State v. Gable

• Decision Date: 14 July 2015
• Docket Number: No. DA 13–0285.,DA 13–0285.
• Citation: 380 Mont. 101,2015 MT 200,354 P.3d 566
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michelle Coller GABLE, Defendant and Appellant.
• Court: Montana Supreme Court

380 Mont. 101

354 P.3d 566

2015 MT 200

STATE of Montana, Plaintiff and Appellee

v.Michelle Coller GABLE, Defendant and Appellant.

No. DA 13–0285.

Supreme Court of Montana.

Submitted on Briefs June 17, 2015.

Decided July 14, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant Attorney General, Leo G. Gallagher, Lewis and Clark County Attorney, Melissa C. Broch, Deputy County Attorney, Helena, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Michelle Coller Gable (Gable) appeals from the Montana First Judicial District Court, Lewis and Clark County, judgment ordering her to pay the $36,920 cost of her appointed Public Defender. We affirm.

¶ 2 Gable presents the following issues for review:

1. Did the District Court fail to question Gable regarding her ability to pay the costs of appointed counsel?

2. Did the District Court fail to determine that Gable had or would have the ability to pay the costs of appointed counsel?

3. Was Gable's constitutional right to a jury trial undermined by requiring her to pay costs of appointed counsel?

4. Was Gable's objection sufficient to preserve for appeal the failure of the Office of State Public Defender (OPD) to file with the court its hours and expenses as required by the statute?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 After a jury trial, Gable was found guilty of two counts of Deliberate Homicide for the murder of her husband Joseph Gable (Joe) and Sunday Cooley Bennett. The presentence investigation report (PSI) recommended that Gable be given two consecutive 100–year sentences, and that the $36,920 cost of appointed counsel be assigned to Gable, as well as juror and witness fees. The State also submitted a sentencing memorandum, detailing Gable's assets. Gable's assets included vehicles held jointly with Joe, $10,000 in cash held in evidence, and a possible interest in a bank account at Andrews Federal Credit Union (AFCU). At sentencing Gable read a prepared statement to the District Court which did not address her means or ability to pay cost of appointed counsel.

¶ 4 Gina Rasmussen (Rasmussen), the PSI author, testified at sentencing that the likelihood of Gable finding a paying job in prison was low considering she was wheelchair bound; that Gable's current age was 49; and that Gable would likely be in prison for 50 or 60 years before she would be eligible for parole.

¶ 5 The District Court accepted the PSI recommendations and sentenced Gable to the Montana Women's Prison for two consecutive 100–year sentences. The District Court concluded, based on the evidence presented, that Gable had or would have the ability to pay certain costs associated with her prosecution, and ordered Gable to pay: $36,920 to the OPD for the cost of her appointed counsel; $5,650.48 for juror fees; and $1,917.63 for witness fees. Gable did not object to juror or witness fees at the hearing, but she did object to the cost of appointed counsel, arguing that she was indigent.

STANDARDS OF REVIEW

¶ 6 This Court reviews criminal sentences of more than one year of incarceration for legality only. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. This Court reviews de novo whether a district court adhered to the applicable sentencing provisions. Moore, ¶ 10. A sentence is legal if it falls within the statutory parameters. State v. Hernandez, 2009 MT 341, ¶ 3, 353 Mont. 111, 220 P.3d 25. Generally, we will not review issues when the defendant has failed to make a contemporaneous objection to the alleged error in the trial court. Section 46–20–104(2), MCA. Gable concedes she has not preserved for our review issues related to juror or witness fees and, consequently, we will only review Gable's objection to the application of the cost of appointed counsel.

¶ 7 The Court permits a party to bolster arguments as long as the underlying legal theory remains the same. State v. Montgomery, 2010 MT 193, ¶ 12, 357 Mont. 348, 239 P.3d 929. Gable has objected because she believed herself to be indigent. Additional arguments that follow that legal theory were preserved for appeal. Montgomery, ¶ 12.

DISCUSSION

¶ 8 1. Did the District Court fail to question Gable as to her ability to pay the costs of appointed counsel?

¶ 9 Section 46–8–113(1), MCA, authorizes courts to order costs of appointed counsel assigned to represent a defendant. Pursuant to § 46–8–113(3), MCA, the court must question the defendant as to his or her ability to pay the costs. Gable argues, based on Moore, that the District Court failed to question her pursuant to § 46–8–113(3), MCA. We disagree.

¶ 10 In Moore we found that the requirements of § 46–8–113(3), MCA, had not been met when the District Court failed to directly question Moore regarding his ability to pay and appeared to rely solely on the PSI, which did not explore Moore's ability to pay. Moore, ¶ 14, 277 P.3d 1212.

However, the fees that Moore appealed were not specifically suggested in the PSI; the PSI at hand recommended that Gable pay the cost of her attorney. Moore, ¶ 6. Further, Rasmussen testified to Gable's potential future earnings and the State and Defense discussed Gable's ability to pay with the court. Gable also read a prepared statement and had the opportunity to address her ability to pay the court ordered costs recommended in the PSI. Instead, Gable chose not to address, in any way, her ability to pay. The record of Gable's sentencing hearing is thus distinguishable from Moore and depicts an adequate examination by the District Court of Gable's ability to pay costs.

¶ 11 2. Did the District Court fail to determine that Gable had or would have the ability to pay the costs of appointed counsel?

¶ 12 A review of the record convinces us that the District Court also complied with § 46–8–113(4), MCA, which directs that “[t]he court may not sentence a defendant to pay the costs for assigned counsel unless the defendant is or will be able to pay....” Again, in contrast to Moore, the District Court did not rely only on the PSI report when determining Gable's ability to pay, but rather questioned both the State and Defense about Gable's ability to pay. The State's sentencing memorandum noted the following assets: a 2006 Ford Econoline Van; a 2005 Saturn Ion; a 2003 Harley Davidson motorcycle; a 1997 Honda 4SA; $10,000 in cash held in evidence; and a possible checking account with AFCU. Gable had two checks mailed to her from an AFCU account while she was in pretrial detention which totaled $37,582.11 However, as the checks were held for more than 180 days, they became void. AFCU would not disclose who owned the account without a warrant and Gable did not voluntarily provide any information to the court regarding these accounts.

¶ 13 The basis of Gable's appeal is premised on her status as an indigent defendant determined by the OPD. Gable argues that because she is indigent she does not have the ability to pay the costs assigned to her. Gable's status as an indigent defendant, determined only by the OPD in its decision regarding representation, does not bind a court in its statutory obligation to consider a defendant's ability to pay. The fact that the OPD has determined Gable to be indigent is not binding on a court. Christ v. Larson, 374 Mont. 540 (table), 346 P.3d 363 (table), 2014 Mont. Lexis 203 (2014); Rios v. Justice Court, 2006 MT 256, 334 Mont. 111, 148 P.3d 602 ; § 47–1–111(1)(d), MCA, (“[a]ny determination [of indigency] pursuant to this section is subject to the review and approval of the court. The propriety of an assignment of counsel by the office is subject to inquiry by the court, and the court may deny the assignment”).

¶ 14 Gable argued to the District Court during the sentencing hearing that, pursuant to the provisions of § 72–2–813, MCA, Gable would forfeit any ability to profit from Joe's estate. Section 72–2–813, MCA, provides, in relevant part:

(2) An individual who feloniously and intentionally kills the decedent forfeits all benefits under this chapter with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share.

(3) The felonious and intentional killing of the decedent:

...

(b) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship and transforms the interests of the decedent and killer into tenancies in common.

...

(10) for the purposes of this section, a felonious and intentional killing includes a deliberate homicide as defined in 45–5–102 and mitigated deliberated homicide as defined in 45–5–103.

Section 72–2–813(2), (3), (3)(b), (10), MCA.

¶ 15 This Court first interpreted the provisions of § 72–2–813, MCA, in In re Estate of Garland, 279 Mont. 269, 275–6, 928 P.2d 928, 932 (1996). There, we considered a claim that the decedent had contributed more to the maintenance of marital property than her husband, who had killed her. We observed that the plain language of § 72–2–813(3)(b), MCA, effectuates a severance of both the decedent's and the killer's interests and transforms those interests into tenancies in common as a matter of law. Garland, 279 Mont. at 275–6, 928 P.2d at 931. Therefore, in determining the killer's and decedent's interests under § 72–2–813(3)(b), MCA, district courts must apply the legal rules applicable to tenancies in common. Garland, 279 Mont. at 275–6, 928 P.2d at 931. While tenants in common presumptively own undivided equal interests in property, the presumption is subject to rebuttal and the surviving co-tenant and the decedent's estate may not be entitled to equal shares. Garland, 279 Mont. at 276, 928 P.2d at 932. The acquisition and maintenance of the...