August 10 2012
DA 11-0517
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 174N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LAURIE KAY CORBINO,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 10-105
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant
Attorney General, Helena, Montana
William F. Fulbright, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: July 11, 2012
Decided: August 10, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Laurie Kay Corbino (Corbino) appeals a judgment and commitment entered by the
Twenty-First Judicial District, Ravalli County. We affirm.
¶3 On February 16, 2011, Corbino entered into a plea agreement wherein she pled guilty
to felony burglary. Corbino admitted to entering the Lendmans’ residence and committing
theft by taking cosmetic items that belonged to them. In the presentence investigation report,
Mrs. Lendman submitted an affidavit of pecuniary loss wherein she listed as missing two
large bags of personal items and a large gold ring with opal, emeralds and diamonds.
Because the other items were recovered, the only restitution Mrs. Lendman requested was
$1,500 for the ring. Corbino admitted to taking the personal items, but denied taking the
ring.
¶4 At Corbino’s sentencing hearing, Mrs. Lendman testified that the ring was missing
and that law enforcement officers did not find the ring in two searches of Corbino’s
residence. Corbino testified and again denied taking any jewelry. The District Court
concluded that Mrs. Lendman “offered the most credible testimony regarding the loss of the
ring” and ordered restitution of $1,500 for the ring.
2
¶5 The District Court also determined that “with no current resources, [the Defendant
does not have the] ability to pay for the type of programs that she needs if she were on
probation, including the [Cognitive Principles and Restructuring] program.” Defense
counsel objected to Corbino’s sentence on the grounds that she was being incarcerated based
on her inability to pay. The court denied Corbino’s objection because, even though Corbino
had a counselor for her drug and alcohol addictions, Corbino’s compulsive thievery was
different than addiction. Corbino appeals.
¶6 Corbino argues on appeal that a defendant is required to pay restitution for only that
property which formed the basis of her offense. State v. Beavers, 2000 MT 145, ¶ 11, 300
Mont. 49, 3 P.3d 614 (overruled on other grounds, State v. Herman, 2008 MT 187, n.1, 343
Mont. 494, 188 P.3d 978). Corbino argues further that she never admitted taking the ring,
was never found guilty of taking the ring, and never agreed to pay restitution for the ring,
therefore she is not liable for the value of the ring. See State v. Breeding, 2008 MT 162,
¶ 19, 343 Mont. 323, 184 P.3d 313. She also argues that her due process rights have been
violated because her sentence is based on her indigence. See State v. Pritchett, 2000 MT
261, ¶ 28, 302 Mont. 1, 11 P.3d 539. The State disagrees with Corbino.
¶7 We review a sentence that is eligible for sentence review for legality only. State v.
Gunderson, 2010 MT 166, ¶ 37, 357 Mont. 142, 237 P.3d 74. Our review for legality is
confined to ascertaining whether the sentencing court had statutory authority to impose the
sentence, whether the sentence falls within the parameters of the applicable sentencing
statutes, and whether the district court abided by the affirmative mandates of the applicable
3
sentencing statute. Breeding, ¶ 10. This determination is a question of law, and as such
review is de novo. Breeding, ¶ 10. Review of constitutional questions is plenary. Pritchett,
¶ 27.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. It is
manifest from the face of the briefs and the record before us that the District Court properly
applied the law to the facts of this case. The District Court’s restitution condition is legal,
and Corbino’s sentence does not violate her constitutional due process rights.
¶9 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
4