11/29/2016
DA 15-0074
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 311N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ERNEST FERNANDEZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause Nos. DC-05-309, DC-13-430,
and DC-13-431
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Haley Connell, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Shaun Donovan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: October 19, 2016
Decided: November 29, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion for the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Ernest Fernandez appeals the multiple judgments of the Fourth Judicial District,
Missoula County, revoking his suspended sentence on a felony incest conviction, and
conviction and sentencing for felony failure to register as a sexual offender and felony
issuing bad checks. We address whether the District Court erred by rejecting
Fernandez’s plea agreement by imposing restitution. We affirm.
¶3 In February 2006, Fernandez was convicted of felony incest and sentenced to
twenty years to the Department of Corrections with sixteen years suspended. In August
2013, the State filed a petition to revoke his suspended sentence and charged Fernandez
with failing to register as a sexual offender in violation § 46-23-504, MCA, and issuing
bad checks in violation of § 45-6-316, MCA. In December 2013, Fernandez entered an
open plea of no contest to the issuing bad checks charge. The District Court advised
Fernandez, and he acknowledged he understood, that “if you enter a no contest plea here
today, that’s effectively a guilty plea and that allows me to sentence you.” Fernandez
also signed a written Plea of Guilty and Waiver of Rights in which he expressly
acknowledged: “[T]he [District] Court may order me to pay restitution.” In January
2014, Fernandez and the State entered into a global plea agreement, pursuant to
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§ 46-12-211(1)(b), MCA, ((1)(b) plea agreement) that included all three charges, and
listed “$00.00” for restitution in the Fines and Fees Description chart. The District Court
followed the (1)(b) plea agreement regarding sentencing, but ordered Fernandez to pay
$2,731.17 in restitution and a 10% administrative fee as recommended by the
pre-sentence investigation (PSI). At sentencing, Fernandez did not object to either the
PSI’s recommended restitution or the District Court-ordered restitution. When asked
whether he was willing and able to pay restitution, Fernandez replied: “I can get that
paid off within the next two years . . . And I would like to pay back restitution . . . .”
¶4 Fernandez argues the District Court rejected the (1)(b) plea agreement by
imposing restitution greater than “$00.00” and did not give him the opportunity to
withdraw his guilty pleas and admissions, thus erring by not adhering to § 46-12-211(4),
MCA, for rejecting a (1)(b) plea agreement. The State argues the District Court did not
reject the plea agreement and § 46-12-211(4), MCA, was not triggered, because the plea
agreement simply modified Fernandez’s December open plea as to the term of
imprisonment the State could recommend. The State also argues Fernandez acquiesced
and actively participated in imposing restitution as a condition of suspending his sentence
for issuing bad checks, and failed to object to the restitution order despite multiple
opportunities during sentencing. The State contends Fernandez waived his right to raise
the issue of restitution for the first time on appeal because, not only did he fail to object
to the imposition of restitution at sentencing, he unambiguously pronounced he would
pay restitution.
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¶5 We review a criminal sentence for legality only, determining whether the sentence
falls within the statutory parameters. State v. Walker, 2007 MT 205, ¶ 10, 338 Mont.
529, 167 P.3d 879 (citing State v. Kuykendall, 2006 MT 110, ¶ 8, 332 Mont. 180, 136
P.3d 983).
¶6 A (1)(b) plea agreement provides that the prosecutor agrees that a specific
sentence is the appropriate disposition of the case. Section 46-12-211(1)(b), MCA. If the
court rejects a (1)(b) plea agreement, then § 46-12-211(4), MCA, obligates the district
court to: (1) inform the defendant that it is rejecting the plea agreement; (2) advise the
defendant that the court is not bound by the plea agreement; (3) afford the defendant the
opportunity to withdraw his guilty plea; and (4) advise the defendant that if he persists in
the guilty plea, the disposition of the case may be less favorable to him than that
contemplated by the plea agreement. State v. Zunick, 2014 MT 239, ¶ 12, 376 Mont. 293,
339 P.3d 1228. We agree with the State that Fernandez never objected to the imposition
of restitution as a condition of his issuing bad checks sentence, and therefore waived his
right to raise the restitution issue for the first time on appeal. Walker, ¶ 13 (“We
generally refuse to review on appeal an issue to which a party failed to object at the trial
court). Moreover, Fernandez pronounced his ability and willingness to pay restitution,
constituting a waiver of his argument that the imposition of restitution is a rejection of his
plea agreement that should trigger § 46-12-211(4), MCA, procedures. Walker, ¶¶ 16-18
(citing State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661, and State v. Micklon,
2003 MT 45, 314 Mont. 291, 65 P.3d 559); State v. Harris, 1999 MT 115, ¶ 32, 294
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Mont. 397, 983 P.2d 881 (“We will not put a district court in error for an action in which
the appealing party acquiesced or actively participated.”).
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. We conclude that Fernandez waived his
right to raise the restitution issue for the first time on appeal. We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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State v. E. Fernandez
Combined Opinion