State v. Blanchard

                            NO.    94-170
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
MELVIN JOHN-THOMAS BLANCHARD,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Larry Moran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Brian P. Fay, Attorney at Law,
               Bozeman, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Micheal S. Wellenstein, Assistant Attorney
               General, Helena, Montana
               Mike Salvagni, Gallatin County Attorney,
               Gary Balaz, Deputy Gallatin County
               Attorney, Bozeman, Montana


                            Submitted on Briefs:       December 1, 1994
                                            Decided:   February 14, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.

        Defendant Melvin Blanchard appeals the sentence imposed by the

Eighteenth Judicial District Court, Gallatin           County, ordering him

to make restitution to the victims of the thefts and burglaries to

which he admitted but was not charged or convicted.            We affirm.
        The issue on appeal is whether the District Court erred by

ordering Blanchard to make restitution for offenses to which he

admitted but was never charged or convicted as a condition of

deferred imposition of sentence.

        On May 10,          1993,   the State   obtained leave to file an

information charging Blanchard with four counts of felony theft,

three    counts   of       burglary,   and one count of misdemeanor theft.

Blanchard appeared on May 13, 1993,             and pled not guilty to the

charges.     In November 1993, Blanchard's         attorney arranged a plea

bargain with the State and sent a letter to the prosecuting

attorney which stated in pertinent part:
             Pursuant to    OUT  telephone  conversation of
        November 9, 1993 I hereby propose the following plea
        agreement:

             .     .

             5.    That the Defendant will make restitution;

             .         .

              7.   That the Defendant cooperate with the Bozeman
        City Police Department with respect to all thefts and
        burglaries of which he has knowledge. . . .

              8.   That the State will provide the Defendant with
        transactional   immunity for all testimony given with
        regards to other thefts and burglaries of which he has
        knowledge;
             9.   That both parties will recommend that the Court
        order a long form Pre-Sentence Investigation . . .

        Hearing    on      the     proposed       plea      agreement     was   held       on

November 16,       1993.         The letter from Blanchard's attorney was

admitted into evidence.            Pursuant to the plea agreement, the State

moved for and was granted leave to amend the information.                                  The
amended information charged Blanchard with four counts of burglary,

six counts of felony theft, and one count of misdemeanor theft.

        The   District     Court    questioned      Blanchard       regarding   the    plea

agreement.        Blanchard stated that he approved of the agreement,

that he understood that the court had no obligation to accept the

agreement, and that he understood that the court could sentence him

to the maximum penalty for each count.                   Blanchard then pled guilty

to each of the eleven counts in the amended information.                        The court

accepted his guilty pleas and reserved ruling on the plea agreement

until     sentencing.            The court        ordered     the    preparation      of    a

presentence investigation report and permitted Blanchard to remain

free on bail until the time of sentencing.

        Probation and Parole Officer Bernie Driscoll prepared the

presentence investigation report.                 With respect to restitution, the

report provided as follows:

        counts I, II, III and IV:             Team Bozeman          (Burglaries and
        Thefts)

              Restitution requested in the amount of                    $2,491.62
              .     .

        Counts V and VI:         Hobby TowiRaceway (Burglary and Theft)

              Cash in the amount of                                     $ 113.76
              . . . .

                                              3
     count VII:      Theft of Motorcycle Cover
           Recovered - no restitution being
           requested by [the victim]. . . .                        $     -O-
     count VIII:       Theft of Cellular Phone
           Recovered                                               $     -O-
     Counts IX and X:         Office   Stop (Burglary and Theft)
           Amount      requested                                   $1,415.00
     Count XI:      Toy Shop (Theft)
           Property      recovered                                 $     -O-
                                Counts I - XI Total                $4,020.38
     Information provided to the Bozeman Police Department
     regarding restitution owed for offenses that defendant
     has admitted to, but has not formally been charged, is as
     follows:
           Hobby Town Raceway (Burglary)                           $100.00
           Klip Joint (Burglary)                                       286.50
           Checker Auto                                                 -O-
           Silk Reflections (Burglary)                                 697.00
           Video Hardware (Burglary)                                   500.00
           Legendary     Sounds                                    4,105.20
                         Uncharged Crimes Total                   $5,688.70
Driscoll recommended that Blanchard serve six months in county jail
and receive a six year deferred sentence                  "with        the    conditions
provided   for    in    the    plea     agreement   .'I
     The sentencing hearing took place on February 8,                              1994.
Blanchard's   aunt      and girlfriend testified on his behalf,                      and

letters from Blanchard's bail bondsman and employer were introduced
into evidence. The prosecuting attorney recommended that Blanchard

                                          4
receive concurrent sentences and be required to make restitution
according to the tabulation           in the presentence          investigation
report.     The prosecuting attorney stated:

     And according to our plea agreement, the restitution
     includes not only the crimes charged and pled guilty to,
     but some other ones that the police thought he did, and
     that he did come in later and admit that he did.

The prosecuting attorney explained that the police department had

suspected Blanchard of committing other crimes in the Bozeman area.

Blanchard   subsequently   admitted   to    Sergeant   Tymrack    that     he    had

committed the uncharged crimes             set forth in the presentence
investigation    report,   and,    pursuant to the plea agreement, the

prosecuting     attorney    told     Blanchard    that    'I he    would        have
transactional immunity for any evidence that he gave with regard to

his commission of [the uncharged1 burglaries and thefts."

     Blanchard's attorney also requested that the District Court

adopt the provisions of the plea agreement and that the court

impose a deferred imposition of sentence.              Blanchard's       attorney

stated with regard to restitution:

           I want to address one thing very briefly, that's the
     restitution that's involved. And I don't want the Court
     to get the impression that Mr. Blanchard is trying to get
     out of something that he's responsible for, but the
     restitution that he would be responsible for on the
     crimes that he is not charged with but admitted to I
     believe poses somewhat of a legal dilemma, in that the
     state has offered transactional immunity, and I don't--
     I'll leave that to your discretion, Judge, as to what you
     want to do with that.

     The District Court sentenced Blanchard, imposing a concurrent

six year deferred imposition of sentence on all felony counts, a

six month deferred imposition of sentence on the misdemeanor

                                       5
counts,   and conditions of deferment.    As one of the conditions of
deferment,   the court ordered Blanchard to pay restitution in the
amount of $9709.     Blanchard appeals.
     Did the District Court err by ordering Blanchard to make
restitution for the offenses to which he admitted but was never
charged or convicted as a condition of deferred imposition of
sentence?
      "We review sentences for legality only and will not disturb a
District Court's sentencing decision absent a showing that the
District Court abused its discretion."      State v. Hurlbert (1988),
232 Mont. 115, 123, 756 P.2d 1110, 1115.
     Section 46-18-201, MCA, provides in part:

      (1) Whenever a person has been found guilty of an
     offense upon a verdict or a plea of guilty, the court
     may:
           (a) defer imposition of sentence . . . . The
     sentencing judge may impose upon the defendant any
     reasonable restrictions or conditions during the period
     of the deferred imposition. Reasonable restrictions may
     include:
             ii;)' .
                   restitution;

           i xii) . any other reasonable conditions considered
              : .
     necessary for rehabilitation or for the protection of
     society; or
           (xiii)    any combination of the above.
Section 46-18-241(l),    MCA, further provides:
     Condition of restitution. (1) As provided in 46-18-201,
     a sentencing court may require an offender to make
     restitution to any victim of the offense.
     Blanchard argues that an "offender," as that word is used in
§ 46-18-241(l),    MCA, is a person who has been convicted of or who
has pled guilty to an offense,      and that unless a person pleads

                                   6
guilty to or is convicted of an offense, restitution cannot be

ordered for that offense.     In support of his contention, Blanchard

points to 55 46-1%lOl(3)    (a), -104(3),    -404, and -501, MCA, which

use the word "offender"     to refer to a person who has entered a

guilty plea or who has been convicted of a crime.

     The State argues that the plea agreement alone controls the

amount of restitution ordered.      According to the State, Blanchard

agreed to make restitution both for the crimes to which he pled

guilty and the crimes to which he admitted but was not charged. By

doing so,     he waived his    right to        challenge   the    amount of
restitution   ordered.    According to the State, Blanchard did not

object at the time of sentencing to the amount of restitution

ordered, nor did he argue that the amount ordered differed from the
amount agreed upon in the plea agreement.          Instead,   his   attorney
specifically stated with regard to restitution: "I'll leave that to

your discretion, Judge,    as to what you want to do with that."

     We determine that the District Court did not err in ordering

Blanchard to make restitution.

     While this is a question of first impression in Montana, a
number of other jurisdictions have addressed the issue and have

held that an accused is liable for restitution for offenses to

which the accused (1) has admitted,         (2) has been found guilty, or

(3) has agreed to pay restitution.            Buffington v.      State (Nev.

1994),   868 P.2d 643,    645 (reaffirming Erickson v. State (Nev.

19911,   821 P.2d 1042, 1043); State v. French (Ariz. Ct. App. 1990),

801 P.2d 482, 483; State v. Madril (N.M. Ct. App.          1987), 733 P.2d
365,   367; See State V. Voetberg (Or. 19891, 781 P.Zd 387, 388 (if

a defendant is not convicted, restitution is authorized only if he

admits the criminal conduct for which restitution is             sought) ;
Kimbrell V. State (Alaska App. 1983), 666 P.Zd 454, 455 (it is

permissible       in sentencing defendant on one charge to impose

restitution for separate dismissed charge if amount is certain, he

admits    to   responsibility,   and he consents to make restitution);

State V. Gerald (Wis. 1973), 205 N.W.2d 374, 378-80, app. dismissed

(1973),   414 U.S. 804 (court did not deny defendant's due process

rights when requiring as a condition of probation,          to which the

defendant      agreed,   that he make restitution for crimes he was not

charged with but which were "read in" to the record pursuant to

agreement that he not be prosecuted for them); see also State v.

Kennedy (Minn. 19871,       327 N.W.2d 3, 4-5 (court upheld condition of

restitution where record showed that parties contemplated that

restitution would be based on losses of all victims not merely

those named in counts to which defendant pled guilty); People v.

Quinonez (Colo. 1987),       735 P.2d 159, 163-64 (where defendant agrees

to make restitution at time of entering plea, he cannot later

disavow agreement on basis that no showing was made that he caused

victim's injury); Killough v. State (Ala. 1983), 434 So.2d 852,

853,   cert. denied (1983) , 464 U.S. 1008 (defendant can be ordered to

pay restitution in excess of amount stated in indictment if he made

such agreement as part of plea bargain).




                                       8
       The   plea       agreement   stated     ' [tlhat the Defendant will make
restitution         .      .'I   While the plea agreement does not indicate

for which burglaries and thefts restitution would be paid, the

presentence investigation report clearly set forth the amount of

restitution owed for eleven charged offenses and six uncharged

offenses to which Blanchard admitted.                     At the sentencing hearing,
the   prosecutor        stated   that    the       plea   agreement   required    restitution

for the uncharged offenses to which Blanchard admitted.                               Blanchard

did not object to or challenge the prosecutor's statement.

Similarly, Blanchard did not object to or challenge the inclusion

of the uncharged offenses in the presentence investigation report.

Blanchard clearly was aware of the contents of the report, and

requested that the district court adopt the report's recommendation

of a deferred imposition of sentence.                     Blanchard's         attorney stated

at the sentencing hearing:

       I don't want the Court to get the impression that Mr.
       Blanchard is trying to get out of something that he's
       responsible for, but the restitution that he would be
       responsible for on the crimes that he is not charged with
       but admitted to I believe poses somewhat of a legal
       dilemma . . . .
Blanchard    clearly      did    not    deny   responsibility           for    the    uncharged

offenses; instead, defense counsel merely informed the court that

he    believed   "a      legal      dilemma"        existed.           It is,        therefore,

undisputed that Blanchard admitted that he committed the uncharged

offenses.

       The "lega .l dilemma" posed by defense counsel is resolved by

5 46-18-201(l) (a) (xii),           MCA, which allows the district court to


                                               9
impose any reasonable,            rehabilitative         conditions   upon       a       deferred
imposition of sentence.               In Dahlman v. District Court, Seventeenth
Judicial District (19851, 215 Mont. 470, 473, 698 P.2d 423, 425, we

upheld the district court's order requiring the defendant, as a

condition of sentence, to reimburse the medical expenses that he

incurred while in jail. We determined that the condition fell under

5 46-18-201(l)       (a) (ix),    MCA     (1981),       now   codified      at       §    46-18-

201(l) (a) (xii), MCA.           We stated that           U [tlhe imposition of this

condition on defendant was reasonable for rehabilitation purposes

. . . . ,1         Similarly,    in    State    v.    Shaver (1988), 233 Mont. 438,

448-50,      760   P.2d 1230, 1236-37,               we upheld the district court's

condition of sentence requiring the defendant to pay child support.

The defendant in Shaver claimed that he was not given notice or

opportunity to be heard on the issue of child support.                               We noted

that    the        defendant     had     been        served   with    the    presentence

investigation report which set forth his child support payment

problems and prior misdemeanor nonsupport charges and convictions.

While the issue of child support was unrelated to the                                        crime

charged, we determined that the district court properly imposed the

condition      "for    rehabilitative and restitution purposes."                         Shaver,

760   P.2d at 1237.

       During the sentencing hearing in the instant case, the court

stated its reasons for deferring imposition of sentence:

            The wisdom of the law is that these events, such as
       you have been involved in, do happen. If they happen and
       are perpetrated by a young person who is salvageable and
       redeemable, then we are to look everywhere outside the
       prison system itself to find a way to get to you to

                                                10
      redeem yourself and to get you to correct the behavior
      that brought you before the Court. And it is primarily
      for that reason that I'm not going to sentence you to
      prison in this case.   You certainly have slid by by a
      gnat's eyelash.

             .    .   .

           Next, I was particularly motivated in this case by
      . . your coach in high school and one of your teachers.
      And he feels that you are redeemable . .

The repeated use of the words "redeem"         and "redeemable" and the

specific statement about correcting certain behavior evidences the

District Court's intent to rehabilitate the defendant outside of

the prison system.        We determine that the order requiring Blanchard

to pay $9709 serves both rehabilitative and restitution purposes.

See   Shaver, 760 P.2d at 1237.

      We hold that the District Court did not err in ordering

Blanchard to make restitution for the uncharged offenses because he

admitted committing the burglaries and thefts for which he received

transactional immunity, because the record provides evidence that

his admission was true, and because the conditions imposed by the

District Court serve a rehabilitative purpose.

      Affirmed.




We concur:
                           ..-.




                                      February 14, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:


BRIAN P. FAY
Attorney at Law
125 West Mendenhall
Bozeman, MT 59715

HON. JOSEPH P. MAZUREK, Attorney General
      , Assistant
Justice Bldg.
Helena, MT 59620

Gary Balaz
Deputy County Attorney
615 S. 16th
Bozeman, MT 59715

                                                  ED SMITH
                                                  CLERK OF THE SUPREME COURT
                                                  STATE OF MONTANA