State v. Lenihan

No. 14786

IN THE SUPREME COURT OF THE STATE OF MONTANA

1979

THE STATE OF MONTANA,

Plaintiff and Respondent,

VS.

JAMES LENIHAN,

Defendant and ~ ~ ~ e l i a n t .

Appeal from: District Court of the Eighth Judicial District,

Honorable Joel G. Roth, Judge presiding.

Counsel of Record:

For Appellant:

Sandra K. Watts argued, Great Falls, Montana

For Respondent :

Hon. Mike Greely, Attorney General, Helena, Montana

Sheri K. Sprigg, argued, Assistant Attorney General,

Helena, Montana

Submitted: November 2, 1979

Decided :a2 I (L- '

&

r -<

Filed: -,$,

Mr. Justice Gene B. Daly delivered the Opinion of the Court.

his is an appeal from the District Court of the Eighth

Judicial ~istrict,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 danger-

ous 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 was 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 incrimi-

nating evidence; and

(6) That defendant was to pay the Cascade County attor-

ney's office the sum of $250 as reimbursement for his attor-

ney 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

through 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 review-

able 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 dis-

trict 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 sen-

tence. 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 g o e s on t o c i t e two Supreme C o u r t c a s e s ,

J a m e s v. S t r a n g e ( 1 9 7 2 ) , 407 U.S. 128, 92 S.Ct. 2027, 32

L.Ed.2d 600, and F u l l e r v . Oregon ( 1 9 7 4 ) , 417 U.S. 40, 94

S.Ct. 2116, 4 0 L.Ed.2d 642, i n v o l v i n g s t a t e recoupment

s t a t u t e s , f o r t h e p r o p o s i t i o n t h a t t h e r e must be a recoup-

ment s t a t u t e t o make s u c h a n o r d e r b e c a u s e o n l y t h e n c a n t h e

c o u r t measure whether o r n o t a d e q u a t e s a f e g u a r d s w e r e pro-

v i d e d f o r t h e p r o t e c t i o n o f t h e d e f e n d a n t d u r i n g t h e recoup-

ment p r o c e s s .

F i n a l l y , t h e ABA S t a n d a r d s a t P a r t V I , S e c t i o n 6.4, and

a 1976 Washington S t a t e Bar r e p o r t a r e c i t e d by d e f e n d a n t

f o r t h e p r o p o s i t i o n t h a t t h e p r o c e s s o f recoupment r a i s e s

serious c o n s t i t u t i o n a l questions. Therefore, without a

s t a t u t e p r o v i d i n g a d e q u a t e s a f e g u a r d s , recoupment i s n o t

recommended.

The S t a t e ' s f i r s t argument c h a l l e n g e s t h i s C o u r t ' s

power t o r e v i e w , c o n t e n d i n g t h a t d e f e n d a n t d i d n o t o b j e c t t o

t h e challenged condition i n t h e D i s t r i c t Court. The S t a t e ' s

main c o n t e n t i o n i s t h a t reimbursement of a t t o r n e y fees i s a

reasonable condition of deferred imposition of sentence

under s e c t i o n 46-18-201 (1)( a ) ( v ) , MCA. The argument i s made

t h a t l a c k of s p e c i f i c a u t h o r i t y f o r any c o n d i t i o n imposed

d o e s n o t b a r i m p o s i t i o n o f t h a t c o n d i t i o n under t h e above

s t a t u t e as long as it i s reasonable. The S t a t e d i s t i n -

g u i s h e s B a b b i t and a r g u e s t h a t a c o n d i t i o n o f reimbursement

i s a n a l o g o u s t o r e s t i t u t i o n t o a c r i m e v i c t i m and d i f f e r e n t

from t h e payment o f a f i n e .

The S t a t e c i t e s S t a t e v. Smith ( 1 9 7 8 ) , 118 A r i z . 345,

576 P.2d 533, f o r t h e p r o p o s i t i o n t h a t a c o n d i t i o n o f pay-

ment t o t h e government o f t h e c o s t s o f i n c a r c e r a t i o n i s

v a l i d d e s p i t e t h e l a c k o f s p e c i f i c s t a t u t o r y a u t h o r i t y and

argues t h a t t h e s i t u a t i o n i n t h e i n s t a n t c a s e i s similar.

I t i s a r g u e d t h a t a c o n d i t i o n of payment f o r c o s t s t o s o c i -

e t y r e l a t e s d i r e c t l y t o t h e r e f o r m a t i o n o f t h e o f f e n d e r and

i s therefore valid. The S t a t e a g r e e s , however, t h a t t h e

a u t h o r i t y on t h i s m a t t e r i s d i v i d e d .

Before reaching t h e substantive i s s u e involved herein,

it i s f i r s t necessary t o discuss t h e S t a t e ' s contention t h a t

defendant's f a i l u r e t o o b j e c t t o h i s sentence i n the t r i a l

c o u r t precludes our reviewing t h i s matter.

I n t h i s c a s e , t h e C o u r t h a s been p l a c e d i n a n u n d e s i r -

a b l e p o s i t i o n , more s o b e c a u s e t h i s i s a c r i m i n a l p r o c e e d i n g .

Our h e a r i n g t h e matter h a s been c h a l l e n g e d b e c a u s e no o b j e c -

t i o n was r e c o r d e d i n t h e D i s t r i c t C o u r t . Defense c o u n s e l

r e l a t e s t h a t o b j e c t i o n s w e r e made i n chambers where t h e

f i r s t d i s c u s s i o n o f t h e s e c o n d i t i o n s w a s had, b u t no r e c o r d

was t a k e n and s o none i s a v a i l a b l e t o t h i s C o u r t . There i s

no need f o r t h e s e problems, and w e have commented on t h i s

t y p e of m a t t e r on p r e v i o u s o c c a s i o n s . This Court i s n o t

g o i n g t o w i l l i n g l y c o n t i n u e t o be p l a c e d i n t h i s k i n d o f

c i r c u m s t a n c e and c a n n o t emphasize t o o s t r o n g l y t h a t a p r o p e r

r e c o r d must be had a t a l l s t a g e s o f t h e p r o c e e d i n g s w i t h

p a r t i c u l a r emphasis on c r i m i n a l matters.

T r a d i t i o n a l l y , i n b o t h c i v i l and c r i m i n a l m a t t e r s , t h i s

C o u r t h a s n o t a c c e p t e d f o r r e v i e w i s s u e s which were n o t

objected t o a t the t r i a l level. S t a t e v. Armstrong ( 1 9 7 7 ) ,

172 Mont. 296, 562 P.2d 1129; S t a t e v . ~ a d i 1 9 7 5 ) , 168

(

Mont. 320, 542 P.2d 1206; S t a t e v. P a u l s o n ( 1 9 7 5 ) r 167 Mont.

310, 538 P.2d 339.

T h i s C o u r t , however, h a s n e v e r s p e c i f i c a l l y r u l e d on

t h e question presented here. T h a t i s , whether a n o b j e c t i o n

a t t h e t r i a l l e v e l i s a p r e r e q u i s i t e t o t h e challenging of a

s e n t e n c i n g o r d e r on a p p e a l . T h i s i s s u e h a s been r u l e d on i n

o t h e r j u r i s d i c t i o n s with varying r e s u l t s . A p o l l of such

j u r i s d i c t i o n s r e v e a l s t h a t Arkansas (Haynie v . S t a t e ( 1 9 7 5 ) ,

257 Ark. 542, 518 S.W.2d 4 9 2 ) , I d a h o ( P u l v e r v . S t a t e ( 1 9 6 8 ) ,

92 I d a h o 627, 448 P.2d 2 4 1 ) , and Kansas ( P e t e r s o n v. S t a t e

( 1 9 6 7 ) , 200 Kan. 1 8 , 434 P.2d 5 4 2 ) , have h e l d t h a t a n a p p e l -

l a t e c o u r t c a n n o t r e v i e w a s e n t e n c e i f t h e r e was no o b j e c -

t i o n t o it a t t h e t r i a l level. I l l i n o i s ( P e o p l e v. D e p r a t t o

( 1 9 7 6 ) , 36 I l l . A p p . 3 d 338, 343 N.Ed.2d 628), Indiana (Klein-

r i c h e r t v. S t a t e ( 1 9 7 3 ) , 260 I n d . 537, 297 N.E.2d 822),

F l o r i d a (Kohn v . S t a t e (19741, - F l a .App. , 289 So.2d

4 8 ) , P e n n s y l v a n i a (Commonwealth v. Lane ( 1 9 7 5 ) , 236 Pa.Super.

462, 345 A.2d 2 3 3 ) , and Oregon ( S t a t e v . Braughton (19771,

28 0r.App. 891, 561 P.2d 1 0 4 0 ) , on t h e o t h e r hand, do n o t

r e q u i r e a n o b j e c t i o n b e f o r e t h e v a l i d i t y of a s e n t e n c e c a n

b e reviewed.

S t a t e v. Braughton, s u p r a , i s s i m i l a r t o t h e i n s t a n t

case. Braughton i n v o l v e d a p l e a agreement w h e r e i n t h e

d e f e n d a n t was s e n t e n c e d t o t e n y e a r s i n p r i s o n , which was

suspended on t h e c o n d i t i o n t h a t h e make r e s t i t u t i o n t o f i v e

b u s i n e s s e s which w e r e t h e v i c t i m s o f crimes f o r which he had

n e v e r been charged. Defendant o b j e c t e d t o t h i s p o r t i o n of

h i s s e n t e n c e on t h e grounds t h a t t h e c o u r t exceeded i t s

s t a t u t o r y a u t h o r i t y i n imposing t h i s c o n d i t i o n . Before

r e a c h i n g t h e m e r i t s of t h e c a s e , t h e s t a t e r a i s e d t h e ques-

t i o n o f whether t h e s e n t e n c i n g o r d e r e n t e r e d w a s s u b j e c t t o

r e v i e w a t a l l i n l i g h t o f t h e f a c t t h a t t h e d e f e n d a n t made

no o b j e c t i o n t o t h e o r d e r a t t h e t i m e of i t s e n t r y . The

court s t a t e d:

". . . The s e n t e n c i n g a u t h o r i t y of a c o u r t

e x i s t s s o l e l y by v i r t u e of a s t a t u t o r y g r a n t

of power and t h e r e f o r e c a n n o t be e x e r c i s e d i n

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 defen-

dant'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 send him to prison. To guard against

this possibility, a defendant often times must remain silent

even in the face of invalid conditions. We, therefore,

accept jurisdiction in this matter.

While the substantive issue involved in this case is

claimed to be one of first impression, it is only a varia-

tion of State v. Babbit, supra, and others.

Babbit involved a defendant who was convicted of crim-

inal possession of dangerous drugs and given a deferred

imposition of sentence. As one of the conditions of his

sentence, defendant was ordered to pay $200 to the County of

Missoula to be placed into a drug enforcement fund and was

in the nature of a fine. The offense Babbit was convicted

of provided for imposition of a prison term upon conviction,

but not for the imposition of a fine. This Court ruled that

under what is now section 46-18-201(1), MCA, a fine could

not be imposed as a condition of a deferred imposition of

sentence where there was not a reasonable association between

the fine imposed and the crime committed or where it was not

found to be a reasonable or necessary condition of probation

or for the protection of the public. 574 P.2d at 1001,

1002. Under the circumstances in Babbit, this Court held

that a fine could not be imposed as a condition of the

deferred imposition of sentence.

In deciding Babbit, this Court relied heavily on an

Arizona case, State v. Pitts (1976), 26 Ariz.App. 390, 548

P.2d 1202, citing the following rationale:

II I ...

Imposition of a fine is the passing of

a sentence and not the suspension of sentence.

The fact that the court terms it a condition of

probation does not render it any the less a

sentence. We - - -here dealins with a condi-

- are not d - -

- -of probation which requires the defendant

tion

to make restitution - - crime victim. That

-- to the

would be a whollv different matter.' ...

"The Arizona court further reasoned that if a

fine (as here and not related to our guidelines)

were to be allowed as merely a condition of pro-

bation, the default in payment could result in

revocation of probation and imprisonment - -

for the

maximum period allowed by the statute for the

crime £0; which defendant was convicted. In

that event the failure to pay a small fine may

result in defendant's imprisonment far exceeding

the period ordinarily permitted." State v. Bab-

bit, 574 P.2d at 1001. (Emphasis supplied.)

The State attempts to distinguish Babbit and argues

that a condition requiring reimbursement of attorney fees is

analogous to restitution to a crime victim and distinguish-

able from the payment of a fine. Various cases are cited

for the proposition that reimbursement of attorney fees is

permissible under statutes similar to our section 46-18-201,

MCA, if certain constitutional guidelines are met. State v.

Foust (1972), 13 N.C.App. 382, 185 S.E.2d 718; State v.

Smith (1978), 118 Ariz.App. 345, 576 P.2d 533; State v.

Rogers Iowa r State v.

Barklind (1975), 12 Wash.App. 818, 532 P.2d 633.

The leading case on the above guidelines is Fuller v.

Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642.

The United States Supreme Court in Fuller upheld an Oregon

recoupment statute which placed certain limitations on the

actual recoupment process. They were as follows:

(1) A requirement of repayment may be imposed only upon

a convicted defendant;

(2) A court may not order a convicted person to pay

these expenses unless he is or will be able to pay them; the

sentencing court must take account of the financial resources

of the defendant and the nature of the burden that payment

of costs will impose; no requirement to pay may be imposed

if it appears at the time of sentencing that there is no

likelihood that a defendant's indigency will end;

( 3 ) A convicted person under an obligation to repay may

at any time petition the court which sentenced him for

remission of the payment of costs or of any unpaid portion

thereof; and

(4) No convicted person may be held in contempt for

failure to repay if he shows that his default was not attri-

butable to an intentional refusal to obey the order of the

court or to a failure on his part to make a good faith

effort to make the payment. Fuller v. Oregon, 40 L.Ed.2d at

650.

There is no statute in Montana which specifically

enumerates the Fuller guidelines. Further, the District

Court makes no mention in its order of those guidelines.

Failure to do so revives the fears espoused by this Court in

Babbit :

". . . the default in payment could result in

revocation of probation and imprisonment - -

for the

maximum period allowed by the statute for the

crime which defendant was convicted. In that

event the failure to pay a small fine may result

in defendant's imprisonment far exceeding the

period ordinarily permitted." 574 P.2d at 1001.

This Court is aware of the financial burden placed on

the counties and the State by the criminal justice system.

We do not disagree with the proposition of reimbursement to

the State. On the contrary, we applaud the trial judge for

his efforts. However, we feel that recoupment provisions

should be made to operate with considerations given to

ability to repay, and in the event of default, the penalty

should be a form of civil liability rather than possible

criminal sanctions. Recoupment is not a magic word, and it

may be possible and desirable to perfect a system outside

that kind of legislation.

The judgment of the deferred imposition of sentence is

remanded to the District Court with instructions to vacate

the repayment of attorney fees condition complained of and

enter its order accordingly.

We concur:

FA^ J,%@4&

Chief Justice