                                                                                              April 23 2013


                                          DA 12-0218

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 105


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ASHLI LEE MACDONALD,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 11-145
                       Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant
                       Attorney General; Helena, Montana

                       Fred Van Valkenburg, Missoula County Attorney; Susan Boylan, Deputy
                       County Attorney; Missoula, Montana


                                                   Submitted on Briefs: February 13, 2013
                                                              Decided: April 23, 2013



Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    Ashli MacDonald appeals the judgment and sentence of the Fourth Judicial

District Court, following her convictions for two felonies—assault of a minor and

aggravated assault—arising from incidents involving her infant son, John Doe.

MacDonald raises two issues on appeal:

¶2    1. Did the District Court err by ordering a change in parenting arrangements for
John Doe as part of the criminal sentence, despite pending dependency and neglect
proceedings?

¶3   2. Did the District Court err or exceed statutory mandates by ordering
MacDonald to pay fees, costs and surcharges without inquiring into her ability to pay?

¶4    We affirm, but remand for the District Court to strike a portion of its written

judgment.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶5     On March 3, 2011, Ashli MacDonald brought her seven-week-old son, John Doe,

to the Community Medical Center in Missoula, Montana, due to swelling and bruising in

his upper right leg.    She was accompanied by her boyfriend, Pete Lapham.             An

examination revealed that John Doe sustained a fracture to his upper right femur. Based

on suspicion of “non-accidental trauma,” the doctor conducted a routine skeletal survey

of John Doe, which revealed an older, already healing fracture in his right humerus.

¶6    MacDonald and Lapham were directed to the police station and separately

interviewed. MacDonald initially indicated that she was unaware of any potential causes

of her son’s injuries. After a break in the interview, however, she stated that she had

recently become frustrated with John Doe when he was crying, grabbed him by his right

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leg, jerked him up, and flipped him over. At that point, his crying changed to a “pain

cry” and she knew that she had hurt him. She described another instance when she had

become similarly irritated with John Doe’s crying and jerked his right arm. At her

December 2011 jury trial, MacDonald testified that she had lied in her earlier statement

because she wanted to “get out of there quicker” and return to the hospital to be with

John Doe. She testified that Lapham, rather than she, was responsible for John Doe’s

injuries. The jury convicted MacDonald of assault on a minor and aggravated assault,

both felonies.

¶7     The District Court ordered a pre-sentence investigation report, which was prepared

and filed with the court on January 24, 2012. The court held a sentencing hearing on

February 8, 2012. Andrew Cox, John Doe’s father, appeared at the hearing and testified

that he was concerned about John Doe’s safety and care based on MacDonald’s assault

convictions and his observation that John Doe was often filthy and hungry while in

MacDonald’s custody. Asked by the court about his preferred residential arrangement,

Cox stated that John Doe should live primarily with him and that MacDonald should be

permitted supervised visitation.      MacDonald’s counsel noted that the parenting

arrangements were being considered in MacDonald’s dependency and neglect companion

case and suggested that the court await the outcome of those proceedings, rather than

decide the issue at sentencing. The District Court stated that it would “defer to the

dependent neglect matter,” but, “in the interim, we’ll place the child with the father, and

we’ll order that the mother be given supervised visitation of three days per week, but, not


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overnight.” At the close of the hearing, the court ordered MacDonald to deliver John

Doe to Cox by 3:00 that afternoon.

¶8    In its February 15, 2012, written judgment, the District Court sentenced

MacDonald to five years at the Montana Women’s Prison for the assault on a minor

conviction and fifteen years in prison for the aggravated assault conviction, to be served

concurrently, with both sentences suspended. The court also ordered MacDonald to pay

fines, fees and surcharges, including prosecution and defense costs, summing $1,060 in

total. The court recorded no findings regarding MacDonald’s financial situation. The

judgment did not reflect that the court had inquired into MacDonald’s ability to pay the

fines, fees and surcharges, nor was the issue of MacDonald’s financial ability raised by

her counsel. The judgment identified three reasons for the sentence imposed:

          1. The sentence takes into account the pre-sentence report.
          2. The Court has considered the nature of the offense against the child
             and the injuries suffered by the child.
          3. It is the Court’s opinion that the burden has now shifted and it’s on
             the mother to show that she should have unsupervised night
             visitation with the child. All presumptions are now that the father
             should have legal custody of the child unless the mother can show
             that she can provide a safe environment without any temper
             problems.

MacDonald appeals the judgment.

                              STANDARD OF REVIEW

¶9    We review “a criminal sentence for legality to determine whether the sentence is

within the statutory parameters.” State v. Starr, 2007 MT 238, ¶ 7, 339 Mont. 208, 169

P.3d 697 (citing State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892).

When suspending “all or a portion of execution of sentence,” the district court may
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impose “reasonable restrictions or conditions considered necessary for rehabilitation or

for the protection of the victim or society.” Section 46-18-201(4)(p), MCA. We review

the imposition of sentencing conditions for an abuse of discretion. State v. Zimmerman,

2010 MT 44, ¶ 13, 355 Mont. 286, 228 P.3d 1109 (citing State v. Ashby, 2008 MT 83,

¶ 9, 342 Mont. 187, 179 P.3d 1164). We may review a criminal sentence “if it is alleged

that such sentence is illegal or exceeds statutory mandates, even if no objection is made at

the time of sentencing.” State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000

(1979).

                                      DISCUSSION

¶10 1. Did the District Court err by ordering a change in parenting arrangements for
John Doe as part of the criminal sentence, despite pending dependency and neglect
proceedings?

¶11    MacDonald argues that the District Court improperly altered and placed conditions

on the parenting arrangements for John Doe during sentencing. She points out that the

District Court changed custody—a civil matter with statutorily mandated procedures—in

a criminal proceeding “without notice and without the presence of the attorney

representing [MacDonald] in the companion case.” Although the civil case subsequently

restored MacDonald’s custody of John Doe, MacDonald suggests the issue is not moot

because the conditions imposed on the restoration of her custody could be misunderstood

as applying throughout the course of her fifteen-year sentence. In particular, the “burden-

shifting” language in the order could be “subject to misinterpretation as a judicial finding

of fact and/or law of the case subject to judicial notice in any future civil proceedings.”

As relief, she requests that this Court “strik[e] from the Judgment the above noted
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reference to burden-shifting and a presumption that Cox should have legal custody of

John Doe.”

¶12    Because MacDonald has regained custody of John Doe through the civil

proceeding, we agree with the State that “her claim regarding the district court’s

imposition of an emergency condition concerning the temporary custody of the young

victim is moot” because it presents no actual controversy. See Serena Vista, L.L.C. v.

State Dep’t of Nat. Resources & Conserv., 2008 MT 65, ¶ 14, 342 Mont. 73, 179 P.3d

510 (“[A] case will become moot for the purposes of an appeal where by a change of

circumstances prior to the appellate decision the case has lost any practical purpose for

the parties, for instance where the grievance that gave rise to the case has been

eliminated[.]”) (internal quotation marks and citation omitted). During the sentencing

hearing, the District Court acknowledged that custody of John Doe was being addressed

in the pending abuse and neglect case and stated that it would defer to that decision. The

court made clear that its order transferring custody to Cox was to be effective only

“during the interim” for the purpose of protecting John Doe. Since the companion civil

case has now been decided, the “interim” custody arrangement provided in the sentencing

order no longer has any effect.

¶13    We do agree with MacDonald, however, that the statement in the court’s written

judgment that the father should be presumed to have custody of John Doe should not

have been included in the criminal sentence. The court recognized that custody of the

child would be determined in the civil case, and it imposed no conditions on

MacDonald’s suspended sentence relating to her contact with the child, except that she
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comply with all recommendations in the treatment plan by Child and Family Services.

The third statement in the court’s reasons for judgment, while not stated as a condition of

the sentence, could be construed as a finding or conclusion with implications for any civil

custody proceeding, despite the court’s professed intent not to make any such

determination in the criminal case. Accordingly, the third statement of reasons for the

sentence has no place in the judgment and must be stricken.

¶14 2. Did the District Court err or exceed statutory mandates by ordering
MacDonald to pay fees, costs and surcharges without inquiring into her ability to pay?

¶15    MacDonald acknowledges that she did not object to the District Court’s failure to

inquire into her ability to pay the fees, costs and surcharges and thus did not preserve the

issue for appeal. She points out, however, that this Court may review any sentence that

allegedly is “illegal or exceeds statutory mandates, regardless of whether an objection

was made,” as discussed in Lenihan. She suggests that the “Lenihan exception may be

invoked here” because the District Court’s failure to inquire into MacDonald’s ability to

pay the fees “results in an illegal sentence that may not fall within statutory parameters.”

See Lenihan, 184 Mont. at 343, 602 P.2d at 999-1000. Based on our holding in Kotwicki,

we disagree with MacDonald’s argument.

¶16    We have on numerous occasions recognized that “a sentencing court’s failure to

abide by a statutory requirement rises to an objectionable sentence, not necessarily an

illegal one that would invoke the Lenihan exception.” Kotwicki, ¶ 13; see e.g. State v.

Swoboda, 276 Mont. 479, 482, 918 P.2d 296, 298 (1996); State v. Park, 2008 MT 429,

¶ 19, 347 Mont. 462, 198 P.3d 321; State v. Jones, 2008 MT 440, ¶ 16, 347 Mont. 512,

                                         7
199 P.3d 216 (overruled in part on other grounds, State v. Allen, 2010 MT 214, ¶ 35, 357

Mont. 495, 241 P.3d 1045).

¶17    In Kotwicki, we held that the sentencing court’s failure to inquire into the

defendant’s financial circumstances prior to imposing fees, as required by statute, renders

the sentence objectionable, but not illegal. Kotwicki, ¶¶ 21-22. After Kotwicki was

convicted of five felonies, the sentencing court imposed fees summing $25,000, but

failed to conduct an inquiry into the defendant’s ability to pay, as required by § 46-18-

231(3), MCA.      Kotwicki did not object before the district court, but appealed the

sentencing decision, arguing that the sentence was illegal and that the Lenihan exception

applied. We noted that the record indicated Kotwicki had maintained employment as a

construction worker for years and possessed a large sum of cash, but it was impossible to

tell whether the court actually had considered those factors because it “made no specific

findings as to Kotwicki’s ability to pay.” Kotwicki, ¶ 21. We also noted that the fines did

not exceed the statutory parameters because the district court was authorized by statute to

impose a fine of up to $50,000 for each felony offense. Kotwicki, ¶ 16. We held that

“Kotwicki’s failure to object to the court’s oversight of Kotwicki’s ability to pay the

$25,000 fine constituted a waiver that prevents us from reviewing the issue on appeal.”

Kotwicki, ¶ 22.

¶18    We disagree with MacDonald’s suggestion that our holding in Kotwicki is limited

to circumstances where the record reflects the defendant’s ability to pay. Our holding

was explicitly based on the assumption “that the court failed to consider Kotwicki’s

financial condition.” Kotwicki, ¶ 21. Moreover, here, as in Kotwicki, information about
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the defendant’s financial circumstances was available for the District Court’s

consideration: the pre-sentence investigation report listed MacDonald’s employment

status, income, financial assets, and debts.      MacDonald’s failure to object to any

oversight by the court regarding her financial condition constituted a waiver of her claim

on appeal. Kotwicki, ¶ 22.

¶19    MacDonald’s reference to Starr is misplaced. There, the district court rejected the

pre-sentence investigation report’s recommendation of a $3,000 fine on its express

finding that the defendant would not be able to pay it, but—in contradiction to that

finding—then ordered Starr to pay more than $2,000 for fees of assigned counsel. Starr,

¶¶ 5, 8. Under those circumstances, we held that the sentence was illegal “[a]bsent an

affirmative finding of Starr’s ability to pay the attorney’s fees.” Starr, ¶ 10. There is no

mention in Starr of any failure by the defendant to object to the imposition of defense

costs; thus, whether the claim was waived was not an issue on appeal.

¶20    As discussed, MacDonald has not made a “colorable claim” that her sentence was

illegal. There is no indication that the imposition of fees totaling $1,060 fell outside of

statutory parameters. The fees are authorized by law and the District Court could have

imposed a fine up to $50,000 for the aggravated assault conviction. Section 45-5-202(2),

MCA. At sentencing, the District Court considered a pre-sentence investigation report

that detailed MacDonald’s financial circumstances and provided an itemized list of

applicable fees. The District Court acted within its discretion in imposing fees and we

decline to consider MacDonald’s claim absent objection before the sentencing court.

Kotwicki, ¶ 21.
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¶21    For the foregoing reasons, we affirm the judgment of the District Court. The case

is remanded with instructions to the District Court to strike the language identified as the

third numbered paragraph of its reasons for judgment.



                                                 /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ BRIAN MORRIS




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