State v. Dodge, DA 16-0758

Decision Date28 December 2017
Docket NumberDA 16-0758
Citation2017 MT 318,408 P.3d 510,390 Mont. 69
Parties STATE of Montana, Plaintiff and Appellee, v. Justin Boyd DODGE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellant Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, John H. Donovan, Kalispell, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 1 Justin Boyd Dodge (Dodge) appeals from a judgment and sentence of the Eleventh Judicial District Court, Flathead County, imposing $14,438.44 in restitution following his guilty plea for driving under the influence of alcohol or drugs (DUI). We reverse and remand for the District Court to conduct a new restitution hearing and resentence Dodge.

¶ 2 Dodge presents the following issue for review:

Whether the District Court erred in ordering Dodge pay restitution for damaging a traffic signal without the State providing an affidavit or testimony specifically describing its pecuniary loss.

¶ 3 On November 10, 2014, while driving under the influence of methamphetamine in Kalispell, Montana, Boyd drove off the road and collided with a concrete block and traffic signal control box. Subsequently, Boyd pleaded guilty to felony DUI. Probation Officer Rae Baker (Baker) prepared a presentence-investigation report (PSI), in which she recommended Dodge pay $14,438.44 in restitution to the victim, the Department of Transportation. Baker attached two documents prepared by the Department of Transportation to the PSI: an invoice (Invoice) and a "Cost of Repair" ledger entry (Ledger Entry). Both documents included a total cost of $14,438.44 to repair the damaged traffic signal.

¶ 4 On October 27, 2016, the District Court held a sentencing hearing. The parties did not present testimony at the hearing. The State recommended the District Court sentence Dodge to a thirteen month commitment to the Department of Corrections (DOC) for placement in the WATCh program, followed by a suspended five-year probationary term. The State also recommended the District Court require Dodge pay $14,438.44 in restitution. Dodge objected to the restitution recommendation, stating:

The statute [ § 46-18-242, MCA,] says that—that there should be an affidavit. The wording says "shall," so we would ask that the restitution not be imposed and since there's nobody here to testify about the suggested restitution we don't know if they mitigated damages, if they sold any of the pieces or if they actually tried to shop around on the employee that charged a decent amount to do the fixing, so for those reasons we would ask that [the restitution amount] be stricken.

The District Court imposed the State's recommended sentence of a thirteen month commitment to the DOC with a recommendation for placement in the WATCh program, followed by a suspended five-year term. The District Court also imposed $14,438.44 in restitution.

¶ 5 Dodge appeals.


¶ 6 We review whether a district court had statutory authority to impose a sentence de novo. State v. McMaster , 2008 MT 268, ¶ 20, 345 Mont. 172, 190 P.3d 302 (citing State v. Breeding , 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313 ). Restitution awards present mixed questions of law and fact, which we also review de novo. State v. Patterson , 2016 MT 289, ¶ 9, 385 Mont. 334, 384 P.3d 92 (citing State v. Cerasani , 2014 MT 2, ¶ 11, 373 Mont. 192, 316 P.3d 819 ).


¶ 7 Whether the District Court erred in ordering Dodge pay restitution for damaging a traffic signal without the State providing an affidavit or testimony specifically describing its pecuniary loss.

¶ 8 Dodge argues a district court may impose restitution only where the victim submits an affidavit or provides testimony. Dodge maintains that the District Court lacked authority to sentence him to pay restitution because the State failed to provide an affidavit or testimony specifically describing its pecuniary loss. Dodge argues the Invoice and Ledger Entry do not specifically describe the Department of Transportation's pecuniary loss and cannot be considered affidavits. The State responds by arguing that, although the rules of evidence do not apply at sentencing, the Invoice and Ledger Entry are trustworthy because they are business records. The State concludes that the District Court can rely on the Invoice and Ledger Entry as evidence to impose restitution and an affidavit or testimony is not required. The State argues that concluding otherwise "vaults form over substance." The parties agree that, if this Court concludes Dodge's restitution was incorrectly imposed, the appropriate remedy is to remand to conduct a new restitution hearing and resentence Dodge.

¶ 9 If a person is found guilty of an offense and the sentencing judge finds that a victim sustained a pecuniary loss, the sentencing judge "shall ... require payment of full restitution...." Section 46-18-201(5), MCA. Restitution engrafts a civil remedy into a criminal proceeding and creates a procedural shortcut for crime victims who are entitled to a civil recovery against the offender. State v. Aragon , 2014 MT 89, ¶ 16, 374 Mont. 391, 321 P.3d 841. Section 46-18-242, MCA, provides:

(1) Whenever the court believes that a victim may have sustained a pecuniary loss or whenever the prosecuting attorney requests, the court shall order the probation officer, restitution officer, or other designated person to include in the presentence investigation and report:
(a) a list of the offender's assets; and
(b) an affidavit that specifically describes the victim's pecuniary loss and the replacement value in dollars of the loss, submitted by the victim.
(2) When a presentence report is not authorized or requested, the court shall accept evidence of the victim's loss at the time of sentencing.

Thus, § 46-18-201(5), MCA, requires a court to order restitution and § 46-18-242, MCA, requires a victim who suffered a pecuniary loss to provide evidence of that loss either in the form of an affidavit or testimony, depending on whether a PSI is prepared. An affidavit is a written declaration made under oath. Section 26-1-1001, MCA. An affidavit, if provided, is all that is required to permit the court to award restitution and a victim is not required to substantiate a restitution amount with documentation. McMaster , ¶ 29. If a PSI is not prepared, the victim can provide evidence of his or her loss by testifying "at the time of sentencing." Section 46-18-242(2), MCA. Testimony is "[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition." Black's Law Dictionary 1704 (Bryan A. Garner ed., 10th ed. 2014).

¶ 10 Here, although attached to the PSI, neither the Invoice nor the Ledger Entry qualifies as an affidavit because neither was made under oath. The Invoice is a letter from the Department of Transportation to Dodge. It identifies a transaction date of June 29, 2015, and states, "Listed below are the total charges owed to the Montana Department of Transportation for repairs as a result of your accident on 11-10-14." The list enumerates the following expenses:

Labor              649.72
                Equipment          115.28
                Material        12,465.51
                9.13% Admin      1,207.94
                Total Due       14,438.44

The Invoice contains a typed signature: "Sincerely, Administrative Division." The Ledger Entry is in spreadsheet form and contains the same totals as the Invoice. The Ledger Entry provides more detail than the Invoice by itemizing the individual expenses within each subdivision of labor, equipment, and materials. The Ledger Entry does not indicate when it was prepared and is not signed. Although each document is a "written declaration," neither was made "under oath." Section 26-1-1001, MCA. Neither document is an affidavit and, therefore, cannot be considered under § 46-18-242, MCA, as evidence of the Department of Transportation's pecuniary loss. The State argues this conclusion exalts form over substance; however, restitution must be based, at a minimum, on the victim providing an affidavit.

¶ 11 We have held that where a PSI was prepared, but the victim failed to include an affidavit as required by § 46-18-242, MCA, a victim's sworn testimony may be accepted by the court instead, if the defendant's substantial rights are not affected. In McMaster , an appeal addressing the appropriate measure of restitution following a guilty plea for embezzlement, we analyzed the State's failure to include an affidavit from the victim in the court-ordered PSI. McMaster , ¶ 9. Although not affidavits, McMaster's PSI referred to "statements submitted by [the victim] concerning his estimation of an appropriate amount for restitution." McMaster , ¶ 9. Instead of providing an affidavit, the victim testified on both days of a two-day restitution hearing and McMaster cross-examined him on both days. McMaster , ¶ 10. We concluded that "any potential failure on the part of the District Court to order the PSI to include a victim's affidavit did not affect McMaster's substantial rights in light of [the victim's] extensive and scrutinized testimony at the hearing...." McMaster , ¶ 25.

¶ 12 Otherwise appropriate restitution will be upheld if the victim provides testimony at the restitution hearing instead of attaching an affidavit to the court-ordered PSI. McMaster , ¶ 25. Here, as in McMaster , the State failed to attach an affidavit from the Department of Transportation to the PSI. Also similar to McMaster , Dodge's PSI referred to and attached statements the Department of Transportation submitted concerning its estimation of an appropriate amount for restitution. However, unlike McMaster , the State also failed to present testimony at the restitution hearing. The State...

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3 cases
  • State v. Pierre
    • United States
    • Montana Supreme Court
    • 23 Junio 2020
    ...appeals.STANDARD OF REVIEW ¶10 We review criminal restitution orders for compliance with §§ 46-18-241 through -249, MCA. See State v. Dodge , 2017 MT 318, ¶ 6, 390 Mont. 69, 408 P.3d 510 ; State v. Johnson , 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578 ; State v. Pritchett , 2000 MT 261, ......
  • State v. Reynolds
    • United States
    • Montana Supreme Court
    • 28 Diciembre 2017
  • State v. Cleveland
    • United States
    • Montana Supreme Court
    • 14 Agosto 2018
    ...appeals these awards.STANDARD OF REVIEW ¶ 7 Restitution awards present a mixed question of law and fact, which we review de novo. State v. Dodge , 2017 MT 318, ¶ 6, 390 Mont. 69, 408 P.3d 510 (citation omitted). We review the appropriateness of imposing restitution for correctness and the D......

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