                                                                                            January 22 2013


                                           DA 12-0233

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 8N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CATHERINE JOSEPHINE ACORD,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-2011-191
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schultz, Assistant
                        Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Andrew Paul, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: November 21, 2012

                                                                Decided: January 22, 2013




Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Catherine Josephine Acord (Acord) appeals from her conviction of felony

Criminal Possession of Dangerous Drugs in the Fourth Judicial District Court, Missoula

County. Acord argues that she was illegally ordered to pay an $800 public defender fee

as part of her sentence. We affirm.

¶3     Acord was charged with Criminal Possession of Dangerous Drugs on May 16,

2011. She pled no contest pursuant to a plea agreement on December 6, 2011. The plea

agreement was filed with the court, which recommended an eighteen-month deferred

sentence and imposition of $1,080 in fines and fees. One of the assessed fines and fees

was an $800 public defender fee.

¶4     A presentence investigation report was completed for the court. Among other

things, the presentence report noted that Acord lived rent free with her father, received

$200 a month in food stamps, and planned to apply for Social Security Disability. The

report also indicated that Acord was currently unemployed and had significant debts for

medical bills, student loans, and outstanding court fines and fees.

¶5     At the sentencing hearing on February 7, 2012, Acord’s attorney asked the court to

waive the public defender fee due to her inability to pay. The court discussed Acord’s

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financial status and income potential with her attorney and the prosecuting attorney. The

judge agreed to waive a $100 fine recommended by the plea agreement, but refused to

waive the public defender fee. The judge explained, “[T]hat will reduce her exposure to

$930. . . . [T]hat’s about $50 a month if she gets on it. So that’s not completely out of

reach, I don’t think, even for somebody that’s disabled.” The judge encouraged Acord to

do the best that she could to pay the fine. He told her that he would not revoke her

sentence, however, if she was unable to make the payments.

¶6     Acord argues on appeal that the District Court’s inquiry into her ability to pay the

public defender fee was insufficient. Acord also argues that the court’s imposition of that

fee was illegal because the court failed to issue an affirmative finding that she is or will

be able to pay those costs. We review criminal sentences of one year of incarceration or

more for legality only. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212.

We review de novo whether a district court adhered to the applicable sentencing

provisions. Moore, ¶ 10.

¶7     A sentencing court may order a defendant who pleads guilty to a felony prior to

trial to pay $800 for the costs of assigned counsel. Section 46-8-113(1)(a)(ii), MCA.

The court may only sentence a defendant to pay the public defender fee, however, if the

defendant is or will be able to pay those costs. Section 46-8-113(4), MCA. Accordingly,

a sentence that imposes a public defender fee is illegal if the court does not make an

affirmative finding that the defendant is able to pay the fee. State v. Starr, 2007 MT 238,

¶ 10, 339 Mont. 208, 169 P.3d 697.



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¶8     Our review of the record convinces us that the District Court complied with the

requirements set forth in § 46-8-113, MCA. Upon Acord’s request, the court engaged in

a discussion during the sentencing hearing as to whether she could pay the public

defender fee.      The court considered the statements made at sentencing and the

information in the presentence report, including Acord’s income, living situation, debts,

and Social Security Disability application.       The District Court made an affirmative

finding that Acord could pay the fee when it determined that $50 a month was “not

completely out of reach, I don’t think, even for somebody that’s disabled.” Moreover,

Acord agreed to imposition of the public defender fee by signing the plea agreement.

Acord’s sentence was not illegal.

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

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. The issues are clearly controlled by settled Montana law. We

find no reason in fact or law to disturb the District Court’s order.

¶10    Affirmed.


                                                          /S/ Mike McGrath

We Concur:

/S/ Patricia O. Cotter
/S/ Brian Morris
/S/ Michael E Wheat
/S/ Jim Rice




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