State v. Brewer, 98-342.

• Decision Date: 04 November 1999
• Docket Number: No. 98-342.,98-342.
• Citation: 1999 MT 269,989 P.2d 407
• Parties: STATE of Montana, Plaintiff and Respondent, v. Karen Marie BREWER, Defendant and Appellant.
• Court: Montana Supreme Court

989 P.2d 407

1999 MT 269

STATE of Montana, Plaintiff and Respondent, v. Karen Marie BREWER, Defendant and Appellant.

No. 98-342.

Supreme Court of Montana.

Submitted on Briefs February 18, 1999.

Decided November 4, 1999.

As Amended November 5, 1999.

Michael H. Keedy, Henning & Keedy, Kalispell, Montana, for Appellant.

Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell, Montana, for Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶ 1 Karen Marie Brewer (Appellant) appeals from the judgment of the District Court of the Eleventh Judicial District, Flathead County, entered upon her plea of guilty to two counts of felony forgery. Appellant was sentenced to two consecutive twenty-year terms, the execution of which was suspended subject to the condition that she pay $128,610.15 in restitution to her former employer, Parsons Tractor & Implement Co., (Employer) and serve six months in the Flathead County Detention Center. We affirm in part, reverse in part.

¶ 2 We restate the issues Appellant presents on appeal as follows:

I Was the trial court's calculation of Appellant's restitution within statutory mandates?

II Did the trial court exceed statutory parameters by imposing interest upon Appellant's restitution obligation?

III Did the trial court follow the requirements of § 46-18-244, MCA, in determining Appellant's ability to pay restitution and in ordering her to make payments according to a schedule developed by her probation officer?

IV Did the trial court err in refusing to rule upon Appellant's post-conviction motions in light of her notice of appeal?

¶ 3 While working as Employer's bookkeeper, Appellant created unauthorized checks on Employer's account. Without permission, she then signed the checks in the name of the shop foreman, an authorized signer on the account.

¶ 4 On February 5, 1998, Appellant pleaded guilty to and was convicted of two counts of felony forgery pursuant to a plea agreement with the State of Montana (the State). While the State charged Appellant with only two counts of forgery, one in the amount of $2,413.45, and another for $2,000.00, the record reflects that Appellant may have forged checks on Employer's account in an amount as high as $96,403.46.

¶ 5 On March 23, 1998, the District Court sentenced Appellant to two consecutive twenty-year terms for the forgery convictions. The court suspended execution of the sentences subject to the condition that Appellant serve six months in the Flathead County Detention Center and pay restitution to Employer. Crediting Appellant for payments already made, the District Court calculated her restitution obligation at $128,610.15, and imposed interest at a rate of 10%. The court based the total amount of Appellant's restitution on the following: 1) $96,403.46, the total of forged checks; 2) $16,240.94 for invoices and pay to Appellant; 3) $2,015.00 paid to accounting firms; 4) $7,932.00 paid to employees; 5) $5,396.70 paid to labor contractors; 6) $225.00 paid to Shiloh Software; 7) $397.05 paid to Anytime Lock.

¶ 6 Appellant filed her notice of appeal on May 27, 1998, challenging the District Court's calculation of her restitution and the court's imposition of interest on the unpaid balance while she was incarcerated in the county detention center.

STANDARD OF REVIEW

¶ 7 This Court has recently clarified the proper standard of review of criminal sentences. "This Court reviews a criminal sentence only for legality (i.e., whether the sentence is within the parameters provided by statute)." State v. Montoya, 1999 MT 180, ¶ 15, ___ Mont. ___, ¶ 15, 983 P.2d 937, ¶ 15. We overruled any other decisions from this Court which suggest that we also review criminal sentences for an abuse of discretion. Montoya, ¶ 15.

I Was the trial court's calculation of Appellant's restitution within statutory mandates?

¶ 8 This Court may review Appellant's sentence only if Appellant preserved the issue for appeal by objecting to the sentence in district court, or if, on appeal, Appellant alleges her sentence is illegal or exceeds statutory mandates. We adopted the standard in State v. Lenihan;

[i]t appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

State v. Lenihan (1979), 184 Mont. 338, 343, 602 P.2d 997, 1000, See State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029.

¶ 9 While she did not raise the issue in District Court, Appellant alleges in her appeal that her sentence violates the requirements of § 46-18-241, MCA, by including in her restitution figure, costs which are not "pecuniary loss" as defined by statute. Because Appellant alleges her sentence exceeds statutory mandates, this Court may review her sentence on appeal.

¶ 10 Appellant argues that "pecuniary loss" as defined by § 46-18-243, MCA, covers only an amount equal to the figure by which she enriched herself at the expense of her victim. She contends that expenses paid by her victim as a result of her crime do not fall within the statutory definition and therefore may not be included in her restitution. As a result, Appellant therefore claims the proper amount of her restitution should be $96,403.46 and not the $128,610.15 as calculated by the District Court. We disagree.

¶ 11 Section 46-18-241, MCA, directs a district court to impose restitution for a victim's pecuniary or economic loss;

[a] sentencing court shall require an offender to make full restitution to any victim of the offense who has sustained pecuniary loss as a result of the offense, including a person suffering an economic loss as a result of the crime.

Section 46-18-241, MCA (1997). Section 46-18-243 further defines pecuniary loss:

(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender's criminal activities, including without limitation the money equivalent of loss resulting from property taken, destroyed, broken, or otherwise harmed and out-of-pocket losses, such as medical expenses, loss of income, expenses reasonably incurred in obtaining ordinary and necessary services that the victim would have performed if not injured, expenses reasonably incurred in attending court proceedings related to the commission of the offense, and reasonable expenses related to the funeral and burial or crematory services; and (b) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.

Section 46-18-243(1), MCA (1997).

¶ 12 Contrary to Appellant's argument, § 46-18-241, MCA, allows the sentencing court to include in restitution costs paid by the victim as a result the defendant's criminal act, so long as such costs are a "pecuniary loss" as defined by § 46-18-243, MCA. Such loss includes economic loss as a result of the crime, out-of-pocket losses such as medical expenses or, reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense. Section 46-18-241, 243, MCA (1997).

¶ 13 Montana cases have not discussed in depth what costs are properly included as "pecuniary losses". This Court first concluded that restitution may be allowed by payment of the money equivalent of loss as well as out-of-pocket losses in State v. Morgan (1982), 198 Mont. 391, 646 P.2d 1177. Morgan was convicted of negligent homicide when he was involved in an automobile accident with another vehicle while under the influence of alcohol. Two occupants in the other vehicle were killed and three seriously injured as a result of the accident. The issue relevant to the case at bar was whether the district court could properly order Morgan to make restitution to the survivors of the accident in the amount of their out-of-pocket losses (for medical expenses).

¶ 14 At the time, our statutes did not give significant guidance to district courts for the application or limitations of restitution. See Morgan, 198 Mont. at 402, 646 P.2d at 1183. In order to develop an appropriate restitution standard in Morgan, we looked to § 3-601 of The Uniform Law Commissioners Model Sentencing and Corrections Act, (1979), for guidance. Morgan, 198 Mont. at 402, 646 P.2d at 1183. In Morgan, the district court had not indicated the out-of-pocket expenses or losses for which restitution was being made. We therefore concluded that it was not possible for this Court to determine if the order of restitution was proper. We held that the district court could provide for payments to those suffering out-of-pocket losses for medical expenses not in excess of the actual money equivalent and remanded to the district court for resentencing on that point. Morgan, 198 Mont. at 402-03, 646 P.2d at 1183.

¶ 15 After our decision in Morgan, the Legislature codified the Model Act at § 46-18-241, MCA, which exists in a similar form today. Since the enactment of the restitution statute, this Court has held that a sentencing court's restitution order was based on pecuniary loss where it arose out of the facts or events constituting the defendant's criminal activities. See State v. Korang (1989), 237 Mont. 390, 396, 773 P.2d 326, 329.

¶ 16 Korang, an employee at the Lewis and Clark County Clerk and Recorder's Office, collected fees for recording documents and other services. Korang had bookkeeping responsibilities associated with this position, including depositing collected fees with the County Treasurer's Office. When the Clerk and Recorder became convinced Korang was taking money and falsifying...