State Of Mont. v. Brownback

• Decision Date: 04 May 2010
• Docket Number: No. DA 09-0508.,DA 09-0508.
• Citation: 356 Mont. 190,232 P.3d 385,2010 MT 96
• Parties: STATE of Montana, Plaintiff and Appellee,v.Patrick Dean BROWNBACK, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 190

232 P.3d 385

2010 MT 96

STATE of Montana, Plaintiff and Appellee,v.Patrick Dean BROWNBACK, Defendant and Appellant.

No. DA 09-0508.

Supreme Court of Montana.

Submitted on Briefs April 8, 2010.

Decided May 4, 2010.

For Appellant: Charles E. Petaja, Attorney at Law; Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney; Helena, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Defendant Patrick Brownback pled guilty to theft by common scheme for receiving forged checks from his mother. The District Court of the First Judicial District, Lewis and Clark County, sentenced Brownback. Brownback now appeals the portion of his sentence requiring him to pay $739,312 in restitution to the State of Montana. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court erred in requiring Brownback to pay restitution to the State for money embezzled by his mother and paid over to him.

¶ 4 2. Whether the District Court erred in requiring Brownback to pay restitution without considering his ability to pay.

¶ 5 3. Whether the District Court's restitution hearing violated Brownback's rights to assert civil defenses and to fundamental fairness.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In March 2008 the State filed an information charging Brownback with felony forgery by common scheme for delivering checks that he knew had been forged by his mother, Susan Campbell (Susan).

¶ 7 In 2001 Susan, then an accountant and office manager for the Montana Department of Administration, began writing unauthorized checks to Brownback from the account of her husband, Jack Campbell (Jack), and the account of Jack's business, Jack's Technical Assistance (JTA). Susan would forge her husband's signature on the checks. Brownback knew that the checks were forged and unauthorized. In 2002 Susan began embezzling money from the State by issuing checks from the State to JTA. Over the next five years, Susan embezzled $739,312 from the State.

¶ 8 Susan funneled all the money she stole from JTA and the State to Brownback, who had financial problems due to a gambling addiction. Susan said she did this out of motherly concern for her son. According to Susan, Brownback would come to her with “desperate plea[s] for help” (i.e., money), insisting that “he would go to jail, lose his home, his family, etc.” Susan stated that this amounted to emotional blackmail. Nevertheless Susan continued to write checks to Brownback, drawing on Jack's and JTA's accounts.

¶ 9 Brownback took the checks for his personal use and to support his addiction. He admitted knowing that Susan had no authority to sign the checks. Even though Susan deposited the money she embezzled from the State into JTA's account and from there passed it on to Brownback, both she and Brownback deny that Brownback knew that the money was embezzled from the State.

¶ 10 In 2007 investigators discovered Susan's theft. She was prosecuted in federal court. Ultimately Susan pled guilty to scheming to defraud the State of Montana, and committing aggravated identity theft and income tax evasion. The court sentenced her to seventy-five months in prison and ordered her to pay approximately $1 million in restitution, including $739,312 to the State of Montana (and its insurer).

¶ 11 The investigation into Susan's embezzlement led to the charges against Brownback. Eventually Brownback and the State reached a plea agreement. Pursuant to this agreement, Brownback pled guilty to theft by common scheme for exercising “unauthorized control over monies belonging to his step-father, Jack Campbell, d/b/a Jack['s] Technical Assistance.” Brownback admitted that this conduct occurred continuously from 2001 to 2007. However, Brownback also specifically denied knowing that any of the money had been embezzled from the State and denied participating in the embezzlement.

¶ 12 The District Court accepted Brownback's guilty plea and set a sentencing hearing. Brownback filed a sentencing memorandum, arguing among other things that he should not be required to pay restitution to the State for the $739,312 that Susan embezzled. At the close of business on the Friday before sentencing, the State filed its sentencing memorandum, responding that the State was a victim of Brownback's crime and, consequently, was entitled to restitution from him for the $739,312 that Susan embezzled and funneled to him.

¶ 13 Both the State and Brownback presented testimony and evidence at the sentencing hearing. The principal dispute between the parties at the hearing was whether Brownback should be required to pay restitution to the State. On three occasions, Brownback, through counsel, informed the District Court that he had only received the State's sentencing memorandum at the end of the day on the preceding Friday. In response, the District Court asked Brownback if he wanted to continue the sentencing hearing. Brownback declined.

¶ 14 Following the hearing, the District Court issued its judgment, sentencing Brownback to the Montana Department of Corrections (DOC) for ten years with five suspended, subject to various conditions. The District Court also ordered Brownback to pay nearly $1 million in restitution, including $739,312 to the State (which Brownback now challenges). In setting restitution, the District Court did not consider Brownback's ability to pay.

¶ 15 Brownback appeals.

STANDARD OF REVIEW

¶ 16 We review a sentence that includes at least one year of incarceration or, as here, commitment to DOC for legality only. State v. Perkins, 2009 MT 150, ¶ 8, 350 Mont. 387, 208 P.3d 386; State ex rel. Holt v. District Court, 2000 MT 142, ¶¶ 6, 10, 300 Mont. 35, 3 P.3d 608; see also § 46-18-903(1), MCA. In conducting such review, we consider whether “the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable statute, and whether the court followed the affirmative mandates of the sentencing statute.” Perkins, ¶ 8.

DISCUSSION

¶ 17 1. Whether the District Court erred in requiring Brownback to pay restitution to the State for money embezzled by his mother and paid over to him.

¶ 18 Brownback challenges the District Court's order requiring him to pay restitution to the State for the money that Susan embezzled and eventually passed on to him. Brownback first contends that he should not be responsible for restitution to the State for this money because he neither knew about nor participated in the embezzlement.

¶ 19 When a criminal defendant, as here, 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. Sections 46-18-201(5), -241(1), -243(1), (2), MCA. 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. United States v. Martin, 195 F.3d 961, 968 (7th Cir.1999) (interpreting similar federal restitution statute, 18 U.S.C. § 3663A); see also § 46-18-249(1), (3), MCA (providing that restitution award does not limit victim's right to recover damages in subsequent civil suit, but that restitution must offset any civil award for same pecuniary loss).

¶ 20 The required restitution must be full, yet it is limited to special damages that the victim could recover from the offender in a civil action. See § 46-18-243(1) (defining “pecuniary loss”). Victims entitled to restitution include persons or governmental entities that suffer loss of property “as a result of” the offender's criminal conduct. Id. at § 46-18-243(2)(a)(i), (iii). Thus, a causal relation between the offender's criminal conduct and the pecuniary loss is the touchstone for determining whether a person or entity is a victim entitled to restitution. State v. Breeding, 2008 MT 162, ¶ 13, 343 Mont. 323, 184 P.3d 313 (noting “causal standard”).¹

¶ 21 Here, Brownback does not specifically deny that the State suffered pecuniary loss for which it could recover special damages in a civil action against Brownback. Nor does He specifically deny the causal relation between his criminal conduct and the State's loss. Instead, Brownback asserts that he should not be required to pay restitution to the State because (1) he did not know about and (2) he did not participate in Susan's embezzlement. These arguments miss the mark.

¶ 22 Contrary to Brownback's suggestion, there is no statutory requirement that a defendant must know about a specific loss caused by his criminal conduct before it can be the basis of an order for restitution. In fact, our case law suggests just the opposite: that a criminal defendant may be responsible for restitution for pecuniary loss that he did not know about at the time of the criminal offense, but which resulted therefrom. See State v. Perkins, 2009 MT 150, ¶¶ 6-7, 9-13, 350 Mont. 387, 208 P.3d 386 (affirming restitution for child-care expenses incurred by third party after defendant assaulted minor, leading to removal of minor child from custody of mother and placement of child in care of third party); LaTray, ¶¶ 6-7, 22 (affirming restitution to towing and ambulance services called by police after defendant drunk driver rolled his car and injured himself).

¶ 23 Similarly, the fact that Brownback did not participate in Susan's embezzlement does not preclude an order of restitution. Restitution is not limited to only those victims who suffer pecuniary loss as a direct result of a criminal offense. See LaTray, ¶ 14. As stated above, restitution turns on the familiar elements of loss and causation. Here, there is no question that the State suffered pecuniary loss “arising out of the facts or events constituting” Brownback's criminal activities. Section 46-18-243(1) (a). And, although...