State v. Benoit

No. 00-760

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 166

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MICHELLE BENOIT,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Marge Johnson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carl Jensen, Attorney at Law, Great Falls, Montana

For Respondent:

Hon. Mike McGrath, Attorney General;
Jim Wheelis, Assistant Attorney General, Helena, Montana

Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: September 6, 2001

Decided: July 25, 2002
Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 On November 30, 1999, Michelle Benoit (“Benoit”) pled guilty

in the Montana Eighth Judicial District Court, Cascade County, to

the charge of felony theft. Benoit was sentenced to a six year

deferred imposition of sentence subject, in part, to the condition

that she pay restitution in the amount of $15,933.90. Benoit

appeals both the restitution order and the length of her sentence.

We affirm.

¶2 The following issues are presented for our review:

¶3 1. Whether the District Court erred in ordering Benoit to pay

restitution in the amount of $15,933.90?

¶4 2. Whether the District Court violated Benoit’s due process

rights under Article II, Section 17, of the Montana Constitution by

deferring imposition of her sentence for six years to allow payment

of restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Benoit was employed by Burger Master in Great Falls, Montana,

in July 1997. In August 1999, Lynda Monroe (“Monroe”), the general
manager of Burger Master, suspected that Benoit was stealing from

the business while working at the cash register. Monroe videotaped

Benoit for four consecutive days. The videotapes revealed that

Benoit was stealing money by falsifying gold card sales. Benoit

was observed keying gold card sales into the register when such

sales had not actually occurred. Gold cards entitle customers to

discounted prices. When a gold card entry is made in the register,

the discounted price is automatically deducted from the amount owed

2
by the customer. As a result, Benoit’s customers would pay full

price, she would subsequently pocket the difference between the

actual price paid and the gold card price discount, and her till

would balance properly at the end of the day.

¶6 During the four days Benoit was videotaped falsifying gold

card sales, her theft totaled approximately $50.00 to $60.00 each

day. After observing the videotapes, Monroe confronted Benoit

about the thefts. Thereafter, Benoit signed two statements

admitting that she stole money, exceeding $500.00, from Burger

Master since the start of her employment. On August 17, 1999,

Benoit was arrested after Burger Master notified law enforcement of

her acts of theft.
¶7 On August 27, 1999, the Cascade County Attorney filed an

Information in the District Court alleging Benoit committed the

offense of felony theft, in violation of § 45-6-301(1)(a), MCA

(1997), on or between May 1997 and August 1999.

¶8 On October 4, 1999, Benoit entered into a non-binding plea

agreement with the Cascade County Attorney’s Office. Therein,

Benoit agreed to plead guilty to the charge of felony theft in

exchange for a recommendation from the Cascade County Attorney that

she receive a two year deferred imposition of sentence based upon

the possible imposition of various conditions, including the

payment of restitution to Burger Master. On November 30, 1999,

Benoit appeared in District Court and entered a plea of guilty

pursuant to the plea agreement. The District Court ordered that a

3
pre-sentence investigation (“PSI”) report be conducted by the

Adult Probation and Parole Bureau.

¶9 Patricia Wooldridge (“Wooldridge”), an Adult Probation and

Parole Officer, conducted the PSI and submitted a report to the

District Court on March 2, 2000. Wooldridge stated in the PSI that

Benoit had no assets and owed approximately $3,105.00 in fines to

the Great Falls City Court. In addition, Wooldridge noted that

Benoit was unemployed at the time the PSI was conducted, but was

seeking employment. Wooldridge further stated that Monroe was in

the process of reviewing store records to determine the amount of

pecuniary loss sustained by Burger Master and requested additional

time to submit a victim impact statement.
¶10 Wooldridge amended the PSI report on March 14, 2000, to

include a victim impact statement from Monroe, and Monroe’s

restitution tabulations for January 1998 through July 1998. Monroe

alleged in her statement that Benoit also committed theft by

falsifying voided transactions. Monroe explained that Benoit would

void a valid transaction and then retain the money paid by the

customer. Monroe therefore requested restitution for pecuniary

losses sustained by Burger Master resulting from Benoit’s

falsification of gold card sales and voided transactions. Based

upon Monroe’s examination of Burger Master’s records from January

1998 through July 1998, she calculated an approximate loss of

$4,200.00. Monroe, however, noted that her calculation did not

include losses sustained from Benoit’s falsified gold card sales

between August 1998 to August 1999 or falsified voided

4
transactions. Wooldridge thus recommended in the supplemental PSI

that “due to the disparity of the amount first charged and the

amounts uncovered with further research, that a separate

restitution hearing would be beneficial to the victims, the

defendant, and Justice in general.”

¶11 The District Court conducted a combined restitution and

sentencing hearing on August 8 and August 22, 2000. Monroe

testified at the hearing and requested a total amount of $15,933.90

in restitution. Without objection, the State introduced into

evidence restitution tabulations calculated by Monroe for January

1998 through August 1999.
¶12 Since the specific methods utilized by Monroe in calculating

Burger Master’s pecuniary losses are critical to our analysis, we

will explain those methods in detail. First, to determine the

losses resulting from Benoit’s falsification of voided

transactions, Monroe calculated the total number of voided

transactions initialed by Benoit during January 1998 through August

1999. Monroe then assumed 25% of Benoit’s voided transactions were

legitimate, and thereby subtracted 25% from the total monetary

amount of voids conducted by Benoit. The amount totaled $1,833.84.

¶13 Next, Monroe approximated the number of gold card sales Benoit

falsified by calculating the total number of gold cards sold by all

employees, the total number sold by Benoit, and subtracted the

average number of gold cards sold by other employees from the

number of gold cards sold by Benoit. Then, Monroe estimated the

average monetary amount of each falsified gold card sale by

5
averaging the value of the five different possible gold card item

discounts, which ranged in price from $2.50 to $3.25, averaging

$3.02 per transaction. Monroe thereafter multiplied the average

monetary amount of each gold card sale by the number of estimated

sales falsified by Benoit. The amount totaled $12,466.56.

¶14 In addition, Monroe requested restitution for wages paid to

three Burger Master employees who assisted in determining

restitution by either reviewing records or covering shifts for

Monroe and her daughter while they reviewed Burger Master’s

records. The wages paid to the three employees totaled $1,633.50.

Monroe did not document or request restitution for her own time

examining Burger Master’s records.
¶15 Brian Loucks (“Loucks”), a certified public accountant,

testified at the restitution hearing on behalf of Benoit. Loucks

alleged that Monroe’s assumptions regarding the average value per

gold card sale, the number of falsified gold card sales, and the

number of falsified voids performed by Benoit were speculative and

could alter the amount of actual losses sustained by Burger Master,

possibly higher or lower than that calculated by Monroe. He

suggested several variables which could be further explored to

compile restitution differently, but acknowledged that there is

“some guess work” associated with determining losses sustained from

employee theft. Loucks, however, did not examine Burger Master’s

original records nor did he find such a review necessary, as he

disputed only the assumptions made by Monroe.

6
¶16 Benoit also testified at the restitution hearing. She

admitted that she stole money from Burger Master by falsifying

voided transactions and gold card sales since 1998. She further

admitted that she was uncertain of the exact amount she stole from

Burger Master. Benoit stated that she was employed and her take

home pay ranged from $197.00 to $227.00 per week. She listed her

various monthly expenses. In addition, Benoit acknowledged that

two years would not give her enough time to pay restitution in the

amount of $15,933.90.
¶17 At the conclusion of the hearing, the District Court sentenced

Benoit to a six year deferred imposition of sentence subject, in

part, to the condition that she pay restitution in the amount of

$15,933.90. The District Court provided Benoit with the

opportunity to withdraw her plea of guilty after two years from the

date of entry of its judgment if she satisfied all the conditions

imposed therein within that time period. On October 20, 2000, the

District Court entered its Judgment of Conviction and Sentencing

Order. Benoit appeals.

STANDARD OF REVIEW

¶18 We review a criminal sentence for legality only. State v.

Pritchett, 2000 MT 261, ¶ 6, 302 Mont. 1, ¶ 6, 11 P.3d 539, ¶ 6

(citation omitted). Therefore, our review is confined to whether

the sentence is within the parameters provided by statute.

Pritchett, ¶ 6 (citation omitted).

¶19 Our review of constitutional questions is plenary. Pritchett,

¶ 27 (citation omitted).

7
 DISCUSSION

ISSUE ONE

¶20 Whether the District Court erred in ordering Benoit to pay

restitution in the amount of $15,933.90?

¶21 Benoit’s argument is twofold. First, Benoit claims the

District Court imposed restitution in violation of § 46-18-242,

MCA, since documentation of the victim’s pecuniary loss was not

provided in the PSI or to the court at the restitution hearing.

Secondly, Benoit contends that Monroe’s restitution calculations

were speculative, and therefore the District Court had no authority

to impose restitution for amounts which Monroe could only speculate

had occurred through acts of theft. Benoit points out that Monroe

examined Burger Master’s financial statements daily for the time

period in question and never noticed anything that caused her

concern prior to August 1999. Benoit alleges the court thus

ordered her to pay restitution which was not part of the theft she

was “caught performing.” Benoit asserts this case should be

reversed and remanded to the District Court for a determination of

restitution based on the actual amount of provable losses sustained

by Burger Master.
¶22 The State responds that the District Court properly assessed

the amount of pecuniary loss sustained by Burger Master. The State

asserts the requirements of § 46-18-242, MCA, were complied with

since the amended PSI included Monroe’s analysis of Burger Master’s

losses resulting from Benoit’s theft for seven months, and Monroe

presented further documentation at the restitution hearing for the

8
entire time period losses were sustained. Moreover, the State

claims Benoit’s counsel had ample opportunity to examine Monroe’s

original records prior to the restitution hearing, but failed to do

so. The State further contends the court properly assessed

restitution since Burger Master’s pecuniary loss was calculated by

reasonable methods. The States notes that pecuniary loss is

measured by what a victim could recover against an offender in a

civil action pursuant to § 46-18-243(1)(a), MCA. The State thus

contends that reasonable methods may be employed to determine

restitution in the case at hand since we held in Hostetter v.

Donlan (1986), 221 Mont. 380, 383, 719 P.2d 1243, 1245, that

reasonable methods of calculation are permitted in civil cases if

losses cannot be ascertained with certainty.
¶23 We will first address whether the District Court had statutory

authority to impose restitution in this case. A sentencing court

is required to impose a sentence that includes payment of full

restitution whenever the sentencing judge finds that a victim of an

offense has sustained a pecuniary loss. See Section 46-18-201(5),

MCA (1997). However, a sentencing judge is not authorized to

impose a sentence of restitution until the procedures stated in §

46-18-241, MCA (1997), through § 46-18-249, MCA (1997), are

satisfied. See Section 46-18-201(5), MCA (1997). Also see

Pritchett, ¶ 7 (citation omitted). Particularly relevant to the

case at hand is whether the court complied with the procedures

specified in § 46-18-242, MCA (1997).

¶24 Section 46-18-242, MCA (1997), provides:

9
 Investigation and report of victim’s loss. (1) Whenever the
court believes
that a victim of the offense may have sustained a pecuniary
loss as a result
of the offense or whenever the prosecuting attorney requests,
the court shall
order the probation officer, restitution officer, or other
designated person to
include in the presentence investigation and report:

(a) documentation of the offender’s financial resources and
future ability to
pay restitution; and

(b) documentation of the victim’s pecuniary loss, submitted by
the victim
or by the board of crime control if compensation for the
victim’s loss has
been reimbursed by the crime victims compensation and
assistance account.

(2) When a presentence report is not authorized or requested,
the court
may receive evidence of the offender’s ability to pay and the
victim’s
loss at the time of sentencing.

¶25 We have held that the failure of a PSI to document a victim’s

pecuniary loss, the offender’s financial resources and future

ability to pay restitution renders a district court’s judgment

illegal, as it violates the requirements of § 46-18-242, MCA

(1997). See State v. Muhammad, 2002 MT 47, ¶ 47, 309 Mont. 1, ¶

47, 43 P.3d 318, ¶ 47 (citing Pritchett, ¶ 13). Here, however, the

supplemental PSI included Monroe’s tabulations of pecuniary loss

sustained by Burger Master from January 1998 through July 1998.

Moreover, Wooldridge noted in the supplemental PSI that an

evidentiary hearing should be conducted by the court to determine

the total amount of loss sustained by Burger Master. The District

Court conducted a combined restitution and sentencing hearing,

providing both Benoit and the State with the opportunity to present

10
evidence and cross-examine witnesses. At the hearing, Monroe

presented evidence, including her tabulations from January 1998

through August 1999, of pecuniary losses sustained by Burger

Master. Further, Benoit’s financial resources were documented in

the PSI, and she testified at the sentencing hearing regarding her

financial resources and future ability to pay restitution.

Consequently, we conclude that documentation of Burger Master’s

losses, Benoit’s financial resources and her future ability to pay

restitution were presented to the District Court in compliance with

§ 46-18-242, MCA (1997). Therefore, we hold that the District

Court had authority to impose restitution.
¶26 Next, we will examine whether the District Court’s calculation

of pecuniary loss sustained by Burger Master is within parameters

provided by statute. Section 46-18-243(1), MCA (1997), defines

pecuniary loss as follows:

(a) all special damages, but not general damages,
substantiated by evidence
in the record, that a person could recover against the
offender in a civil
action arising out of the facts or events constituting the
offender’s criminal
activities, including without limitation the money equivalent
of loss resulting
from property taken, destroyed, broken, or otherwise harmed
and out-of-pocket
losses, such as medical expenses, loss of income, expenses
reasonably
incurred in obtaining ordinary and necessary services that the
victim would
have performed if not injured, expenses reasonably incurred in
attending
court proceedings related to the commission of the offense . .
.

(b) reasonable out-of-pocket expenses incurred by the victim
in filing

11
 charges or in cooperating in the investigation and prosecution
of the
offense. [Emphasis added.]

¶27 We have held that a criminal defendant is liable for

restitution for offenses to which the defendant has admitted, as a

defendant is required to make full restitution for pecuniary losses

“arising out of the facts or events constituting the offender’s

criminal activities,” pursuant to § 46-18-241(1), MCA (1997), and §

46-18-243(1)(a), MCA (1997). See State v. Beavers, 2000 MT 145, ¶

11, 300 Mont. 49, ¶ 11, 3 P.3d 614, ¶ 11. Also see State v. Korang

(1989), 237 Mont. 390, 395-397, 773 P.2d 326, 329-330 (holding that

the court did not err in ordering the offender to make full

restitution for losses sustained from a time period not alleged in

the charging information since the evidence presented at the

sentencing hearing established the losses sustained by the victim

during that time period arose out of the facts or events

constituting the offender’s criminal activities).
¶28 Here, the charging information alleged Benoit committed felony

theft at Burger Master from May 1997 through August 1999. On

November 30, 1999, Benoit pled guilty to the charge of felony

theft. Additionally, Benoit admitted at the restitution hearing

that she committed theft at Burger Master by falsifying gold card

sales and voided transactions since 1998. Consequently, we

conclude that Benoit is liable for pecuniary losses sustained by

Burger Master resulting from her admitted acts of theft from

January 1998 through August 1999.

12
¶29 We will now turn our attention to whether the methods utilized

by Monroe in calculating restitution, and subsequently adopted by

the court, are within statutory mandates. As the State correctly

points out, the amount of pecuniary loss recoverable by Burger

Master is measured by the amount of loss recoverable in a civil

action. See Section 46-18-243(1)(a), MCA (1997). We have held

that an award of speculative damages is not allowed in civil cases.

See Stensvad v. Miners and Merchants Bank of Roundup (1982), 196

Mont. 193, 206, 640 P.2d 1303, 1310 (citation omitted). However,

we have held that loss of future profits, although often

speculative, are recoverable “[o]nce liability is shown, that is

the certainty that the damages are caused by the breach, then loss

of profits on a reasonable basis for computation and the best

evidence available under the circumstances will support a

reasonably close estimate of the loss by a District Court.” See

Hostetter, 221 Mont. at 382-383, 719 P.2d at 1245 (quoting

Stensvad, 196 Mont. at 206, 640 P.2d at 1310). Consequently, we

hold that the losses sustained from Benoit’s admitted acts of theft

are recoverable, even though the actual losses may be uncertain, if

the losses were calculated by use of reasonable methods based on

the best evidence available under the circumstances.
¶30 The evidence presented at the hearing in this case establishes

that actual losses resulting from Benoit’s theft could not be

determined with certainty. As a result, Monroe made several

assumptions to determine restitution. Benoit’s witness, Loucks,

disputed the assumptions made by Monroe and suggested several

13
variables which could be further explored to compile restitution,

but he acknowledged that there is often “some guess work”

associated with determining losses sustained from employee theft.

Loucks further acknowledged that implementation of such variables

could alter the amount of restitution calculated by Monroe to

Benoit’s detriment. Moreover, Benoit did not provide the court

with a reasonable estimation of the losses sustained by Burger

Master. Therefore, we conclude that the methods utilized by Monroe

and subsequently adopted by the court were reasonable based on the

best evidence available under the circumstances presented in this

case.
¶31 We further conclude that Burger Master may recover reasonable

out-of-pocket expenses incurred in cooperating in the investigation

and prosecution of this case, which are substantiated by the

evidence in the record, pursuant to § 46-18-243(1)(b), MCA (1997).

Since the record demonstrates that Burger Master incurred out-of-

pocket expenses when it paid wages to three employees who assisted,

directly and indirectly, in calculating restitution, Burger Master

is entitled to such losses. We therefore conclude that the District

Court did not exceed its statutory authority when it ordered Benoit

to pay restitution in the amount of $15,933.90. Consequently, we

affirm the District Court’s restitution order.

ISSUE TWO

¶32 Whether the District Court violated Benoit’s due process

rights under Article II, Section 17, of the Montana Constitution by

14
deferring imposition of her sentence for six years to allow payment

of restitution?

¶33 Relying on our decision in Pritchett, ¶ 37 (citing State v.

Farrell (1984), 207 Mont. 483, 676 P.2d 168), Benoit argues the

District Court violated her due process rights under Article II,

Section 17, of the Montana Constitution when it increased her

deferred imposition of sentence from two years, as recommended in

the plea agreement, to the maximum allowable deferment period of

six years to insure payment of restitution. Benoit asserts her

sentence should be reversed and remanded for determination of a

length of sentence consistent with her charge and her history

instead of her ability to pay restitution.
¶34 In opposition, the State points out that the facts stated in

Farrell and Pritchett are distinguishable from this case since the

maximum allowable punishment was not imposed in this case. Rather,

the District Court deferred imposition of Benoit’s sentence for the

maximum allowable period in accordance with § 46-18-201(1)(a)(ii),

MCA, which specifically authorizes a deferment for six years “if a

financial obligation is imposed as a condition of sentence[.]” The

State thus contends the length of Benoit’s deferred imposition of

sentence was appropriate. We agree.

¶35 Article II, Section 17, of the Montana Constitution provides

that: “No person shall be deprived of life, liberty, or property

without due process of law.” We have held that a criminal

defendant’s right to due process requires that “indigency or

poverty not be used as the touchstone for imposing the maximum

15
allowable punishment.” Pritchett, ¶ 28 (quoting Farrell, 207 Mont.

at 499, 676 P.2d at 177).

¶36 The defendant in Pritchett pled guilty to burglary and was

sentenced to the maximum allowable punishment of twenty years, all

of which was suspended based upon the condition that he pay

restitution. Pritchett, ¶ 26. Since the court sentenced Pritchett

to the maximum term based on his indigency, we held that the court

violated the defendant’s right to due process. Pritchett, ¶ 37.

Likewise, we held in Farrell that the court violated the

defendant’s due process rights when it based the length of his

sentence on his indigency and sentenced him to the maximum

allowable punishment of ten years for the offense of theft, all

suspended subject to the condition that he make full restitution.

Farrell, 207 Mont. at 498-499, 676 P.2d at 176-177.
¶37 Here, however, Benoit was not sentenced to the maximum

allowable punishment of ten years for the offense of felony theft.

See Section 45-6-301(7), MCA (1997). Rather, the court imposed

a six year deferred imposition of sentence, the maximum allowable

period a sentence may be deferred if restitution is imposed as a

condition of the sentence pursuant to § 46-18-201(1)(a)(ii), MCA

(1997). Therefore, we conclude that the facts presented in

Pritchett and Farrell are distinguishable from the facts in the

case at hand.

¶38 Further, the District Court provided Benoit the opportunity to

withdraw her plea of guilty prior to the termination of the six

year deferred imposition of sentence. Specifically, the District

16
Court stated that “[a]t any time after a period of two years from

the date of this Order, if the Defendant can show that she has

satisfied all conditions of this Order, the Court will consider an

early request to withdraw her plea of guilty.” For the foregoing

reasons, we conclude that the District Court did not violate

Benoit’s due process rights guaranteed by Article II, Section 17,

of the Montana Constitution. Accordingly, we affirm the length of

Benoit’s deferred imposition of sentence.

¶39 Affirmed.
/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART

17
Justice Terry N. Trieweiler concurring and dissenting.

¶40 I concur with the majority's conclusion that the District

Court had authority to impose restitution pursuant to § 46-18-

201(5), MCA (1997), and 46-18-242, MCA (1997). I also concur that

the amount of restitution imposed by the District Court was based

on a calculation using reasonable methods and the best evidence

available under the circumstances.

¶41 I dissent from the majority's conclusion that the District

Court did not violate Benoit's right to due process when it

extended the length of her deferred sentence from that which had

been recommended by the State solely because of her inability to

complete payment of restitution within a shorter period of time.

The majority Opinion completely misses the point of our decisions

in State v. Farrell (1984), 207 Mont. 483, 676 P.2d 168, and State

v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d 539. We did not

conclude in those cases that defendants' rights to due process had

been violated because they received the maximum sentence. We held

that their rights to due process had been violated because the

length of their sentences had been extended because they did not

have the financial ability to pay restitution in a shorter period

of time. That is exactly what happened in this case and Benoit's

sentence violated her right to due process for the same reasons.
¶42 In State v. Farrell, the defendant was charged with and

convicted of receiving public assistance based on false statements.

He was sentenced to ten years in prison and that sentence was

suspended on the condition that he make restitution. On appeal,

18
this Court first pointed out that based on the colloquy between the

trial judge and the defendant, it was apparent that the length of

the defendant's suspended sentence was based on the trial judge's

conclusion that defendant would not be able to pay the amount of

restitution imposed in a shorter period of time. After reviewing

various U.S. Supreme Court decisions relating to sentencing and due

process, this Court held:

In the instant case, we believe the appellant's due
process rights may have been violated. . . .
Nevertheless, we think it arbitrary and unfair in this
case to subject the appellant to the maximum sentence
simply because of an apparently unsupported notion that
he may not be able to make good on the recoupment and
restitution within ten years. . . . The record indicates
that indigency may have been the criterion for imposing
the sentence in this particular case, and we therefore
view the sentence in this instance as a possible
infringement upon fundamental fairness.
Farrell, 207 Mont. at 498, 676 P.2d at 176-77.

¶43 The critical point in Farrell was not that the defendant had

received the maximum sentence. The point and reason that his case

was remanded for resentencing was that the length of his sentence

was affected by his indigency and the resulting fact that he could

not pay restitution in a shorter period of time. It is clear from

this Court's discussion in that case that had Farrell received a

nine-year sentence rather than a ten-year sentence solely because

he could not complete payment of restitution in a shorter period of

time, the result would have been the same. There is no logical

basis for linking the result, as the majority does, to the simple

fact that in that case, Farrell received the maximum sentence

permitted by law.

19
¶44 Sixteen years later, in State v. Pritchett, we reaffirmed that

linking the length of a defendant's sentence to his or her ability

to pay restitution violates that defendant's right to due process

of law. In that case, Pritchett pled guilty to one count of

burglary and was given a twenty-year suspended sentence on the

condition that he pay restitution in the amount of $62,383.72. In

that case, there was no colloquy between the court and the

defendant which indicated that the defendant's length of sentence

was tied to his ability to pay restitution. However, the

presentence investigation (PSI) report stated that:
To give the Defendant adequate time to pay off the
restitution in this case the Officer recommends a twenty
(20) year sentence to the Montana State Prison, with all
of the time suspended.

Pritchett, ¶ 3.

¶45 On appeal it was not Pritchett's contention that his sentence

violated due process because he received the maximum allowable

punishment for burglary. In the language of our Opinion, it was

Pritchett's contention:

[T]hat the court based the length of his sentence on the
time it would take him to make restitution given his
limited financial resources. He argues that, in basing
his sentence on his indigency, the District Court
violated his constitutional right to due process. We
agree with both his factual analysis and his conclusion
of law. [Emphasis added.]

Pritchett, ¶ 26.

¶46 In arriving at our decision in Pritchett, we relied on the due

process clause of Article II, Section 17 of the Montana

Constitution and our prior decision in Farrell. We stated the

issue before us as follows:

20
 The question before us, then, is whether the
District Court based Pritchett's sentence on the length
of time he would need to pay restitution. We find
substantial evidence in the record that it did. Our
holding in Farrell clearly applies and the sentence must
be overturned as a violation of Pritchett's right to due
process.

Pritchett, ¶ 30.
¶47 We acknowledged that unlike Farrell, we had no explicit

statement from the district judge that Pritchett's sentence was

based on the amount of time he would need to pay restitution but

concluded, based on the PSI recommendation and other language used

by the district court in the rationale for its sentence, that

ability to pay was the implicit basis. Therefore, we reversed

Pritchett's sentence with the following explanation:
We hold, as we did in Farrell, that, in basing the term
of his prison sentence on the defendant's indigency, the
District Court violated Pritchett's rights to due process
under Article II, Section 17 of the Montana Constitution.
[Emphasis added.]

Pritchett, ¶ 37.

¶48 The facts that both Farrell and Pritchett received the maximum

sentence allowable for their offenses are simply circumstances

unique to those cases. Those facts had nothing to do with the

result as is evident from the clear language employed in the

Pritchett decision. We set aside Pritchett's sentence because the

district court based "the term of his prison sentence on the

defendant's indigency." Based on the District Court's colloquy

with Michelle Benoit, it is apparent that she did the same thing.

The District Court made the following remarks which are strikingly

similar to those made in Farrell at the time of Benoit's sentencing

hearing:

21
 THE COURT: If I'm going to defer imposition of sentence,
it seems to me that the amount of restitution requires a
lengthier deferred imposition of sentence than two years.
[The sentence recommended by the state]. The longest I
can give you is six years. Is that what you want?

THE DEFENDANT: (No audible response).

THE COURT: All right. Now, I have to tell you, if I'm
still a Judge, when you get done with this, if you get
done with it quicker let's say you get some tax refunds,
pay them into the restitution then you can get it done
quicker. Sometimes you get those things.

I will allow you to withdraw your plea prior to the
six year period of time as long as you fulfill the
conditions. Okay.
So what I'm going to do is for theft by common
scheme, a felony, I'm going to defer imposition of
sentence for a period of six years. I will allow you to
withdraw your plea any time after two years if you have
satisfied all of the conditions.

¶49 Several facts are clear from the District Court's colloquy

with the Defendant. First, the District Court imposed a deferred

sentence of six years rather than the two recommended by the State

because the District Court did not think Benoit could complete

restitution within two years. Second, six years was the maximum

deferred sentence that the District Court could impose. Third, if

Benoit was able to pay restitution in less than six years, the

District Court was willing to allow her to withdraw her guilty plea

and thereby shorten the period of the deferred sentence.

¶50 The facts of this case come squarely within what was

prohibited by our decisions in Farrell and Pritchett. What the

majority has done is latch onto the inconsequential fact that those

defendants received the maximum sentence for their offense rather

than the maximum deferred sentence that can be imposed to totally

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avoid the effect of the due process protection afforded by those

decisions. For all practical purposes, other than in the most

extreme situations, the majority Opinion renders the rationale for

Farrell and Pritchett meaningless.

¶51 Farrell and Pritchett stand for a simple but important

principle. That principle is that the length of a defendant's

sentence should not be affected by the fact that a defendant is

indigent. In this case, the length of Benoit's deferred sentence

is directly related to her financial status and, therefore,

violates the simple but important principle established by our

previous cases. For these reasons, I would reverse the sentence

imposed by the District Court and remand for resentencing unrelated

to Benoit's ability to pay restitution. Because of the majority's

refusal to do so, I dissent from the majority Opinion.

/S/ TERRY N. TRIEWEILER

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