City of Billings v. Edward

• Decision Date: 28 August 2012
• Docket Number: No. DA 11–0338.,DA 11–0338.
• Parties: CITY OF BILLINGS, Plaintiff and Appellee, v. Darla EDWARD, Defendant and Appellant.
• Court: Montana Supreme Court

366 Mont. 107

285 P.3d 523

2012 MT 186

CITY OF BILLINGS, Plaintiff and Appellee,

v.Darla EDWARD, Defendant and Appellant.

No. DA 11–0338.

Supreme Court of Montana.

Submitted on Briefs April 4, 2012.

Decided Aug. 28, 2012.

For Appellant: Wade M. Zolynski, Chief Appellate Defender, Sarah Chase Rosario, Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Brent Brooks, Billings City Attorney, Curtis Bevolden, Deputy City Attorney, Billings, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Darla Edward (Edward) appeals from the Order Affirming Restitution Obligation (Order), entered by the Thirteenth Judicial District Court of Yellowstone County, Montana, following a collision between her car and a bicyclist and an ensuing Municipal Court trial and sentencing.

¶ 2 We affirm.

ISSUES

¶ 3 Edward raises four issues on appeal. We restate the issues as follows:

¶ 4 1. Did the District Court err when it held that the jury determined causation?

¶ 5 2. Does substantive evidence in the record support the amount of restitution awarded?

¶ 6 3. Were Edward's constitutional rights to a jury and a fair trial violated?

¶ 7 4. Did Edward receive ineffective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 On May 26, 2010, Edward exited a beauty salon in Billings, Montana. As Edwarddrove out of the parking lot, Karen Zaso (Zaso) was riding her bicycle on the sidewalk, going southbound against traffic. According to two witnesses, a collision occurred between Edward's car and Zaso's bicycle. Joseph Desson (Desson), one of the witnesses, testified that Edward's car hit Zaso's bicycle and that Zaso was thrown into the street in front of his vehicle. Desson said he stopped abruptly to avoid running over Zaso, and was then rear-ended by the vehicle behind him. Lynsey Hagan (Hagan), the other witness and a passenger in the vehicle behind the vehicle that rear-ended Desson's vehicle, also testified that Edward's vehicle hit Zaso's bicycle. According to Hagan, Edward did not appear to know she had hit someone, and she looked as if she was going to run Zaso over after Zaso fell to the ground. Hagan testified that when Zaso got up, Edward said something to Zaso and then drove away. Hagan memorized Edward's license plate number and gave it to the police.

¶ 9 A Billings police officer (Officer) responded to the accident and spoke to the witnesses at the scene. The Officer's report stated that Edward's vehicle pulled out of the location of the salon and hit a bicyclist on the sidewalk, knocking the bicyclist into the northbound driving lane of the street and causing another accident. According to the report, Zaso was transported by ambulance to the Billings Clinic Emergency Room.

¶ 10 Later that same day the Officer spoke to Edward. Edward denied colliding with the bicyclist, though she saw the rear-end vehicle collision occur when Desson abruptly stopped his vehicle. After she watched the collision, Edward said she first saw Zaso when Zaso walked her bicycle around the front end of Edward's vehicle. Though Edward knew an accident had occurred, she believed she was not required to remain at the scene as she did not think she was involved in the accident. The Officer examined Edward's vehicle that same day and found no evidence of impact on the vehicle. The Officer later testified that a collision of this sort would not necessarily be expected to leave marks on the vehicle.

¶ 11 The Officer cited Edward for failure to remain at an accident involving personal injury (Failure to Remain), a criminal violation under § 61–7–103, MCA (2009), and failure to immediately notify authorities of an accident resulting in personal injury or at least $500 in property damage (Failure to Notify), a criminal violation under § 61–7–108, MCA (2009). The Officer did not issue a citation to Zaso, though under §§ 24–602 and –609 of the City Code of Billings, it is a misdemeanor for anyone other than authorized law enforcement personnel to ride a bicycle on a sidewalk within a business district, pursuant to § 61–8–608, MCA (2009). Billings City Code (Mont.) §§ 24–602 and –609 (current through August 9, 2012).

¶ 12 A jury trial was held in Billings Municipal Court (Municipal Court) on November 4, 2010, and Edward was convicted of both criminal charges. The jury heard testimony from Edward, Zaso, Desson, Hagan, and the Officer. During deliberations, the jury was initially deadlocked. Without objection, the court delivered an Allen¹ charge. After further deliberations, the jury asked to re-hear some testimony. The court denied the jury's request and told the jury it needed to return a unanimous verdict that evening or it could return in the morning to continue deliberating. The jury finished deliberating before dinnertime and returned a guilty verdict on both counts.

¶ 13 Meanwhile, in October 2010, Edward's insurer, State Farm Insurance (State Farm), paid Zaso $21,866.58 for her medical expenses. Zaso also sought reimbursement for the following items: $10 for the accident report, $515 for travel to and from court, $64.13 for lodging when appearing for court, $678.98 for new glasses, $425 for the security deposit for her apartment, $28.57 for Neosporin, gauze pads, and other medical supplies, $4,080 in lost wages, $125 for ink and paper, $15.98 for postage costs, and $150 for her personal time. State Farm declined to pay these costs, as it had already paid Zaso for medical supplies as well as a new bicycle, helmet, and clothing.

¶ 14 Hearings were held for sentencing and for purposes of establishing restitution. Edward moved to dismiss the restitution hearing, arguing that she had not been found guilty of actually causing the accident, that causation must be tried before a jury, and that Zaso was not entitled to restitution. The Municipal Court rejected Edward's motion. On her conviction of Failure to Remain, Edward was sentenced to one year in jail with all but thirty days suspended; the thirty days were suspended on the condition that she complete one hundred hours of community service, pay $4,148.60 in restitution to Zaso, and pay court costs and fees.

¶ 15 On February 1, 2011, Edward formally appealed the Municipal Court's restitution order to the District Court. She did not challenge the convictions, suspended sentence, or community service requirement. Edward argued that the restitution obligation should be reversed on four grounds: (1) the absence of a causal connection between the offense and the damage; (2) the causation standard of § 46–18–243(2)(a), MCA (2009), was not met; (3) she should not be liable for damages Zaso could not recover in a civil suit; and (4) the amount of restitution was not based on substantive evidence. The State of Montana (State) responded on behalf of the City of Billings, arguing that the causation standard was met. After the matter was fully briefed, the District Court affirmed the Municipal Court's restitution obligation, finding it reasonable upon application of the restitution standards set forth in State v. Ness, 2009 MT 300, ¶ 20, 352 Mont. 317, 216 P.3d 773. The court found that the evidence in the record substantiated the restitution award.

¶ 16 Edward appeals.

STANDARD OF REVIEW

¶ 17 We review a sentence of less than one year of actual incarceration for both legality and abuse of discretion. State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313;State v. Herman, 2008 MT 187, ¶ 11, 343 Mont. 494, 188 P.3d 978. A criminal sentence is generally reviewed for “legality to determine whether the sentence is within statutory parameters.” Ness, ¶ 7. “A sentencing court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Breeding, ¶ 10.

¶ 18 We review the appropriate measure of restitution for correctness. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578. We review a district court's findings of fact regarding the amount of restitution to determine whether they are clearly erroneous. Johnson, ¶ 13. A finding of fact is “clearly erroneous if [it is] not supported by substantial evidence.” Breeding, ¶ 11. “Substantial evidence is ‘evidence that a reasonable mind might accept as adequate to support a conclusion.’ ” Johnston v. Palmer, 2007 MT 99, ¶ 26, 337 Mont. 101, 158 P.3d 998.

¶ 19 “We invoke plain error review sparingly, on a case-by-case basis, according to narrow circumstances, and by considering the totality of the case's circumstances.” State v. Wilson, 2011 MT 277, ¶ 16, 362 Mont. 416, 264 P.3d 1146.

¶ 20 “A claim of ineffective assistance of counsel presents mixed questions of law and fact that we review de novo.” Herman, ¶ 10.

DISCUSSION

¶ 21 Issue One: Did the District Court err when it held that the jury determined causation?

¶ 22 Edward argues on appeal that the District Court and the Municipal Court erred when they concluded that Edward caused Zaso's accident, as the elements of the charges of Failure to Remain and Failure to Notify establish no more than the fact that Edward was involved in an accident. Thus, she argues, causation of the accident was never determined and the court was therefore without authority to award Zaso restitution. Edward maintains that the jury should have been required to determine causation prior to the court awarding restitution, and that because no causal connection exists between the two offenses and the damage to Zaso, the restitution award was improper. Edward also argues that Montana's law of comparative negligence entitles Edward to have a jury determine contributory negligence of the parties before restitution is assessed.

¶ 23 The State asserts that the jury did determine causation when it found Edward guilty of the two crimes, and therefore a sufficient causal connection existed between...