State v. Pritchett, 99-494.

• Decision Date: 28 September 2000
• Docket Number: No. 99-494.,99-494.
• Citation: 11 P.3d 539,302 Mont. 1,2000 MT 261
• Parties: STATE of Montana, Plaintiff and Respondent, v. Anthony Gordon PRITCHETT, Defendant and Appellant.
• Court: Montana Supreme Court

11 P.3d 539

2000 MT 261

302 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Anthony Gordon PRITCHETT, Defendant and Appellant.

No. 99-494.

Supreme Court of Montana.

Submitted on Briefs February 24, 2000.

Decided September 28, 2000.

Todd D. Glazier, Attorney at Law, Boise, Idaho, David F. Stufft, Attorney at Law, Kalispell, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana Thomas J. Esch, County Attorney, Kalispell, Montana, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 On February 11, 1999, Anthony Gordon Pritchett (Pritchett) pled guilty to one count of burglary in the Eleventh Judicial District Court. He was sentenced to twenty years in the Montana State Prison with all twenty years suspended upon the condition that he pay restitution in the amount of $62,383.72. Pritchett appeals both the restitution order and the length of his sentence. We vacate the sentence and remand for additional proceedings consistent with this opinion.

Factual Background

¶ 2 On the night of October 1, 1998, Pritchett entered the garage of his former employer, Kit Hunter (Hunter) in an attempt to return two hunting rifles he had stolen and pawned to support his gambling habit. At some point, Pritchett stumbled and dropped his flashlight. Unable to locate it in the dark, he lit his cigarette lighter. The flame ignited gas leaking from a nearby propane bottle, causing a large explosion and a fire that destroyed the garage and its contents. Pritchett, despite serious injuries sustained in the blast, fled the scene. Later, when he learned that the police were investigating him, Pritchett returned and confessed his involvement in the crime.

¶ 3 Following Pritchett's guilty plea, the District Court scheduled a sentencing hearing and ordered the local probation officer to prepare a Presentence Investigation Report (PSI). On the question of restitution, the completed report noted the loss of the Hunters' garage and its contents and stated that "the total restitution to be paid by the Defendant is $63,569.25."¹ This amount included $15,000 for the garage and $48,569.25 for its contents. The report listed Pritchett's income as $1,000 per month—all derived from self employment as a carpenter. It provided no documentation or evidence to support these amounts. The PSI also did not include any documentation of Pritchett's current assets and liabilities or any estimates of his future ability to pay restitution. Noting that the amount of restitution was "enormous," the probation/parole officer who prepared the PSI stated that: "To give the Defendant adequate time to pay off the restitution in this case the Officer recommends a twenty (20) year sentence to the Montana State Prison, with all of the time suspended."

Discussion

¶ 4 Did the District Court err in sentencing Pritchett to pay restitution?

¶ 5 Pritchett argues § 46-18-242(1), MCA, specifically mandates that, prior to an order of restitution, a district court must order the probation officer to document the defendant's financial resources, future ability to pay restitution and the victim's pecuniary loss. While the District Court received some evidence of these amounts during its sentencing hearing, Pritchett asserts that this fact does not negate the specific mandate of § 46-18-242(1), MCA, and that, absent this documentation, the District Court had no authority to impose a sentence of restitution. We agree. ¶ 6 This Court reviews a criminal sentence for legality only. State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. Thus, our review is confined to whether the sentence is within the parameters provided by statute. Montoya, ¶ 15.

¶ 7 Sentencing courts are required to impose a sentence that includes payment of full restitution whenever they find that the victim of an offense has sustained a pecuniary loss. Section 46-18-201(5), MCA. However, this general mandate is subject to the detailed procedures and qualifications found in §§ 46-18-241 to 249, MCA. District courts are not authorized to impose a sentence of restitution until all these additional statutory requirements are satisfied. See State v. Hilgers, 1999 MT 284, ¶ 8, 297 Mont. 23, ¶ 8, 989 P.2d 866, ¶ 8.

¶ 8 Particularly relevant to the case at hand is the provision designed to ensure that restitution orders are based on documented evidence of the victim's loss and the offender's ability to pay. Section 46-18-242, MCA, provides;

(1) Whenever the court believes that a victim of the offense may have sustained a pecuniary loss as a result of the offense or whenever the prosecuting attorney requests, the court shall order the probation officer, restitution officer, or other designated person to include in the presentence investigation and report:

(a) documentation of the offender's financial resources and future ability to pay restitution; and

(b) documentation of the victim's pecuniary loss....

¶ 9 This provision requires that the PSI contain documentary evidence. State v. Brown (1994), 263 Mont. 223, 226, 867 P.2d 1098, 1100. In Brown, we held that a PSI containing only conclusory statements about amounts and no documentation regarding the defendant's future ability to pay restitution did not comply with § 46-18-242(1), MCA, and that, "without the documentation required by the statute, a district court is unable to make a meaningful determination of the propriety or amount of a restitution provision in a sentence." Brown, 263 Mont. at 227, 867 P.2d at 1101.

¶ 10 The State, carefully extracting some wording from our holding in Hilgers, argues that failure to satisfy the statutory requirement for documentation does not invalidate a restitution order-so long as the District Court, as it did in this case, holds a full evidentiary hearing on the amount of the pecuniary loss. The State's reliance on Hilgers is misplaced.

¶ 11 In Hilgers, the PSI did not document the amount of the victim's pecuniary loss, the defendant's financial resources or his ability to pay restitution. We held that the failure to document pecuniary loss was not fatal because it was later documented at a full evidentiary hearing. Hilgers, ¶ 9. However, in Hilgers, we based our holding on the existence of a plea agreement providing that, if the parties were unable to agree to the amount of restitution, the defendant would allow the court to make the determination. Hilgers, ¶ 9. Unlike Hilgers, Pritchett made no plea agreement allowing the District Court to determine the amount of restitution.

¶ 12 With regard to the other requirements of § 46-18-242, MCA, we went on to hold in Hilgers that "the absence of documentation on [Hilgers' financial resources and future ability to pay] as required under § 46-18-242(1)(a), MCA, renders the District Court's judgment illegal." Hilgers, ¶ 14.

¶ 13 We conclude, therefore, as we did in Brown and Hilgers, that failure of the PSI to document the victim's pecuniary loss, Pritchett's financial resources, and his future ability to pay restitution, renders the District Court's judgment illegal.

¶ 14 In addition to documentation of the information required by § 46-18-242(1), MCA, a district court imposing a sentence of restitution is required to specify the amount, method and time of each payment to the victim. Section 46-18-244(1), MCA. In doing so, the court must consider the financial resources and future ability of the offender to pay. Section 46-18-244(2), MCA. Pritchett argues that the District Court failed to specify the amount, method and time of each payment he was to make to the victim and that this failure to comply with statutory requirements invalidates the court's restitution order. We agree.

¶ 15 As stated above, the district court's authority to impose a sentence of restitution is limited by the provisions of §§ 46-18-241 through 249, MCA. Section 46-18-244, MCA, provides in part:

(1) The court shall specify the amount, method, and time of each payment to the victim and may permit payment in installments.

The District Court failed to comply with this requirement. Rather, it ordered that "payments on restitution are to be made ... according to a schedule to be determined by his Probation Officer...."

¶ 16 Section 46-18-244, MCA, clearly requires the court to specify the amount, method and time of payments. By leaving this determination to the discretion of the probation officer, the District Court failed to comply with the sentencing parameters provided by statute.

¶ 17 Did the District Court err when it used replacement cost instead of actual market value to determine the amount of restitution?

¶ 18 Determination of the appropriate measure of restitution is a question of law. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon Co. v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶ 19 Pritchett argues that, by law, the appropriate measure of the Hunters' pecuniary loss is the market value of their property at the time of its destruction. The Hunters, however, estimated the value of their lost property as the cost of replacing it with new items at current prices. Pritchett argues that, in adopting the Hunters' replacement valuation method, the District Court made an error of law that resulted in a significant over-statement of his restitution obligation. We agree.

¶ 20 Restitution is limited to the pecuniary loss resulting from the offense. Section 46-18-244(2), MCA. Pecuniary loss is defined by statute as "all special damages ... that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender's criminal activities." Section 46-18-243(1)(a), MCA. Pritchett argues, and the State seems to agree, that the appropriate civil action arising out of Pritchett's destruction of the Hunters' garage...