                                                                                             August 25 2015


                                          DA 13-0840
                                                                                            Case Number: DA 13-0840

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 252N


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

WANDA MARDELLA VANGILDER,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Sixteenth Judicial District,
                       In and For the County of Custer, Cause No. DC-2013-12
                       Honorable Michael B. Hayworth, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender, David Dennis, Assistant
                       Appellate Defender, Jennifer Hurley, Assistant Appellate Defender;
                       Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General; Helena, Montana

                       Wyatt Glade, Custer County Attorney; Miles City, Montana




                                                    Submitted on Briefs: April 8, 2015
                                                               Decided: August 25, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea 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     Wanda VanGilder appeals from an order of the Sixteenth Judicial District Court,

Custer County, deferring the imposition of a sentence and imposing fees and a fine

totaling $710. The issue on appeal is whether the District Court properly inquired into

the defendant’s ability to pay prior to imposing fees and a fine. We reverse and remand.

¶3     After entering into a plea agreement with the State, VanGilder pled guilty to

felony criminal endangerment. The plea agreement stated:

       The Defendant will pay the following administrative fees totaling $80.00:

           a. $20 per felony/$15 per misdemeanor conviction as mandated by
              § 46-18-236(1)(a), MCA[;]

           b. $10 per count court automation fee mandated by § 3-1-317, MCA;
              and[]

           c. $50 per count as mandated by § 46-18-236(1)(c), MCA.

The plea agreement also stated, “At the time of sentencing, the Defendant shall pay

$100.00 for prosecutor fees, pursuant to § 46-18-232(2), MCA.” The plea agreement

provided that the District Court was not bound by the agreement, and the parties could

argue for whatever disposition they felt appropriate.



                                             2
¶4     The testimony at trial and the information in the presentence investigation (PSI)

revealed that VanGilder completed nine grades of school and has a GED, suffers from

various ailments, and is disabled. Her sole source of income is $629 in social security

disability benefits and $289 from Temporary Assistance for Needy Families (TANF) for

her teenage daughter.     She has $2,700 in assets and $120 monthly debt payments.

VanGilder is the sole source of support for herself and her daughter.

¶5     At sentencing, the State recommended a fine in order to make VanGilder eligible

for a deferred sentence longer than three years.1 Acknowledging that the District Court

might be unwilling to impose a fine given VanGilder’s limited finances, the State

recommended a fine of $1,000, but mentioned the possibility of suspending the fine.

¶6     VanGilder’s counsel pointed out that VanGilder is indigent and lives on a very

limited income to support two people. Counsel asked that all fines and fees be waived

because of VanGilder’s inability to pay.

¶7     In its oral pronouncement of sentence, the District Court stated:

       I do require as punishment a $500 fine, and all the conviction surcharges
       that ordinarily apply. I impose the supervision fees, the monthly
       supervision fees, and the $100 prosecutor fee that is required as part of the
       plea agreement. I will waive the $800 court-appointed counsel fee and the
       $50 PSI fee.

In its written order, the District Court sentenced VanGilder to a five-year deferred

sentence and ordered her to pay monthly supervision fees and the following fine and fees:

       1. $500 fine under § 46-18-231(1)(a), MCA;
       2. $50 felony-conviction surcharge under § 46-18-236(1)(b), MCA;

1
 A sentence longer than three years can only be deferred if a financial obligation is imposed.
Section 46-18-201(1)(a)(i) to (ii), MCA.
                                             3
       3. $50 Victim Advocate fee under § 46-18-236(1)(c), MCA;
       4. $10 Court Information Technology fee under § 3-1-317(1)(a), MCA;
          and
       5. $100 cost-of-prosecution fee under § 46-18-232(1), MCA.

The District Court’s written order also stated:

       The Court specifically finds that based on review of the Defendant’s
       financial resources and obligations, including the requirement for
       Vocational Rehabilitation, as well as the adjustments to financial
       obligations made herein, the Defendant is able to meet the financial
       obligations imposed herein, including the fine and surcharges, reasonably
       and without undue hardship.

¶8     VanGilder appeals the imposition of the fine and fees.

¶9     We review for legality a criminal sentence that imposes over one year of

incarceration. State v. Gunderson, 2010 MT 166, ¶ 38, 357 Mont. 142, 237 P.3d 74. We

review de novo whether the court adhered to the applicable sentencing statutes. State v.

McMaster, 2008 MT 268, ¶ 20, 345 Mont. 172, 190 P.3d 302.

¶10    Section 46-18-231, MCA, allows the court to impose a fine on the defendant

subject to the following restriction:

       The sentencing judge may not sentence an offender to pay a fine unless the
       offender is or will be able to pay the fine. In determining the amount and
       method of payment, the sentencing judge shall take into account the nature
       of the crime committed, the financial resources of the offender, and the
       nature of the burden that payment of the fine will impose.

Section 46-18-231(3), MCA.

¶11    Section 46-18-232, MCA, imposes an identical restriction on the court’s authority

to impose costs, stating:

       The court may not sentence a defendant to pay costs unless the defendant is
       or will be able to pay them. In determining the amount and method of
                                             4
       payment of costs, the court shall take into account the financial resources of
       the defendant, the future ability of the defendant to pay costs, and the nature
       of the burden that payment of costs will impose.

Section 46-18-232(2), MCA.

¶12    In arguing that the District Court erred by imposing the fine and fees without

taking into account the nature of the burden that payment will impose upon her,

VanGilder points to the identical restrictions of § 46-18-231(3), MCA, and

§ 46-18-232(2), MCA, which provide that the court may not sentence a defendant to pay

costs or fines unless the defendant is or will be able to pay them. The statutes further

require that, in determining the amount and method of payment, the sentencing judge

“shall take into account . . . the financial resources of the [offender/defendant], and the

nature of the burden that payment of [the fine and costs] will impose.” VanGilder argues

that determining her ability to pay and the nature of the burden of payment of the fine and

fees requires the District Court to consider more than just her monthly income, assets,

and debts. VanGilder argues that in order to determine “the nature of the burden that

payment of [the fine and costs] will impose,” the court need also consider her monthly

expenses and how payment of the fine and fees would affect her ability to provide for

herself and her daughter. We agree.

¶13    The statutes expressly require that a sentencing judge determine “the nature of the

burden that payment of [the fine and costs] will impose.” This determination cannot be

made in a vacuum.        The imposition of fines and costs would obviously be less

burdensome on an individual supporting only herself than it would be on a similarly

situated individual supporting herself and a child. The purpose of the restrictions the
                                             5
legislature has placed on the imposition of fines and costs is apparent—a defendant may

not be ordered to meet impossible financial obligations.         Therefore, the court must

ascertain the defendant’s ability to pay, including a review of the defendant’s financial

resources and any burdens imposed by repayment, before imposing fines and costs.

¶14    The State argues that the felony-conviction surcharge imposed under § 46-18-236,

MCA, is subject to restriction only if the court determines that the defendant is unable to

pay the felony fine upon which the surcharge is based. The State argues that since the

District Court determined that VanGilder was able to pay the $500 felony fine, the court

was permitted to impose the surcharge. The problem with the State’s argument in this

regard is that the District Court determined VanGilder’s ability to pay the $500 felony

fine without any inquiry regarding the nature of the burden payment would impose, as

required by the identical language set forth in §§ 46-18-231(3) and -232(2), MCA.

¶15    The requirement that a sentencing court determine the defendant’s ability to pay

and the nature of the burden the financial obligation would impose demands more than

simply noting some information about the defendant’s income, assets, and debts. In State

v. McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126, we reversed and remanded for a

determination of the defendant’s ability to pay. McLeod, ¶ 35. There, the defendant’s

PSI indicated that the defendant earned approximately $600 per month, his only major

asset was a motorcycle valued at $2,500, and he owed approximately $5,700 in back

child support. McLeod, ¶ 32. The district court imposed a $1,000 fine, and McLeod

appealed, arguing that the district court did not sufficiently inquire into his ability to pay

the fine. McLeod, ¶ 28. Although it was clear that the district court had taken the
                                              6
financial information from the PSI into account when it imposed the fine, we reversed

and remanded because the record “[did] not demonstrate a serious inquiry or separate

determination, as required by § 46-18-231(3), MCA, into the ability of McLeod to pay

the fine nor inquiry into his financial resources or the nature of the burden that the $1,000

fine would impose.” McLeod, ¶¶ 34-35.

¶16    The record in this case similarly does not reflect an inquiry into VanGilder’s

ability to pay or the nature of the burden the financial obligations would impose. The

District Court’s conclusory statement that “the Defendant is able to meet the financial

obligations imposed herein, including the fine and surcharges, reasonably and without

undue hardship” is insufficient to demonstrate the necessary “serious inquiry.” The

record shows no consideration of how much money VanGilder needs in order to afford

necessities for herself and her daughter or the nature of the burden the fine and fees

would impose on her. Although VanGilder has $2,700 in assets, her assets include a car,

a television, and a laptop computer, rather than savings that could easily be drawn on to

pay the fine and fees. There is also no mention of how much money VanGilder needs to

provide housing, food, clothing, and other essentials for herself and her daughter.

Without such information, it is impossible to know “the nature of the burden” the fine

and fees would impose or VanGilder’s ability to pay them. At a minimum, a serious

inquiry requires that the sentencing court determine whether and to what extent fines and

fees will affect the defendant’s ability to provide for herself and her dependent.

¶17    The State argues that VanGilder agreed to pay at least $180 of the fees in the plea

agreement. VanGilder counters that despite the costs being listed in the plea agreement,
                                             7
the agreement also stated that “[t]he Parties may argue for any disposition they feel

appropriate.” She further contends that she argued to the District Court in a presentence

memorandum and at the sentencing hearing that the fees and fine should be minimal or

waived because of her limited finances, and the State never argued to the District Court

that she was bound to pay the fees listed in the plea agreement.

¶18    VanGilder is correct that the plea agreement stated, “The Parties may argue for

any disposition they feel appropriate.” However, regarding the $180 in fees to which the

State argues VanGilder agreed, the plea agreement stated:

       The Defendant will pay the following administrative fees totaling $80.00:

          a. $20 per felony/$15 per misdemeanor conviction as mandated by
             § 46-18-236(1)(a), MCA[;]

          b. $10 per count court automation fee mandated by § 3-1-317, MCA;
             and[]

          c. $50 per count as mandated by § 46-18-236(1)(c), MCA.

                                         .   .   .

       [] At the time of sentencing, the Defendant shall pay $100.00 for prosecutor
       fees, pursuant to § 46-18-232(2), MCA, made payable to the Clerk of
       District Court.

(Emphasis added.) We do not agree with VanGilder’s argument that she was not bound

by her agreement that she “will pay” the $80 in administrative fees, and she “shall pay”

the $100 prosecutor fee. Notwithstanding the language that provided she was free to

argue for any disposition she felt was appropriate, the language concerning these fees was

mandatory and unambiguous. She therefore is bound by her agreement as it pertains to

these fees.
                                             8
¶19   Excluding the $180 in fees to which VanGilder expressly agreed, the District

Court was required to determine VanGilder’s ability to pay the fine and fees imposed and

the nature of the burden they would impose on her. The District Court could not make

that determination without knowing how the fine and fees would impact VanGilder’s

ability to provide basic necessities for herself and her daughter. Accordingly, we reverse

the sentence and remand for further proceedings to determine VanGilder’s ability to pay

and the nature of the burden the fine or fees imposed would place on her.

¶20   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, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were incorrect, except for its imposition of the amounts VanGilder

agreed to pay in the plea agreement. Reverse and remanded.


                                                /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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