                                                                                        February 4 2014


                                          DA 12-0618

                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 27



IN THE MATTER OF:

B.W.,

         A Youth.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DJ 12-009
                        Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Kristen L. Larson,
                        Assistant Appellate Defender; Helena, Montana

                For Appellee:

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

                        Scott Twito, Yellowstone County Attorney; Christopher Morris,
                        Deputy County Attorney; Billings, Montana



                                                    Submitted on Briefs: November 13, 2013
                                                               Decided: February 4, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     B.W. appeals a commitment order from the Montana Thirteenth Judicial District

Youth Court, Yellowstone County, which ordered him to pay $78,702.09 in restitution.

We reverse and remand.

¶2     A restatement of the dispositive issue on appeal is:

¶3     Did the Youth Court err in holding B.W. jointly and severally liable for the full

amount of restitution for damages when the State did not establish that B.W. was

criminally liable for the acts of the other youths?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     Between December 22, 2011, and January 1, 2012, the Billings Police Department

responded to over 200 reports of vandalism.           During this period, vandals shot the

windows out of homes and vehicles with air guns, struck vehicles with baseball bats, and

set two cars on fire. Local school resource officers led an investigation that indicated that

B.W., a sixteen-year-old male, had participated in the vandalism.

¶5     On January 23, 2012, the State filed a petition alleging that B.W. was a juvenile

delinquent for having committed the offense of criminal mischief, common scheme, a

felony, in violation of §§ 45-6-101 and 45-2-101(8), MCA. Other youths involved in the

vandalism were charged similarly. B.W. denied the State’s allegations at his initial

appearance. During a change of plea hearing in July, B.W. admitted to having committed

criminal mischief, common scheme. B.W.’s counsel questioned him at the hearing only

about his actions on December 22 and December 29, but specified that the actions were



                                              2
“done in furtherance of a common scheme or as part of an action.” The Youth Court

accepted B.W.’s admission and change of plea.

¶6     On September 12, 2012, the Youth Court held a dispositional hearing. B.W. and

the county attorney presented arguments on the proper amount of restitution. B.W.

admitted to committing acts of vandalism on December 22 and December 29, and stated

that he had no knowledge of the events on the other dates. He argued he should be

accountable only for the amount of restitution from December 22 and December 29,

whereas the State argued he should be accountable for all damages occurring over the

eleven-day period. B.W. argued that:

       [t]he State chose to charge it as they charged it. They could have charged it
       as a common scheme for him for the two nights that he was there, and then
       common scheme by accountability for the nights he was not, and then they
       would have had to have shown that he had knowledge. They charged it
       how they charged it, and we would simply ask that the youth be held
       accountable for those nights to which he was present, aware and
       participated.

¶7     The Youth Court did not inquire into the extent of B.W.’s assets or his prospects

for future earnings. In the youth probation report, the officer noted B.W. was employed

at a local pizzeria, was doing well in school, and had no history of legal troubles. The

report did not provide details concerning B.W.’s hours at the pizzeria or his wages.

¶8     After the hearing, the court entered a dispositional order adjudicating B.W. a

delinquent youth for having committed criminal mischief, common scheme, a felony.

The court also ordered B.W. to “pay restitution in the amount of $78,702.09 . . . in

monthly payments of not less than $150.00 . . . or 50% of his wages whichever is greater,

with the first payment due within 30 . . . days.” The Youth Court retained jurisdiction

                                            3
over B.W. for restitution purposes until his twenty-first birthday. B.W. appeals from the

portion of the dispositional order that ordered him to pay $78,702.09 in restitution. This

figure represents the total damages sustained over the eleven-day vandalism spree.

¶9     B.W. contends on appeal that the only offenses for which restitution was

authorized were B.W.’s direct series of acts of criminal mischief on December 22 and

December 29. B.W. argues that In re K.E.G., 2013 MT 82, 369 Mont. 375, 298 P.3d

1151, a case regarding another Billings youth involved in the same spree of vandalism, is

distinguishable because the parties did not squarely address the applicable law, and that

our decision in K.E.G. “was manifestly wrong in interpreting the felony aggregation

provision of the criminal mischief statute to authorize criminal liability for the direct acts

of others.” B.W. also argues that at a minimum this case must be remanded for a

consideration of his ability to pay restitution.

¶10    The State counters that the Youth Court’s order should be affirmed, that K.E.G. is

directly on point, and that the State did not have to charge B.W. with accountability in

order to recover the aggregate restitution amounts when charging under criminal

mischief, common scheme.            The State argues that B.W. failed to make a

contemporaneous objection concerning the calculation of restitution and thus waived

review of the issue.

                                STANDARD OF REVIEW

¶11    The appropriate measure of restitution is a question of law, which we review for

correctness. K.E.G., ¶ 9.



                                               4
                                      DISCUSSION

¶12    Did the Youth Court err in holding B.W. jointly and severally liable for the full

amount of restitution for damages when the State did not establish that B.W. was

criminally liable for the acts of the other youths?

¶13    As an initial matter, we conclude B.W. did not waive appeal of the restitution

calculations. “A defendant waives an objection and may not seek appellate review when

a defendant fails to make a contemporaneous objection to an alleged error in the trial

court.” State v. Paoni, 2006 MT 26, ¶ 16, 331 Mont. 86, 128 P.3d 1040 (citations

omitted). At the dispositional hearing, B.W. argued he should be held accountable only

for the amount of restitution from December 22 and December 29, and immediately

before the court adjourned, clarified: “And not to be beating a dead horse that has

already left the barn, when he did make his admissions, he only made admissions as to

the two nights.” These statements were sufficient to preserve the issue for appeal.

¶14    We also conclude that K.E.G. is factually indistinguishable from this case. K.E.G.

dealt with a youth involved in the same vandalism spree, and K.E.G., like B.W., argued

he should be liable only for the destruction done on the nights he had participated in the

vandalism. K.E.G., ¶ 11. In K.E.G., we determined that “the Youth Court was statutorily

authorized to impose restitution for the aggregate damages that resulted from that

common scheme during the time period charged” but remanded the case for a

consideration of K.E.G.’s ability to pay restitution. K.E.G., ¶¶ 14, 23. K.E.G. conceded

he was part of a larger common scheme, but argued that he was responsible for restitution

only for damage caused on the two evenings he was involved, and that “the joint and

                                              5
several liability for restitution imposed under the criminal mischief statute should not be

applied to youthful offenders.” K.E.G., ¶ 11. However, K.E.G. did not argue, as does

B.W., that an individual can be held liable for the criminal conduct of another only when

acts of accountability or conspiracy are proven, or that § 45-6-101(4), MCA, does not

allow for aggregate restitution.

¶15    We are mindful “that courts should not lightly overrule past decisions,” but “stare

decisis is not a rigid doctrine that forecloses the reexamination of cases when necessary.”

Certain v. Tonn, 2009 MT 330, ¶ 19, 353 Mont. 21, 220 P.3d 384 (citation omitted).

Reexamination is necessary in this case because both K.E.G. and B.W. adamantly

insisted that they should be liable only for the damage done on the nights they were

present. We see no grounds for any factual distinction between the cases, and we find

B.W.’s arguments, presented here for the first time in this series of vandalism cases, to be

persuasive and dispositive. Thus, to the extent that we held K.E.G. was responsible for

restitution for damages from the entire eleven-day spree, our decision in K.E.G. is

overruled.

¶16    The Montana Youth Court Act states that a youth court may order restitution “in

appropriate cases.”      Section 41-5-102(2)(c), MCA.          When determining whether

restitution is appropriate, the youth court may consider a number of factors, “in addition

to any other evidence.” Section 41-5-1521(1), MCA. Such factors include “the age of

the youth, the ability of the youth to pay, the ability of the parents or guardians to pay, the

amount of damage to the victim, and legal remedies of the victim.” K.E.G., ¶ 12

(citations omitted). Once the youth court determines that restitution is appropriate, it may

                                              6
order the youth to pay restitution “for damages that result from the offense for which the

youth is disposed.” Sections 41-5-1512(1)(d), -1513(1)(a), MCA.

¶17   In this case, as in K.E.G., the Youth Court determined that restitution was

appropriate, and that B.W. was jointly and severally liable pursuant to § 45-6-101(1)(a),

MCA, which provides that a person commits the offense of criminal mischief if the

person knowingly or purposely injures, damages, or destroys any property of another

without consent. B.W. admitted to committing the offense of criminal mischief pursuant

to a common scheme, which is “a series of acts or omissions motivated by a purpose to

accomplish a single criminal objective or by a common purpose or plan that results in the

repeated commission of the same offense.” Section 45-2-101(8), MCA. The “common

scheme” to which he admitted, however, was comprised solely of the two incidents in

which he participated.

¶18   Under Montana criminal law, an individual is responsible for his or her own

conduct. See e.g. §§ 45-2-202, 1-3-211, -217, MCA. One may be responsible for the

conduct of another only in limited circumstances. Section 45-4-102(1), MCA, imposes

criminal liability on a person who has agreed with another to the commission of an

offense.   Sections 45-2-301 and -302, MCA, titled “Accountability for conduct of

another” and “When accountability exists,” describe those circumstances in which

liability may be based upon the conduct of another.           Compiler’s Comments to

§ 45-2-301, MCA, at 157 (2012 Annotations). “A person is legally accountable for the

conduct of another when, either before or during the commission of the offense, and with

the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or

                                            7
attempts to aid another person in the planning or commission of the offense.” State v.

High Elk, 2006 MT 6, ¶ 25, 330 Mont. 259, 127 P.3d 432 (citing § 45-2-302(3), MCA).

The requisite elements for holding a person legally accountable for the conduct of

another under Montana’s accountability statues are that: (1) either before or during; (2)

the commission of an offense; (3) with the purpose to promote or facilitate such

commission; (4) the person solicits, aids, abets, agrees, or attempts to aid such other

person in the planning or commission of the offense. State v. Lyons, 254 Mont. 360, 363,

838 P.2d 397, 399 (quotation marks omitted; citation omitted). Mere presence, or failure

to disapprove or oppose criminal conduct, is an insufficient basis upon which to base a

finding of accountability for the criminal conduct of another. State v. Maetche, 2008 MT

184, ¶ 17, 343 Mont. 464, 185 P.3d 980 (quotation marks omitted).

¶19   This Court has held that accountability is not a separate offense from the crime for

which the actor assumes accountability but “is merely a conduit by which one is held

criminally accountable for the acts of another.” State v. Hatten, 1999 MT 298, ¶ 50, 297

Mont. 127, 991 P.2d 939 (citations omitted). The State is not required to set forth a

theory of accountability in an indictment or information but has the burden of proving

beyond a reasonable doubt the elements of accountability. State v. Tower, 267 Mont. 63,

67-68, 881 P.2d 1317, 1320 (1994); State v. Matz, 2006 MT 348, ¶ 15, 335 Mont. 201,

150 P.3d 367 (“The State has the burden of proving beyond a reasonable doubt every

element of the offense charged, or any lesser-included crime within such charge . . . .”)

(citation omitted); State v. Doyle, 2007 MT 125, ¶ 55, 337 Mont. 308, 160 P.3d 516 (“In

order for the jury to convict Doyle of deliberate homicide by accountability, the jury

                                           8
would have had to conclude that the State met its burden of proof of showing beyond a

reasonable doubt that Doyle: 1) had the purpose to promote or facilitate commission of

deliberate homicide; and 2) had aided or abetted Maestas and Day in the planning or

commission of deliberate homicide.”) (citations omitted); Maetche, ¶ 25 (holding a

reasonable trier of fact could have found beyond a reasonable doubt that Maetche was

accountable for criminal mischief).

¶20    The State did not establish the elements of accountability or conspiracy, and

indeed, maintains that it was not required to do so. The State contends there are other

means by which a person can be held criminally liable for the acts of another, such as

under the felony murder rule.       B.W. distinguishes the felony murder and criminal

mischief statutes, noting the felony murder rule expressly attaches culpability to the

concept of legal accountability. Section 45-5-102(1)(b), MCA (“A person commits the

offense of deliberate homicide if: . . . (b) the person attempts to commit, commits, or is

legally accountable for the attempt or commission of [particular felony offenses] and in

the course of the forcible felony . . . the person or any person legally accountable for the

crime causes the death of another human being.”). The criminal mischief statute, on the

other hand, makes no provision for culpability by accountability.

¶21    In order to hold one accountable for the acts of another, the State must prove the

elements of accountability beyond a reasonable doubt. See Matz, ¶ 15; Doyle, ¶ 55. We

realize this case was resolved without a trial and B.W. pleaded guilty, but the State is still

required to establish accountability for the acts of others if it intends to hold a defendant

jointly and severally liable for damages inflicted by others. The State maintains that

                                              9
establishing accountability in connection with crimes charged under the criminal mischief

statute is unnecessary. We disagree. The criminal mischief statute creates no such

provision or exception.

¶22   The State argues that § 45-6-101(4), MCA, grants the Youth Court authority to

aggregate damages without proving accountability or conspiracy. Section 45-6-101(4),

MCA, allows aggregation of amounts involved in offenses committed pursuant to a

common scheme in determining “pecuniary loss.” The State overstates the import of this

subsection. By its clear terms, the section merely allows amounts involved in criminal

mischiefs committed pursuant to a common scheme to be aggregated “in determining

pecuniary loss.” Section 45-6-101(4), MCA, provides no authority for aggregation for

purposes of assessing joint and several restitution in cases in which proof of

accountability or conspiracy is otherwise absent.

¶23   B.W. is correct that without evidence of accountability or conspiracy, he cannot be

held responsible for the acts of the other youths.         Sections 45-6-101(1)(a) and

45-2-101(8), MCA, do not impose responsibility for the acts of others (see K.E.G., ¶¶ 47,

54 (McKinnon, J., dissenting)), nor does the evidence tend to support both common

scheme and accountability. There is nothing in the record to establish that B.W. aided,

abetted, or conspired in the commission of criminal mischief, common scheme, on nights

he was not present. B.W. did not own the air guns, baseball bats, or car used in the

vandalism. He did not participate in the shooting game or target a victim on the nights he

was not present, and there was no evidence that he aided others in the planning of the

vandalism spree.

                                            10
¶24    B.W. concedes that, given his acquiescence in the Youth Court, he can be held

liable for all damages caused on December 22 and December 29, whether all the damage

resulted from his direct actions or not. Thus, the court was authorized to impose a

restitution order of at most $5,851.12 (the total sum of damages from December 22 and

December 29).

¶25    The Dissent cites § 41-5-1402(1)(b), MCA, for the proposition that the petition

and supporting affidavit “adequately alerted the youth of the charge and the aggregate

damage that resulted.” It is evident that the affidavit attached to the petition in B.W.’s

case was used to support the petitions filed against all youths involved in the vandalism

spree. To that end, it does recite the aggregate damage done by all the youths on various

nights. Notably, the spreadsheet attached to the petition as an exhibit also lists incidents

of vandalism that occurred outside of the dates of the charged vandalism spree, ranging

from December 2, 2011, to January 8, 2012. Moreover, the affidavit reflects that from

the inception of the investigation B.W. admitted to damaging a vehicle and shooting a

gun with others involved in the spree on two nights only—December 22 and December

29.

¶26    While the affidavit did summarize the aggregate damage, nowhere in the petition

or the affidavit is there an indication that the State would seek to hold each youth—

regardless of the extent of his participation—jointly and severally liable for all the

damages inflicted by all the other boys on all the other nights or for damages inflicted

beyond the dates of the spree. Section 41-5-1402(1)(b)(iii), MCA, obligates the State to

“state the facts constituting the offense in ordinary and concise language and in a manner

                                            11
that enables a person of common understanding to know what is intended.” B.W. did not

know when he admitted to the detective that he participated in the vandalism on two

nights that “what is intended” is that he be held responsible for tens of thousands of

dollars in damages inflicted by others while he was not present.

¶27    There was likewise no reference to an intent to impose joint and several liability

when the youth appeared in court for his change of plea. B.W.’s attorney asked him

whether he and a group of other juveniles inflicted property damage on the nights of

December 22 and December 29, and he agreed he had done so. The court then inquired:

“And on those two nights in question, were they done in furtherance of a common

scheme or as part of an action?” B.W. answered yes. As noted below, though B.W.

admitted to inflicting relatively little damage on the two nights, he conceded he could be

held liable for all damages inflicted by common scheme on the two nights in question, as

the court stated. He did not ever admit responsibility for the aggregate damage.

¶28    Although not articulated, the underpinning of the Dissent is that once a case is

charged and pleaded under common scheme, accountability for offenses in which one did

not participate is presumed and need not be proven, and aggregate restitution is

appropriate. We conclude as a matter of law that this is an erroneous interpretation of the

law, and the reason we issue this Opinion is to correct this misimpression. This case and

K.E.G. present an anomalous situation, in that they arise out of one vandalism spree, are

premised upon identical facts, and involve a hefty aggregate restitution order challenged

by both juveniles. The difference between the two cases is that, in the instant case, B.W.

concisely challenged the imposition of restitution on the grounds that charging a case

                                            12
under common scheme does not render the defendant accountable for the crimes of others

in which he did not participate. To establish accountability, more is needed. As our

Opinion reflects, we agree with this argument.

¶29    We do not take lightly the substantial importance of stare decisis. However, we

see no principled way to reverse the order of restitution against B.W. and yet refuse to

overturn an identical order of aggregate restitution imposed upon K.E.G. Though these

parties posited different legal arguments in their respective appeals, both consistently

maintained in District Court and on appeal that they were involved in only two evenings

of vandalism and should not be held liable in restitution for the remaining events in

which they did not participate. Because we conclude that our decision here should in

fairness apply to the companion case, we overturn the result reached in K.E.G.

¶30    Given our determination that the Youth Court erred in holding B.W. jointly and

severally liable for the full amount of restitution for damages, we reverse and remand for

entry of a revised restitution order in accordance with this Opinion. However, we note

that, pursuant to K.E.G., the court on remand should consider B.W.’s ability to pay when

assessing restitution.

                                    CONCLUSION

¶31    For the foregoing reasons, the Youth Court’s September 13, 2012 order is reversed

in part and remanded with directions to the Youth Court to hold a new restitution hearing.


                                                 /S/ PATRICIA COTTER




                                           13
We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT


Justice Beth Baker dissents.

¶32    Although I do not disagree with most of the general principles of law the Court

articulates in its Opinion, those principles do not apply in this case, just as they did not

apply in Matter of K.E.G. I do not believe there is sufficient justification to overrule

K.E.G. I would affirm the Youth Court’s determination that it had authority under the

facts of this case to impose restitution for the aggregate pecuniary loss occasioned by the

common scheme to which B.W. admitted. As the Court did in K.E.G., I would remand

for a new restitution hearing to consider B.W.’s ability to pay.

¶33    The petition in this case, filed January 23, 2012, alleged that B.W. was a

Delinquent Youth

       for the reason that on or about December 22, 2011, to January 1, 2012, in
       Yellowstone County, Montana, he committed the following delinquent acts:

             CRIMINAL MISCHIEF (COMMON SCHEME) (FELONY)

          That from about December 22, 2011, to January 1, 2012, the Youth,
       [B.W.], knowingly or purposely injured, damaged, or destroyed property of
       another or public property without consent, and did so in a series of acts
       motivated by a purpose or plan which resulted in the repeated commission
       of the same offense or that affected the same person or persons or their
       property, to wit: the Youth with L.P. (born in October 1995), T.B. (born in
       April 1997), J.E. (born in July 1996), and/or J.E. (born in July 1996),
       damaged several vehicles, and the aggregated pecuniary loss is in excess of
       $1500.00; in Billings, Yellowstone County, Montana; all of which is a
       violation of Sections 45-6-101 and 45-2-101(8), Montana Code Annotated,
       and against the peace and dignity of the State of Montana.

                                             14
¶34   Attached to the petition was an affidavit providing details about the entire

vandalism spree and information gathered by police detectives, together with a twelve-

page exhibit, comprising a spreadsheet listing each incident of vandalism alleged to have

been part of the common scheme, identifying the date, location, victim number, and the

property damaged.    The affidavit included a list of the juveniles suspected to have

participated on each occasion, noting B.W.’s suspected participation on the dates of

December 22 and 29, and again listing all dates and suspected participants for the entire

common scheme charged. The petition set forth in substantial detail the facts of the

charged offense and adequately alerted the youth of the charge and the aggregate damage

that resulted. See § 41-5-1402(1)(b), MCA.

¶35   On July 18, 2012, B.W. and his counsel appeared before the Youth Court, at

which time counsel advised the court that B.W. was prepared “to withdraw his previously

entered denial and enter an admission to the petition.” The Youth Court questioned B.W.

as to whether he recalled the rights of which he previously had been advised and,

following his affirmative response, asked “whether you admit or deny the charge in the

Petition of Criminal Mischief, Common Scheme, Felony, alleged to have occurred on or

about December 22, 2011, to January 1st, 2012, in Billings, Yellowstone County,

Montana?”     B.W. answered, “Yeah, admit, yes, Ma’am.”            Following additional

questioning, the Court then asked B.W. to explain what he did “that makes you admit”

the charge. Counsel inquired of B.W. whether he went around Billings with a group of

other juveniles “on or about December 22nd and the 29th” and damaged property of


                                           15
others. B.W. said “yes” and then agreed with his counsel that “those two nights in

question” were “done in furtherance of a common scheme or as part of an action.” After

several additional questions to ascertain the voluntariness of his plea and satisfaction with

counsel, the court accepted B.W.’s admission and the hearing concluded.

¶36    When the matter of restitution was argued at the disposition hearing, the Youth

Court acknowledged the significant amount of aggregate restitution and defense

counsel’s argument that the State “could have charged it differently.” The court noted,

however, that B.W. “pled to participating in criminal mischief, common scheme, from

December 22nd, 2011, to January 1st, 2012.” The court emphasized that “the important

thing is you’ve pled to the common scheme, meaning that you pled to being involved in a

crime of destroying other people’s property that was motivated by a purpose or plan, and

it resulted in the commission repeatedly of this same offense, and that is this criminal

mischief.”

¶37    Just as in K.E.G. (¶ 14), B.W.’s admission to the offense as charged is the reason

that the imposition of aggregate restitution was lawful in this case. The Court’s lengthy

discussion of notice and accountability is academic. B.W. had ample notice of the

charges and entered a plea to the inclusive dates charged in the common scheme. The

Court does not address the effect of the charging document that specifically alleged all

dates of the vandalism spree. The law is clear that, “where a defendant voluntarily and

knowingly pleads guilty to an offense, the plea constitutes a waiver of all

nonjurisdictional defects and defenses . . . .” State v. Kelsch, 2008 MT 339, ¶ 8, 346

Mont. 260, 194 P.3d 670. This includes complaints about the adequacy of the charge.

                                             16
State v. Spreadbury, 2011 MT 176, ¶¶ 8-13, 361 Mont. 253, 257 P.3d 392. “The

reasoning is that a person pleading guilty is convicted and sentenced on his plea, not on

the evidence.” Kelsch, ¶ 8 (quoting State v. Turcotte, 164 Mont. 426, 428, 524 P.2d 787,

788 (1974)). Because of the specific dates charged and the admission to that charge,

proof of accountability was not required to hold B.W. responsible for the aggregate

offense. B.W.’s testimony at the plea hearing did not affect the charge he admitted, but

simply satisfied the Youth Court’s duty to “ascertain, from admissions made by the

defendant at the plea colloquy, that the acts of the defendant, in a general sense, satisfy

the requirements of the crime to which he is pleading guilty [or admitting].” State v.

Frazier, 2007 MT 40, ¶ 20, 336 Mont. 81, 153 P.3d 18.

¶38    In light of the fact that both youths were charged identically and both admitted the

offense as charged, the Court in my view has not justified why a reexamination of K.E.G.

is “necessary” and warrants reversing that case, decided less than a year ago. Of course,

“[c]ourt decisions are not sancrosanct . . . and stare decisis is not ‘a mechanical formula

of adherence to the latest decision[.]’” State v. Gatts, 279 Mont. 42, 51, 928 P.2d 114,

119 (1996) (citing Patterson v. MacLean Credit Union, 491 U.S. 164, 172, 109 S. Ct.

2363, 2370 (1989)). Still, ostensible “concerns for stability, predictability and equal

treatment” in the law (Formicove, Inc. v. Burlington N., Inc., 207 Mont. 189, 194, 673

P.2d 469, 472 (1983)) are ill-served by the decision today. The Court crafts a result to

address what is an issue only because the youth admitted to the offense as charged

instead of either negotiating an amended charge or putting the State to its proof of his

participation in the common scheme as charged.

                                            17
¶39    I concur with the decision to remand, but would do so for the sole purpose of

having the Youth Court impose a new restitution obligation after consideration of B.W.’s

ability to pay. I dissent from the Court’s holding that the Youth Court lacked authority to

impose restitution for the aggregate pecuniary loss resulting from the common scheme

charged in the petition.

                                                 /S/ BETH BAKER


Justice Jim Rice joins in the dissenting Opinion of Justice Baker.


                                                 /S/ JIM RICE




                                            18
