State v. Milligan

• Decision Date: 05 February 2008
• Docket Number: No. 05-728.,05-728.
• Citation: 2008 MT 36,177 P.3d 500,341 Mont. 316
• Parties: STATE of Montana, Plaintiff and Appellee, v. Robert R. MILLIGAN, Defendant and Appellant.
• Court: Montana Supreme Court

177 P.3d 500

2008 MT 36

341 Mont. 316

STATE of Montana, Plaintiff and Appellee, v. Robert R. MILLIGAN, Defendant and Appellant.

No. 05-728.

Supreme Court of Montana.

Submitted on Briefs March 14, 2007.

Decided February 5, 2008.

For Appellant: Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Attorney General; Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney; Marvin Anderson, Jr., Deputy County Attorney, Great Falls, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 Robert R. Milligan appeals from a judgment in the Eighth Judicial District Court, Cascade County, committing him to the Montana Department of Corrections for five years, suspended, and requiring him to pay $55,404.65 in restitution. We affirm.

¶ 2 Milligan appeals the amount of back child support he was ordered to pay as restitution, arguing that when he entered his guilty plea he thought he would not have to pay more than approximately $45,000.

¶ 3 On December 3, 2003, the State charged Milligan with felony nonsupport in violation of 45-5-621, MCA. The Information and affidavit in support of the motion for leave to file the Information alleged that between September 1, 1997, and September 30, 2003, Milligan had failed to provide $45,269.16 in financial support to his dependent minor children, that he knew he was legally obligated to provide support, and that he was capable of providing support. The Information alleged the cumulative amount of support owed by Milligan for the specified time period was more than $45,000.

¶ 4 Milligan pled not guilty to the charge. He later changed his plea to guilty pursuant to a plea bargain agreement. In exchange for his guilty plea, the State agreed to recommend a five-year commitment to the Department of Corrections with all the time suspended and reserved the right to recommend that Milligan be ordered to pay full restitution.

¶ 5 A change of plea hearing was held October 5, 2005. When questioned by the District Court, Milligan said that he knew he was required to pay support and he had not done so. Milligan also told the District Court that he understood that the court could require him to pay the support that he owed. The District Court took Milligan's guilty plea under advisement and set a sentencing hearing for November 16, 2005.

¶ 6 A presentence investigation report (PSI) was prepared and filed with the District Court on October 25, 2005. A copy was served on Milligan. The PSI stated: "As of October 24, 2005, the Defendant owes: $55,404.65 to: Child Support Enforcement Division[.]" Also attached to the PSI was a copy of the affidavit in support of the Information which said that Milligan owed $45,269.16.

¶ 7 At the sentencing hearing held approximately three weeks after he had received a copy of the PSI, Milligan acknowledged he had reviewed it. He brought to the court's attention the fact that the PSI and the attached affidavit indicated different amounts owing in restitution. Milligan questioned whether $55,404.65 was the correct amount, in part because his children were both over the age of 18. The State responded that $55,404.65 was the amount of restitution owing at that time and that amount had been adjusted to account for the children reaching 18 years of age.

¶ 8 The District Court accepted the State's recommendation and committed Milligan to the Department of Corrections for five years with all remaining time suspended. The court also ordered Milligan to pay $55,404.65 in back child support as restitution.

¶ 9 Milligan now appeals the District Court's judgment fixing the amount he owes in restitution at $55,404.65. He states that he was misled into pleading guilty by the statements in the affidavit in support of the Information and the Information itself which told him he only owed approximately $45,000. Milligan does not challenge the calculation of the amount of restitution, nor does he ask that his guilty plea be withdrawn. He only demands that the restitution order be vacated.

¶ 10 The essence of Milligan's claim is that he did not knowingly and intelligently plead guilty because he did not know he could be ordered to pay so much restitution. A defendant's guilty plea must be voluntary, knowing, and intelligent. State v. Chase, 2006 MT 13, ¶ 13, 331 Mont. 1, ¶ 13, 127 P.3d 1038, ¶ 13; State v. Radi, 250 Mont. 155, 159, 818 P.2d 1203, 1206 (1991) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). The question of a plea's voluntariness is a mixed question of law and fact, and we review such questions de novo, determining whether the' district court's holding was correct. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, ¶ 24, 114 P.3d 254, ¶ 24. This Court deems a guilty plea involuntary where it appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists that he may have pled guilty to a crime of which he is innocent. Chase, ¶ 15; State v. Ereth, 1998 MT 197, ¶ 27, 290 Mont. 294, ¶ 27, 964 P.2d 26, ¶ 27 (citations omitted); see also State v. Pelke, 143 Mont. 262, 271, 389 P.2d 164, 169 (1964).

¶ 11 Milligan says that when he pled guilty he was under the belief that he owed only about $45,000 in restitution because that was the amount in the Information, the affidavit in support of the motion to file the Information, and the amount discussed by the District Court at the change of plea hearing. Thus, he argues the District Court erred in imposing $55,404.65 in restitution because he had never been apprised that he owed more than $45,000.

¶ 12 The record reflects that throughout the proceedings Milligan was on notice that he was liable for "full restitution." The Information stated that the $45,000 owing was...