State v. Simpson

Decision Date08 July 2014
Docket NumberNo. DA 13–0134.,DA 13–0134.
Citation328 P.3d 1144,375 Mont. 393
PartiesSTATE of Montana, Plaintiff and Appellee, v. Michael Wesley SIMPSON, Defendant and Appellant.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

For Appellant: Wade Zolynski, Chief Appellate Defender; Nicholas C. Domitrovich, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana, Merle Raph, Toole County Attorney; Shelby, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Michael Simpson appeals an order for restitution entered by the Montana Ninth Judicial District Court, Toole County, on December 13, 2012. We address the following issues on appeal:

¶ 2 1. Whether Simpson preserved his objection to the award of restitution for two victims based on their lack of affidavits or testimony.

¶ 3 2. Whether the District Court's restitution order was supported by substantial evidence.

¶ 4 We affirm in part, reverse in part, and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 On July 16, 2012, Simpson pleaded guilty to a single count of theft by common scheme arising from the theft of property from a salvage yard owned by Robert Appley. In exchange for the guilty plea, the State agreed to dismiss the remaining charges against him. Pursuant to the plea agreement, the State recommended a five-year commitment, suspended, to the Department of Corrections and restitution to be determined by the District Court. The agreement specifically provided that Simpson would be liable for restitution “to any victim on the charges that were dismissed pursuant this plea agreement.”

¶ 6 The court ordered a pre-sentence investigation (PSI) in part to determine an appropriate amount of restitution. The officer completing the PSI noted that restitution had been a “nightmare” to calculate, in large part because it was difficult to determine the value of the various scrap items. The PSI calculated Appley's restitution request to be $30,460.59 for the various vehicle parts and scrap metal. The PSI also included amounts for two other alleged victims of thefts Simpson had committed, Archie Johnson and Kyle Coder. Johnson requested $500 for the insurance deductible for Simpson's theft and damage of a flatbed trailer, and Coder requested $360 to reimburse him for his purchase from Simpson of a stolen Oldsmobile. Both items were recovered in Pondera County. Simpson's plea agreement resulted in dismissal of the charges for these thefts, but Simpson agreed to pay restitution for the dismissed charges.

¶ 7 The District Court held a sentencing and restitution hearing on September 4, 2012. Near the end of the hearing, Simpson's counsel raised objections to the evidence presented. He disputed Appley's claimed amount of losses and argued that $8,000 would be a more appropriate amount of total restitution in this case. The court sentenced Simpson pursuant to the plea agreement on September 25, 2012. On December 13, 2012, it issued its order for restitution, ordering Simpson to pay a total of $31,878.78 to the victims. Simpson appeals the court's order for restitution.

STANDARD OF REVIEW

¶ 8 A criminal sentence is reviewed for legality. State v. Benoit, 2002 MT 166, ¶ 18, 310 Mont. 449, 51 P.3d 495. “Findings of fact regarding the amount of restitution ordered as part of a criminal sentence are reviewed to determine whether they are clearly erroneous.” State v. Coluccio, 2009 MT 273, ¶ 40, 352 Mont. 122, 214 P.3d 1282, overruled in part on other grounds, State v. Kirn, 2012 MT 69, 364 Mont. 356, 274 P.3d 746. A finding of fact is clearly erroneous if it is not supported by substantial evidence. City of Billings v. Edward, 2012 MT 186, ¶ 18, 366 Mont. 107, 285 P.3d 523. Substantial evidence is “evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance.” State v. Jent, 2013 MT 93, ¶ 10, 369 Mont. 468, 299 P.3d 332.

DISCUSSION

¶ 9 1. Whether Simpson preserved his objection to the award of restitution for two victims based on their lack of affidavits or testimony.

¶ 10 A sentencing court is required to order an offender to pay full restitution to any victim who has sustained a pecuniary loss. Section 46–18–241, MCA. The court must comply with statutory requirements in determining an amount of restitution. Benoit, ¶ 23. Simpson contends that the District Court erred by ordering him to pay restitution to Johnson and Coder when the PSI did not include affidavits detailing their loss and they did not testify at the restitution hearing. He alleges that the court failed to comply with the statutory procedural requirements that a PSI include “an affidavit that specifically describes the victim's pecuniary loss and the replacement value in dollars of the loss, submitted by the victim.” Section 46–18–242(1)(b), MCA. The State responds that Simpson failed to object to the amounts requested by Johnson and Coder and that he has waived his right to appeal the court's order of restitution for these two victims.

¶ 11 [W]e will not put a district court in error for failing to address an issue or an argument that was not made before it.” State v. David C. Johnson, 2011 MT 116, ¶ 21, 360 Mont. 443, 254 P.3d 578. “ Above all else, the rationale underlying the timely-objection rule is judicial economy and ‘bringing alleged errors to the attention of each court involved, so that actual error can be prevented or corrected at the first opportunity.’ State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (quoting City of Missoula v. Asbury, 265 Mont. 14, 20, 873 P.2d 936, 939 (1994)). Although the Court will review an unpreserved claim that a criminal sentence is illegal, State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979), “a sentencing court's failure to abide by a statutory requirement rises to an objectionable sentence, not necessarily an illegal one....” State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892. In David C. Johnson, we affirmed a district court's restitution order despite the lack of victim affidavits where the defendant had not objected on that ground at the time of sentencing. David C. Johnson, ¶¶ 19–21. Soon thereafter, we reiterated that a defendant's failure to object to restitution imposed at sentencing forfeits his claim on appeal that the PSI did not contain adequate information to support a restitution award. State v. Charley Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638.

¶ 12 Here, Simpson made a general objection at the restitution hearing to the lack of evidence presented for Appley's requested restitution. He did not object to the amounts requested by Johnson and Coder or to the basis for their awards. As we held in David C. Johnson and Charley Johnson, the District Court's alleged failure to require evidentiary support for these victim losses results in a merely objectionable sentence. Because Simpson failed to object on this ground, he has waived this issue for consideration on appeal.

¶ 13 2. Whether the District Court's restitution order was supported by substantial evidence.

¶ 14 A victim who sustains pecuniary loss from a defendant's criminal action is entitled to recover all special damages substantiated by evidence in the record that are recoverable in a civil action. Section 46–18–243(1)(a), MCA. Offenders are liable for restitution only for those offenses of which they have been found guilty or to which they have admitted or agreed to pay restitution. State v. Breeding, 2008 MT 162, ¶ 19, 343 Mont. 323, 184 P.3d 313. Even if actual losses are uncertain, they may be recoverable if they are calculated by use of reasonable methods based on the best evidence available under the circumstances. Benoit, ¶ 29. Reasonable methods include “a reasonably close estimate of the loss.” State v. Dodson, 2011 MT 302, ¶ 12, 363 Mont. 63, 265 P.3d 1254 (internal citations omitted). We have held that [n]othing in the controlling restitution statutes ... requires a court or a victim to substantiate a restitution calculation with documentation.’ State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321 P.3d 841 (quoting State v. McMaster, 2008 MT 268, ¶ 29, 345 Mont. 172, 190 P.3d 302). A sentencing court accordingly may award restitution in reliance on victim testimony. Aragon, ¶ 14. A defendant has a due process right to ‘explain, argue, and rebut any information’ presented at sentencing.” Aragon, ¶ 12 (quoting State v. Roedel, 2007 MT 291, ¶¶ 65, 339 Mont. 489, 171 P.3d 694). When a Defendant does not present contradictory evidence, the District Court does not err in relying on a victim's estimates of loss. Dodson, ¶ 14.

¶ 15 Simpson challenges the court's calculation of restitution for Appley, asserting that its calculations were not supported by substantial evidence in the record. He also objects to the court's reliance on Appley's estimates of loss. We address each specific argument in turn.

a. Total weight of the scrap metal

¶ 16 The District Court ordered Simpson to reimburse Appley for the cost of fourteen tons of scrap metal, amounting to $2,800.00 in damages. Simpson argues that the evidence in the record does not support the allegation that he stole this much scrap metal. Simpson points to receipts obtained from Pacific Steel and Recycling, attached to the PSI, which account for only approximately seven tons of scrap metal.

¶ 17 To support its findings regarding the amount of scrap metal, the District Court relied on Appley's testimony that he had ten tons of scrap located in one area of the property and four tons in another area. Appley testified as to the items that were missing from the two locations. He also completed a lengthy hand-written affidavit of these items, which was attached to the PSI. The officer who completed the PSI testified...

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