August 11 2009
DA 09-0030
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 265
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT ANTHONY HUNT,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DC 2007-039
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Tammy A. Hinderman, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General, John Paulson, Assistant
Attorney General, Helena, Montana
Eileen Joyce, Silver Bow County Attorney, Kelli Fivey, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: July 22, 2009
Decided: August 11, 2009
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Robert Hunt appeals a sentencing order of the District Court for the Second
Judicial District, Silver Bow County, requiring Hunt to pay restitution. We reverse and
remand for further proceedings consistent with this Opinion.
¶2 Hunt raises one issue on appeal: Whether the District Court lawfully ordered Hunt
to pay restitution.
Factual and Procedural Background
¶3 Hunt was charged by Information with felony aggravated assault or, in the
alternative, felony aggravated assault by accountability, for his participation in a fight
that occurred on a Butte street on July 29, 2006. The victim of the assault, Phillip “Pete”
Ross, sustained severe head injuries requiring extensive medical treatment.
¶4 Hunt entered into a plea agreement on February 28, 2008, wherein he agreed to
plead guilty to felony aggravated assault by accountability, and the county attorney
agreed to recommend a deferred imposition of sentence and to request a presentence
investigation report (PSI) to determine the amount of restitution. The District Court
accepted Hunt’s change of plea and ordered the preparation of a PSI.
¶5 Ted Bury, a probation and parole officer, prepared a PSI which included sections
on the victim’s impact and restitution. Bury stated in the PSI that he had met with Ross
and that Ross had given him copies of Ross’s medical bills totaling $59,560.46. Bury
attached the bills to the PSI. Because Hunt’s co-defendant had been ordered to pay
$14,890.11 in restitution to Ross and to the Montana Crime Victims Compensation
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Program (MCVCP), Bury determined that Hunt was responsible for the remaining
balance of $44,670.35.
¶6 In an updated PSI filed on October 17, 2008, Bury stated that the prosecutor
requested the resubmission of a restitution amount because several medical bills had been
forgiven due to Ross’s inability to pay. Bury further stated that he had attached to the
updated PSI a Report of Victim’s Pecuniary Loss (the Report) completed by Ross on
October 1, 2008. The Report listed $3,989.76 in various medical bills for which Ross
sought restitution; however, no documentation of these bills or evidence of Ross’s
payment of them was included. In addition, the following statement appeared at the
bottom of the Report above Ross’s signature: “I (we) verify that the information on this
document is true and correct to the best of my (our) knowledge.” The Report also
included a notarial seal and a certificate stating that Ross personally appeared before the
notary. The Report did not indicate whether Ross signed the statement under oath.
¶7 The updated PSI also set out the medical expenses paid by the MCVCP on behalf
of Ross in the amount of $24,999.07. Again, however, the updated PSI did not include
any affidavit from anyone at MCVCP regarding medical payments paid on Ross’s behalf,
nor was any documentation of such payments provided. Nevertheless, Bury determined
that Hunt should pay $14,098.72, representing the difference between the $14,890.11
Hunt’s co-defendant was ordered to pay and the total amount of medical expenses
purportedly paid of $28,988.83.
¶8 At the sentencing hearing on November 20, 2008, Hunt’s attorney questioned
whether Ross was duly sworn prior to executing the Report. Counsel also questioned
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whether there was an affidavit with respect to the amount due the MCVCP. Upon
learning that the answer to both questions was essentially “no,” counsel pointed out that
an affidavit is required with respect to restitution and that the document signed by Ross
does not qualify as an affidavit because it was not done under oath. Nevertheless, the
court accepted Ross’s report of loss as “a true and accurate document” and ordered that
Hunt’s sentence be deferred for five years to give Hunt sufficient time to pay the
$14,098.72 in restitution. The court did not address the lack of any documentation from
MCVCP.
¶9 On November 26, 2008, the District Court entered its Order Deferring Imposition
of Sentence. In its order, the court expressly found that the report of pecuniary loss,
signed by Ross and notarized, was sufficient to serve as an affidavit of loss as required by
statute. On that basis, the court ordered Hunt to pay $12,500 in restitution to the MCVCP
and $1,598.72 in restitution to Ross.
¶10 Hunt appeals the condition of his sentence regarding restitution.
Standard of Review
¶11 We clarified our standard of review for criminal sentences in State v. Herd, 2004
MT 85, 320 Mont. 490, 87 P.3d 1017. In that case, we held that if the offender is eligible
for sentence review, i.e., if the offender is sentenced to one year or more of actual
incarceration—we will review such a sentence for legality only. Herd, ¶ 22. If, however,
the offender is statutorily ineligible for sentence review, then we will utilize the
two-tiered approach which we employed prior to the creation of the Sentence Review
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Division (SRD), i.e., we will review such sentences for both legality and abuse of
discretion. Herd, ¶ 22.
¶12 In the instant case, Hunt is not eligible for sentence review before the SRD
because he was sentenced to a deferred imposition of sentence rather than actual
incarceration. See State ex rel. Holt v. District Court, 2000 MT 142, ¶ 6, 300 Mont. 35,
3 P.3d 608 (citing § 46-18-903, MCA). Thus, we employ the two-tiered standard of
review in this case.
Discussion
¶13 Whether the District Court lawfully ordered Hunt to pay restitution.
¶14 Hunt contends on appeal that a district court lacks the authority to impose a
restitution condition unless the court follows the procedural mandates in the restitution
statutes, including the requirement that the victim’s pecuniary loss be substantiated in an
affidavit or through live testimony. Consequently, Hunt argues that because the State
failed to provide a sworn statement under oath from either the victim of the assault or the
MCVCP, and because the victim did not testify as to his pecuniary loss, the court was
without authority to impose a restitution condition in this case. Thus, Hunt argues that
the restitution condition in his sentence should be stricken.
¶15 In its brief on appeal, the State concedes that the MCVCP should have submitted
an affidavit specifying its expenditures and that the failure of the PSI to include an
affidavit from the MCVCP requires a remand to the District Court for further restitution
proceedings in compliance with the statute. The sole issue in this case then is whether a
Report of Victim’s Pecuniary Loss containing a specified list of medical expenses
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verified as true by a victim before a notary public, is sufficient in form and substance to
serve as the victim-submitted affidavit required by statute. We hold that it is not.
¶16 The Legislature requires that sentencing courts impose the full payment of
restitution when the victim has sustained a pecuniary loss. Section 46-18-201(5), MCA.
In furtherance of that statutory mandate, the Legislature also directs sentencing courts to
comply with various procedures and qualifications in imposing a sentence that includes
restitution. Specifically, § 46-18-242, MCA, provides:
Investigation and report of victim’s loss. (1) Whenever the court
believes that a victim may have sustained a pecuniary loss 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) a list of the offender’s assets; and
(b) an affidavit that specifically describes the victim’s pecuniary loss
and the replacement value in dollars of the loss, submitted by the victim.
(2) When a presentence report is not authorized or requested, the
court shall accept evidence of the victim’s loss at the time of sentencing.
[Emphasis added.]
¶17 In the case sub judice, it is undisputed that the sentencing court failed to require
that the pecuniary loss set forth in the PSI be supported by an affidavit of the victim.
Section 46-18-242(1)(b), MCA. An affidavit has a clearly defined meaning in the law.
An affidavit is defined as “a written declaration under oath, made without notice to the
adverse party.” Section 26-1-1001, MCA (emphasis added). See also Black’s Law
Dictionary 62 (Bryan A. Garner ed., 8th ed., West 2004) (defining an affidavit as “[a]
voluntary declaration of facts written down and sworn to by the declarant before an
officer authorized to administer oaths, such as a notary public.” (emphasis added)).
Moreover, § 1-6-102, MCA, sets out the form an ordinary oath must take:
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An oath or affirmation in an action or proceeding may be
administered by the person who swears or affirms expressing that person’s
assent when addressed with “You do solemnly swear (or affirm, as the case
may be) that the evidence you will give in this issue (or matter), pending
between .... and ...., is the truth, the whole truth, and nothing but the truth,
so help you God.” [Emphasis added.]
¶18 As Hunt points out in his brief on appeal, the Report submitted in this case does
not state that Ross was duly sworn, nor does it use the phrase “I do solemnly swear or
affirm.” In addition, the notary’s certificate does not indicate whether she placed Ross
under oath at any time as the certificate does not include any language to the effect that
the statement was “signed and sworn to (or affirmed) before me.” See § 1-5-610(3),
MCA. Furthermore, the notary’s certificate does not even confirm that Ross signed the
document in the notary’s presence. The certificate only indicates that the notary
confirmed that Ross was who he said he was and that he appeared personally before the
notary.
¶19 In this case, the Report is being used at the sentencing hearing to prove the truth of
the matter asserted, i.e., that the medical expenses paid by Ross totaled $3,989.76.
However, restitution must be “substantiated by evidence in the record . . . .” See
§ 46-18-243(1)(a), MCA.
¶20 This Court has determined that an affidavit must be sworn to on the basis of
personal knowledge. McDermott v. Carie, LLC, 2005 MT 293, ¶ 26, 329 Mont. 295, 124
P.3d 168 (citing Mountain States Resources, Inc. v. Ehlert, 195 Mont. 496, 503, 636 P.2d
868, 872; § 26-1-1001, MCA). Failure to do so renders the affidavit invalid. See
McDermott, ¶ 27.
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¶21 The defendant in McDermott served the plaintiff with a memorandum that listed
the costs the defendant incurred in defending the action. The memorandum was
accompanied by an affidavit verifying the accuracy of the enumerated costs. However,
the affidavit was signed by someone other than the individual who had purportedly sworn
to the accuracy of the costs listed in the memorandum. We pointed out in McDermott the
functional defects inherent in a formally flawed affidavit:
[t]he Legislature imposed the requirement that bills of costs be verified
upon oath to ensure that these documents reliably reflect actual costs
incurred. The person who swears to the accuracy of the enumerated costs
may be held accountable if it is later shown that they have knowingly
overstated their costs. . . . [N]o documentation exists that the person who
actually “made” the statement was under oath when he attested to its truth
by signing it. Nobody could be prosecuted for false swearing, the
consequences of which render sworn statements reliable.
McDermott, ¶ 27 (citing § 45-7-202, MCA (indicating that such conduct constitutes false
swearing punishable by fine and/or imprisonment)).
¶22 Accordingly, we hold that the Report containing a specified list of Ross’s medical
expenses was not sufficient in form and substance to serve as the victim-submitted
affidavit required by § 46-18-242(1)(b), MCA.
¶23 As a final matter, Hunt maintains that the restitution condition should be stricken
from his sentence, either by this Court or on remand to the District Court. However, the
proper remedy is to reverse the portion of the judgment ordering restitution and remand
the case to the District Court for reconsideration of the restitution order after the affidavit
requirements of § 46-18-242, MCA, have been satisfied. See State v. Ariegwe, 2007 MT
204, ¶ 182, 338 Mont. 442, 167 P.3d 815 (case remanded to the district court for
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restitution hearing pursuant to correct and complete application of §§ 46-18-241 through
-249, MCA); State v. Smietanka, 2008 MT 357, ¶¶ 9-10, 15, 346 Mont. 353, 195 P.3d
797 (case remanded for resentencing because MCVCP failed to submit an affidavit of
pecuniary loss).
¶24 Accordingly, we remand this case for another restitution hearing at which the
probation officer should submit an amended PSI containing the affidavits required by
§ 46-18-242(1)(b), MCA.
¶25 Reversed and remanded for further proceedings consistent with this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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