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No. 99-650
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 100
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHARLES ROCKWOOD HORTON,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Wm. Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin S. Brown, Paoli & Brown, Livingston, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana
Attorney General, Helena, Montana; Tara DePuy, Park County Attorney, Livingston,
Montana
Submitted on Briefs: May 25, 2000
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Decided: June 12, 2001
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Charles Rockwood Horton (Horton) was convicted in the Sixth Judicial District Court,
Park County, of felony DUI and driving while his license was suspended. Horton appeals
the District Court's sentencing order requiring him to pay his child support obligation,
including an arrearage, and failing to award Horton credit for time already served. We
reverse.
¶2 Horton raises the following issues on appeal:
¶3 1. Whether the District Court exceeded its statutory authority by ordering Horton to pay
restitution for a dismissed count.
¶4 2. Whether the District Court abused its discretion by ordering Horton to pay restitution
without first considering his financial resources and future ability to pay.
¶5 3. Whether the District Court erred when it failed to credit Horton with time served in
its written judgment after having allowed the credit in its oral pronouncement of sentence.
¶6 Because we hold in issue 1 that the District Court exceeded its statutory authority by
ordering Horton to pay restitution for a dismissed count, it is unnecessary for us to address
the question in issue 2 of Horton's ability to pay said restitution.
Factual and Procedural Background
¶7 On the night of June 10, 1999, Horton was pulled over by law enforcement officers for
driving erratically. One of the officers approached Horton's vehicle and, when Horton
rolled down the driver's side window, the officer noticed the strong odor of alcohol. The
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officer asked Horton to exit the vehicle, but when Horton did so, he nearly fell over.
Horton was then placed under arrest for suspicion of driving under the influence (DUI)
and transported to the Park County detention center. At the detention center, Horton
refused to undergo any tests. A search of Horton's driving record revealed that he had nine
prior DUI convictions.
¶8 A further search of Horton's records revealed that he owed more than $47,000 in back
child support. When his divorce decree was entered in 1988, Horton was ordered to pay
$350 per month in child support. On November 14, 1996, Horton's monthly child support
obligation was increased to $393 per month by administrative order. Horton failed to pay
his support obligation, however, and on April 23, 1999, the Child Support Enforcement
Division (CSED) sent him a letter giving him until May 14, 1999, to begin making
monthly child support payments and to make payment arrangements for the arrearage.
Horton refused to comply. As of June 1999, Horton's support obligation amounted to
$49,867. Horton involuntarily paid $2,477 as a result of CSED's interception of a tax
refund. Thus, Horton owed $47,390 in child support dating back to 1988, and his current
support obligation was fixed at a rate of $393 per month.
¶9 At the time of his arrest on these latest offenses, Horton was already serving a
suspended sentence for a June 1997 felony DUI conviction. He had only 26 days left on
this suspended sentence when he committed the current offenses. On June 21, 1999, the
Park County Attorney filed a petition to revoke Horton's suspended sentence. The petition
also alleged that Horton had violated his sentence by failing to pay fines and supervision
fees and for failing a drug test.
¶10 On June 28, 1999, the Park County Attorney charged Horton by Information with the
commission of four offenses: driving under the influence of alcohol, a felony, in violation
of §§ 61-8-401 and 61-8-731, MCA; driving while license suspended or revoked, a
misdemeanor, in violation of § 61-5-212, MCA; habitual traffic offender operating a
motor vehicle, a misdemeanor, in violation of § 61-11-213, MCA; and nonsupport, a
felony, in violation of § 45-5-621, MCA. On July 6, 1999, Horton appeared with his
counsel and pleaded not guilty to all of the charges. The District Court remanded Horton
to the custody of the Park County Jail.
¶11 Horton and the Park County Attorney executed a written plea agreement on August
13, 1999, wherein Horton agreed to plead guilty to the traffic offenses and the County
Attorney agreed to dismiss the felony nonsupport charge. As part of the terms and
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conditions for dismissing the felony nonsupport charge, the County Attorney agreed to
recommend a sentence of 13 months with the Department of Corrections, to be served in a
pre-release program, followed by four years of probation. The plea agreement also listed
the following as part of the terms and conditions of the probationary sentence:
Defendant shall pay child support at the rate of $393 per month and an additional
sum of $200 per month towards the arrearage. Defendant shall pay the total amount
of arrearage in full sixty (60) days prior to the end of his probationary period.
¶12 Horton appeared before the District Court on August 16, 1999, and, pursuant to the
plea agreement, he pleaded guilty to the DUI charge, the charge of driving while his
license was suspended or revoked, and the charge of being a habitual traffic offender
operating a motor vehicle. In addition, Horton had included the following handwritten
notation above his signature line in the plea agreement:
State will not seek any additional or consecutive time from the underlying Petition
to Revoke. Parties Agree that the Defendant can argue against the State's
recommendations regarding fines & payment of support arrearages contained within
[the plea agreement].
¶13 At the sentencing hearing on September 7, 1999, the District Court dismissed without
prejudice the misdemeanor charge of being a habitual traffic offender because the State
failed to provide proof that a valid habitual-offender designation was in place at the time
of the offense. In addition, Horton's counsel informed the court that Horton objected to the
court ordering him to pay any child support arrearage. Counsel argued that because the
nonsupport offense had been dismissed, Horton would be paying restitution on a count for
(1)
which he had not been convicted. Counsel also objected to the fact that the State was
seeking restitution without regard to Horton's financial resources or future ability to pay
restitution.
¶14 Nevertheless, the District Court ordered Horton to pay his monthly child support
obligation of $393 and an additional $200 per month toward the arrearage. The court
sentenced Horton to 13 months at the Department of Corrections followed by four years of
probation. The court expressly promised to revoke Horton's probation and give him four
years in prison with no parole if he did not pay his child support as ordered.
¶15 Horton remained incarcerated at the Park County Jail from the time of his arrest on
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June 10, 1999, through his sentencing hearing on September 7, 1999. At the sentencing
hearing, Horton's counsel asked if Horton would get credit for the time he served in jail.
The Judge responded: "Yeah. It's automatic you get credit for time served." However, in
his written sentence, the Judge refused to credit Horton for time served prior to sentencing
on the basis that Horton was being held on a probation violation.
¶16 On appeal, Horton asks that we vacate the paragraph in the District Court's Judgment
and Order of Sentence wherein the court ordered Horton to pay his child support as well as
the paragraph in the judgment wherein the court ordered that Horton not be given credit
for time served prior to sentencing.
Standard of Review
¶17 This Court reviews a district court's imposition of a sentence for legality only. State v.
Hilgers, 1999 MT 284, ¶ 6, 297 Mont. 23, ¶ 6, 989 P.2d 866, ¶ 6 (citing State v. Richards
(1997), 285 Mont. 322, 324, 948 P.2d 240, 241). See also State v. Rennick, 1999 MT 155,
¶ 7, 295 Mont. 97, ¶ 7, 983 P.2d 907, ¶ 7; State v. Graves (1995), 272 Mont. 451, 463, 901
P.2d 549, 557. The standard of review of the legality of a sentence is whether the
sentencing court abused its discretion. Rennick, ¶ 7. In reviewing the court's findings of
fact as to the amount of restitution, our standard of review is whether those findings are
clearly erroneous. Hilgers, ¶ 6 (citing State v. Perry (1997), 283 Mont. 34, 36, 938 P.2d
1325, 1327).
Issue 1.
¶18 Whether the District Court exceeded its statutory authority by ordering Horton to pay
restitution for a dismissed count.
¶19 Horton argues that the District Court abused its discretion and exceeded statutory
mandates when it ordered him to pay restitution--the child support arrearage--for an
offense which was dismissed and for which he was never convicted--the felony
nonsupport charge. Horton maintains that through the handwritten addendum to the plea
agreement, he reserved his right to object to any award of restitution for the dismissed
count. Hence, he argues that there was no agreement between himself and the State
obligating him to pay such restitution.
¶20 Horton also argues that under State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098,
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restitution is statutorily limited to the "victim" of the crime. Thus, Horton maintains that
Montana's statutory mandates would allow the District Court to order restitution for any
victim who sustained pecuniary or economic loss as a result of the crimes for which he
was convicted. But, since he was convicted of felony DUI and driving without a valid
license and there were no victims sustaining pecuniary or economic loss as a result of
those crimes, Horton argues that restitution was inappropriate in this case.
¶21 The State argues on the other hand that, as a result of the handwritten notation, Horton
is attempting to receive the benefit of the plea agreement--having a felony charge against
him dismissed--without holding up his end of the bargain--paying his child support
obligation including the arrearage. At the sentencing hearing, when Horton's counsel
informed the court that Horton objected to paying any child support arrearage because
Horton had not been convicted of the charge of nonsupport, the Park County Attorney
stated:
The only reason that that count was dismissed is because there were negotiations
between defense counsel and myself that the State would dismiss if the defendant
paid child support. If that is not the agreement then the State wants to withdraw.
¶22 The State also contends that Horton's argument at the sentencing hearing that his
handwritten notation was his clearly expressed refusal to pay child support is flawed
because the notation does not state that he contests paying any of the support arrearage,
but rather that he could contest the amount of the arrearage owing. The State further
contends that the notation only refers to the arrearage to be paid at the rate of $200 per
month and not to Horton's regular child support obligation of $393 per month.
¶23 A plea agreement is a contract which is subject to contract law standards. State v.
Keys, 1999 MT 10, ¶ 18, 293 Mont. 81, ¶ 18, 973 P.2d 812, ¶ 18 (citing State v. Butler
(1995), 272 Mont. 286, 291, 900 P.2d 908, 911). Under contract law, one party
relinquishes some rights in reliance upon the promise of the other party. In this case, the
plea agreement sets forth in a straightforward manner that the State agreed to dismiss the
charge of felony nonsupport and recommend a probationary sentence upon the condition
that Horton make his monthly child support payment of $393, as well as a payment of
$200 per month to apply to the arrearage. This Court has consistently held that it will not
assist a defendant in escaping the obligations of his plea agreement once he has received
its benefit. Keys, ¶ 19 (citing State v. Nance (1947), 120 Mont. 152, 166, 184 P.2d 554,
561).
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¶24 However, it is also well established that a district court's authority to impose sentences
in criminal cases is defined and constrained by statute. State v. Nelson, 1998 MT 227, ¶
24, 291 Mont. 15, ¶ 24, 966 P.2d 133, ¶ 24 (citing State v. Wilson (1996), 279 Mont. 34,
37, 926 P.2d 712, 714). Moreover, "a district court has no power to impose a sentence in
the absence of specific statutory authority." Nelson, ¶ 24 (quoting State v. Hatfield (1993),
256 Mont. 340, 346, 846 P.2d 1025, 1029).
¶25 The statutory authority for the payment of restitution is found at § 46-18-201(2),
(2)
MCA (1997), which provides in pertinent part as follows:
In addition to any penalties imposed pursuant to subsection (1), if the court finds
that the victim of the offense has sustained a pecuniary loss, the court shall require
payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.
On that basis, restitution is, as Horton argued, statutorily limited to the "victim" of the
crime for which a defendant is convicted. Brown, 263 Mont. at 227, 867 P.2d at 1101.
¶26 The State argues that under State v. Shaver (1988), 233 Mont. 438, 449, 760 P.2d
1230, 1237, "child support obligations are a legitimate condition to be considered as part
of probation." However, unlike the case before us, Shaver's two children were the victims
of the crimes for which Shaver was convicted. Moreover, there was no contention in
Shaver that child support for the victims was not related to the crimes charged, hence we
did not directly address that issue.
¶27 In the present case, Horton pleaded guilty to felony DUI and misdemeanor driving
without a license. He did not plead guilty to, nor was he convicted of, the charge of felony
nonsupport. Hence, there was no "victim" of the crimes for which Horton was convicted
and to whom Horton could be ordered to pay restitution.
¶28 The State also argues that under § 46-18-202(1)(e), MCA (1997), ordering Horton to
pay his child support was proper because a sentencing court may impose any condition or
restriction "reasonably related to the objectives of rehabilitation and the protection of the
victim and society." However, in interpreting that provision of § 46-18-202(1)(e), MCA
(1997), in State v. Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶
11, we held that a sentencing limitation or condition must have some correlation or
connection to the underlying offense for which the defendant is being sentenced. There is
no such correlation or connection in this case between Horton's conviction on the DUI
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charge and ordering Horton to pay his child support. Consequently, the District Court's
order did not meet the statutory requirements for the imposition of restitution on a
(3)
suspended sentence.
¶29 Accordingly, we hold that the District Court exceeded its statutory authority by
making the payment of Horton's child support obligation a condition of his sentence.
Hence, the provision in paragraph I(M) in the court's Judgment and Order of Sentence
ordering Horton to pay his child support should be stricken.
Issue 3.
¶30 Whether the District Court erred when it failed to credit Horton with time served in its
written judgment after having allowed the credit in its oral pronouncement of sentence.
¶31 Horton was incarcerated at the Park County Jail from the time of his arrest on June 10,
1999, until his sentencing on September 7, 1999. At the sentencing hearing, Horton's
counsel asked the Judge if Horton would get credit for time served. The Judge responded:
"Yeah. It's automatic you get credit for time served." However, the written judgment and
sentence entered two days later stated: "Defendant shall not be given credit for time served
prior to sentencing as he was being held on a probation violation."
¶32 Horton argues on appeal that the District Court erred in issuing a written sentence
refusing to grant him credit for time served when the Judge specifically stated at the
sentencing hearing that Horton would get credit for the time he served in the Park County
Jail. In its brief on appeal, the State concedes that Horton is entitled to credit for the time
he served between his arrest and his sentencing pursuant to § 46-18-403, MCA, which
provides:
(1) Any person incarcerated on a bailable offense and against whom a judgment of
imprisonment is rendered must be allowed credit for each day of incarceration prior
to or after conviction, except that the time allowed as a credit may not exceed the
term of the prison sentence rendered.
¶33 Moreover, the State concedes that under the principle Fset forth in State v. Lane, 1998
MT 76, 288 Mont. 286, 957 P.2d 9, the District Court's oral pronouncement that Horton
receive credit for time served controls over the court's written pronouncement that Horton
was not entitled to credit for time served. We held in Lane that "the sentence orally
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pronounced from the bench in the presence of the defendant is the legally effective
sentence and valid, final judgment." Lane, ¶ 40.
¶34 Accordingly, we hold that based upon § 46-18-403(1), MCA, and our holding in Lane,
the sentence the District Court orally pronounced from the bench in Horton's presence is
the "legally effective sentence." Hence, the provision in paragraph II of the court's
Judgment and Order of Sentence stating that Horton will not receive credit for time
served, should be stricken.
¶35 Reversed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
Justice Patricia O. Cotter specially concurs and dissents.
¶36 I concur with the Court's conclusion that a district court's authority to impose
sentences in criminal cases is defined and constrained by statute, and I agree with the
Court's conclusion that there was no victim of the crimes for which Horton was convicted
and to whom Horton could be ordered to pay restitution over objection. However, I dissent
from the Court's order striking the provision in Paragraph I(M) in the Court's Judgment
and Order of Sentence.
¶37 The majority correctly concludes that a plea agreement is a contract which is subject
to a contract law analysis. Under contract law, one party relinquishes a right or receives a
benefit in reliance upon the promises of the other party. Here, as the State points out, a
plea agreement was negotiated whereby Horton was relieved of a conviction of felony
nonsupport --which under the circumstances of this case was inevitable--in exchange for
his agreement to pay child support. The State's forbearance was given in exchange for the
defendant's agreement to pay back support prior to the end of his probationary term. That
requirement of the plea agreement has now been stricken. Thus, the quid pro quo of the
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plea agreement has been undone by this Court's decision.
¶38 If we proceed in subsequent cases as we have here, at some point after the plea
agreement is signed and sealed, we will strike what we deem to be the offending condition
upon complaint by the defendant, leaving the balance of the agreement in place. In so
doing, we will leave prosecutors without the benefit of their bargain, and without the
opportunity to undo the bargain the benefit of which has been stripped away. Prosecutors
will conclude, and understandably so, that it is not in the State's best interests to negotiate
a global resolution of multiple pending charges in one plea agreement, because, even if the
defendant agrees to the deal, he can have it undone, to his sole benefit, after sentencing.
Such a fundamental change in the way of doing business will disadvantage both the State
and the defendant. It will result in fewer plea agreements, more litigation, and increased
congestion in the courts, not to mention a flood of appeals arising from past pleas, wherein
the defendant agreed to a condition unrelated to the charge of which he was convicted, as
part of what was, until now, considered a valid and enforceable plea agreement.
¶39 As stated above, I do not dispute the underlying legal conclusions reached here.
However, because I see value in the continuing use of global plea agreements that are
bargained for equally, and because I think the State is entitled to the benefit of its bargain,
I would hold that, in the event a defendant seeks to vacate a central provision of a plea
agreement on the grounds that the court was without authority to impose a condition
unrelated to the offense to which the defendant ultimately pled guilty, then the district
court should in turn give the State the option to either accept the plea agreement as
revised, or rescind the agreement under § 28-2-1711, MCA, and § 28-2-1714, MCA, for
failure of consideration. If the State elects to rescind, the parties would then be returned to
their pre-plea agreement positions, with the defendant withdrawing his plea of guilty and
the previously dismissed charges being reinstated by the State. Thereafter, the parties
could either negotiate a new plea agreement or proceed to trial.
¶40 Applying principles of contract law, we recently held that a non-breaching defendant
party to a plea agreement, when confronted with the breach of a condition of the plea
agreement by the State, should have the right to choose from the available remedies of
rescission of the plea agreement or specific performance. State v. Munoz, 2001 MT 85, ¶¶
16-19, 305 Mont. 139, ¶¶ 16-19, ___ P.3d ____. I see no reason why the State should be
afforded less latitude when the defendant seeks to invalidate a material term of a
negotiated plea agreement, resulting in a similar failure of consideration.
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/S/ PATRICIA COTTER
Justice W. William Leaphart joins in the foregoing special concurrence and dissent.
/S/ W. WILLIAM LEAPHART
Chief Justice Karla M. Gray specially concurring.
¶41 I have signed, and join in, the Court's opinion in its entirety. I write separately only to
comment on Justice Cotter's thoughtful concurring and dissenting opinion.
¶42 I agree with much of Justice Cotter's opinion. In particular, I agree with those portions
of her opinion which discuss the importance to both prosecutors and criminal defendants
of the availability of plea agreements. I would add to Justice Cotter's concerns another one
of critical importance: the State's efforts to enforce child support orders and collect
ordered support by any legal means.
¶43 I cannot agree, however, with Justice Cotter's conclusion that the State is entitled to
the benefit of its bargain in the present case. Prosecutors are aware that sentencing courts
are bound by statutory parameters in Montana which essentially define legal sentences.
Prosecutors also know, or should have known soon after February 3, 1999, the date on
which we decided Ommundson, that a sentencing limitation or condition must have some
correlation or connection to the underlying offense for which the defendant is being
sentenced.
¶44 Here, the plea agreement between the prosecutor and Horton was executed on August
13, 1999, more than six months after Ommundson's holding that sentencing conditions
must relate to the underlying offense for which a sentence is to be imposed. At that point,
the prosecutor had no entitlement to benefit from a bargain which would require the
District Court to impose an illegal sentence. Under different circumstances than those
presented here, a remand might well be appropriate. Where, however, as here, the State is
not entitled to the benefit of a bargain which included a condition which would render the
sentence unlawful, it is my view that our only legitimate choice--like it or not--is to strike
the offending condition. For that reason, I join the Court in doing so.
1. Section 45-5-621(10), MCA, provides that the arrearages payable under a support
order are considered restitution and the terms for payment of such restitution must be
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determined by the court.
2. The District Court entered its Judgment and Order of Sentence in the case sub judice on
September 9, 1999. While the 1999 Legislature extensively amended § 46-18-201, MCA,
the majority of those amendments did not take effect until October 1, 1999, three weeks
after Horton was sentenced.
3. Due to an apparent codification error, under the version of the statute effective October
1, 1999, a district court can only require restitution in cases involving deferred imposition
of sentence and not in cases involving suspended execution of sentence. Prior to the 1999
amendments to § 46-18-201, MCA, subsection (1)(a) referred to deferred imposition of
sentence and subsection (1)(b) referred to suspended execution of sentence. Subsection (2)
of the statute authorized the sentencing court to require payment of restitution. Subsection
(2) stated:
In addition to any penalties imposed pursuant to subsection (1), if the court finds that the
victim of the offense has sustained a pecuniary loss, the court shall require payment of full
restitution to the victim as provided in 46-18-241 through 46-18-249. [Emphasis added.]
When the 1999 Legislature amended § 46-18-201, MCA, it renumbered portions of the
statute. While a deferred imposition of sentence is still discussed in subsection 1,
suspended execution of sentence is now discussed in subsection (2). However, the
Legislature did not amend the subsection on restitution. That subsection still states: " In
addition to any penalties imposed pursuant to subsection (1) . . . ." Section 46-18-201(5),
MCA (1999) (emphasis added). Hence, under this statute, a district court can only require
restitution in cases involving deferred imposition of sentence and not in cases involving
suspended execution of sentence.
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