State Of Mont. v. Heafner, DA 09-0364.

• Decision Date: 27 April 2010
• Docket Number: No. DA 09-0364.,DA 09-0364.
• Citation: 2010 MT 87,356 Mont. 128,231 P.3d 1087
• Parties: STATE of Montana, Plaintiff and Appellee,v.Braden Lee HEAFNER, Defendant and Appellant.
• Court: Montana Supreme Court

356 Mont. 128

231 P.3d 1087

2010 MT 87

STATE of Montana, Plaintiff and Appellee,v.Braden Lee HEAFNER, Defendant and Appellant.

No. DA 09-0364.

Supreme Court of Montana.

Submitted on Briefs March 31, 2010.

Decided April 27, 2010.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Jim Wheelis, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour, Assistant Attorney General, Helena, Montana, Dennis Paxinos, Yellowstone County Attorney; Sheila R. Kolar, Deputy County Attorney, Billings, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 This appeal involves the validity of the conditions of a criminal sentence, and more particularly the remedy to be imposed where discrete conditions of a sentence are illegal. We review a sentence involving incarceration of a year or more for legality. State v. Ruiz, 2005 MT 117, ¶ 8, 327 Mont. 109, 112 P.3d 1001.

¶ 2 In January, 2008, Heafner participated in planning and carrying out a home-invasion burglary that left the homeowner so badly beaten that he is disfigured and permanently and severely disabled with brain injuries. Heafner drove his two accomplices to the crime scene, waited in the car, and then drove them away.

¶ 3 In January, 2009, Heafner pled guilty to aggravated burglary by accountability, aggravated assault by accountability, and tampering with witnesses and informants, all felonies. The District Court held a sentencing hearing on April 21, 2009 and on April 23, 2009 filed the judgment announcing the sentence. The District Court sentenced Heafner to concurrent sentences of 15 years for burglary, 15 years for assault, and 10 years for witness tampering. The District Court recommended that Heafner be considered for placement in boot camp, and imposed restitution and numerous restrictions on parole.

¶ 4 The restitution condition held Heafner jointly and severally liable with his accomplices for the homeowner's medical bills of $255,148.84. The sentence also held Heafner jointly and severally liable for the victim's future medical costs as they occur. The sentence provided that “should the defendant be paroled” a number of specified conditions would apply.

¶ 5 Heafner contends that the District Court lacked the power to impose conditions of parole. The State concedes that the District Court lacked the power to impose conditions upon parole because that authority rests solely in the Board of Pardons and Parole except as to specific instances provided by statute. State v. Burch, 2008 MT 118, ¶ 36, 342 Mont. 499, 182 P.3d 66. The District Court's sentencing order contained 29 conditions of parole. Heafner concedes that conditions 14 (imposing fines associated with the presentence investigation); 16, 17 and 18 (imposing fines and surcharges related to the offenses); and 25 (requiring DNA testing) were within the District Court's statutory authority to order as conditions of a sentence and are valid.

¶ 6 It is clear that except as to those specific conditions authorized by statute, the District Court did not have the power to impose conditions upon a future parole that might be granted to Heafner. If Heafner is paroled then the Board of Pardons and Parole may impose conditions of parole and may consider those listed by the District Court as recommendations. If Heafner is selected for and completes boot camp, then the District Court may modify the sentence to include a suspended term, § 53-30-402, MCA. If that occurs the District Court at that time may impose conditions under §§ 46-18-201 and -202, MCA.

¶ 7 Heafner concedes the validity of the order that he pay restitution of $255,148.84. Heafner contends that the portion of the sentence that requires him to pay the victim's future medical expenses is illegal because the amount of the restitution is not specified. The State agrees. Section 46-18-244, MCA, requires the sentencing court to “specify the total amount of restitution that the offender shall pay.” This means that the amount of restitution must be stated as a specific amount of money. State v. Dunkerson, 2003 MT 234, ¶ 21, 317 Mont. 228, 76 P.3d 1085.

¶ 8 The parties differ on the proper remedy to correct the sentence. Heafner argues that this Court should either vacate all the illegal conditions or remand to the District Court with instructions that the conditions be stricken. The State requests that this Court treat the District Court's parole conditions as “recommendations to the Board of Pardons and Parole” and that the issue of restitution for future medical costs be remanded for further proceedings and re-sentencing to set a specified amount.

¶ 9 In the past this Court has not adopted a single rule regarding the appropriate remedy for a partially illegal sentence, and the cases have not been consistent. State v. Hicks, 2006 MT 71, ¶ 44, 331 Mont. 471, 133 P.3d 206. In Hicks; State v. Krum, 2007 MT 229, 339 Mont. 154, 168 P.3d 658; and State v. Bullman, 2009 MT 37, 349 Mont. 228, 203 P.3d 768, where a sentence was partially illegal we vacated the illegal portion of the sentence or remanded to the district court with instructions to strike. In other cases of partial illegality we have remanded to the district court for resentencing. Dunkerson; State v. Young, 2007 MT 323, 340 Mont. 153, 174 P.3d 460; State v. Meyers, 2007 MT 230, 339 Mont. 160, 168 P.3d 645; State v. Hunt, 2009 MT 265, 352 Mont. 70, 214 P.3d 1234; State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815; State v. Smietanka, 2008 MT 357, 346 Mont. 353, 195 P.3d 797.

¶ 10 In State v. Heath, 2004 MT 58, 320 Mont. 211, 89 P.3d 947, we stated that the general practice of the Court was to vacate an illegal condition in a sentence, or to remand with...