                                                                                              12/12/2017


                                           DA 16-0675
                                                                                          Case Number: DA 16-0675

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 307N



CHARLES ROCKWOOD HORTON,

              Petitioner and Appellant.

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. DDV 2015-967
                       Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Charles Rockwood Horton, Self-Represented, Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana



                                                   Submitted on Briefs: November 1, 2017

                                                              Decided: December 12, 2017


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Horton appeals from the District Court’s order of October 19, 2016, denying his

motion for remission of the requirement that he pay the costs of the public defender that

represented him. We affirm.

¶3     Horton’s petition relates to his June 2011 conviction of felony driving under the

influence. In October 2011 the District Court sentenced Horton to thirteen months in the

WATCh program followed by a five-year suspended sentence. Since that time Horton

has brought numerous unsuccessful proceedings to this Court attacking some aspect of

his sentence or of subsequent revocations of the suspended sentence. State v. Horton,

No. DA 11-0717, 2012 MT 268N, 2012 Mont. LEXIS 343 (direct appeal of the

conviction); Horton v. Kirkegard, No. OP 15-0653, 382 Mont. 409, 363 P.3d 1146 (table)

(Nov. 17, 2015) (habeas corpus petition attacking the calculation of his parole and

discharge dates); Horton v. First Judicial Dist. Court, No. OP 16-0213, 384 Mont. 551,

384 P.3d 40 (table) (Apr. 19, 2016) (petition for mandamus to compel the district court to

reconsider a prior order that Horton pay costs of appointed counsel); Horton v. State,




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No. OP 16-0228, 384 Mont. 551, 384 P.3d 40 (table) (Apr. 26, 2016) (habeas corpus

petition challenging sentence imposed after revocation of suspended sentence).

¶4    When the District Court sentenced Horton in 2011, a condition of the sentence was

that he repay the costs of representation by the public defender. In 2014 the District

Court revoked Horton’s probation, sentenced him to five years at the Montana State

Prison, and imposed all conditions of the original sentence in 2011, including the

obligation to pay attorney fees. In May 2016 Horton petitioned the District Court to

refund any money he had paid toward that fee obligation and to remove the obligation for

any future payment. The District Court ordered a response from the State and denied

Horton’s petition in an order filed October 19, 2016. Horton appeals, arguing the District

Court abused its discretion when it denied his motion for remission of costs. Horton also

argues that he has a statutory right to have his repayment suspended while he is

incarcerated, pursuant to § 46-8-113(6), MCA, which was not in effect when Horton was

sentenced.

¶5    A district court’s grant or denial of a post-trial motion constitutes a discretionary

ruling, which this Court reviews for abuse of discretion. State v. Griffin, 2007 MT 289,

¶ 10, 339 Mont. 465, 172 P.3d 1123.

¶6    A defendant may file a petition for remission of the payment of costs or unpaid

costs associated with the defendant’s representation. Section 46-8-113(5), MCA. The

sentencing court may reduce all or part of the amount due if it “will impose manifest

hardship on the defendant or the defendant’s immediate family.” Section 46-8-113(5),

MCA. Horton alleges the District Court abused its discretion when it denied his petition

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for remission. He argues that due to his incarceration, he is without resources to pay his

appointed counsel and the District Court failed to make inquiry of his ability to pay these

costs. However, the record shows that the District Court heard evidence during Horton’s

sentencing hearing regarding his ability to pay. The District Court concluded that Horton

had the ability to pay costs because he had assets and the option of working at the

Montana State Prison. Horton asserts on appeal that he is no longer at the Montana State

Prison, but at the Crossroads Correctional Center, which does not have many job

opportunities. He also asserts that he had to sell his house and give his car to a nephew.

These facts were not asserted in the District Court. The District Court did not abuse its

discretion when it denied Horton’s motion for remission.

¶7     We generally do not address issues raised for the first time on appeal. State v.

Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694. Horton raises the

suspended repayment issue for the first time on appeal before this Court. We will not

consider Horton’s claim regarding suspended repayment because it was not raised in the

District Court.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.

                                                 /S/ MIKE McGRATH



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We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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