State v. Farrell

No. 82-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
STEPHEN E. FARRELL,
Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF PZCORD:

For Appellant:
Harlen, Thompson & Parish; Shaun R. Thompson argued,
Helena, Montana

For Respondent :
Mike Greely, Attorney General, Helena, Montana
James McLean argued, Asst. Atty. General, Helena
Mike McGrath, County Attorney, Eelena, Montana

-- -
Submitted: September 29, 1983
Decided: January 17, 1984

Clerk
Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.

Appellant Stephen Farrell was convicted of theft of
public assistance funds by a jury in the District Court of
the First Judicial District, Lewis and Clark County. He has
appealed both the conviction and his sentence to this Court.
For the reasons stated below, we affirm the conviction, but
vacate the sentence and remand for resentencing.
The appellant was discharged from the United States
Navy on December 17, 1979. After his discharge, appellant,
his wife Margaret, and a step-daughter returned to his home
town, Helena. Margaret was pregnant on the family's arrival
in Helena, and because their finanical situation was
precarious, the Farrells went to the Lewis and Clark County
Welfare Department to apply for medical assistance and food
stamps. At the time of the application they were told that
they could apply for Aid to Families with Dependent Children
(AFDC), which included Medicaid, as well as food stamps. A
welfare worker cautioned them that they should report any
change in financial circumstances. Based on their
application of January 7, 1980, the Farrells were certified
to receive AFDC benefits for a period of six months and food
stamps for one month.
During the period from March until May 1980, the
appellant received a number of unemployment checks. The
Farrells claim that this income was reported to the Welfare
Department. Witnesses for the State, however, testified at
his trial that they had no record of any such report.
In early June, Farrell was advised that he would begin
receiving veteran's benefit checks. On June 16, 1980, a
check for $260.80 was mailed to him. The records cilstodian
at Fort Harrison stated that Farrell should have received
the check within six to ten days. Despite this, on June 27,
which would have been the end of the ten-day period, the
appellant reapplied for food stamps. In that application,
he indicated he was not receiving any veterans' benefits.
In July, Farrell began working part-time for his
uncle, Eugene L. "Bud" Menth, at Capital Excavating, in
Helena. He did not report the income received from this job
to the Welfare Department, and he continued to receive full
AFDC benefits and food stamps. AFDC checks and
Authorization to Purchase Food Stamps (ATP) cards include
statements to the effect that endorsing the checks or
signing the cards amounts to an affirmation that the
signer's financial condition has not changed, and that all
information provided for purposes of establishing
eligibility is true. Farrell's signature appeared on all
the cards and checks issued to him.
In late August, the Farrells again applied for
assistance. That application did not reflect his income
from Capital Excavating, and listed only his veterans'
benefits as income. However, the Welfare Department was
informed that Farrell was working and requested that he
provide it with a statement of his earnings. He did so by
presenting two notes from employer Bud Nenth setting out his
wage rate and estimated hours. The amounts specified were
not great enough to make the appellant ineligible for
benefits. Menth's statements later turned out to be
incorrect. At trial, the State, through Menth's bookkeeper,
introduced a summary of Farrell's 1980 earnings which showed
he had earned substantially more than the estimates
reflected, e.g., July, $350; August, $920; September $1,260;
October, $1,036; November, $560.
Farrell was eventually charged with purposely or
knowingly exerting unauthorized control over public
assistance funds by knowingly making false statements to
procure the funds, a violation of Section 45-6-301(4)(a),
MCA. Farrell was also charged under Section 45-6-301(6) for
procuring the funds on several separate occasions as part of
a common scheme. He was tried before a jury, and was found
guilty. The trial court sentenced Farrell to ten (10) years
in prison, the service of that term being suspended upon
"strict and complete adherence" to the following conditions:
(1) that he make restitution of the welfare funds illegally
obtained, or $3,864.03, and the required 25 percent penalty
thereon, or $966.25; (2) that he reimburse the court for
expenses incur red by his attorney up through sentencing,
approximately $2000, and for any further legal expenses
incurred, and to pay an additional ten percent interest on
all reimbursements; and (3) that he undergo treatment for
his alcohol problem.
Farrell appeals from his conviction and those portions
of his sentence concerning the number of years and the terms
of restitution and recoupment of attorney fees.
Specifically, he presents five issues:
(1) Whether there was substantial evidence before the
District Court and the jury to support the verdict, and
whether the District Court erred in not granting appellant's
motions to dismiss or for a directed verdict?
(2) Whether the District Court erred in giving State's
proposed instructions 9 and 12 (Court's 10 and 9) concerning
the obligation of recipients of public assistance to report
changes of income within ten days?
(3) Whether the District Court committed reversible
error by failing to instruct on the lesser included offense
of misdemeanor theft?
(4) Whether the District Court's judgment and sentence
were improper in that the court failed to take into
consideration the appellant's financial resources in
ordering him to pay restitution, and to reimburse the County
for the cost of his court-appointed attorney?
(5) Whether the District Court violated appellant's
constitutional right of equal protection by apparantly
basing the length of his sentence on his economic status and
earning ability?
We treat Issues One and Two together, as they arise
from substantially the same argument; i.e., that the
appellant Farrell was somehow convicted of an offense for
which he was not charged.
The information filed by the county attorney indicates
that Farrell was charged with a violation of Section
45-6-301(4)(a): purposely or knowingly obtaining or
exerting unauthorized control over public assistance funds,
by knowingly making false statements to the Lewis and Clark
County Welfare Department. Farrell was also charged with
having procured the funds over a period of months as part of
a "common scheme." Section 45-6-301(6), MCA. At trial, the
state produced evidence of false statements made by Farrell
in three different contexts: (1) by applying for public
assistance; (2) by endorsing five AFDC checks; and (3) by
applying for food stamps. In addition, the State put forth
evidence to show that Farrell had failed to notify welfare
authorities of changes in his financial condition.
The gravamen of Farrell's argument is that the State
failed to produce substantial evidence of his ever making
false statements to the welfare authorities. Moreover, he
argues that the alleged failures to report changes in
financial condition do not constitute the making of false
statements. Because he was charged only with making false
statements to obtain the funds, Farrell reasons that the
charges against him should have been dismissed. In the
alternative, Farrell argues for a new trial on the basis
that Jury Instructions 9 and 10, when read together,
instructed the jury that Farrell could be found guilty for
failing to report changes in his eligibility to receive
public assistance. Because Farrell was not charged with
this offense, the instructions are to be deemed improper for
this particular case.
We agree with the appellant Farrell that the failure
to report changes in financial condition does not constitute
the making of "false statements" within the scope of Section
45-6-301(4)(a). The failure to report is in the nature of an
omission,^^ i.e., " [tlhe neglect to perform what the law
requires." Black's Law Dictionary 979 (5th ed. 1979). If
Farrell had been charged under subsection (b) of Section
45-6-301(4), MCA--theft of public assistance funds by a
"fraudulent scheme or device,"--the omissions would have
been sufficient to constitute a crime. See State v. Allison
(1952), 173 Kan. 107, 244 P.2d 176. Nevertheless, the
failure to charge Farrell for not reporting changes in his
financial condition does not warrant reversal of his
conviction. We find substantial credible evidence of false
statements made by Farrell to obtain welfare assistance.
For example, Farrell endorsed several AFDC checks, and in so
doing, affirmed that his eligibility status had not changed
and that prior information submitted to determine this
status was true. These are "statements," as are the
affirmations on the original application forms and ATP
cards, and evidence produced by the State at trial tended to
prove that these statements were false. Farrell was
undoubtedly receiving enough outside income so as to render
him ineligible for the sums he received. It is of no
consequence to this appeal that many of the "statements"
were in effect made to state agencies, and not the county
welfare department, which was the only entity mentioned in
the information. That there was evidence of false
statements made to obtain the welfare assistance was legally
sufficient to convict him of theft under Section
45-6-301(4)(a).
Thus, the trial court did not err by failing to grant
appellant's motions to dismiss or for a directed verdict.
Similarly, the rendering of Instructions No. 9 and 10 was
not prejudicial to defendant's case. The jury was properly
instructed on the elements of theft outlined in Section
45-6-301(4) (a) and on the concept of common scheme, and
therefore had an acceptable legal basis upon which to
consider the available evidence. Where jury instructions,
taken as a whole, state the law applicable to a case, a
party cannot claim reversible error as to giving of certain
instructions. Goodnough v. State (Mont. 1982), 647 P.2d
 Appellant's third issue on appeal is whether the
District Court erred by failing to instruct the jury on the
lesser included offense of misdemeanor theft. In State v,
Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 1447, 1451,
we held that:
It. ..
the defendant is entitled to an
intruction on a lesser included offense
if the evidence would enable the jury
rationally to find him guilty of a lesser
offense and to acquit him of the greater.
Keeble v. United States (1973), 412 U.S.
205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d
844, 847; State v. Bouslaugh (1978),
Mont., 576 P.2d 261, 263, 35 St.Rep. 319.
But this Court had held that the District
Court will not be put in error for
refusing to instruct as to the lesser
included offense, if the evidence is such
to show that the defendant is either
guilty of the offense charged or entitled
to an acquittal. Bouslaugh, supra,
Mont., 576 P.2d at 263, State v. McDonald
(1915), 51 Mont. 1, 16, 149 P. 279, 285."
All the evidence, with the exception of some minor
references made to small medical bills by a State witness
during the State's unsuccessful attempt to introduce an
exhibit on medical overpayments, shows that all the amounts
received by Farrell were over $150. Looking at this record
as a whole, we find that a rational trier of fact could not
have found Farrell guilty of misdemeanor theft, based solely
on these minor references to small medical payments. The
instruction on lesser offense was properly refused.
Appellant's fourth issue goes to the Court's
consideration of his financial condition when ordering
restitution of amounts illegally procured from public
authorities and requiring recoupment of legal fees expended
in his defense and subsequent legal action on his behalf,
including this appeal. He insists that the trial court did
not pay heed to provisions in statute and in case law
concerning an indigent defendant's financial ability to make
restitution or provide reimbursement of legal fees.
We first examine the recoupment problem. The
standards for reimbursement of attorney fees are set out in
Section 46-8-113, MCA:

"(2) Costs must be limited to reasonable
compensation and costs incurred by the
cour t-appointed counsel in the cr imina.1
proceeding. Costs may not include
expenses inherent in providing a
constitutionally guaranteed jury trial or
expenditures in connection with the
maintenance and operation of government
agencies that must be made by the public
irrespective of specific violations of
law.

"(3) The court may not sentence a
............................. s o f
defendant to pay the cost
------- ~ p o i n t e d c o u n s e l u n l e s s t h e
c o u r t - a ..........................
defendant is or will be able to pay them.
In determining the amount and method of
payment of costs, the court shall take
account of the financial resources of the
defendant and the nature of the burden
that payment of costs will impose.
"(4) A defendant who has been sentenced
to pay costs and who is not in
contumacious default in the payment
thereof may at any time petition the
court that sentenced him for remission of
the payment of costs or of any unpaid
portion thereof. If it appears to the
satisfaction of the court that payment of
the amount due will impose manifest
hardship on the defendant or his
immediate family, the court may remit all
or part of the amount due in costs or
modify the method of payment." (emphasis
added )
Provisions similar to the above have been recognized by the
United States Supreme Court as permissible under
constitutional principles of equal protection and
availability of legal counsel. Fuller v. Oregon (1974), 417
U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. Therefore, we
reject inferences by the appellant that so-called "strong
public policy reasons" should convince this Court to
eliminate the practice of reimbursement for the costs of
counsel.
However, we find nothing in the transcript of record
or in the judgment of the trial court to indicate how or if
the court took cognizance of appellant's financial resources
and the burden that recoupment would impose on him. The
judgment cannot stand without a meaningful inquiry into the
appellant's financial status and a subsequent finding of the
record that he has sufficient resources to repay costs of
legal counsel. See United States v. Eracewell (2d.Cir.
1978), 569 F.2d 1194, 1197-98. In conducting an inquiry and
reaching a conclusion, the trial court "need not permit a
full-fledged adverarial inquiry into the nature and amount
of a defendant's assets; nor need he become involved in
determining priorities to these assests. [However,] ...
any defenses to payment asserted by a defendant . . . should
be fully considered." Bracewell, supra, at 1200.
That portion of the judgment concerning restitution is
also suspect. Restitution by itself is the recognized
public policy of this state, see, e.g., Section
46-18-201(l)(a)(iv), MCA, and no arguments have been
presented to the effect that requiring restitution is
impermissible. Nevertheless, we have required the district
courts to take into consideration a defendant's ability to
make restitution, including a review of the defendant's
financial resources and any burdens imposed by repayment.
State v. Morgan (Mont. 1982), 646 P.2d 1177, 1183-84, 39
St.Rep. 1072, 1080-81. The mandate of Morgan was not
a d h e r e d t o by t h e t r i a l c o u r t i n t h e i m m e d i a t e c a s e . Under

t h e c i r c u m s t a n c e s , v a c a t i o n o f t h e s e n t e n c e and a remand f o r
new p r o c e e d i n g s a r e i n o r d e r . F o l l o w i n g Morgan, the t r i a l

court must, in its w r i t t e n findings, "include sufficient
facts to show compliance" with the conditions respecting
Farrellls financial condition and his a b i l i t y t o make
restitution. See Morgan, supra, 646 P.2d at 1184, 39

Because appellant's fifth issue for review is also

c o n n e c t e d t o s e n t e n c i n g e r r o r s , w e c o n s i d e r it h e r e . This

issue goes to the length of his sentence, ten years

( s u s p e n d e d ) , and t h e g r o u n d s upon w h i c h i t was allegedly
based. The following excerpt from the sentencing

t r a n s c r i p t , i n c l u d i n g a c o l l o q u y b e t w e e n t h e t r i a l j u d g e and
the appellant, apparantly illustrates the only factors

r e l e v a n t t o d e t e r m i n a t i o n of F a r r e l l ' s s e n t e n c e :

"THE COURT: Very w e l l . You d o h a v e o n e
p l u s on y o u r r e c o r d , and t h a t i s t h a t you
h a v e s e r v e d h o n o r a b l y i n t h e armed
f o r c e s . O t h e r t h a n t h a t , I d o n ' t see a n y
very g r e a t saving f e a t u r e s here. The
f a c t t h a t you h a v e n ' t b e e n c o n v i c t e d
b e f o r e h a s t o be balanced w i t h t h e f a c t
t h i s i s n o t a s i n g l e o f f e n s e ; t h i s was
o f f e n s e a f t e r o f f e n s e f o r some s e v e n ,
e i g h t , n i n e months. W e i n t e n d by o u r
s e n t e n c e t o r e c o v e r f u l l y t h e amount t h a t
you owe t h e S t a t e ; n o t o n l y f o r t h e money
t h a t you s e c u r e d i l l e g a l l y f r o m SRS a n d
t h e Welfare Department of t h i s county,
b u t a l s o f o r t h e amount o f money t h e
S t a t e h a s l a i d o u t f o r your a t t o r n e y .
" I t l o o k s v e r y much l i k e b e f o r e t h i s i s
a l l o u t t h a t y o u ' r e probably going t o pay
e i g h t t o n i n e thousand d o l l a r s . That
i s n ' t g o i n g t o be f o r t h c o m i n g i n your
l i f e i n the near f u t u r e , c e r t a i n l y not
w i t h i n t h r e e y e a r s , and you w o u l d ' t e v e n
p r e t e n d t o m e t h a t you c o u l d make t h a t
amount o f money c l e a r i n t h r e e y e a r s .
That's correct, i s n ' t i t ?
"THE DEFENDANT: I really don't know. I
 wouldn't think it. It depends on the
economy.
"THE COURT: Well, i t d e p e n d s on two
t h i n g s ; i t d e p e n d s on t h e economy, and i t
d e p e n d s on y o u r s o b r i e t y .
"THE DEFENDANT: Y e s , sir.
"THE COURT: R i g h t . Rut t h e p o s s i b i l i t y
of your doing t h a t i n t h r e e y e a r s is
p r e t t y small. You'd h a v e t o a g r e e w i t h
that.
"THE DEFENDANT: I d o n ' t know, sir.

THE COURT: I d o n ' t e i t h e r , and w e ' l l t a k e
t h a t i n t o consideration i n sentencing.
You've n e v e r made t h a t amount o f money
c l e a r b e f o r e , h a v e y o u , i n you l i f e ?
"THE DEFENDANT: No, s i r , I h a v e n ' t
"THE C O U R T : A l l right. I t ' s a new
e x p e r i e n c e . Because of t h e n e c e s s i t y f o r
considerable t i m e , I t h i n k you can
s u c c e e d i f you s t a y s o b e r , and I t h i n k
you c a n p a y t h e d e b t , b u t I d o n ' t t h i n k
you c a n d o i t i n much l e s s t h a n t e n
y e a r s , and f o r t h a t r e a s o n we're g o i n g t o
impose a s e n t e n c e o f t e n y e a r s a t Montana
S t a t e P r i s o n and suspend i t i n i t s
entirety . . ."
From the preceding colloquy, appellant is c o n v i n c e d

t h a t h i s sentence--the maximum a l l o w e d u n d e r s t a t e l a w , see
S e c t i o n 45-6-301(5), MCA--was b a s e d o n l y upon h i s i n d i g e n c y
and was t h u s v i o l a t i v e o f h i s r i g h t t o e q u a l p r o t e c t i o n o f
the law. Strangely enough, the State has avoided any

rebuttal t o appellant's argument on t h i s a p p e a l . Based o n
our review of the transcript, we find that appellant's

sentence is probably irnpermissable, although we rely on

p r i n c i p l e s of d u e p r o c e s s , a s opposed t o e q u a l p r o t e c t i o n ,
i n reaching t h i s conclusion.
Appellant r e l i e s on G r i f f i n v. Illinois (1956), 351

U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 for the general
proposition t h a t discrimination against criminal defendants
on the basis of economic status is prohibited by the equal
protection clause of the fourteenth amendment. In Griffin,
the United States Supreme Court held that a state could not
deny appellate review of a criminal conviction merely
because the defendants seeking the appeal lacked funds to
purchase a transcript of lower court proceedings. The
plurality opinion of Justice Black suggests that both equal
protection and due process:
"call for procedures in criminal trials
which allow no invidious discriminations
between persons and different groups of
persons. Both equal protection and due
process emphasize the central aim of our
entire judicial system--all people
charged with crime must so far as the law
is concerned, 'stand on an equality
before the bar of justice in every
American court.' Chambers v. Florida,
309 U.S. 227, 241. See also Yick Wo v.
Hopkins, 118 U.S. 356, 369."

(opinion of Black, J.). In recent years, as the courts have
had an opportunity to consider Griffin in the context of
sentencing, greater emphasis has been placed on equal
protection in evaluating and, in some cases, invalidating
certain sentencing procedures. See, e.g., Tate v. Short
(1971), 401 U.S. 395, 9 1 S.Ct. 668, 38 L.Ed.2d 130
(violation of equal protection to limit punishment to
payment of fine for those able to pay but to convert fine to
imprisonment for those unable to pay); Williams v. Illinois
(1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586
(violation of equal protection to subject certain class of
criminal defendants to a period of imprisonment beyond the
statutory maximum solely by reason of indigency); Monsour v.
Gray (E.D.Wisc. 1973), 375 F.Supp. 786 (equal protection
clause proscribed absolute bar to consideration of
pre-conviction custody occasioned solely by financial
inability to make bail in determining term of imprisonment
to be served on conviction). See generally P. Polyviou, The
Equal Protection of the Laws 522-35 (1982).
Recently, however, the United States Supreme Court
apparantly has taken a cue from the late Justice Harlan, and
concluded that due process, not equal protection, is the
proper tool for guaging the constitutionality of sentencing
procedures. This shift is most evident in the analysis in
Bearden v. Georgia (1983), U.S. , 103 S.Ct. 2064,
76 L.Ed.2d 221, a case dealing with the validity of a
restitution order. The Court's analysis incorporates in
large part the views first expressed by Justice Harlan in
his concurring opinion in Williams v. Illinois, supra.
In Bearden, Justice OIConnor, writing for a majority,
renewed the observation from Griffin that "[dlue process and
equal protection principles converge in the Court's
analysis" in most cases involving indigent criminal
defendants. Bearden, supra, 103 S.Ct. at 2068, 76 L.Ed.2d
at 228. Despite the past emphasis on equal protection, the
Court indicated that a "due process" analysis was not
without support:
"Justice Harlan in particular has
insisted that a due process approach more
accurately captures the competing
concerns. See e.g., Griffin v. Illinois,
351 U.S. at 29-39, 76 S.Ct., at 595-600
(Harlan, J., dissenting); Williams v.
Illinois, 399 U.S. 235, 259-266, 90 S.Ct.
2018, 2031-34 , 26 L.Ed.2d 5 86
(1970)(Harlan, J., concurring). As we
recosnized in Ross v. Moffitt, 417 U.S.,
q --__---a l l y........................ e f a i r n e s s o f
ener analyze th
relations between the criminal defendant
...................................
and the S t a t e under the D u e Process
Clause, while we approach the question
whether the State has invidiously denied
-
 one class of defendants a substantial
benefit available to another class of
------------
------------
defendants under the Equal Protection
Clause. "
103 S.Ct. at 2068-69, 76 L.Ed. 2d at 228 (emphasis added).
Arguably, the Court now recognizes that the concept of
fundamental procedural fairness, as embodied in the Due
Process Clause, has an important if not overriding role to
play in the evaluation of sentencing procedure:
"To determine whether ... differential
treatment violates the Equal Protection
Clause, one must determine whether, and
under what circumstances, a defendant's
indigent status may be considered in
[ , for example,] the decision whether to
revoke probation. This is substantially
similar to asking directly the due
process question of whether and when it
is fundamentally unfair or arbitrary for
the State to revoke probation when an
indigent is unable to pay the fine.
Whether analyzed in terms of equal
protection or due process, the issue
cannot be resolved by resort to easy
slogans or pigeonhole analysis, but
rather requires a careful inquiry into
such factors as 'the nature of the
individual interest affected, the extent
to which it is affected, the rationality
of the connection between legislative
means and purpose, [and] the existence of
alternative means for effectuating the
purpose .... I Williams v. Illinois,
supra, 399 U.S., at 260, 90 S.Ct., at
2031 (Harlan, J., concurring)."

In a footnote, the Court indicated a preference for
the due process approach:
"A due process approach has the advantage
in this context of directly confronting
the intertwined question of the role that
a defendant's financial background can
play in determining an appropriate
sentence. When the court is initially
considering what sentence to impose, a
defendant's level of financial resources
is a point on a spectrum rather than a
classification. Since indigency in this
context is a relative term rather than a
classification, fitting 'the problem of
 his case into an equal protection
framework is a task too Procrustean to be
rationaly accomplished,' North Carolina
v. Pearce, 395 U.S. 711, 723, 89 S.Ct.
2072, 2079, 23 L.Ed.2d 656 (1969). The
------ --- ------ u e s t i o n
more aEproEriate g ------- is whether
consideration of a defendant's financial
backqround in setting or resetting a
---- ....................
sentence is so arbitrary or unfair as to
be a denial of due process."
103 S.Ct. at 2069 n. 8, 76 L.Ed.2d at 229 n. 8. (emphasis
added). We adopt this method of analysis as most suitable
for evaluating the constitutionality of a particular
sentencing procedure. As Justice Harlan warned in his
concurring opinion in Williams, supra, the implications of
subjecting sentencing procedures to scrutiny under the equal
protection clause are ultimately impractical and disastrous:
"[Equal protection] would require that
the consequences of punishment be
comparable for all individuals; the State
would be forced to embark on the
impossible task of developing a system of
individualized fines, so that the total
disutility of the entire fine, or the
marginal disutility of the last dollar
taken, would be the same for all
individuals."
Williams, supra, 399 U.S. at 261, 90 S.Ct. at 2052, 26
L.Ed.2d at 604, (Harlen, J., concurring). Due process, on
the other hand, shifts the focus from the unsettling nature
of "equalization" to the more manageable principle of
rationality or reasonableness. 399 U.S. at 260, 90 S.Ct. at
2031, 26 L.Ed. 2d at 603. Thus, we assess the legality of
an indigent defendant's sentence in light of fundamental
fairness, implicitly recognizing the presumption in favor of
individual liberty protected by the Due Process Clause.
In the instant case, we believe the appellant's due
process rights may have been violated. We grant the State a
valid penological interest in seeking punishment, including
the requirement of restitution and recoupment. We also
recognize that a maximum ten-year sentence, suspended or
otherwise, may, in certain instances, be acceptable as
punishment. Nevertheless, we think it arbitrary and unfair
in this case to subject the appellant to the maximum
sentence simply because of an apparantly unsupported notion
that he may not be able to make good on the recoupment and
restitution within ten years. Considering the lack of
findings regarding appellant's financial resources and his
ability to reimburse the proper authorities, we think the
judgment of the trial court should be reconsidered. 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. Cf. Bearden, supra,
103 S.Ct. at 2072, 76 L.Ed.2d at 232 (due process offended
when criminal defendant's probation is revoked solely
because of indigency, especially when defendant has not been
given an opportunity to complete requirements of
restitution).
We do not say that the appellant in the immediate case
may not, under appropriate circumstances, be subjected to
the maximum sentence available in law. Cf. Bearden, supra
(state may revoke probation of indigent defendant and
imprison him for failure to make bona fide efforts to pay
fines and make restitution). Due process requires only that
indigency or poverty not be used as the touchstone for
imposing the maximum allowable punishment. Upon remand, the
trial court is free to reconsider the possibility of a ten
year suspended sentence, but only upon grounds which give
fair consideration to Farrell's financial condition.
In reaching this decision, we reject arguments by the
State that the provisions of appellant's sentence,
especially with respect to requirements of restitution and
recoupment, are not ripe for review because there is as yet
no concrete evidence of any hardships. These arguments
misconceive the nature of this appeal. Farrell is attacking
the underlying validity of his sentence, and as such, his
appeal is properly before this Court. State ex rel. Greely
v. District Court (1979), 180 Mont. 317, 327, 590 P.2d 1104,
1110; State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d
873, 874.
The conviction of Stephen Farrell is affirmed. The
sentence is vacated, and the case is remanded for
resentencing in accordance with this opinion.

fr,&
Justice

We concur:

;t,&JP
Chief Justice
a.m+

~ i s t r i c tJudge, sitting in
place of Mr. Justice Frank
B. Morrison, Jr.

Justice

-18-
Justice John C. Sheehy dissenting:

It is an eccentric view of the law to recognize that
recoupment of fraudulently acquired public moneys is a good
thing, and yet to hold the District Court in error for
stretching out a suspended sentence to make recoupment
possible.
It is more eccentric to hold that the suspended sentence
must be set aside, not on equal protection grounds, but upon
lack of due process. Here the District Court, balancing the
propriety of recoupment for offense after offense, and the
inability of defendant to pay within three years, simply
stretched out the period to make payment by the Defendant
feasible. Due process means fundamental fairness. Fundamen-
tally, the District Court was eminently fair to the Defen-
dant, in not assessing jail time which he richly deserved,
and providing instead for recoupment within the term and
ability of the Defendant to pay.
Certainly, the District Judge here tried to ascertain
the earning ability of the Defendant. The replies were "I
really don't know." It is now remanded to find if defendant
really, really did not know.
This case does not involve sending a Defendant to jail
because his indigency prevented the collection of a fine, as
was involved in most of the cases relied on by the majority.
It involves instead a humane and compassionate approach by a
District Judge to accommodate the earning ability of the
Defendant, and yet to protect the public's right to recoup-
ment, and without jail time. If that is fundamentally
unfair, our system of law is skewed.
I dissent. I would affirm the District Court in all
respects.

Justdce

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
 DISSENT OF MR. JUSTICE DANIEL J. SHEA

No. 82-391

STATE V. FARRELL

Dated: L, / 9 8 5

STATE OF MONTANA
Mr. J-usticeDaniel J. Shea, dissenting:

I dissent. The instructions given to the jury in this
case were contradictory and confusing. The majority has
ignored the law governing conflicting jury instructions. The
iury was not only instructed on common scheme, it was
instructed on another legal theory having no support in the
evidence. But the majority ignores the problem created by
simply stating that "the jury was properly instructed on the
elements of theft . . . and on the concept of common scheme,
and therefore had an acceptable legal basis upon which to
consider the available evidence." But acceptable only if we
turn our back on due process issues that inhere in
coizflicting jury instructions or in legal theories where all.
are not supported by substantial evidence.
It may very well be true, that in some instances, where
jury instructions, taken as a whole, state the law applicable
to a case, a party cannot claim reversible error as to the
giving of certain instructions. Goodnough v. State (Mont.
1-982), 647 P.2d 364, 39 St.Rep 1170. Eut the test of a jury
instruction is not what the ingenuity of counsel can make of
it, but rather the ordinary understanding of the instructions
taken as a whole. Brothers v. Surplus Tractor Parts
Corporation (1973), 161 Mont. 412, 506 P.2d 1362. In that
case we reversed and remanded for a new trial because the
instructions were inconsistent and contradictory to each
other to a degree that would confuse the average iuryman.
Nor should the test of an instruction be what this Court on
review can make of it. The jury may very well wend its way
through a maze of evidence and instructions, assuming they
are all reconcilable, not realizing that certain instructions
are contradictory, and not realizing the verdic-iz was tempered
by that contradiction.

In McCullough v. Beech Aircraft Corp. (5th ~ i r .1979),
587 F . 2 d 754, 759, the court remanded. the case because the
District Court committed reversible error in giving
instructions which effectively removed from the jury ' s
consideration a necessary theory upon which it could have
found liability:
"If the charge as a whole leaves us with
subst.a.ntia1and ineradicable doubt whether the jury
has been proper1.y guided in its deliberations it
cannot stand. (Citations omitted. )
"In this case, the district court's jury charges
was contradictory and may well have caused the
jurors to misunderstand the issues presented to
them for resolution."
And in State v. Na.peahi (Kawaii 1976), 556 p.2~3. 569,
576-577, the court reversed on certain charges because two
instructions were contradictory and erroneous as a matter of
law:
"The instruction of the trial court was unfair and
prejudicial to the defendant and was not cured by
any other instruction given at trial. (Citation
omitted) . An erroneous instructi.on, clearly
prejudicial cannot be cured by another instruction
which clearly states the law, but does not call the
attention of the jury to the erroneous
instruction. "
I would. vacate the judgment and grant a new trial.
/-