State v. Benoit
| Decision Date | 25 July 2002 |
| Docket Number | No. 00-760.,00-760. |
| Citation | 51 P.3d 495,310 Mont. 449,2002 MT 166 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Michelle BENOIT, Defendant and Appellant. |
| Court | Montana Supreme Court |
Carl Jensen, Attorney at Law, Great Falls, Montana, For Appellant.
Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, Great Falls, Montana, For Respondent.
¶ 1 On November 30, 1999, Michelle Benoit ("Benoit") pled guilty in the Montana Eighth Judicial District Court, Cascade County, to the charge of felony theft. Benoit was sentenced to a six year deferred imposition of sentence subject, in part, to the condition that she pay restitution in the amount of $15,933.90. Benoit appeals both the restitution order and the length of her sentence. We affirm.
¶ 2 The following issues are presented for our review:
¶ 3 1. Whether the District Court erred in ordering Benoit to pay restitution in the amount of $15,933.90?
¶ 4 2. Whether the District Court violated Benoit's due process rights under Article II, Section 17, of the Montana Constitution by deferring imposition of her sentence for six years to allow payment of restitution?
¶ 5 Benoit was employed by Burger Master in Great Falls, Montana, in July 1997. In August 1999, Lynda Monroe ("Monroe"), the general manager of Burger Master, suspected that Benoit was stealing from the business while working at the cash register. Monroe videotaped Benoit for four consecutive days. The videotapes revealed that Benoit was stealing money by falsifying gold card sales. Benoit was observed keying gold card sales into the register when such sales had not actually occurred. Gold cards entitle customers to discounted prices. When a gold card entry is made in the register, the discounted price is automatically deducted from the amount owed by the customer. As a result, Benoit's customers would pay full price, she would subsequently pocket the difference between the actual price paid and the gold card price discount, and her till would balance properly at the end of the day.
¶ 6 During the four days Benoit was videotaped falsifying gold card sales, her theft totaled approximately $50.00 to $60.00 each day. After observing the videotapes, Monroe confronted Benoit about the thefts. Thereafter, Benoit signed two statements admitting that she stole money, exceeding $500.00, from Burger Master since the start of her employment. On August 17, 1999, Benoit was arrested after Burger Master notified law enforcement of her acts of theft.
¶ 7 On August 27, 1999, the Cascade County Attorney filed an Information in the District Court alleging Benoit committed the offense of felony theft, in violation of § 45-6-301(1)(a), MCA (1997), on or between May 1997 and August 1999.
¶ 8 On October 4, 1999, Benoit entered into a non-binding plea agreement with the Cascade County Attorney's Office. Therein, Benoit agreed to plead guilty to the charge of felony theft in exchange for a recommendation from the Cascade County Attorney that she receive a two year deferred imposition of sentence based upon the possible imposition of various conditions, including the payment of restitution to Burger Master. On November 30, 1999, Benoit appeared in District Court and entered a plea of guilty pursuant to the plea agreement. The District Court ordered that a pre-sentence investigation ("PSI") report be conducted by the Adult Probation and Parole Bureau.
¶ 9 Patricia Wooldridge ("Wooldridge"), an Adult Probation and Parole Officer, conducted the PSI and submitted a report to the District Court on March 2, 2000. Wooldridge stated in the PSI that Benoit had no assets and owed approximately $3,105.00 in fines to the Great Falls City Court. In addition, Wooldridge noted that Benoit was unemployed at the time the PSI was conducted, but was seeking employment. Wooldridge further stated that Monroe was in the process of reviewing store records to determine the amount of pecuniary loss sustained by Burger Master and requested additional time to submit a victim impact statement.
¶ 10 Wooldridge amended the PSI report on March 14, 2000, to include a victim impact statement from Monroe, and Monroe's restitution tabulations for January 1998 through July 1998. Monroe alleged in her statement that Benoit also committed theft by falsifying voided transactions. Monroe explained that Benoit would void a valid transaction and then retain the money paid by the customer. Monroe therefore requested restitution for pecuniary losses sustained by Burger Master resulting from Benoit's falsification of gold card sales and voided transactions. Based upon Monroe's examination of Burger Master's records from January 1998 through July 1998, she calculated an approximate loss of $4,200.00. Monroe, however, noted that her calculation did not include losses sustained from Benoit's falsified gold card sales between August 1998 to August 1999 or falsified voided transactions. Wooldridge thus recommended in the supplemental PSI that "due to the disparity of the amount first charged and the amounts uncovered with further research, that a separate restitution hearing would be beneficial to the victims, the defendant, and Justice in general."
¶ 11 The District Court conducted a combined restitution and sentencing hearing on August 8 and August 22, 2000. Monroe testified at the hearing and requested a total amount of $15,933.90 in restitution. Without objection, the State introduced into evidence restitution tabulations calculated by Monroe for January 1998 through August 1999.
¶ 12 Since the specific methods utilized by Monroe in calculating Burger Master's pecuniary losses are critical to our analysis, we will explain those methods in detail. First, to determine the losses resulting from Benoit's falsification of voided transactions, Monroe calculated the total number of voided transactions initialed by Benoit during January 1998 through August 1999. Monroe then assumed 25% of Benoit's voided transactions were legitimate, and thereby subtracted 25% from the total monetary amount of voids conducted by Benoit. The amount totaled $1,833.84.
¶ 13 Next, Monroe approximated the number of gold card sales Benoit falsified by calculating the total number of gold cards sold by all employees, the total number sold by Benoit, and subtracted the average number of gold cards sold by other employees from the number of gold cards sold by Benoit. Then, Monroe estimated the average monetary amount of each falsified gold card sale by averaging the value of the five different possible gold card item discounts, which ranged in price from $2.50 to $3.25, averaging $3.02 per transaction. Monroe thereafter multiplied the average monetary amount of each gold card sale by the number of estimated sales falsified by Benoit. The amount totaled $12,466.56.
¶ 14 In addition, Monroe requested restitution for wages paid to three Burger Master employees who assisted in determining restitution by either reviewing records or covering shifts for Monroe and her daughter while they reviewed Burger Master's records. The wages paid to the three employees totaled $1,633.50. Monroe did not document or request restitution for her own time examining Burger Master's records.
¶ 15 Brian Loucks ("Loucks"), a certified public accountant, testified at the restitution hearing on behalf of Benoit. Loucks alleged that Monroe's assumptions regarding the average value per gold card sale, the number of falsified gold card sales, and the number of falsified voids performed by Benoit were speculative and could alter the amount of actual losses sustained by Burger Master, possibly higher or lower than that calculated by Monroe. He suggested several variables which could be further explored to compile restitution differently, but acknowledged that there is "some guess work" associated with determining losses sustained from employee theft. Loucks, however, did not examine Burger Master's original records nor did he find such a review necessary, as he disputed only the assumptions made by Monroe.
¶ 16 Benoit also testified at the restitution hearing. She admitted that she stole money from Burger Master by falsifying voided transactions and gold card sales since 1998. She further admitted that she was uncertain of the exact amount she stole from Burger Master. Benoit stated that she was employed and her take home pay ranged from $197.00 to $227.00 per week. She listed her various monthly expenses. In addition, Benoit acknowledged that two years would not give her enough time to pay restitution in the amount of $15,933.90.
¶ 17 At the conclusion of the hearing, the District Court sentenced Benoit to a six year deferred imposition of sentence subject, in part, to the condition that she pay restitution in the amount of $15,933.90. The District Court provided Benoit with the opportunity to withdraw her plea of guilty after two years from the date of entry of its judgment if she satisfied all the conditions imposed therein within that time period. On October 20, 2000, the District Court entered its Judgment of Conviction and Sentencing Order. Benoit appeals.
¶ 18 We review a criminal sentence for legality only. State v. Pritchett, 2000 MT 261, ¶ 6, 302 Mont. 1, ¶ 6, 11 P.3d 539, ¶ 6 (citation omitted). Therefore, our review is confined to whether the sentence is within the parameters provided by statute. Pritchett, ¶ 6 (citation omitted).
¶ 19 Our review of constitutional questions is plenary. Pritchett, ¶ 27 (citation omitted).
¶ 20 Whether the District Court erred in ordering Benoit to pay restitution in the amount of $15,933.90?
¶ 21 Benoit's argument is twofold. First, Benoit claims the District Court imposed restitution in violation of § 46-18-242, MCA, since...
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