State v. Lenihan
Decision Date | 21 November 1979 |
Docket Number | No. 14786,14786 |
Citation | 184 Mont. 338,602 P.2d 997 |
Parties | The STATE of Montana, Plaintiff and Respondent, v. James LENIHAN, Defendant and Appellant. |
Court | Montana Supreme Court |
Sandra K. Watts argued, Great Falls, for defendant and appellant.
Mike Greely, Atty. Gen., Sheri K. Sprigg, Asst. Atty. Gen. argued, Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.
This is an appeal from the District Court of the Eighth Judicial District, Cascade County. Defendant was charged by information on September 1, 1978, with burglary, a felony, and criminal possession of dangerous drugs, a misdemeanor. At his arraignment on September 12, 1978, defendant entered a plea of not guilty to both offenses. On January 2, 1979, defendant moved to withdraw his not guilty plea and entered a plea of guilty to the charge of burglary, a felony in violation of section 45-6-204, MCA. The county attorney's office moved to dismiss the misdemeanor possession of dangerous drugs charge, and the court dismissed that charge. After a presentence report and testimony were presented to the court, sentence was imposed.
Defendant's three-year sentence was deferred on the following conditions:
(1) That defendant was to serve sixty days in the Cascade County jail with no release privileges;
(2) That defendant as placed under the rules and regulations of the adult probation and parole bureau;
(3) That defendant was forbidden to use or have in his possession any alcohol or drugs;
(4) That defendant was ordered not to associate with any individuals on probation or parole;
(5) That defendant was subject to search and seizure without warrant by any law enforcement officer who had reasonable suspicion to believe that defendant had incriminating evidence; and
(6) That defendant was to pay the Cascade County attorney's office the sum of $250 as reimbursement for his attorney fees with the payment schedule to be worked out by his probation officer.
The defendant in this case was found to be indigent and was appointed counsel through the Cascade County public defender's office. Appointed counsel represented defendant though all stages of the case. It is from the condition requiring defendant to pay $250 as reimbursement for his attorney fees ordered in the deferred imposition of sentence that defendant appeals.
Two issues have been presented to this Court for review:
1. Is the issue raised by defendant properly reviewable on appeal?
2. Did the District Court err in ordering an indigent defendant to reimburse the county for attorney fees as part of a condition of deferred imposition of sentence?
Defendant first argues that because Montana does not have a recoupment statute, the District Court's order to reimburse the attorney fees is invalid. He contends that section 46-18-201, MCA, does not grant authority to a district judge to impose such a condition.
Defendant cites State v. Babbit (1978), Mont., 574 P.2d 998, 35 St.Rep. 154, and State v. Cripps (1978), Mont., 582 P.2d 312 35 St.Rep. 967, for the proposition that the imposition of a fine is not specified as an allowable restriction or condition upon deferred imposition of sentence or upon suspended execution of sentence. The argument is made that an order for reimbursement of fees and a fine are indistinguishable and that in the absence of a recoupment statute, the District Court has no authority to make such an order.
Defendant goes on to cite two Supreme Court cases, James v. Strange (1972), 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, and Fuller v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642, involving state recoupment statutes, for the proposition that there must be a recoupment statute to make such an order because only then can the court measure whether or not adequate safeguards were provided for the protection of the defendant during the recoupment process.
Finally, the ABA Standards at Part VI, Section 6.4, and a 1976 Washington State Bar report are cited by defendant for the proposition that the process of recoupment raises serious constitutional questions. Therefore, without a statute providing adequate safeguards, recoupment is not recommended.
The State's first argument challenges this Court's power to review, contending that defendant did not object to the challenged condition in the District Court. The State's main contention is that reimbursement of attorney fees is a reasonable condition of deferred imposition of sentence under section 46-18-201(1)(a)(v), MCA. The argument is made that lack of specific authority for any condition imposed does not bar imposition of that condition under the above statute as long as it is reasonable. The State distinguishes Babbit and argues that a condition of reimbursement is analogous to restitution to a crime victim and different from the payment of a fine.
The State cites State v. Smith (1978), 118 Ariz. 345, 576 P.2d 533, for the proposition that a condition of payment to the government of the costs of incarceration is valid despite the lack of specific statutory authority and argues that the situation in the instant case is similar. It is argued that a condition of payment for costs to society relates directly to the reformation of the offender and is therefore valid. The State agrees, however, that the authority on this matter is divided.
Before reaching the substantive issue involved herein, it is first necessary to discuss the State's contention that defendant's failure to object to his sentence in the trial court precludes our reviewing this matter.
In this case, the Court has been placed in an undesirable position, more so because this is a criminal proceeding. Our hearing the matter has been challenged because no objection was recorded in the District Court. Defense counsel relates that objections were made in chambers where the first discussion of these conditions was had, but no record was taken and so none is available to this Court. There is no need for these problems, and we have commented on this type of matter on previous occasions. This Court is not going to willingly continue to be placed in this kind of circumstance and cannot emphasize too strongly that a proper record must be had at all stages of the proceedings with particular emphasis on criminal matters.
Traditionally, in both civil and criminal matters, this Court has not accepted for review issues which were not objected to at the trial level. State v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129; State v. Radi (1975), 168 Mont. 320, 542 P.2d 1206; State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339.
This Court, however, has never specifically ruled on the question presented here. That is, whether an objection at the trial level is a prerequisite to the challenging of a sentencing order on appeal. This issue has been ruled on in other jurisdictions with varying results. A poll of such jurisdictions reveals that Arkansas (Haynie v. State (1975), 257 Ark. 542, 518 S.W.2d 492), Idaho (Pulver v. State (1968), 92 Idaho 627, 448 P.2d 241), and Kansas (Peterson v. State (1967), 200 Kan. 18, 434 P.2d 542), have held that an appellate court cannot review a sentence if there was no objection to it at the trial level. Illinois (People v. Depratto (1976), 36 Ill.App.3d 338, 343 N.E.2d 628), Indiana (Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822), Florida (Kohn v. State (1974), Fla.App., 289 So.2d 48), Pennsylvania (Commonwealth v. Lane (1975), 236 Pa.Super. 462, 345 A.2d 233), and Oregon (State v. Braughton (1977), 28 Or.App. 891, 561 P.2d 1040), on the other hand, do not require an objection before the validity of a sentence can be reviewed.
State v. Braughton, supra, is similar to the instant case. Braughton involved a plea agreement wherein the defendant was sentenced to ten years in prison, which was suspended on the condition that he make restitution to five businesses which were the victims of crimes for which he had never been charged. Defendant objected to this portion of his sentence on the grounds that the court exceeded its statutory authority in imposing this condition. Before reaching the merits of the case, the state raised the question of whether the sentencing order entered was subject to review at all in light of the fact that the defendant made no objection to the order at the time of its entry. The court stated:
". . . The sentencing authority of a court exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized . . . Where, as in this case, it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific sentence, an objection below is not a prerequisite to the challenging of the sentencing order alleged to be void." Braughton, 561 P.2d at 1041, note 2. (Citations omitted.)
It 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. As a practical matter, this may be a defendant's only hope in cases involving deferred imposition of sentence. If a defendant objects to one of the conditions, the sentencing judge could very well decide to forego the deferred sentence and...
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