State v. Holt

Decision Date11 July 2006
Docket NumberNo. 03-549.,03-549.
Citation139 P.3d 819,332 Mont. 426,2006 MT 151
PartiesSTATE of Montana, Plaintiff and Respondent, v. Craig W. HOLT, Defendant and Appellant.
CourtMontana Supreme Court

Chad Wright, Appellate Defender, Helena, for Appellant:

Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney; Robert L. Deschamps, III, Special Deputy County Attorney, Billings, for Respondent.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Craig W. Holt (Holt) appeals a judgment and sentence docketed June 3, 2003, in the Thirteenth Judicial District, Yellowstone County. We affirm in part and reverse in part.

¶ 2 We restate and address the following issues on appeal:

¶ 3 1. Did the District Court err in not dismissing charges of theft in Counts I and III because the affidavit in support of the information did not allege independent admissible evidence that Holt exercised unauthorized control over the money he allegedly stole?

¶ 4 2. Did the District Court err in refusing to sever the trial of Count I from Counts III and IV?

¶ 5 3. Must this Court exercise its plain error jurisdiction and conclude Holt may withdraw his nolo contendere plea?

¶ 6 4. Did the District Court err by not making an informative inquiry into Holt's ability to pay restitution?

¶ 7 5. Did the District Court err in imposing conditions on Holt's suspended sentence prohibiting his possession or consumption of alcohol and prohibiting him from establishing a checking or credit card account?

BACKGROUND

¶ 8 Holt was charged by Information with five counts of felony theft, in violation of § 45-6-301(1)(b), MCA, on April 2, 2001. The Information and supporting affidavit alleged five instances in which Holt, while an attorney in Billings, purposely or knowingly obtained or exerted unauthorized control over money of his clients, and he used or concealed the money so as to deprive the owners of its use. During the course of the case, the District Court dismissed Counts II and V. The facts concerning these charges are not relevant to this appeal, and are not discussed.

¶ 9 Count I alleged theft from the Estate of Edward Dietz (Edward) by Holt between November 1992 and January 1997. Holt was hired as the attorney for Edward's estate by Adolph Dietz (Adolph), the personal representative. Adolph and Holt opened a joint checking account in the estate's name in November 1992. Adolph signed blank checks on the estate account and left them with Holt. Using these checks, Holt transferred money from the estate account to his attorney trust fund account. The amount of these transfers was alleged to be more than $367,000.

¶ 10 In late 1995, Adolph consulted Billings attorney Steven Hanson (Hanson), asking questions regarding Holt's handling of Edward's estate. Adolph died in June 1997, having never pursued a change of counsel for Edward's estate. After Adolph's death, his heirs hired attorney Hanson to probate Adolph's estate. While probating the estate, Hanson met with Holt. During this meeting, Holt admitted that money was missing from the account of Edward's estate, and alleged he had recently discovered that his secretary had been embezzling funds. While Holt and the State dispute the amount of money embezzled by the secretary (Holt claims at least $29,592, while the State claims that an audit showed less than $2,400), the total amount of money unaccounted for from Edward's estate was more than $300,000.

¶ 11 Count III alleged theft from the Conservatorship of Irene Sillivan (Irene) by Holt between October 1998 and December 1999. Holt allegedly failed to return $8,500 he had taken from Irene's estate. Craig Sillivan (Craig) was Irene's conservator, and he hired Holt as counsel for the conservatorship. Craig transferred $15,000 to Holt in October or November of 1998 to cover legal fees and investigative costs to search for bonds owned by Irene.

¶ 12 In 1999, Holt quit the practice of law, and Billings attorney Deborah Bishop (Bishop) took over the accounting for Irene's conservatorship. Bishop contacted Holt in September 1999 about the legal fees from Craig. Holt responded that he had applied $1,500 of the $15,000 for his fee, $5,000 for investigative costs and he would return the remaining $8,500 by the second week of October 1999. Bishop again contacted Holt in late October and also in November 1999 about the money. Holt neither responded to Bishop nor re-paid the $8,500. Bishop then filed a complaint with the Commission on Practice on behalf of the conservatorship. Holt told the Commission that Craig had told him not to pay the $8,500 until instructed to do so, but evidence exists that Craig denied that such a conversation took place. Craig has since died. The State Bar of Montana Lawyers' Fund for Client Protection paid the conservatorship $8,500 as reimbursement for the money taken by Holt.

¶ 13 Count IV alleged theft of funds from one Jim Anderson (Anderson) by Holt between November 1998 and November 1999. Holt allegedly stole $19,625 from the proceeds of a lawsuit settlement belonging to Anderson. Holt received a settlement check for $38,000, issued to himself and Anderson as joint payees in October 1998. Both Holt and Anderson endorsed the check, and Holt deposited the funds in his trust account. Holt dispersed $5,000 to Anderson and said he would pay the balance after calculating his fees. Holt delivered Anderson a check for $19,625, but the check was returned for insufficient funds. Anderson has never received the remaining settlement money.

¶ 14 Holt pled not guilty. He then filed motions to dismiss Counts I and III, arguing that the affidavit in support of the Information did not establish probable cause, and a motion to sever Count I from Counts III and IV. The District Court denied these motions.1

¶ 15 On October 23, 2002, pursuant to a plea agreement, Holt pled nolo contendere to Counts I, III and IV, pursuant to § 46-12-204(1), (2), MCA, and North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The agreement provided that Holt could withdraw his plea if the agreed sentences were not imposed by the District Court. The State agreed to recommend an aggregate sentence of 30 years incarceration with 25 years suspended. This recommended sentence consisted of ten-year suspended sentences for Counts I and III, and a ten-year sentence with five years suspended for Count IV, with all sentences to be served consecutively. The plea agreement further stated that Holt retained the ability to appeal any adverse pretrial rulings and restitution could be resolved by stipulation or through a sentencing hearing. The plea agreement did not contain any mention that Holt might be entitled to good time credit against a sentence imposed under Count I because the alleged theft occurred before January 31, 1997. Nor did it state that specific conditions could be imposed on the suspended term of his sentence. Neither did the District Court advise him orally of these possibilities.

¶ 16 A hearing concerning restitution was held on May 8, 2003. Prior to this hearing, a pre-sentence investigation report (PSI) was prepared which stated that Holt was 52 years old, in good health and held both a bachelor's degree in wildlife biology and a law degree. The PSI reported that for the previous year Holt had been self-employed as a handyman and chef earning $700 per month. Holt's assets were valued at $1,250. The PSI noted that a federal civil judgment for $275,000 against him had been docketed, and additional debts of approximately $150,000 were listed. The PSI contained a statement that it seemed unlikely that Holt could pay restitution, and it made no recommendation regarding restitution.

¶ 17 At the hearing, the District Court heard four witnesses regarding what the proper amount of restitution would be. One of these witnesses, attorney Hanson, testified as to Holt's ability to pay, noting that Holt had previously agreed to a restitution schedule in an earlier, related proceeding.

¶ 18 At the sentencing hearing on May 13, 2003, the District Court followed the plea agreement and imposed a ten-year suspended sentence on Count I, a consecutive ten-year suspended sentence on Count III, and a consecutive ten-year commitment to the Department of Corrections (DOC), with five years suspended, on Count IV. This resulted in an immediate commitment to DOC for five years followed by 25 years of probation. Holt was also ordered to pay $386,534.70 in restitution. The District Court noted that Holt was a smart and able-bodied man who was young in terms of work life. However, the District Court also acknowledged it would be difficult for Holt to pay the entire amount over 30 years. The District Court also imposed twelve of thirteen recommended conditions on the suspended portions of the sentences for Counts I and III. The District Court's written order was entered on June 3, 2003. The District Court later granted Holt's motion to strike from the written judgment a condition prohibiting Holt from practicing law or obtaining employment in the legal profession.

¶ 19 On July 10, 2003, Holt filed a "Motion to Correct Sentence" and a notice of appeal. The District Court did not rule on the motion to correct sentence because Holt had appealed to this Court.

STANDARDS OF REVIEW

¶ 20 On appeal, Holt argues that some facts in the affidavit in support of the motion to file the information must be excised and, after these facts are deleted, the affidavit no longer establishes probable cause. Holt argues that the original inclusion of these facts violated § 46-16-215, MCA. Given the alleged statutory violation, the issue of whether certain facts in the affidavit should be excised is a question of law which we review de novo. Cf. State v. Robinson, 2003 MT 364, ¶ 7, 319 Mont. 82, ¶ 7, 82 P.3d...

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