statutorily
authorized sentences, to defer imposition of sentence for various
periods of time. In other words, the judge could revoke one
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deferred sentence and impose another deferred sentence (as did the
Judge in 1996). There is, however, no authority in the code that
allows the judge to "extend" the term of an existing deferred
sentence as a permissible result of finding that the defendant
violated the terms of his or her prior deferral. This is
especially true where the "extension" would extend the deferral
beyond the six-year maximum allowed by law.
¶25 Accordingly, we must resolve this case in one of two ways: (a)
either we must conclude that the judge revoked Welling's 1996
deferred and then reimposed a second two-year deferred--in which
case the prohibition against revocation in § 46-18-203(6), MCA,
would become applicable with the result that the judge improperly
revoked Welling's probation; or (b) we must conclude that in
extending an existing deferred, the judge entered an illegal
sentence--in which event the sentence must be vacated. In either
case, since Welling had made a good faith attempt to pay
restitution and since the deferral time has now run well past the
six years allowed by law as a result of the January 1996 deferral,
the State can no longer petition to revoke. Section 46-18-203(2),
MCA.
¶26 For these reasons the judgment against Welling must be
reversed and the proceedings against her dismissed. Our Opinion
having reached that same result, I concur.
/S/ JAMES C. NELSON
Chief Justice Karla M. Gray joins in the foregoing special
concurrence.
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/S/ KARLA M. GRAY
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