City of Whitefish v. Jentile

Decision Date28 August 2012
Docket NumberNo. DA 11–0336.,DA 11–0336.
Citation366 Mont. 94,285 P.3d 515,2012 MT 185
PartiesCITY OF WHITEFISH, Plaintiff and Appellee, v. Ralph JENTILE, Defendant and Appellant.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

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, Caleb Simpson, Whitefish City Prosecutor, Whitefish, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Ralph Jentile appeals a decision of the District Court for the Eleventh Judicial District, Flathead County, ordering Jentile to pay for the repairs to two Whitefish Police Department patrol cars that collided with each other while pursuing Jentile. We reverse and remand for further proceedings consistent with this Opinion.

¶ 2 Jentile raises two issues on appeal which we have restated as follows:

¶ 3 1. Whether the amount of restitution Jentile was ordered to pay should be reduced because of the alleged comparative negligence of the officer involved in the accident.

¶ 4 2. In the alternative, whether Jentile's trial counsel was ineffective for failing to specifically argue that the amount of restitution Jentile was ordered to pay should be reduced because of the alleged comparative negligence of the officer involved in the accident.

¶ 5 Because we conclude that the first issue is dispositive, we do not address the second issue.

Factual and Procedural Background

¶ 6 On October 28, 2009, the Helena Veteran's Administration (the VA) contacted the Whitefish Police Department (the Police) regarding concerns the VA's medical staff had for Jentile who was one of the VA's clients. The VA medical staff reported that they were concerned that Jentile might be suffering from suicidal thoughts based on a phone inquiry Jentile had made regarding the lethality of lithium and the lack of an antidote.

¶ 7 In response to the VA's call, the Police twice attempted to locate Jentile at his Whitefish residence to conduct a welfare check, but he was not at home either time. Consequently, Officer Ryan Zebro placed several calls to Jentile's cellular phone. In the first call, Jentile hung up on the officer. In the second call, Jentile explained to Officer Zebro that he was not suicidal. In the third call, Officer Zebro informed Jentile that the VA had ordered an evaluation for Jentile and that Jentile needed to turn himself in. Jentile told Officer Zebro that he was not suicidal, that he wanted to be left alone, and that he would not turn himself in. Jentile also threatened to retaliate if the police did not leave him alone. After the third phone call, Officer Zebro put out an “attempt to locate” for Jentile. A short time later, another officer responded that he had sighted Jentile's vehicle driving through town.

¶ 8 The Police used three patrol cars to stop Jentile. The first patrol car stopped traffic while the second patrol car pulled alongside Jentile, and the third patrol car pulled in behind him. All three patrol cars had activated their flashing lights.

¶ 9 Jentile initially pulled over, but before the officers could get out of their vehicles, Jentile pulled back out into traffic and drove off with the patrol cars in pursuit. One officer estimated that they were driving 45–50 miles per hour in a 25 mile-per-hour zone. After winding through a residential section of Whitefish, Jentile turned left onto a side street and made another immediate left into a driveway (which turned out to be his own). The first patrol car was able to stop several feet behind Jentile's vehicle. Officer Zebro, who was driving immediately behind the first patrol car, rear-ended that car with his own patrol car. When Jentile exited his vehicle, the officers tasered him, handcuffed him, and transported him to the hospital for a mental evaluation.

¶ 10 The Montana Highway Patrol (MHP) investigated the crash. In its investigative report, MHP concluded that the crash occurred because Officer Zebro was following too closely. Officer Zebro was not cited for this infraction, but he did receive a letter of reprimand in his file.

¶ 11 The Police initially presented felony charges to the County Attorney, but after reviewing the police video and reading the charging documents, the County Attorney declined felony prosecution. Instead, Jentile was charged with three misdemeanors: Resisting Arrest in violation of § 45–7–301, MCA; Reckless Driving in violation of § 61–8–301(1), MCA; and Eluding a Peace Officer in violation of § 61–8–316, MCA. In addition, the City of Whitefish (the City) requested restitution for the damage to the two patrol cars.

¶ 12 Pursuant to a plea agreement, the charges of Resisting Arrest and Reckless Driving were dismissed, and Jentile pled guilty to the remaining charge of Eluding a Peace Officer. In addition, the plea agreement specified that a hearing regarding restitution would be held separate from sentencing, and that Jentile would receive a two-year deferred imposition of sentence.

¶ 13 Jentile moved to dismiss the restitution hearing arguing that because he did not cause the collision, he should not have to pay for the damage to the patrol cars. Instead, he pointed out that the MHP investigative report indicated that Officer Zebro caused the collision by following too closely. In addition, Jentile asserted that he should not be liable for restitution because the City wrongfully involved itself in a civil matter, and it violated its own policies when it initiated the pursuit of Jentile's vehicle.

¶ 14 The Whitefish Municipal Court denied Jentile's motion to dismiss and held a hearing regarding restitution. At the hearing, Jentile argued that the officers were negligent per se: for initiating the pursuit when Jentile was not under arrest; by not controlling the pursuit in a safe manner; and by not discontinuing the pursuit. Jentile also argued that the City was negligent per se “for not adopting policies regarding persons with mental disorders as suggested by the Montana Law Enforcement Training Center.” Additionally, Jentile pointed out that the MHP investigation concluded that Officer Zebro caused the accident, and that Officer Zebro had been officially reprimanded in writing over this incident.

¶ 15 Nevertheless, the Municipal Court awarded the City its requested damages and ordered Jentile to pay $7,327.81 in restitution. The Municipal Court found that the patrol cars collided “as a direct consequence of Jentile's erratic unlawful driving that required defensive, reactive, emergency maneuvering by police in visual pursuit.”

¶ 16 Jentile appealed to the Eleventh Judicial District Court, but the District Court rejected all of his claims and affirmed the decision of the Municipal Court. Jentile now appeals to this Court from the decisions of the District and Municipal Courts regarding restitution. Notably, Jentile points out in his appeal brief that, after the conclusion of the lower court proceedings, his insurance company determined in its investigation of the accident that Officer Zebro was 100 percent liable, thus it declined to pay Jentile's claim.

Standard of Review

¶ 17 We review sentences that are not eligible for sentence review—i.e., sentences that impose less than one year of actual incarceration—for both legality and abuse of discretion. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. A sentence is legal if it falls within statutory parameters. State v. Hernandez, 2009 MT 341, ¶ 3, 353 Mont. 111, 220 P.3d 25 (citing State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892). In this case, Jentile's sentence was deferred, thus he was not subject to actual incarceration, and we review his sentence for both legality and abuse of discretion. See State ex rel. Holt v. District Court, 2000 MT 142, 300 Mont. 35, 3 P.3d 608.

¶ 18 In addition, we review for clear error a lower court's factual findings regarding the amount of restitution assessed against a defendant. State v. Johnson, 2011 MT 286, ¶ 8, 362 Mont. 473, 265 P.3d 638 (citing State v. Essig, 2009 MT 340, ¶ 12, 353 Mont. 99, 218 P.3d 838).

Discussion

¶ 19 Whether the amount of restitution Jentile was ordered to pay should be reduced because of the alleged comparative negligence of the officer involved in the accident.

¶ 20 Jentile argues on appeal that violating the law by eluding the police does not preclude the required comparative negligence analysis regarding Officer Zebro's purported negligence. Thus, Jentile contends that the Municipal Court erred when it did not apply a comparative negligence analysis to the restitution determination despite evidence of negligence by the party claiming restitution.

¶ 21 The City argues that the damage to the patrol cars was caused by Jentile's illegal conduct, and not by any negligence on the part of its officers. Moreover, the City claims that even if the defense of comparative negligence could be applied to a criminal restitution proceeding, Jentile did not assert that defense in this case. Thus, according to the City, Jentile waived that defense, and the Municipal Court was correct in not considering it.

¶ 22 When a criminal defendant pleads guilty to a criminal offense, the sentencing court must impose restitution if the offender's criminal conduct resulted in pecuniary loss to a victim. State v. Brownback, 2010 MT 96, ¶ 19, 356 Mont. 190, 232 P.3d 385 (citing §§ 46–18–201(5), –241(1), –243(1) and (2), MCA). Moreover, we stated in Brownback that restitution ‘engraft [s] a civil remedy onto a criminal statute,’ creating a procedural shortcut for crime victims who would be entitled to a civil recovery against the offender.” Brownback, ¶ 19 (quoting United States v. Martin, 195 F.3d 961, 968 (7th Cir.1999)).

¶ 23 In assessing restitution in this case, the Municipal Court found that the patrol cars collided “as a...

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