In re B.W.

Decision Date04 February 2014
Docket NumberNo. DA 12–0618.,DA 12–0618.
Citation373 Mont. 409,318 P.3d 682
PartiesIn the Matter of B.W., a Youth.
CourtMontana Supreme Court


For Appellant: Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana, Scott Twito, Yellowstone County Attorney; Christopher Morris, Deputy County Attorney; Billings, Montana.

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 B.W. appeals a commitment order from the Montana Thirteenth Judicial District Youth Court, Yellowstone County, which ordered him to pay $78,702.09 in restitution. We reverse and remand.

¶ 2 A restatement of the dispositive issue on appeal is:

¶ 3 Did the Youth Court err in holding B.W. jointly and severally liable for the full amount of restitution for damages when the State did not establish that B.W. was criminally liable for the acts of the other youths?


¶ 4 Between December 22, 2011, and January 1, 2012, the Billings Police Department responded to over 200 reports of vandalism. During this period, vandals shot the windows out of homes and vehicles with air guns, struck vehicles with baseball bats, and set two cars on fire. Local school resource officers led an investigation that indicated that B.W., a sixteen-year-old male, had participated in the vandalism.

¶ 5 On January 23, 2012, the State filed a petition alleging that B.W. was a juvenile delinquent for having committed the offense of criminal mischief, common scheme, a felony, in violation of §§ 45–6–101 and 45–2–101(8), MCA. Other youths involved in the vandalism were charged similarly. B.W. denied the State's allegations at his initial appearance. During a change of plea hearing in July, B.W. admitted to having committed criminal mischief, common scheme. B.W.'s counsel questioned him at the hearing only about his actions on December 22 and December 29, but specified that the actions were “done in furtherance of a common scheme or as part of an action.” The Youth Court accepted B.W.'s admission and change of plea.

¶ 6 On September 12, 2012, the Youth Court held a dispositional hearing. B.W. and the county attorney presented arguments on the proper amount of restitution. B.W. admitted to committing acts of vandalism on December 22 and December 29, and stated that he had no knowledge of the events on the other dates. He argued he should be accountable only for the amount of restitution from December 22 and December 29, whereas the State argued he should be accountable for all damages occurring over the eleven-day period. B.W. argued that:

[t]he State chose to charge it as they charged it. They could have charged it as a common scheme for him for the two nights that he was there, and then common scheme by accountability for the nights he was not, and then they would have had to have shown that he had knowledge. They charged it how they charged it, and we would simply ask that the youth be held accountable for those nights to which he was present, aware and participated.

¶ 7 The Youth Court did not inquire into the extent of B.W.'s assets or his prospects for future earnings. In the youth probation report, the officer noted B.W. was employed at a local pizzeria, was doing well in school, and had no history of legal troubles. The report did not provide details concerning B.W.'s hours at the pizzeria or his wages.

¶ 8 After the hearing, the court entered a dispositional order adjudicating B.W. a delinquentyouth for having committed criminal mischief, common scheme, a felony. The court also ordered B.W. to “pay restitution in the amount of $78,702.09 ... in monthly payments of not less than $150.00 ... or 50% of his wages whichever is greater, with the first payment due within 30 ... days.” The Youth Court retained jurisdiction over B.W. for restitution purposes until his twenty-first birthday. B.W. appeals from the portion of the dispositional order that ordered him to pay $78,702.09 in restitution. This figure represents the total damages sustained over the eleven-day vandalism spree.

¶ 9 B.W. contends on appeal that the only offenses for which restitution was authorized were B.W.'s direct series of acts of criminal mischief on December 22 and December 29. B.W. argues that In re K.E.G., 2013 MT 82, 369 Mont. 375, 298 P.3d 1151, a case regarding another Billings youth involved in the same spree of vandalism, is distinguishable because the parties did not squarely address the applicable law, and that our decision in K.E.G. “was manifestly wrong in interpreting the felony aggregation provision of the criminal mischief statute to authorize criminal liability for the direct acts of others.” B.W. also argues that at a minimum this case must be remanded for a consideration of his ability to pay restitution.

¶ 10 The State counters that the Youth Court's order should be affirmed, that K.E.G. is directly on point, and that the State did not have to charge B.W. with accountability in order to recover the aggregate restitution amounts when charging under criminal mischief, common scheme. The State argues that B.W. failed to make a contemporaneous objection concerning the calculation of restitution and thus waived review of the issue.


¶ 11 The appropriate measure of restitution is a question of law, which we review for correctness. K.E.G., ¶ 9.


¶ 12 Did the Youth Court err in holding B.W. jointly and severally liable for the full amount of restitution for damages when the State did not establish that B.W. was criminally liable for the acts of the other youths?

¶ 13 As an initial matter, we conclude B.W. did not waive appeal of the restitution calculations. “A defendant waives an objection and may not seek appellate review when a defendant fails to make a contemporaneous objection to an alleged error in the trial court.” State v. Paoni, 2006 MT 26, ¶ 16, 331 Mont. 86, 128 P.3d 1040 (citations omitted). At the dispositional hearing, B.W. argued he should be held accountable only for the amount of restitution from December 22 and December 29, and immediately before the court adjourned, clarified: “And not to be beating a dead horse that has already left the barn, when he did make his admissions, he only made admissions as to the two nights.” These statements were sufficient to preserve the issue for appeal.

¶ 14 We also conclude that K.E.G. is factually indistinguishable from this case. K.E.G. dealt with a youth involved in the same vandalism spree, and K.E.G., like B.W., argued he should be liable only for the destruction done on the nights he had participated in the vandalism. K.E.G., ¶ 11. In K.E.G., we determined that “the Youth Court was statutorily authorized to impose restitution for the aggregate damages that resulted from that common scheme during the time period charged” but remanded the case for a consideration of K.E.G.'s ability to pay restitution. K.E.G., ¶¶ 14, 23. K.E.G. conceded he was part of a larger common scheme, but argued that he was responsible for restitution only for damage caused on the two evenings he was involved, and that “the joint and several liability for restitution imposed under the criminal mischief statute should not be applied to youthful offenders.” K.E.G., ¶ 11. However, K.E.G. did not argue, as does B.W., that an individual can be held liable for the criminal conduct of another only when acts of accountability or conspiracy are proven, or that § 45–6–101(4), MCA, does not allow for aggregate restitution.

¶ 15 We are mindful “that courts should not lightly overrule past decisions,” but stare decisis is not a rigid doctrine that forecloses the reexamination of cases when necessary.” Certain v. Tonn, 2009 MT 330, ¶ 19, 353 Mont. 21, 220 P.3d 384 (citation omitted). Reexamination is necessary in this case because both K.E.G. and B.W. adamantly insisted that they should be liable only for the damage done on the nights they were present. We see no grounds for any factual distinction between the cases, and we find B.W.'s arguments, presented here for the first time in this series of vandalism cases, to be persuasive and dispositive. Thus, to the extent that we held K.E.G. was responsible for restitution for damages from the entire eleven-day spree, our decision in K.E.G. is overruled.

¶ 16 The Montana Youth Court Act states that a youth court may order restitution “in appropriate cases.” Section 41–5–102(2)(c), MCA. When determining whether restitution is appropriate, the youth court may consider a number of factors, “in addition to any other evidence.” Section 41–5–1521(1), MCA. Such factors include “the age of the youth, the ability of the youth to pay, the ability of the parents or guardians to pay, the amount of damage to the victim, and legal remedies of the victim.” K.E.G., ¶ 12 (citations omitted). Once the youth court determines that restitution is appropriate, it may order the youth to pay restitution “for damages that result from the offense for which the youth is disposed.” Sections 41–5–1512(1)(d), –1513(1)(a), MCA.

¶ 17 In this case, as in K.E.G., the Youth Court determined that restitution was appropriate, and that B.W. was jointly and severally liable pursuant to § 45–6–101(1)(a), MCA, which provides that a person commits the offense of criminal mischief if the person knowingly or purposely injures, damages, or destroys any property of another without consent. B.W. admitted to committing the offense of criminal mischief pursuant to a common scheme, which is “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan that results in the repeated commission of the same offense.” Section 45–2–101(8), MCA. The “common scheme” to which he admitted, however, was comprised solely of the two incidents in which he participat...

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