                                                                                               04/28/2020


                                          DA 19-0118
                                                                                           Case Number: DA 19-0118

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 106N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

LAWRENCE STEPHEN CHAIN,

               Defendant and Appellant,


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC-17-415D
                       Honorable Dan Wilson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Lane K. Bennett, Attorney at Law, Kalispell, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Hannah E. Tokerud, Assistant
                       Attorney General, Helena, Montana

                       Travis R. Ahner, Flathead County Attorney, Kalispell, Montana




                                                   Submitted on Briefs: January 15, 2020

                                                               Decided: April 28, 2020


Filed:

                                 0,-_6..-if
                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

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

Rules, we decide this case by memorandum opinion. It shall not be cited and does not

serve as precedent. Its 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     In 2017, Lawrence Stephen Chain accidentally rear-ended another vehicle while

waiting in a fast food drive-through line with his young son buckled in his vehicle. Upon

a determination that his blood at the time included an illegal level of the active chemical

ingredient in marijuana (THC), Chain pled guilty under a plea agreement to criminal child

endangerment, a felony in violation of § 45-5-628, MCA. The District Court ultimately

imposed a three-year suspended commitment to the Montana Department of Corrections

(DOC) and a $30,000 fine, with various statutory fees and charges, payable in full within

one year. Chain appeals the $30,000 fine, and resulting $3,000 felony surcharge, on the

asserted grounds that the court erroneously failed to adequately consider his ability to pay

and that the fine was in any event disproportionate in violation of the excessive fines clause

of the Eighth Amendment to the United States Constitution. We affirm.

¶3     Upon Chain’s guilty plea, DOC conducted a presentence investigation and filed a

report (PSI) as required by § 46-18-111, MCA. Based on information provided by Chain,

the PSI reported that he had an annual income of $360,000 from his wildland firefighting

and woodstove businesses and that he had $1,009,000 in assets, including two boats and

two homes, with secured debts totaling $260,000. Inter alia, the PSI recommended a
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$5,000 fine. However, citing Chain’s prior history of driving under the influence, a net

worth of almost $750,000, a gross annual income in excess of $350,000, and its conclusion

that he could “easily pay” a larger fine, the court instead imposed a $30,000 fine. Chain

did not contemporaneously object to the amount of the fine or the adequacy of the court’s

consideration of his ability to pay.

¶4     About two hours after the close of the sentencing hearing, defense counsel moved

the court to consider supplemental testimony from Chain’s wife regarding his ability to pay

the imposed fine and related charges. Subject to reservation about its authority to do so,

the court then heard the proffered supplemental testimony. Chain’s wife testified that she

handled their finances and that the $360,000 annual income figure listed in the PSI was

“not accurate” because it represented Chain’s 2017 “gross income,” rather than his net

income. Asserting that 2017 had been “a very atypical year” for his firefighting business,

she asserted that his typical gross income was closer to $80,000 per year. She testified

further that they had yet to determine their 2016 and 2017 income tax obligations, and thus

could not yet more accurately state Chain’s actual net income for those years. She further

claimed that Chain’s assets were encumbered by significantly more debt than reported in

the PSI and that their secondary residence was then listed for sale due to difficulty in

servicing their debt. Her testimony further revealed that they also owned a third, previously

undisclosed, boat purchased for $58,000 from Chain’s earnings. She testified that they

titled the third boat in her name for various reasons including, inter alia, the need to shield

it from Chain’s creditors and unspecified pending “legal things.” After hearing the
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testimony, the court denied Chain’s motion to revise the original fine on the stated grounds

that it lacked the authority to subsequently amend the original sentence and that the wife’s

supplemental testimony was in any event not credible, if not deceptive.

¶5     We review criminal sentences only for constitutional and statutory legality (i.e.,

compliance with constitutional and statutory parameters and affirmative statutory

requirements). State v. Coleman, 2018 MT 290, ¶ 8, 393 Mont. 375, 431 P.3d 26; State v.

Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502; State v. Montoya, 1999 MT

180, ¶ 15, 295 Mont. 288, 983 P.2d 937.               As a general rule, a defendant must

contemporaneously object to preserve assertions of sentencing illegality for appeal. State

v. Ashby, 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 (citing State v. Kotwicki, 2007

MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892). The failure to contemporaneously object

generally   effects     a   waiver   for   purposes     of   subsequent   appellate   review.

Section 46-20-104(2), MCA; State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d

1244; Kotwicki, ¶ 22.

¶6     However, as a narrow, sentence-specific exception to the general contemporaneous

objection/waiver rule, we will review assertions raised for the first time on appeal that a

sentence is either facially illegal (i.e., not authorized by statute or in excess of statutory

authorization) or facially legal but authorized by a facially unconstitutional statute. State

v. Coleman, 2018 MT 290, ¶¶ 7-9, 393 Mont. 375, 431 P.3d 26; Parkhill, ¶ 16; Kotwicki,

¶ 8; State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 1000 (1979). By definition,

the Lenihan exception does not apply to sentences that that are not facially illegal, or
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imposed pursuant to a facially unconstitutional statute, but alleged to be nonetheless illegal

due to failure to comply with affirmative statutory requirements or imposed pursuant to a

statute that is unconstitutional as applied. E.g., Coleman, ¶¶ 7-11 (Lenihan not applicable

to constitutional challenge to no-cell phone/internet access sex offense condition);

Parkhill, ¶ 16; (Lenihan not applicable to constitutional challenge to no-contact PFMA

condition); State v. Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638 (Lenihan

not applicable to facially legal restitution obligation challenged due to insufficient

documentation); State v. Strong, 2009 MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848

(Lenihan applicable to facial equal protection challenge of sentencing statute but not

as-applied challenge); Kotwicki, ¶¶ 8-22 (Lenihan not applicable to facially legal fine

challenged due to failure to adequately consider ability to pay—distinguishing State v.

McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126); State v. Nelson, 274 Mont. 11, 17-20,

906 P.2d 663, 666-68 (1995) (Lenihan not applicable to facially legal sentence challenged

due to failure to properly consider non-violent offender status).1

¶7     The maximum penalty authorized for criminal child endangerment is 10 years in

prison, a $50,000 fine, or both. Section 45-5-628(3), MCA. However, a sentencing court



1
  Distinct from the sentence-specific Lenihan exception, the common law plain error doctrine is a
separate and generally applicable exception to the contemporaneous objection/waiver rule. See
State v. Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612; State v. Lawrence, 2016 MT
346, ¶ 9, 386 Mont. 86, 385 P.3d 968. We generally will not apply the plain error exception in the
sentencing context in circumvention of the Lenihan exception. Coleman, ¶ 12; State v. Robertson,
2015 MT 266, ¶¶ 12-13, 381 Mont. 75, 364 P.3d 580; State v. Mainwaring, 2007 MT 14, ¶ 20,
335 Mont. 322, 151 P.3d 53. Chain did not seek plain error review here.

                                                5
may not impose an otherwise authorized fine “unless the offender is or will be able to pay

the fine.” Section 46-18-231(1), (3), MCA. “In determining the amount and method of

payment” of a fine, the court “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. Upon conviction of a felony, sentencing

courts must additionally impose a surcharge of “the greater of $20 or 10% of the fine

levied” unless the offender is unable to pay, or unable to pay within a reasonable time,

upon consideration of the ability to pay as required under § 46-18-231(3), MCA.

Section 46-18-236(1)(b), (2), MCA.

¶8     Here, Chain did not contemporaneously object at the sentencing hearing to the

amount of the fine imposed or the adequacy of the court’s manifest consideration of his

ability to pay under § 46-18-231(3), MCA. The $30,000 fine, and resulting felony

surcharge, were expressly authorized by statute and neither exceeded statutorily authorized

amounts. As in Nelson and Kotwicki, rather than a facial challenge to the statutory legality

of his sentence, Chain’s assertion that the District Court failed to adequately consider his

ability to pay as required by §§ 46-18-231(3) and -236(2), MCA, is an indirect challenge

based on alleged non-compliance with a statutory prerequisite for the fine. Similarly, as in

Coleman and Parkhill, his assertion that the fine was in any event disproportionate in

violation of the Eighth Amendment to the United States Constitution is essentially an

as-applied constitutional challenge rather than a facial challenge to the authorizing statute.

Accordingly, we hold that the narrow Lenihan exception does not apply to Chain’s
                                              6
assertions of sentencing illegality and that he thus waived them by failing to

contemporaneously object at the sentencing hearing. We therefore need not address his

secondary, unsupported assertion that the District Court erroneously concluded that it had

no authority to re-open sentencing to amend its original sentence.

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

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.

¶10    We affirm.


                                                  /S/ DIRK M. SANDEFUR


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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