                                                                                               12/28/2017


                                           DA 16-0488
                                                                                           Case Number: DA 16-0488

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 317



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MURRY KIM REYNOLDS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 20 14-279
                        Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

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

                        William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon,
                        Deputy County Attorney, Hamilton, Montana




                                                    Submitted on Briefs: August 23, 2017

                                                               Decided: December 28, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Murry Kim Reynolds (Reynolds) was convicted of felony Driving While Under

the Influence of Alcohol, fourth or subsequent offense (DUI), and two misdemeanors:

Failure To Have Liability Insurance In Effect and Failure To Drive On The Right Side Of

The Roadway. He does not challenge his convictions on appeal; however, he appeals

from the June 21, 2016 Judgment in which the District Court imposed fines, surcharges,

prosecution costs, public defender costs, and court technology fees. We affirm in part

and reverse in part.

¶2     We restate the issues on appeal as follows:

       Issue One: Did the District Court err by failing to adequately determine
       Reynolds’s ability to pay before imposing fines, surcharges, prosecution costs, and
       public defender fees?

       Issue Two: Did the District Court err by imposing statutory surcharges and court
       user fees?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     On November 19, 2014, Reynolds was charged by Information in Ravalli County

with felony DUI and two misdemeanors: Failure To Have Liability Insurance In Effect

and Failure To Drive On The Right Side Of The Roadway. On March 5, 2015, Reynolds

and the State entered into a plea agreement, in which the State agreed to drop the

misdemeanors and Reynolds would plead guilty to the felony. The court ordered a

presentence investigation (PSI) report, which was filed on June 18, 2015. The PSI report

specifically addressed the felony charge and made recommendations for sentencing and

imposition of fees. The PSI report also discussed Reynolds’s financial situation.

                                            2
¶4     Specifically, the PSI reported that: (1) Reynolds had been employed part-time at

Caras Property Management earning approximately $1,500 per month; (2) his assets were

$3,000 and his debts were $5,000; (3) his wife was employed part-time earning

approximately $700 per month; (4) he paid $500 in rent monthly; (5) he owned two

vehicles valued at $5,500 and tools valued at $3,000, and outstanding loans on the

vehicles totaled $5,000. The PSI also reported that Reynolds planned to be semi-retired

and to expand his welding into a part-time business, and that he was in “fair” health, but

had kidney stones and was on medication for high blood pressure. The PSI report

concluded Reynolds had the ability to pay the fines and fees associated with the felony

DUI, including an $800 public defender fee.1 Reynolds requested the court to “be as

lenient as possible” due to his record, age, and health.

¶5     Prior to sentencing, Reynolds filed an unopposed motion to withdraw his guilty

plea, which the District Court granted. A jury trial was held on May 9-10, 2016, on all

three charges. At trial, Reynolds testified he was retired, but that prior to retirement he

was employed as a maintenance man at a local rental agency and a welder. Reynolds

testified his past jobs were “tough work,” resulting in numerous physical injuries and

ailments, which prevented him from doing too much physical work. He testified he had

been diagnosed with PTSD and had been on medication for the condition for the past

eight years. The jury found Reynolds guilty on all three charges.


       1
          Section 46-8-113, MCA. If the defendant pleads guilty to one of more felony charges
prior to trial, the cost of counsel is $800. However, if the case goes to trial, the defendant shall
pay the costs incurred by the office of state public defender for providing the defendant with
counsel in the criminal trial.
                                                3
¶6     At the May 19, 2016 sentencing hearing, the District Court commented that the

Montana Supreme Court had recently handed down a new case requiring him, as the

judge, to have detailed findings regarding the defendant’s ability to pay for any fines,

fees, or costs it imposed. The District Court then delayed sentencing, as it did not have

the actual fees incurred by the public defender’s office for Reynolds’s defense or

Reynolds’s current employment status, prospects, or financial situation.        The court

required Reynolds to produce his tax returns; a full financial statement, including

holdings; his wife’s finances; and property, real or otherwise. In response to the District

Court order, Reynolds produced his 2015 joint income tax return, which showed a total

income of $19,144. The bank statements showed deposits totaling $1,830.54 for April

2016 and $1,766.83 for May 2016. Both totals for the month include a $1,090 social

security deposit.

¶7     At the June 2, 2016 sentencing hearing, Reynolds’s public defender filed notice

stating he had incurred $5,829 in fees while representing Reynolds. During the hearing

Reynolds testified that (1) he was not currently employed; (2) his only income was social

security benefits; (3) he planned to work “on the side” as a welder but lost his driver’s

license due to his DUIs; (4) he paid $500 per month in rent; (5) he had two vehicles, each

with an outstanding loan—$1,000 on his Chevy and $1,800 on his wife’s Buick—with

monthly payments of $100 on each vehicle; and (6) he had no other debts. Reynolds

opined that he would lose his social security benefits during incarceration, which would

hurt his family financially.


                                            4
¶8     The District Court then directly questioned Reynolds regarding his ability to work

and earn money.

       THE COURT: So, sir, it sounds like if you can do welding on the side
       you’re at least capable of work, earning money; yes?

       REYNOLDS: Easy work, easy welding work, not crawling around
       someplace up tall.

¶9     The District Court referenced the PSI report and asked if there were any changes

or corrections offered by either party. The only change requested was the report’s

indication that this was a plea agreement. The District Court then asked about the State’s

sentencing report. The State recommended the statutory sentence, thirteen months in the

Department of Corrections (DOC) followed by a five-year suspended sentence and the

minimum fine, $1,000. Reynolds’s counsel recommended a thirteen-month sentence, that

the suspended sentence be reduced from five to three years, and that Reynolds pay the

minimum fine but no other court costs, fees, or attorney’s fees. Reynolds’s counsel

reminded the court it is “required to make specific finding that Mr. Reynolds is or will be

able to pay all those fines, fees, [and] court costs” and that the court “must take into

account financial resources, his future ability to pay, and the nature of the burden that

payment would put him in.” Reynolds’s counsel argued Reynolds’s only source of

income is social security, which is not subject to any garnishment, and in fact cannot be

used in determining income. Further, Reynolds’s counsel argued that the imposition of

any fees or costs would create a hardship because all of Reynolds’s money is currently

going toward paying rent, vehicle loans, groceries, gas, and other essentials of life.


                                              5
¶10    The District Court proceeded with sentencing. It acknowledged that the PSI was

written one year prior to the current sentencing hearing and that the report indicated

Reynolds was in fair health. The District Court acknowledged that Reynolds had testified

he was “still busy doing some employment,” and that no evidence contradicted the fact

that Reynolds was still in fair health. The District Court determined that Reynolds was

“fit, able to work, earn money to pay toward your fines, fees, and surcharges without

considering your social security,” based on Reynolds’s recent employment at Caras

Property Management, where he was making $1,500 per month, and his ability to weld

on the side. The District Court calculated the yearly burden the fines, fees, and costs

would impose on Reynolds.

¶11    The District Court sentenced Reynolds to thirteen months to the custody of the

DOC; if Reynolds completed the residential alcohol treatment program, any remainder of

the thirteen months would be suspended. The initial sentence would be followed by a

five-year suspended DOC commitment.            The court imposed fees, fines, statutory

surcharges, and the full public defender fee on Reynolds. The District Court attempted to

calculate a payment plan for Reynolds but had some mathematical errors. The District

Court stated that “the reasons for the court’s sentence should be obvious”: three DUIs

and continued risky behavior of drinking and driving, his disrespectful attitude2 toward

Trooper Gane the night of the DUI, his obvious alcohol problem, and the benefits five

       2
         The night of the DUI, Trooper Gane conducted a field sobriety test, which Reynolds
failed. Trooper Gane asked Reynolds to perform a preliminary breath test, which he refused.
Trooper Gane then asked Reynolds to perform a blood test at the hospital, to which Reynolds
responded, “No, you’re not taking a f***ing blood test.” Trooper Gane advised Reynolds he
would apply for a search warrant, to which Reynolds responded, “You Gestapo sons of bitches.”
                                               6
years of probation could provide. Additionally, the court acknowledged the sentence was

consistent with the recommendations of the State, the probation and parole office, and the

prior plea agreement in this case.

¶12    Reynolds’s counsel objected to the court costs, jury costs, and the public defender

fee. He argued, based on Reynolds’s social security income and financial resources, that

it is unreasonable that Reynolds can be found to have the ability to pay this fee; that it is a

hardship under § 46-18-232, MCA; and that it is a violation of Mr. Reynolds’s

constitutional right to trial. The District Court acknowledged the objection and upheld

the fees. The court again stated it was not basing Reynolds’s ability to pay on his social

security income, but based it on Reynolds’s trial testimony that he was fit and able to

earn money and had been doing so recently.

¶13    A week later, on June 9, 2016, the court sentenced Reynolds for the two

misdemeanor charges.       On the failure to have liability insurance charge, the court

sentenced Reynolds to ten days in jail, all suspended. On the driving on the wrong side

of the roadway charge, the court imposed a $10 fine.

¶14    The court issued its written judgment on June 21, 2016. Regarding the felony

DUI, Reynolds was sentenced to thirteen months to the DOC, followed by a five-year

commitment to DOC with all five years suspended, a $1,000 fine (§ 61-8-731, MCA), a

$50 surcharge (§ 46-18-236(1)(c), MCA), a statutory $20 surcharge (§ 46-18-236(1)(b),

MCA), and a $10 court technology fee (§ 3-1-317, MCA). Regarding the failure to have

liability insurance misdemeanor, Reynolds was sentenced to ten days in jail, all


                                              7
suspended, a statutory $15 surcharge (§ 46-18-236(1)(b), MCA), and a $10 court

technology fee (§ 3-1-317, MCA). With regard to the failure to drive on the right side of

the roadway misdemeanor, Reynolds was sentenced to a $10 fine (§ 61-8-711, MCA); a

statutory $15 surcharge (§ 46-18-236(1)(b), MCA), and a $10 court technology fee

(§ 3-1-317, MCA).      Additionally, the court imposed a $5,829 repayment of public

defender fee (§ 46-8-113, MCA), a $50 crime victim surcharge, $100 prosecution cost,

and the cost of supervision during his suspended sentence. Reynolds appeals.

                               STANDARD OF REVIEW

¶15    This Court reviews fines as sentencing conditions. In reviewing a sentencing

condition, we first review the condition for legality, to determine whether it falls within

statutory parameters. A sentence outside the statutory parameters is illegal. Our standard

of review of that question of law is de novo. If the condition is legal, we then review its

reasonableness to determine whether the district court abused its discretion. State v.

Dennison, 2008 MT 344, ¶ 10, 346 Mont. 295, 194 P.3d 704.

¶16    A district court’s determination of a “defendant’s . . . ability to pay . . . is

essentially a finding of fact that this Court will reverse only if it is clearly erroneous.”

State v. Holt, 2006 MT 151, ¶ 23, 332 Mont. 426, 139 P.3d 819. A court’s findings of

fact are clearly erroneous if they are not supported by substantial credible evidence, if the

court misapprehended the effect of the evidence, or if a review of the record leaves this

Court with the definite and firm conviction that a mistake has been made. State v.

Reynolds, 2017 MT 25, ¶ 13, 386 Mont. 267, 389 P.3d 243.


                                             8
                                      DISCUSSION

¶17    Issue One: Did the District Court err by failing to adequately determine
       Reynolds’s ability to pay before imposing fines, surcharges, prosecution costs, and
       public defender fees?

¶18    Reynolds argues the District Court failed to adequately determine his ability to pay

before imposing fines, public defender fees, conviction surcharges, and prosecution costs.

¶19    The $1,000 felony DUI fine and the $10 misdemeanor traffic violation fine are

statutorily mandated. A person found guilty of felony DUI “shall be punished by . . . a

fine in an amount of not less than $1,000.” Section 61-8-731, MCA (2013). A person

convicted of a misdemeanor traffic violation, such as failure to drive on the right side of

the roadway, “shall for a first conviction be punished by a fine of not less than $10.”

Section 61-8-711(2), MCA. As such, the penalty is not subject to the discretionary

authority provided to district courts under the general sentencing statutes.        Section

46-18-201, MCA, et seq. Discretionary sentencing statutes do not apply to mandatory

fines. See State v. Tam Thanh Le, 2017 MT 82, ¶ 12, 387 Mont. 224, 392 P.3d 607; State

v. Mingus, 2004 MT 24, ¶ 15, 319 Mont. 349, 84 P.3d 658. The District Court properly

imposed a legal sentence on Reynolds. The District Court did not abuse its discretion

when it imposed these statutory fines.

¶20    Prior to the imposition of a fine, fee, or charge, the final determination a district

court must make is whether the defendant has the ability to pay. Prior to the imposition

of the costs of jury service, costs of prosecution, costs of pretrial, probation, or

community service, a district court “shall take into account the financial resources of the


                                             9
defendant, the future ability of the defendant to pay costs, and the nature of the burden

that payment of costs will impose.” Section 46-18-232(2), MCA. Prior to the imposition

of the costs incurred by the office of state public defender, the court “shall take into

account the financial resources of the defendant and the nature of the burden that

payment of costs will impose.” Section 46-8-113(4), MCA. Prior to the imposition of

fines in felony and misdemeanor cases, 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.

¶21    If a sentencing court determines the defendant cannot pay, the court may not

sentence a defendant to pay costs or may waive the payment of surcharges, fines, costs,

and fees. See § 46-18-232(2), MCA (court may not sentence a defendant to pay costs

unless the defendant is or will be able to pay them); § 46-8-113(4), MCA (the court may

not sentence a defendant to pay the costs for assigned counsel unless the defendant is or

will be able to pay the costs imposed); § 46-18-231(3), MCA (the sentencing judge may

not sentence an offender to pay a fine unless the offender is or will be able to pay the

fine); § 3-1-317(3), MCA (court may waive surcharge for court information technology);

§ 46-18-236(2), MCA (if the court determines under § 46-18-232, MCA, or § 46-18-231,

MCA, that the person is not able to pay the fine and costs or is unable to pay within a

reasonable time, the court shall waive payment of the charge imposed by this section).

¶22    It is clear that a sentencing court must question and determine the defendant’s

ability to pay fines, fees, surcharges, and costs prior to their imposition. It is equally


                                            10
clear that the district court has the discretion to determine that a defendant is unable to

pay and therefore, not impose or waive such discretionary costs, fines, fees, and

surcharges.

¶23    Reynolds argues the District Court erred when it determined Reynolds was

required to pay $5,829 for his public defender, a $50 surcharge, a $20 surcharge, two $15

surcharges, three $10 court technology fees, a $50 victim surcharge, and a $100

prosecution cost, without “scrupulously and meticulously” examining Reynolds’s ability

to pay and the hardship which the costs, fees, and surcharges would impose. State v.

Gable, 2015 MT 200, ¶ 23, 380 Mont. 101, 354 P.3d 566. We disagree and find the

record shows the court’s inquiry into Reynolds’s ability to pay was scrupulously and

meticulously determined.

¶24    In State v. McLeod, we determined that the district court had failed to comply with

the requirements in § 46-18-231(3), MCA, before imposing a $1,000 fine. 2002 MT 348,

¶ 34, 313 Mont. 358, 61 P.3d 126. The district court was required to demonstrate a

“serious inquiry and separate determination” regarding McLeod’s ability to pay.

McLeod, ¶ 34. While the record reflected the district court read the PSI report, it relied

on an incorrect section of the PSI to inform the sentence, failed to discuss on the record

or with McLeod whether he had the ability to pay the fine, or take into account the

financial hardship the fine would impose. McLeod, ¶ 33. We reversed and remanded for

consideration into McLeod’s ability to pay and financial hardship, concluding the court




                                            11
failed to consider whether the defendant will be able to pay the fine, the defendant’s

financial resources, and the burden that the fine would impose. McLeod, ¶ 35.

¶25    In State v. Moore, the district court failed to acknowledge the PSI report or

directly question the defendant about his ability to pay the costs of his public defender.

2012 MT 95, ¶ 14, 365 Mont. 13, 277 P.3d 1212. The defendant’s only statement was an

apology. Based on this, the court had failed to “demonstrate a serious inquiry or separate

determination” into the defendant’s ability to pay the fee. Moore, ¶ 14 (citing McLeod,

¶ 34). Moreover, we determined that a court cannot apply the portion of § 46-18-232(1),

MCA, that allows for imposition of costs of jury service on the defendant, without “first

scrupulously and meticulously determining the defendant’s ability to pay.” Moore, ¶ 18.

¶26    In State v. Gable, we determined that the court adequately examined Gable’s

ability to pay costs. 2015 MT 200, ¶ 10, 380 Mont. 101, 354 P.3d 566. In Gable, the

district court demonstrated a “serious inquiry or separate determination” of Gable’s

ability to pay costs of appointed counsel, § 46-8-113, MCA, by relying on the PSI report,

the State and defense questions specific to Gable’s ability to pay, the sentencing

memorandum, and Gable’s testimony. Gable, ¶¶ 12, 23. In Gable, we also determined in

order to prevent violation of a defendant’s right to a jury trial, the district court must also

“scrupulously and meticulously examine the defendant’s ability to pay before costs of

appointed counsel may be imposed.” Gable, ¶ 22. The district court spent significant

time considering whether Gable had the assets and future ability to pay costs of appointed




                                              12
counsel.   This was sufficient to satisfy the requirement that the ability to pay be

“scrupulously and meticulously” determined. Gable, ¶ 12.

¶27    In this case, prior to imposing the cost of his public defender, surcharges,

supervision fees, prosecution costs, and court technology fees, the District Court spent

significant time considering Reynolds’s ability to pay. As stated above, the District

Court delved into Reynolds’s work history, ability to work, and financial circumstances

before concluding Reynolds was fit to earn money and would be able to pay the fees and

costs over the term of his five-year suspended sentence. The record shows the District

Court “scrupulously and meticulously” examined Reynolds’s ability to pay the public

defender fee and engaged in the same inquiry regarding his ability to pay the costs and

fees associated with his felony DUI. Gable, ¶ 23.

¶28    Reynolds argues the District Court could not have scrupulously and meticulously

determined he was able to pay because the District Court based its sentence on the PSI

report, never examined the hardship the costs would have on Reynolds, and that the fees

associated with his representation had a chilling effect on his right to a jury trial. As

stated above, the District Court did use the PSI report to inform Reynolds’s sentence.

The record reflects that the District Court based its determination for the amount of fees

and costs on Reynolds’s testimony, direct questioning of Reynolds, the PSI report, the

financial information provided by Reynolds, and the record of trial. We find no error in

the District Court’s use of the PSI to inform the sentence.




                                             13
¶29    While the District Court did not directly question whether Reynolds would feel a

financial hardship by the imposition of the fees, his counsel made it clear that he would.

The District Court acknowledged the hardship the sentence would impose on Reynolds,

including the loss of his social security during his incarceration and the inability for

Reynolds to retire during his suspended sentence.             Further, the District Court

acknowledged that payments would be manageable during the five-year suspended

sentence, and while incorrectly, did calculate the payments on record. While the District

Court made a computational error, the defense counsel did not object or correct the

District Court’s assumption.     The District Court clearly understood the burden and

hardship Reynolds would be put under, yet after a scrupulous and meticulous

examination, it found the fees and costs appropriate. The District Court did not abuse its

discretion. Additionally, the District Court did not chill Reynolds’s constitutional right to

a jury trial, because it engaged in a scrupulous and meticulous examination of Reynolds’s

ability to pay his public defender costs. Gable, ¶ 22.

¶30    To the extent Reynolds argues the District Court failed to adequately determine his

ability to pay certain fines and fees immediately upon sentencing, that argument is

without merit.    “Whenever a defendant is sentenced to pay . . . costs under . . .

§ 46-18-232, the court may grant permission for payment to be made within a specified

period of time or in specified installments. If no such permission is included in the

sentence, the payment is due immediately.” Section 46-18-234, MCA. Reynolds has

failed to make more than a cursory argument on this point or assert he was in fact


                                             14
required to pay the fine immediately after sentencing; therefore, we decline to address

this argument. State v. Kearney, 2005 MT 171, ¶ 16, 327 Mont. 485, 115 P.3d 214.

¶31    The District Court did not abuse its discretion. The District Court appropriately

inquired into Reynolds’s ability to pay fines, fees, and charges prior to their imposition.

¶32    Issue Two: Did the District Court err by imposing statutory surcharges and court
       user fees?

¶33    The District Court imposed a $15 surcharge for each misdemeanor, $30 total. A

district court may not substantively increase a defendant’s orally imposed criminal

sentence in the subsequent written judgment. State v. Johnson, 2000 MT 290, ¶ 24, 302

Mont. 265, 14 P.3d 480. The State concedes that the District Court did not impose the

two $15 surcharges ($30 total) in the oral judgment, yet that those charges were included

in the written judgment.

¶34    The District Court imposed a $10 court information technology fee for each

charge, $30 total. A court “shall impose . . . on a defendant in criminal cases, a $10 user

surcharge upon conviction.” Section 3-1-317(1)(a), MCA. This surcharge is “authorized

per user upon conviction, not per conviction of that user.” State v. Pope, 2017 MT 12,

¶ 32, 386 Mont. 194, 387 P.3d 870. The District Court incorrectly imposed three $10

court information technology fees.        The proper surcharge is $10 total.         Section

3-1-317(1)(a), MCA.

¶35    Reynolds’s judgment must be amended to remove the two $15 misdemeanor

surcharges. A court information technology fee is imposed per user, not per charge; as



                                             15
such, Reynolds’s judgment must be amended to remove two of the three $10 court

information technology fees, leaving only one $10 fee.

                                     CONCLUSION

¶36    The District Court scrupulously and meticulously examined Reynolds’s ability to

pay fines, fees, surcharges, and costs prior to their imposition. The District Court did not

abuse its discretion.

¶37    The misdemeanor surcharges totaling $30 and the court technology fee for the

misdemeanors totaling $20 were incorrectly imposed in the written judgment and

therefore must be stricken from Reynolds’s criminal sentence. This matter is remanded

to the District Court for action in conformity with this Opinion.

¶38    Affirmed and remanded for correction of the judgment.


                                                 /S/ MICHAEL E WHEAT


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE




                                            16
