                                          DA 14-0006                                       October 14 2014

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 277N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

EMMITT HOGSTEN, JR.,

               Defendant and Appellant


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 12-557
                       Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Mathew M. Stevenson; Attorney at Law; Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman,
                       Assistant Attorney General; Helena, Montana

                       Fred Van Valkenberg, Missoula County Attorney; Patricia C. Bower,
                       Deputy County Attorney; Missoula, Montana



                                                    Submitted on Briefs: August 13, 2014
                                                               Decided: October 14, 2014


Filed:




                                            Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(d), 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        Emmitt Hogsten, Jr., (Hogsten) appeals from the order of the Fourth Judicial

District Court, Missoula County, imposing restitution in the amount of $85,989.80

following his guilty plea for attempted deliberate homicide.

¶3        On November 12, 2012, Hogsten repeatedly stabbed his estranged wife, J.N., with

a serrated kitchen knife. Although seriously wounded, J.N. escaped and reported the

attack.     Hogsten ultimately pled guilty to attempted deliberate homicide and was

sentenced to a term of 50 years at the Montana State Prison, with 30 years suspended.

¶4        On November 12, 2013, the District Court ordered Hogsten pay restitution in the

amount of $85,989.80. A significant portion of the restitution ordered was for medical

expenses J.N. had already incurred. Also included within the restitution ordered was

$25,000 for J.N.’s future medical expenses. However, the court indicated the $25,000

was a “cap” and that Hogsten would only be obligated to pay for future medical expenses

to the extent J.N. “actually incurs those costs.”

¶5        Hogsten advances three arguments challenging the District Court’s restitution

order. First, Hogsten argues that the District Court’s imposition of restitution was

unlawful because the court did not properly consider his financial resources and future

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ability to pay restitution. As we have previously explained, although earlier versions of

§ 46-18-242, MCA, required sentencing courts to consider a defendant’s financial

resources and future ability to pay when imposing restitution obligations, the 2003

version of the statute eliminated those requirements. State v. Kuykendall, 2006 MT 110,

¶ 12, 332 Mont. 180, 136 P.3d 983 (citing State v. Workman, 2005 MT 22, ¶ 15, 326

Mont. 1, 107 P.3d 462). Therefore, the District Court did not err as § 46-18-242, MCA,

no longer requires a sentencing court to consider a defendant’s financial resources or

ability to pay restitution.

¶6     Second, Hogsten argues the District Court erred by imposing a capped amount of

future medical expenses. Hogsten contends a sentencing court must specify the amount

of restitution a defendant is obligated to pay. A sentencing court is required to impose a

restitution obligation on a criminal defendant if the defendant’s crime resulted in

pecuniary loss to the victim. State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321

P.3d 841. However, § 46-18-244(1), MCA, instructs the sentencing court to “specify the

total amount of restitution that the offender shall pay.” We have explained that “[t]his

means that the amount of restitution must be stated as a specific amount of money.”

State v. Heafner, 2010 MT 87, ¶ 7, 356 Mont. 128, 231 P.3d 1087.

¶7     The State concedes that because the District Court did not fix the amount of future

medical expenses owed, the court’s order of future medical expenses must be stricken.

We agree. The amount in future medical expenses that J.N. can reasonably be expected

to incur and that Hogsten is obligated to pay must be stated as a specific amount, not as

an unspecified amount up to a cap.

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¶8     Lastly, Hogsten argues that, regardless of the propriety of the District Court failing

to specify future medical expenses, there is insufficient factual evidence in the record to

justify an award that could total $25,000 in future medical expenses. We review a district

court’s finding of fact regarding the amount of restitution to determine if it is clearly

erroneous. Aragon, ¶ 9. Findings of fact are clearly erroneous if they are not supported

by substantial evidence. Aragon, ¶ 9 (quotations omitted).

¶9     The future medical expenses ordered by the District Court were based exclusively

on J.N.’s testimony. J.N. claimed $25,000 for future medical expenses as a result of

Hogsten’s criminal conduct. When asked what information she could provide to support

that amount of restitution, J.N. indicated she had “no information.” When the court

inquired, “Did you just sort of grab this figure out of the air?” J.N. responded by stating,

“That one I did, yes, I did that one.” J.N. offered only that “[m]edication is expensive.

Seeing a doctor is expensive. Procedures are expensive. So I figured 25,000 for the life

of what I have left, say I live until I’m 85, rounded up, that’s 50 years.”

¶10    We conclude that substantial evidence does not support the award of future

medical expenses in the amount ordered by the District Court. The record does indicate

J.N. suffered serious injuries as a result of the attack. Nonetheless, the purely speculative

nature of the evidence offered in support of J.N.’s claim is insufficient to support $25,000

in future medical expenses. Thus, the award for future medical expenses is not supported

by substantial credible evidence.

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

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

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issues raised by Hogsten, regarding his ability to pay, are legal issues and are controlled

by settled Montana law that the District Court correctly interpreted, and are affirmed.

The portion of the restitution order requiring Hogsten to pay up to $25,000 for J.N.’s

future medical expenses is reversed and remanded. Upon remand, the District Court

may, after such further proceedings as it deems appropriate and its consideration of the

evidence, enter an amended judgment that orders Hogsten to pay restitution in a specified

amount for future medical expenses that J.N. is reasonably expected to incur as supported

by substantial credible evidence.

¶12    Affirmed in part, reversed in part, and remanded for further proceedings consistent

herewith.



                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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