State v. Perkins, DA 08-0387.

Decision Date05 May 2009
Docket NumberNo. DA 08-0387.,DA 08-0387.
Citation2009 MT 150,208 P.3d 386,350 Mont. 387
PartiesSTATE of Montana, Plaintiff and Appellee, v. Thomas Owen PERKINS, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Jim Wheelis, Chief Appellate Defender; Kelli S. Sather, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Great Falls, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Thomas Owen Perkins appeals portions of the July 24, 2008, sentence he received from the District Court of the Eighth Judicial District, Cascade County, the Hon. Kenneth R. Neill presiding. We affirm in part, reverse in part, and remand.

¶ 2 Perkins presents the following issues for review:

¶ 3 Issue One: Whether the District Court properly imposed restitution as part of the sentence.

¶ 4 Issue Two: Whether the District Court properly ordered Perkins to register as a violent offender as part of the sentence.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 In 2005 Perkins was living with a woman (N.C.) and her three-year-old daughter (C.C.). C.C.'s aunt (P.M., N.C.'s sister) noticed bruising on C.C. and did not believe N.C.'s explanation that C.C. had been injured by falling out of bed. P.M. took the child to a doctor who suspected child abuse and made a report of the injuries to law enforcement. Youth in need of care proceedings were commenced and as a result C.C. was removed from her mother's home and placed in foster care with her aunt P.M. for seventeen months.

¶ 6 Perkins was interviewed about the child's injuries and admitted throwing her onto a daybed where she struck her back on the frame. Investigating officers noted bruising on the child's eyes, neck, chin, shoulders, arms, and back and scrapes on her neck. In January, 2006, Perkins was charged with assault on a minor, a felony, in violation of § 45-5-212, MCA. In January, 2008 he entered an agreement to plead guilty to an amended charge of felony criminal endangerment in violation of § 45-5-207, MCA. The plea agreement provided that the State could seek restitution as part of the sentence.

¶ 7 The District Court sentenced Perkins to a term of ten years, with eight suspended. Over Perkins' objection, as part of the sentence the District Court ordered him to pay $5,947 in restitution to P.M. and to register as a violent offender. The restitution to P.M. was based upon expenses she incurred caring for C.C. after the child was removed from the mother's home following discovery of the injuries inflicted by Perkins. Perkins appeals the restitution and registration requirements.

STANDARD OF REVIEW

¶ 8 This Court reviews a sentence that includes at least one year of incarceration for legality only and not for inequity or disparity. State v. Ariegwe, 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815. The review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable statute, and whether the court followed the affirmative mandates of the sentencing statute. State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313. The determinations made during the review for legality are questions of law that this Court reviews de novo. Breeding, ¶ 10.

DISCUSSION

¶ 9 Issue One: Whether the District Court properly imposed restitution as part of the sentence. At the sentencing hearing in July, 2008, the State requested that the District Court require that Perkins make restitution to P.M. for her expenses caring for C.C. that had not been reimbursed as part of the foster care program. P.M. testified and submitted an itemized statement of expenses totaling $5,947.56. The largest portion of the amount was $4,200 in day care expenses. Perkins objected to the restitution request, arguing that C.C.'s mother should be held responsible for any reimbursement of child care expenses. Perkins conceded a connection between his crime and part of the day care expenses, offering to be responsible for six of the seventeen months.

¶ 10 The District Court concluded that there was sufficient causal connection between Perkins' conduct and the expenses incurred by P.M. Perkins' conduct was the precipitating event in the youth in need of care proceedings that led to removal of C.C. from her mother's home and placement with P.M. In addition, Perkins conceded a connection to and responsibility for at least a portion of the expenses. The District Court ordered restitution to be made in the amount of $5,947.56. On appeal the State concedes that $78.44 of the ordered restitution was not supported by the documentation presented to the District Court, and that the total should accordingly be reduced.

¶ 11 An offender's liability for a victim's pecuniary loss is joint and several, so that restitution may be ordered even if another person may also be liable. State v. Workman, 2005 MT 22, ¶¶ 18-20, 326 Mont. 1, 107 P.3d 462. A sentencing court may require the offender to make restitution to a victim as part of a sentence. Section 46-18-201(5), MCA. If...

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8 cases
  • State Of Mont. v. Brownback
    • United States
    • Montana Supreme Court
    • May 4, 2010
    ...¶ 16 We review a sentence that includes at least one year of incarceration or, as here, commitment to DOC for legality only. State v. Perkins, 2009 MT 150, ¶ 8, 350 Mont. 387, 208 P.3d State ex rel. Holt v. District Court, 2000 MT 142, ¶¶ 6, 10, 300 Mont. 35, 3 P.3d 608; see also § 46-18-90......
  • State v. Thorpe
    • United States
    • Montana Supreme Court
    • January 20, 2015
    ...of” the offense as required by the restitution statute. Jent, ¶ 13.¶ 13 The State also calls our attention to State v. Perkins, 2009 MT 150, 350 Mont. 387, 208 P.3d 386, in which we upheld a restitution award that was “reasonably related to the objectives of rehabilitation and the protectio......
  • State v. Jent
    • United States
    • Montana Supreme Court
    • April 9, 2013
    ...who had been found guilty of sexual intercourse without consent, pay the victim's future counseling costs. In State v. Perkins, 2009 MT 150, 350 Mont. 387, 208 P.3d 386, we concluded that the childcare costs incurred by P.M. (the child-victim's aunt) were recoverable as restitution because ......
  • State v. Schmidt
    • United States
    • Montana Supreme Court
    • December 31, 2009
    ...429, ¶ 14, 347 Mont. 462, 198 P.3d 321. We review for legality only a sentence that includes at least one year of incarceration. State v. Perkins, 2009 MT 150, ¶ 8, 350 Mont. 387, 208 P.3d ¶ 29 Did the jury instructions and verdict form at trial render Schmidt's conviction for mitigated del......
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