No. 04-396
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 26
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRADLEY DENHAM,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 02-0726,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kris Copenhaver-Landon, Deputy Public Defender, Yellowstone County
Public Defender’s Office, Billings, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; David Carter, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: January 25, 2005
Decided: February 15, 2005
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Bradley Denham (Denham) appeals from the portion of the sentence and judgment
imposed by the Thirteenth Judicial District Court, Yellowstone County, that included
restitution requirements and associated fees. We affirm.
¶2 We must address whether the District Court properly complied with §§ 46-18-244,
46-18-236, 46-23-1031, and 3-1-317, MCA, when it delegated the scheduling of monthly
restitution payments to Denham’s probation officer and refused to waive associated
administrative fees.
BACKGROUND
¶3 Denham stole more than $60,000 from his employer by altering and reporting
fraudulent sales transactions. The State and Denham entered into a plea agreement whereby
Denham pled guilty to felony theft by common scheme and the State recommended that
Denham be committed to the Department of Corrections for a term of ten years, with six
years suspended, plus restitution of $60,099.
¶4 The presentence investigation report (PSI) detailed Denham’s past involvement with
thefts and bad checks and outlined Denham’s financial background and future employment
prospects. The District Court imposed the recommended sentence after Denham took
responsibility for the theft and repeatedly assured the District Court that he could make
restitution at the rate of $500 per month. The District Court delegated responsibility for
setting Denham’s restitution schedule to his probation officer pursuant to § 46-18-244(6),
MCA (2003). The District Court refused to waive administrative fees associated with the
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restitution pursuant to §§ 46-18-236, 46-23-1031, and 3-1-317, MCA. Denham appeals.
STANDARD OF REVIEW
¶5 We review a criminal sentence for legality only; that is, whether the sentence falls
within statutory parameters. State v. Heath, 2004 MT 126, ¶ 13, 321 Mont. 280, ¶ 13, 90
P.3d 426, ¶ 13. A trial court's statutory interpretation presents a question of law that we
review to determine whether it is correct. State v. Hall, 2004 MT 106, ¶ 7, 321 Mont. 78,
¶ 7, 88 P.3d 1273, ¶ 7 (citations omitted).
DISCUSSION
¶6 Denham concedes the District Court appropriately specified $60,099 as the total
amount of restitution as part of his sentence. Denham correctly points out that the law in
effect at the time of the commission of the offense controls the possible sentence imposed.
State v. Brister, 2002 MT 13, ¶ 26, 308 Mont. 154, ¶ 26, 41 P.3d 314, ¶ 26. Denham argues
that because § 46-18-244(6), MCA (2003), was not in effect at the time he committed the
theft, the District Court erred when it delegated the scheduling of monthly restitution
payment amounts to his probation officer.
¶7 A modification in procedure to carry out a duty, however, does not constitute
retroactive legislation. Castles v. State ex rel. Mont. Dept. of Highways (1980), 187 Mont.
356, 360, 609 P.2d 1223, 1225 (citations omitted). Section 46-18-244(6), MCA (2003), is
purely procedural; it provides that, for a felony offense, “[d]uring any period that the
defendant is on probation or parole, the probation and parole officer shall set a monthly
restitution payment amount[.]” The sentencing court still specifies the amount of restitution
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to be paid. The amendment merely transfers the duty to set the monthly restitution payment
amount from the district court to the probation officer.
¶8 The end result remains the same: Denham must pay $60,099 in restitution to his
victim. The amendments impaired none of his rights and did not impose additional duties
upon Denham. See Wright v. Mahoney, 2003 MT 141, ¶ 7, 316 Mont. 173, ¶ 7, 71 P.3d
1195, ¶ 7 (noting that changes in procedure that do not affect substantial rights do not
implicate the prohibition against ex post facto laws). Therefore, we conclude the District
Court properly followed the procedure set up in § 46-18-244(6), MCA (2003), when
imposing the restitution obligation upon Denham and directing his probation officer to set
the schedule.
¶9 Moreover, in the event Denham’s monthly restitution payment proves unworkable for
his situation, the statutory scheme still provides that he may petition the sentencing court to
adjust or waive payment. Section 46-18-246, MCA. This process applies regardless of
whether the District Court or Denham’s probation officer sets the restitution schedule.
Denham has yet to request this procedure.
¶10 Denham also argues that he should not have to pay the statutorily mandated fee,
surcharge, and supervision fee associated with his restitution payments in light of the large
amount of restitution owed and his lack of income at the time of sentencing. We reject this
argument. The District Court assessed Denham’s ability to pay and considered these fees
when sentencing Denham. Denham further assured the District court of his ability to pay the
$60,099 restitution and, therefore, it seems reasonable to assume that he has the ability to pay
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the ten percent administration fee on that amount as well as the other minimal surcharges.
¶11 For the foregoing reasons, we conclude that the District Court correctly applied §§
46-18-244, 46-18-236, 46-23-1031, and 3-1-317, MCA, in allowing Denham’s parole officer
to set a monthly restitution payment schedule and refusing to waive the associated
administrative fees.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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