State v. Johns, DA 17-0287

• Decision Date: 17 December 2019
• Docket Number: DA 17-0287
• Citation: 2019 MT 292,454 P.3d 692,398 Mont. 152
• Parties: STATE of Montana, Plaintiff and Appellee, v. Lauren Marie JOHNS, Defendant and Appellant.
• Court: Montana Supreme Court

398 Mont. 152

454 P.3d 692

2019 MT 292

STATE of Montana, Plaintiff and Appellee,

v.Lauren Marie JOHNS, Defendant and Appellant.

DA 17-0287

Supreme Court of Montana.

Submitted on Briefs: August 21, 2019

Decided: December 17, 2019

For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Kirsten K. Madsen, Assistant Attorney General, Agency Legal Services Bureau, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Mac W. Bloom, Deputy County Attorney, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Lauren Marie Johns was convicted in Missoula County of embezzling money from her employer, Community Bank. The State sought restitution for the amount Johns stole and for expenses the Bank incurred investigating and assisting in the prosecution. At the initial sentencing hearing, Johns objected to the restitution claim. After considering briefs from both parties, the Fourth Judicial District Court ordered restitution. It imposed the State’s requested amount at the final sentencing hearing. On appeal, Johns contends that the District Court violated her due process rights when it did not hold an evidentiary hearing before ordering her to pay restitution. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 The State charged Johns in 2013 with felony Theft of Property by Embezzlement, in violation of § 45-6-301(7), MCA. The State alleged that Johns stole $7,103.00 from the Bank.¹ After a two-day trial, a jury found Johns guilty on August 24, 2016.

¶3 The District Court ordered a presentence investigation ("PSI"), in part to determine the appropriate amount of restitution. The PSI report included restitution calculations supported by an Affidavit of Victim’s Pecuniary Loss prepared by Bank representative Mary Strozzi. The State requested $19,406.80 in restitution, including over $12,000 for expenses the Bank incurred investigating and assisting in the prosecution.

¶4 At the first sentencing hearing on October 20, 2016, Johns objected to the restitution and requested a hearing on the amount and the legal authority for the restitution. The court instructed the parties to file briefs addressing the legal basis for the claimed restitution. The court advised the parties: "And then we’ll have to have the hearing if there’s a factual dispute about the underlying amount [after briefing]."

¶5 Johns’s brief opposing restitution challenged the basis for the Bank’s claimed administrative costs. She argued that "most if not all of the claimed expenses" were not compensable because they reflected time spent in furtherance of the litigation rather than in "actually trying to recover the money." She reserved for appeal any objections to the amount of actual loss resulting from the theft.

¶6 The State asserted all the costs legally were recoverable as restitution under the authority of §§ 46-18-201, -241(a), and -241(d), MCA, because they were compensable expenses incurred in pursuit of converted property and out-of-pocket expenses incurred in the investigation and prosecution of the offense. It noted that the Bank had miscalculated the restitution amount in its Affidavit but was working to provide an updated figure to the court. The State also requested a hearing "regarding the factual issues underlying the State’s restitution request."

¶7 The District Court entered an order on restitution on January 11, 2017, concluding that the Bank was entitled, as a matter of law, to recover the claimed expenses it incurred investigating the theft and assisting in the prosecution. The order listed each claimed expense and noted the corresponding statutory authority. The court rejected Johns’s interpretation of relevant case law, finding the expenses were compensable as expenses incurred in the pursuit of converted property and incurred in the investigation and prosecution. The court ordered restitution for the full amount the State requested in its brief, subject to the forthcoming recalculation. At the conclusion of the order, the court set a second sentencing hearing date and stated: "Defendant may file any additional exceptions or objections to the amount of restitution ordered above by January 20, 2017." (Emphasis in original.)

¶8 Johns filed three motions to continue the sentencing hearing, but none of them raised exceptions or objections further challenging the "amount of restitution" as ordered by the District Court. The court rescheduled the final sentencing hearing and extended the date by which Johns could file any "additional exceptions or objections to the amount of restitution." Johns did not file any.

¶9 At the final sentencing hearing on March 9, 2017, the Bank provided the promised updated restitution figures. Bank representative Strozzi explained the impact of Johns’s actions on the Bank’s staff, who had worked to uncover the theft and to determine the amount taken. Johns’s counsel confirmed receipt of the restitution order, acknowledged the Bank’s revised claim, and reiterated the Defendant’s restitution objection: "And for the record, we still oppose and object to the restitution even in the new amount. We still stand by our original position in our brief." The District Court asked Johns’s counsel if there were any issues in the PSI report. Counsel advised that the Defendant had no issues, and they were "prepared to move forward" to sentencing. The District Court pronounced Johns’s sentence and ordered restitution to the Bank in the updated amount.

STANDARDS OF REVIEW

¶10 We review a criminal sentence for legality. State v. Simpson , 2014 MT 175, ¶ 8, 375 Mont. 393, 328 P.3d 1144 (citing State v. Benoit , 2002 MT 166, ¶ 18, 310 Mont. 449, 51 P.3d 495 ). A claim that the sentencing court violated a defendant’s right to due process presents an issue of law that we review for correctness. State v. McClelland , 2015 MT 281, ¶ 7, 381 Mont. 164, 357 P.3d 906 (citing State v. Ferguson , 2005 MT 343, ¶ 99, 330 Mont. 103, 126 P.3d 463 ).

DISCUSSION

¶11 "Sentencing courts are required to impose a sentence that includes payment of full restitution whenever the court finds the victim of an offense has sustained a pecuniary loss." State v. Johnson , 2011 MT 116, ¶ 16, 360 Mont. 443, 254 P.3d 578 (citing § 46-18-201(5), MCA ). A defendant has a due process right to "explain, argue and dispute" any information presented on restitution. State v. Hill , 2016 MT 219, ¶ 10, 384 Mont. 486, 380 P.3d 768 (citing McClelland , ¶ 9 ).

¶12 A reviewing court generally considers "only those issues that are properly preserved for its review." State v. Akers , 2017 MT 311, ¶ 12, 389 Mont. 531, 408 P.3d 142 (citing In re Transfer Territory from Poplar Elementary Sch. Dist. No. 9 to Froid Elementary Sch. Dist. No. 65 , 2015 MT 278, ¶ 13, 381 Mont. 145, 364 P.3d 1222 ). "In order to preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the [trial court]." In re T.E. , 2002 MT 195, ¶ 20, 311 Mont. 148, 54 P.3d 38. "The basis for the general rule is that it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider." Akers , ¶ 12 (citing Unified Indus., Inc. v. Easley , 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100 ) (internal citations omitted). In Johnson , ¶ 21, we held that a defendant who failed to object to restitution imposed at sentencing forfeited his claim on appeal that the PSI did not contain adequate information to support a restitution award. In Simpson , ¶ 12, we held that a general objection at a restitution hearing, instead of objections to specific amounts, waived the issue for consideration on appeal.

¶13 Johns acknowledges that the District Court’s restitution order concluded with an invitation to file any additional objections and that she did not do so. She argues, however, that her objection and request for a hearing during the initial sentencing hearing and in her brief preserved her claim. She further argues that at the final sentencing hearing, in response to the adjusted restitution amount, her counsel properly renewed the objection by advising the court: "We still stand by our original position in our brief." The State argues these words are "far more generic" than those required to renew a request for an evidentiary hearing and to preserve the due process claim for appeal.

¶14 We agree with the State. At the initial sentencing hearing, the District Court stated that it would hold a hearing if there was a factual dispute about the underlying amount of restitution after briefing on the legal basis. Johns’s brief discussed this Court’s case law, arguing that "the rule enunciated ... is that time spent in pursuing converted property is compensable and time spent in pursuit of litigation is not." She maintained that, "under this case precedence, most if not all of the claimed expenses in this case are not compensable" because "[t]ime spen[t] in pursuit of litigation is not compensable." Johns identified one expense in 2013, a claim for $3,925 "spent in the investigation of the crime." Johns complained:

There is no detail to determine what was actually done to incur that bill . The witnesses testified at the trial about the investigation that was done. However, it was all done in the ordinary course of the Bank’s business. A hearing should be held to determine what portion of the bill was incurred in actually trying to recover the money as opposed to what portion may have been in furtherance of litigation.

(Emphasis added.) Her brief did not request an evidentiary hearing on the factual basis for any other amounts claimed.

¶15 The District Court rejected Johns’s interpretation of the case law and explained why each category of expenses the Bank claimed was authorized by § 46-18-243(1)(a) and (d), MCA. It addressed Johns’s argument about the 2013 expenses, ruling that the entire...