                                                                                             April 2 2013


                                        DA 12-0364

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2013 MT 82



IN THE MATTER OF:

K.E.G.,

         A Youth Under the Age of 18.


APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause No. DJ 12-008
                      Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Julie Brown; Montana Legal Justice, PLLC; Missoula, Montana

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
                      Attorney General; Helena, Montana

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



                                                  Submitted on Briefs: January 16, 2013

                                                             Decided: April 2, 2013




Filed:

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

¶1     K.E.G. 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 in part and remand with directions to the Youth Court to hold a new

restitution hearing.

¶2     We restate the issue on appeal as follows: Did the Youth Court commit plain error

when it concluded that K.E.G. was jointly and severally liable for the full amount of

restitution for damages caused by the youths, without considering K.E.G.’s ability to pay

that restitution?

                    PROCEDURAL AND FACTUAL BACKGROUND

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

responded to over 200 reports of vandalism. During this eleven-day period, vandals shot

the windows out of homes and vehicles with air guns, damaged vehicles with baseball

bats, and set two cars on fire. An investigation led by local school resource officers

indicated that K.E.G., a fifteen-year-old male, had taken part in the vandalism.

¶4     On January 10, 2012, K.E.G. and his mother met with Officer Jerry Smidt of the

Billings Police Department. K.E.G. waived his rights and provided a statement to Officer

Smidt. He admitted to committing acts of vandalism on December 26 and December 27,

but stated he did not participate on any other date. According to an affidavit submitted

by the Yellowstone County Attorney, K.E.G. admitted that he had “hit two windows with

the gun” and “four or five windows with the bat” on the first night and that he had “hit

five windows with the BB gun and three with the bat” on the second night.
                                         2
¶5     Approximately two weeks later, the county attorney filed a petition alleging that

K.E.G. was a delinquent youth for having committed criminal mischief (common

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

involved in the vandalism similarly were charged. K.E.G. denied the State’s allegations

at his initial appearance on February 9, 2012. During a change of plea hearing in late

March, K.E.G. admitted to having committed criminal mischief, common scheme, as

alleged in the State’s petition.   The youth then detailed the acts of vandalism he

committed on December 26 and December 27. The Youth Court accepted K.E.G.’s

admission and change of plea.

¶6     Because K.E.G. contested the State’s attempt to hold him jointly and severally

liable for all damages caused during the eleven-day period of vandalism, the parties

briefed the issue of restitution prior to the court’s dispositional hearing. K.E.G. argued

that, since he had admitted to participating in only two of the eleven nights of vandalism,

“his restitution should be jointly and severally liable for only December 26th and 27th” in

the amount of $16,020.63. The State countered by asserting that the Youth Court should

“impose restitution in the amount of $78,702.09” pursuant to §§ 45-6-101(4) and 45-2-

101(8), MCA.

¶7     The Youth Court held a hearing on restitution and disposition on April 23, 2012.

K.E.G. and the county attorney presented arguments on the proper amount of restitution.

At the hearing, the Youth Court made the following comments:

       With regard to restitution, the problem of course is that while you may not
       have been present at every act of criminal mischief, you have admitted to
       being responsible as part and parcel of a common scheme, and the
                                         3
       common scheme asserted in the petition was the entire common scheme,
       and all of the days of this criminal mischief that went on with the various
       participants.

       And it seems to me that because of that admission, you should in fact be
       joint[ly] and severally liable with any other defendants that are -- or youth
       that are found to be responsible for the damage caused in this matter. And I
       am going to order that you be responsible for that restitution in the amount
       of $78,702.09. Now, I understand that in five years as a youth, it will be
       nearly impossible, unless some -- something befalls upon you financially
       for you to pay that.
                                          . . .
       And my hope is that you will at least make some payments with restitution
       to make amends for the problems that you have caused basically
       unsuspecting people in our community.

(Emphasis added.) The Youth Court did not inquire into the extent of K.E.G.’s assets or

his prospects for future earnings.

¶8     After the hearing, the court entered a dispositional order that adjudicated K.E.G. a

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

and committed him to the Department of Corrections until his eighteenth birthday, with

recommended placement at Pine Hills Youth Correctional Facility.           The court also

ordered K.E.G. to “pay restitution in the amount of $78,702.09 . . . joint and several in

monthly payments of not less than $50.00 . . . or 50% of his net wages whichever is

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

jurisdiction over K.E.G. for restitution purposes until his twenty-first birthday, or until

the restitution is paid in full. K.E.G. appeals from the portion of the dispositional order

that ordered him to pay $78,702.09 in restitution.




                                         4
                               STANDARD OF REVIEW

¶9     The court’s determination of the appropriate measure of restitution is a question of

law, reviewed for correctness. State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254

P.3d 578 (citing State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1, 11 P.3d 539).

                                      DISCUSSION

¶10    Did the Youth Court commit plain error when it concluded that K.E.G. was jointly

and severally liable for the full amount of restitution for damages caused by the youths,

without considering K.E.G.’s ability to pay that restitution?

¶11    K.E.G. argues that he should be responsible to pay restitution for the amount of

damage that was caused only on the nights during which he participated in the vandalism

and that the joint and several liability for restitution imposed under the criminal mischief

statute should not be applied to youthful offenders. The State argues that, pursuant to

§ 45-6-101(4), MCA, “the Youth Court was authorized by the Youth Court Act to

aggregate the damages, and thus to order K.E.G. to pay restitution, jointly and severally,

with the right of contribution, to all of the victims for all ten days of the common

scheme.” The State maintains that requiring full restitution imposes accountability and

contributes to the youth’s rehabilitation, arguing that it is not retributive simply because

the youth will not be able to pay the full amount before the court loses jurisdiction over

him. K.E.G. responds to this argument by pointing out that the Youth Court recognized it

would be impossible for him to meet the restitution requirement, asserting that “[i]f

Mont. Code Ann. § 45-6-101(4) is the basis for the amount of restitution owed by K.E.G.,

the case should be remanded for a full consideration of K.E.G.’s ability to pay”
                                         5
$78,702.09 in restitution. K.E.G. claims that the Youth Court failed to fully consider

K.E.G.’s ability to pay that amount as required by § 45-6-101(2), MCA.

¶12    The Montana Youth Court Act states that restitution is to be ordered by the youth

court 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. Those 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.” In the Matter of

T.M.R., 2006 MT 246, ¶ 14, 334 Mont. 64, 144 P.3d 809 (citing § 41-5-1521, MCA).

Once the youth court determines that restitution is appropriate, it may order the youth to

pay restitution. Sections 41-5-1513(1)(a), -1512(1)(d), MCA.

¶13    In this case, the Youth Court determined that restitution was appropriate and that

K.E.G. should be held jointly and severally liable pursuant to § 45-6-101(4), MCA.

Although the Dissent correctly notes that “K.E.G. has not been ‘convicted’ of” violating

the statute, it errs in concluding that this statute therefore “is inapplicable.” Dissent, ¶ 40.

The Youth Court Act expressly authorizes the Youth Court to order a delinquent youth to

pay restitution “for damages that result from the offense for which the youth is disposed

. . . .” In re T.M.R., ¶ 18 (quoting §§ 41-5-1512(1)(d), -1513(1)(a), MCA). The offense

for which K.E.G. was disposed was § 45-6-101(4), MCA, which provides that

“[a]mounts involved in criminal mischiefs committed pursuant to a common scheme or

the same transaction, whether against the public or the same person or several persons,

may be aggregated in determining pecuniary loss.”
                                           6
¶14    K.E.G. 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. Because

K.E.G. acknowledged that he acted as part of a common criminal plan that resulted in

200 reports of vandalism against homes and vehicles in Billings between December 22,

2011, and January 1, 2012, the Youth Court was statutorily authorized to impose

restitution for the aggregate damages that resulted from that common scheme during the

time period charged.

¶15    In re T.M.R. does not counsel a different result. In that case, we noted that the

adult sentencing statutes did not apply to a disposition under the Youth Court Act, and

thus the Court was compelled to “fill in the gap left by the legislature” in determining the

amount of restitution that should be imposed. In re T.M.R., ¶¶ 16-18. In this case, the

District Court did not apply adult sentencing statutes and there is no gap. Rather,

aggregation of damages is allowed by the criminal statute defining “the offense for which

the youth is disposed,” for which the Youth Court Act expressly authorizes restitution.

Sections 41-5-1512(1)(d), -1513(1)(a), MCA.          Our conclusion is not altered by

construing the Youth Court Act’s restitution provision “in an ‘equitable fashion’” in order

to effectuate “‘the intent of the legislature,’” In re T.M.R., ¶ 18, since the expressed

purposes of the Youth Court Act include restitution and accountability through

“immediate” consequences of a youth’s actions. Section 41-5-102(2)(a), (c), MCA. As

vandalism sprees are not uncommonly the province of young, immature offenders, we
                                         7
would do a disservice to the legislature’s intent were we to exempt youth from this

application of the criminal mischief statute when they admit to participating in a common

scheme.

¶16    Nonetheless, while the aggregation of damage may well be appropriate to achieve

the accountability goals of the Youth Court Act, both that Act and the applicable criminal

law call for an examination of the offender’s ability to pay. Sections 41-5-1521(1)(b),

45-6-101(2), MCA. The transcript of the dispositional and restitution hearing reflects

almost no discussion of K.E.G.’s ability to pay, except the Youth Court’s

acknowledgment that it would be “nearly impossible” for him to meet the obligation, but

that the court hoped he would “at least make some payments.” Since the record also

reflects that K.E.G. did not object to a restitution order without evidence of his ability to

pay, we consider whether the issue is appropriate for review on appeal.

¶17    We generally “refuse to review on appeal an issue to which the party failed to

object at the trial court.” State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d

892 (citing State v. Lenihan, 184 Mont. 338, 341, 602 P.2d 997, 999 (1979)). While we

have recognized an exception to this general rule for review of an illegal sentence,

Lenihan, 184 Mont. at 343, 602 P.2d at 1000, we do not apply that exception here, since

the failure to consider a defendant’s ability to pay amounts only “to an objectionable

sentence,” which we have refused to consider absent a contemporaneous objection.

Kotwicki, ¶ 13.

¶18    Despite the absence of contemporaneous objection, we will conduct “plain error”

review if an alleged error “implicate[s] a defendant’s fundamental constitutional rights
                                          8
and if our failure to review the claimed error may result in a manifest miscarriage of

justice, may leave unsettled the question of the fundamental fairness of the trial or

proceedings, or may compromise the integrity of the judicial process.” In the Matter of

C.T.P., 2004 MT 63, ¶ 15, 320 Mont. 279, 87 P.3d 399.

¶19   The Dissent correctly points out that we have reserved plain error review for

questions implicating constitutional rights rather than statutory-based claims. Dissent,

¶ 30. The issue in this case, however, does have constitutional implications. Under

Montana’s Constitution, a person under eighteen has “all the fundamental rights of [an

adult] unless specifically precluded by laws which enhance the protection of such

persons.” Mont. Const. art. II, § 15. We have recognized that a youth in the youth court

system facing “a disposition different from an adult who has committed the same

offenses” is “not similarly situated” to the adult with respect to Montana’s sentencing

laws. In re S.M.K.-S.H, 2012 MT 281, ¶ 28, 367 Mont. 176, 290 P.3d 718. The

disposition in a youth court case should effectuate the Youth Court Act’s purposes to

prevent and reduce youth delinquency through a system that does not seek retribution but

that provides consistent and enforceable consequences designed to accomplish a number

of objectives, including rehabilitation of the youth, protection of the community, and

restitution to victims. Section 41-5-102(2), MCA.

¶20   The criminal mischief statute expressly provides that, before a court may impose

restitution, it must “determine the manner and amount of restitution after full

consideration of the convicted person’s ability to pay the restitution.” Section 45-6-

101(2), MCA (emphasis added). That subsection of the statute also requires that full
                                        9
payment of restitution “must be made prior to the release of state jurisdiction” over the

offender.

¶21    Other courts have recognized the importance of a realistic, defined restitution

order for juvenile offenders to “permit the juvenile to feel that he or she is gainfully

making amends for past transgressions.” In re Laurance S., 742 N.W.2d 484, 489 (Neb.

2007) (citing State v. Kristopher G., 500 S.E.2d 519, 522 (W. Va. 1997) (stating that

“[a]ny restitution award should . . . be set in an amount that is within the realistic ability

of the children to pay within a reasonable period of time, so that they can complete a

probationary period, put . . . events behind them, and move forward”)). The “salutary

purpose” an appropriate restitution order serves by “‘making the offender understand that

he has harmed not merely society in the abstract but also individual human beings, and

that he has a responsibility to’ the victim . . . , would be directly undermined by the

imposition of a restitution order that the juvenile is financially unable to pay.” In re

Laurance S., 742 N.W.2d at 489 (quoting In re Brian S., 181 Cal. Rptr. 778, 780 (Cal. Ct.

App. 1982)). Restitution may take on constitutional dimension in a youth case when the

imposition fails to consider the enhanced protections embodied in the Youth Court Act’s

objectives of promoting the development of youth and providing a program of

supervision and rehabilitation that avoids retribution and keeps youth from becoming

adult offenders. Section 41-5-102, MCA.

¶22    Given the significant amount of restitution at issue in this case, the youth’s

commitment to Pine Hills, and the potential long-term consequences of the restitution

order, K.E.G.’s future earning capacity and any assets available to immediately put
                                          10
toward restitution were key considerations to determining whether his disposition would

meet the objectives of the Youth Court Act and the requirements of § 45-6-101(2), MCA.

Under these circumstances, we conclude that the Youth Court’s failure to fully consider

K.E.G.’s ability to pay prior to imposing aggregate restitution may leave unsettled the

fundamental fairness to K.E.G. of the proceedings against him and therefore constituted

plain error.

¶23    For the foregoing reasons, the Youth Court’s April 25, 2012 order is reversed in

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

pursuant to §§ 45-6-101(2) and 41-5-1521(1), MCA, to consider K.E.G.’s ability to pay

the full amount of restitution.



                                                /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




Justice Laurie McKinnon, concurring in part and dissenting in part.

¶24    I concur in the Court’s decision to reverse the Youth Court’s order and remand for

the entry of a corrected restitution amount. I respectfully dissent, however, from the

Court’s analysis in reaching this conclusion. First, I believe the Court has improperly

resolved this case based on a legal theory that K.E.G. neither raised in the Youth Court
                                        11
nor relied on in his appeal before this Court.         Second, I disagree with the Court’s

application of adult sentencing statutes to youth cases, where the Montana Youth Court

Act has not expressly authorized the application of adult statutes. Finally, with respect to

the legal theory that K.E.G. actually did raise in this appeal, it is my view that, under our

caselaw and applicable statutes, K.E.G. cannot be required to pay restitution for damages

which he did not admit he caused and which the State never proved he caused. I address

these three points in turn.

                    I. The Court’s Sua Sponte “Plain Error” Review

¶25    “It is perhaps our most fundamental rule of appellate review that, with rare

exception, we will not consider an issue or claim that was not properly preserved for

appeal.” State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d 737. To

properly preserve an issue for appeal, it is necessary that the issue be timely raised in the

first instance in the trial court. Norman, ¶ 16. One oft-stated reason for this rule is that

“it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it

was never given the opportunity to consider.” State v. West, 2008 MT 338, ¶ 16, 346

Mont. 244, 194 P.3d 683 (internal quotation marks omitted); see also e.g. State v. Clary,

2012 MT 26, ¶ 19, 364 Mont. 53, 270 P.3d 88 (“[W]e will not put a district court in error

for failing to address an issue or an argument that was not made before it.” (internal

quotation marks omitted)); State v. Evans, 2012 MT 115, ¶ 26, 365 Mont. 163, 280 P.3d

871 (“While Evans faults the State and the District Court for the claimed errors listed

above, neither was afforded an opportunity to correct or explain them because Evans

made no contemporaneous objection.”).           “Above all else,” however, “the rationale
                                           12
underlying the timely-objection rule is judicial economy and bringing alleged errors to

the attention of each court involved, so that actual error can be prevented or corrected at

the first opportunity.” West, ¶ 17 (internal quotation marks omitted).

¶26    One of the “rare” and “narrow” exceptions to the timely-objection rule is the

doctrine of plain error review. West, ¶¶ 19-20; Norman, ¶ 16. This doctrine is founded

on the principle that “ ‘appellate courts have the inherent duty to interpret the constitution

and to protect individual rights set forth in the constitution and necessarily have the

correlative authority to invoke the plain error doctrine in order to carry out those

duties.’ ” West, ¶ 23 (brackets omitted) (quoting State v. Finley, 276 Mont. 126, 134, 915

P.2d 208, 213 (1996)). Given our “inherent power and paramount obligation to interpret

Montana’s Constitution and to protect the various rights set forth in that document,” we

may discretionarily review “claimed errors that implicate a criminal defendant’s

fundamental constitutional rights.” West, ¶ 23 (internal quotation marks omitted). We

use this doctrine “sparingly, on a case-by-case basis,” and only where failing to review

the claimed error “may result in a manifest miscarriage of justice, may leave unsettled the

question of the fundamental fairness of the trial or proceedings, or may compromise the

integrity of the judicial process.” West, ¶ 23 (internal quotation marks omitted).

¶27    The Court today mistakenly applies the plain error doctrine in two ways. First, the

“claimed error” the Court identifies is the Youth Court’s failure to consider K.E.G.’s




                                          13
ability to pay the aggregate restitution.1 The Court cites the ability-to-pay requirement

contained in § 45-6-101(2), MCA, and then reverses the Youth Court’s restitution order

because “the Youth Court’s failure to fully consider K.E.G.’s ability to pay prior to

imposing aggregate restitution . . . constituted plain error.” Opinion, ¶¶ 20, 22. That,

however, is not the claimed error K.E.G. raises on appeal—much less an error K.E.G.

asks us to review under the plain error doctrine.

¶28    K.E.G. admitted in the Youth Court that he engaged in criminal mischief

(common scheme) within the timeframe alleged in the County Attorney’s Petition—i.e.,

“from about December 22, 2011, to January 1, 2012”—but not over this entire timeframe.

K.E.G. admitted to breaking vehicle windows on December 26 and 27, 2011, but he

denied engaging in such activity on any other night between December 22 and January 1.

Accordingly, K.E.G. acknowledged that he is jointly and severally responsible to pay

restitution in the amount of $16,020.63, which represents the combined damages that he

and the other youths caused on December 26 and 27. K.E.G. maintained, however, that

his restitution liability does not extend to the vandalism that other youths caused on other

nights when K.E.G. was not present. His basis for this argument: the applicable statutes

and this Court’s caselaw require a causal connection between an offender’s unlawful

conduct and his restitution obligation, and there is no causal connection between K.E.G.’s

unlawful conduct on December 26 and 27 and the damages that occurred on the other

nights between December 22 and January 1. At no point did K.E.G. argue that the Youth

       1
          I refer to the total amount of damages caused by all the youths over the ten-day
period from December 22, 2011, to January 1, 2012, as the “aggregate” amount of
restitution.
                                         14
Court must consider his ability to pay the restitution amount. Even when the Youth

Court imposed the aggregate restitution of $78,702.09, K.E.G. did not object that the

court was first required to consider his ability to pay this amount. Correspondingly, on

appeal, K.E.G.’s stated issue is:

              Whether the district court erred when it concluded that K.E.G. was
       joint and severally liable for the full amount of restitution for damage that
       occurred over the course of ten consecutive nights where K.E.G. admitted
       to committing acts of Criminal Mischief (Common Scheme) but only
       admitted to being present for two nights.

As he did in the Youth Court, K.E.G. argues on appeal that there must be a causal

connection between his unlawful conduct and his restitution obligation. K.E.G. does not

invoke plain error review of this issue, given that he preserved the issue in the Youth

Court by raising it there.

¶29    In the vast majority of cases where the defendant-appellant has actually requested

plain error review of an unpreserved claim, this Court routinely has denied that request,

noting that we apply the doctrine sparingly. See e.g. Evans, ¶¶ 24-28; State v. Lacey,

2012 MT 52, ¶¶ 14, 21-26, 364 Mont. 291, 272 P.3d 1288; State v. Daniels, 2011 MT

278, ¶¶ 29-33, 362 Mont. 426, 265 P.3d 623; State v. Wilson, 2011 MT 277, ¶¶ 27-29,

362 Mont. 416, 264 P.3d 1146; State v. Roundstone, 2011 MT 227, ¶¶ 29-33, 362 Mont.

74, 261 P.3d 1009. In the present case, as explained, K.E.G. has not requested that we

exercise plain error review. Nor has he raised “ability to pay” as an issue on appeal.

Thus, the Court’s choice to reach the ability-to-pay issue nonetheless, although it was not

presented and argued by the parties, disregards our rules and is contrary to the policy of

applying plain error review sparingly. The Court’s approach also “ignores a fundamental
                                        15
premise of our adversarial system: that appellate courts do not sit as self-directed boards

of legal inquiry and research, but essentially as arbiters of legal questions presented and

argued by the parties before them.” Knox v. Serv. Employees Intl. Union, ___ U.S. ___,

132 S. Ct. 2277, 2298 (2012) (Sotomayor & Ginsburg, JJ., concurring in the judgment)

(citations and internal quotation marks omitted). “Our refusal to abide by standard rules

of appellate practice is unfair to the [Youth Court], whose judgment the Court vacates,

and especially to the [appellee] here, who suffers a loss in this Court without ever having

an opportunity to address the merits of the statutory question the Court decides.”2

Jefferson v. Upton, ___ U.S. ___, 130 S. Ct. 2217, 2227 (2010) (Scalia & Thomas, JJ.,

dissenting) (emphasis in original).

¶30    There is a second reason the Court’s application of plain error review in this case

is mistaken.   That doctrine applies to the review of alleged errors that implicate a

defendant’s fundamental constitutional rights. State v. Taylor, 2010 MT 94, ¶ 13, 356

Mont. 167, 231 P.3d 79; accord Opinion, ¶ 18.         We do not apply the doctrine to

statutory-based claims because the Legislature has enacted two statutes (specifically,

       2
         K.E.G. does discuss “ability to pay” is in his reply brief on appeal, which is the
source of the language quoted by the Court at ¶ 11 of the Opinion. But there are three
things that should be noted about K.E.G.’s discussion. First, because he addresses this
matter for the first time in his reply brief, the State has not had the opportunity to
respond. Second, we have held many times that we will not address the merits of an
issue presented for the first time in a reply brief. State v. Makarchuk, 2009 MT 82, ¶ 19,
349 Mont. 507, 204 P.3d 1213; Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14
P.3d 499. Third, the ability-to-pay requirement that K.E.G. discusses in his reply brief is
contained in § 45-6-101(2), MCA. Yet, prior to discussing this requirement, K.E.G.
argues that the sentencing-related subsections of § 45-6-101, MCA, do not apply to him.
He merely concludes this argument with the observation that if § 45-6-101, MCA, is the
basis for imposing a restitution obligation on him—a point K.E.G. does not concede—
then the statute’s ability-to-pay requirement ought to be imposed as well.
                                        16
§§ 46-20-104(2) and -701, MCA) that “uniquely restrict[ ] review of errors not objected

to at trial,” and “it would be incongruous for this Court to review [a] statutory-based

claim notwithstanding the statutory-based prohibition on our doing so.” West, ¶ 22 (first

brackets in original, internal quotation marks omitted).

¶31    Here, K.E.G. has not alleged in the Youth Court or in this Court that the Youth

Court’s imposition of restitution, without first considering his ability to pay, rises to a

constitutional violation. He cites neither the United States Constitution nor the Montana

Constitution anywhere in his briefs. Nevertheless, the Court decides, sua sponte, that the

imposition of a restitution obligation without consideration of the offender’s ability to

pay has “constitutional implications” and “constitutional dimension”—at least “in a youth

case.” Opinion, ¶¶ 19, 21. In essence, without briefing or argument on the point, the

Court announces a constitutional right of youths to receive consideration of their ability

to pay—whether they ask for it or not—before the youth court may impose a restitution

obligation. Opinion, ¶¶ 19, 21. Notably, this new right appears to be in tension with the

Youth Court Act, which states that “the ability of the youth to pay” is a factor that “may”

(not “must” or “shall”) be considered in determining whether restitution is appropriate.

Section 41-5-1521(1)(b), MCA. In any event, I do not believe that sua sponte application

of our plain error doctrine is a proper vehicle for deciding a constitutional question that

(1) the appellant has not raised and (2) requires us to announce a new constitutional right.

¶32    For the foregoing reasons, I dissent from our decision to “restate” the issue on

appeal so that we may sua sponte exercise plain error review. Opinion, ¶ 2. The Court’s


                                         17
“restated” issue was not raised in the Youth Court or in K.E.G.’s opening brief on appeal,

and the Court’s ensuing analysis misapplies our plain error doctrine.

        II. The Court’s Application of Adult Sentencing Statutes to a Youth

¶33    Three statutes within the Youth Court Act authorize the youth court to impose a

restitution obligation upon a youth: § 41-5-1304(1), MCA (where a consent adjustment

has been reached without the filing of a petition), § 41-5-1512(1), MCA (following an

adjudicatory finding that the youth is in need of intervention or has violated a consent

adjustment), and § 41-5-1513(1), MCA (following an adjudicatory finding that the youth

is delinquent, as is the case here). Section 41-5-1521(1), MCA, in turn, specifically

provides for the manner in which such restitution is to be determined. It directs the youth

court as follows:

              In determining whether restitution . . . is appropriate in a particular
       case, the following factors may be considered in addition to any other
       evidence:
              (a) the age of the youth;
              (b) the ability of the youth to pay;
              (c) the ability of the parents, guardian, or those that contributed to
       the youth’s delinquency or need for intervention to pay;
              (d) the amount of damage to the victim; and
              (e) legal remedies of the victim. However, the ability of the victim
       or the victim’s insurer to stand any loss may not be considered.

Section 41-5-1521(1), MCA (emphasis added). Therefore, based on this provision, the

youth’s ability to pay, as well as that of the youth’s parents, is one of several factors that

the youth court “may” consider in determining whether restitution is appropriate.

¶34    Any restitution obligation in youth court proceedings imposed pursuant to in the

adult criminal statutes and sentencing provisions of Titles 45 and 46 of the Montana Code

                                          18
Annotated directly conflicts with these specific provisions of the Youth Court Act.

Indeed, we have previously refused to apply adult sentencing statutes to a restitution

obligation imposed on a delinquent youth under the Youth Court Act. Our decision in In

re T.M.R., 2006 MT 246, 334 Mont. 64, 144 P.3d 809, involved a youth (T.M.R.) who

had been adjudicated delinquent.      He was placed on probation and ordered to pay

restitution pursuant to § 41-5-1513(1), MCA. His case was then transferred to district

court for supervisory responsibility pursuant to § 41-5-208, MCA. T.M.R., ¶ 14. The

issue on appeal concerned the amount of restitution T.M.R. owed. The State advocated

for the definition of “pecuniary loss” found in § 46-18-243, MCA, but we agreed with

T.M.R. that it was not appropriate to apply this adult sentencing statute. T.M.R., ¶ 16.

We noted that, pursuant to § 41-5-208(4), MCA, if a youth violates a disposition imposed

under § 41-5-1512 or -1513, MCA, then the district court may impose the adult

restitution statutes, including § 46-18-243, MCA. T.M.R., ¶ 16. However, because there

was no evidence that T.M.R. had violated his disposition conditions, we held that he was

not subject to sentencing under the adult statutes. T.M.R., ¶ 17. Implicit in our analysis

was the principle that the adult restitution statutes do not apply to youths unless there is

express authority for such application in the Youth Court Act.

¶35    The Court’s attempts at distinguishing T.M.R. from the present case fall short.

First, the Court states that the Youth Court did not apply adult sentencing statutes to

K.E.G.’s disposition. Opinion, ¶ 15. But that is exactly what the Youth Court did. The

purported authority for the Youth Court to impose an aggregated restitution obligation on

K.E.G. is § 45-6-101, MCA. The first subsection of this statute sets forth the elements of
                                         19
the offense. For purposes here, “[a] person commits the offense of criminal mischief if

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

or public property without consent.” Section 45-6-101(1)(a), MCA. The remainder of

the statute is dedicated to punishment and sentencing considerations:

      • Subsection (2) provides that a person who has been “convicted” of criminal
      mischief must be ordered to make restitution in an amount and manner to be set by
      the court. As the Court concedes, and as I discuss below, K.E.G. has not been
      “convicted” of criminal mischief. Opinion, ¶ 13; § 41-5-106, MCA.

      • Subsection (3) provides that a person who has been “convicted” of criminal
      mischief shall be fined not to exceed $1,500, imprisoned in the county jail for any
      term not to exceed six months, or both; but if the offender causes “pecuniary loss”
      in excess of $1,500, then the offender shall be fined an amount not to exceed
      $50,000, imprisoned in the state prison for a term not to exceed ten years, or both.

      • Subsection (4) provides that, in determining “pecuniary loss,” amounts involved
      in criminal mischiefs committed pursuant to a common scheme or the same
      transaction may be aggregated.

      • Lastly, subsection (5) provides that a person “convicted” of criminal mischief
      involving property owned or administered by the Department of Fish, Wildlife,
      and Parks shall forfeit any current hunting, fishing, or trapping license issued by
      the State and the privilege to hunt, fish, or trap in the State for at least 24 months.

It is clear, then, that by applying subsection (4) of § 45-6-101, MCA, the Youth Court

(and now this Court) applied an adult sentencing statute. As T.M.R. holds, adult statutes

are not applicable to youths unless the Youth Court Act expressly provides otherwise.

¶36   The Court’s second attempted distinction between the present case and T.M.R. is

that the Youth Court Act authorizes restitution for damages that result from the offense

for which the youth is disposed, and “[t]he offense for which K.E.G. was disposed was

§ 45-6-101(4), MCA.” Opinion, ¶¶ 13, 15. As explained above, however, subsection (4)

does not set forth the “offense” of criminal mischief.        That offense is set forth in
                                         20
subsection (1) of the statute, which states: “A person commits the offense of criminal

mischief if the person knowingly or purposely . . . .” Subsection (4), in turn, merely sets

forth a sentencing consideration—namely, that in determining whether the offender is

subject to an enhanced punishment of $50,000 and ten years in state prison, amounts

involved in criminal mischiefs committed pursuant to a common scheme or the same

transaction may be aggregated in determining pecuniary loss.3 Aggregation of pecuniary

loss under subsection (4), in other words, simply determines an adult offender’s sentence

exposure for the offense.

¶37    We have recognized that there is more than an “artificial distinction” between a

disposition imposed under the Youth Court Act and a sentence imposed under the

Montana Criminal Code. See In re B.L.T., 258 Mont. 468, 473, 853 P.2d 1226, 1229

(1993). The special treatment afforded youths under the Act is reflected in the express

legislative purposes set forth in § 41-5-102, MCA, and in the myriad statutes (noted

below) that distinguish youth proceedings from adult criminal proceedings. The Court’s

approach today in finding that an adult criminal sentencing statute gave the Youth Court

authority to impose a restitution obligation on a youth, Opinion, ¶¶ 13-14, undermines the

legislative intent to treat youths differently than adult offenders.




       3
         “Common scheme” is defined elsewhere in the Code as “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 or
that affects the same person or the same persons or the property of the same person or
persons.” Section 45-2-101(8), MCA.
                                          21
¶38   The Youth Court Act exists to address youth delinquency through a mechanism

distinct and apart from the adult criminal justice system. See §§ 41-5-102, -106, MCA.

The legislative purposes of the Act, as stated in § 41-5-102, MCA, are:

      1. to preserve the unity and welfare of the family whenever possible, and to
         provide for the care, protection, and wholesome mental and physical
         development of the youth;

      2. to prevent and reduce youth delinquency through a system that does not seek
         retribution, but that provides: consequences for the youth’s actions; a program
         of supervision, care, rehabilitation, detention, competency development, and
         community protection for the youth before he becomes an adult offender;
         restitution in appropriate cases; and, if removal from the home is necessary, the
         ability of the youth to maintain ethnic, cultural, or religious heritage whenever
         appropriate;

      3. to achieve these purposes in a family environment if possible, separating the
         youth from the parents only when necessary for the welfare of the youth or for
         the safety and protection of the community; and

      4. to provide judicial procedures in which the parties are ensured a fair, accurate
         hearing and recognition and enforcement of their constitutional and statutory
         rights.

The youth courts were established to fulfill these purposes. Section 41-5-201, MCA.

¶39   That the Legislature intended youths to be treated differently than adult offenders

is apparent from various facets of the Youth Court Act. For example, no youth may be

charged with or convicted of any crime in any court except as provided in the Act.

Section 41-5-106, MCA; see also § 41-5-206(4), MCA. With limited exceptions, the

youth court has exclusive original jurisdiction of all proceedings in which a youth is

alleged to be delinquent. Section 41-5-203(1), MCA. A “delinquent youth” is a youth

who has committed “an offense that, if committed by an adult, would constitute a

criminal offense.” Section 41-5-103(11)(a), MCA. Most importantly, a finding that a
                                        22
youth is delinquent is not a criminal conviction: “No adjudication upon the status of any

youth in the jurisdiction of the court shall operate to impose any of the civil disability

imposed on a person by reason of conviction of a criminal offense, nor shall such

adjudication be deemed a criminal conviction.” Section 41-5-106, MCA. Also, “[n]o

placement of any youth in any state youth correctional facility under [the Youth Court

Act] shall be deemed commitment to a penal institution.”4 Section 41-5-106, MCA.

¶40    As discussed, the statute this Court cites as authority for K.E.G.’s restitution

obligation provides, in pertinent part: “A person convicted of criminal mischief must be

ordered to make restitution in an amount and manner to be set by the court. The court

       4
         In addition to the foregoing statutes, the following statutory provisions reflect the
unique treatment of youth versus adult offenders: § 41-5-206(6), MCA (allowing a youth
to be sentenced under Titles 45 and 46 if the youth has been convicted in district court of
one of the enumerated offenses, but otherwise requiring the youth to be sentenced under
Title 41); § 41-5-208(2), (3), MCA (listing prerequisites for the transfer of certain youth
cases to district court); §§ 41-5-216, -1524(2), MCA (requiring youth court records to be
“physically sealed” on the youth’s 18th birthday, with certain exceptions); § 41-5-321(2),
MCA (clarifying that the taking of a youth into custody is not an “arrest”);
§§ 41-5-334(1), -349(1), -1522(2), MCA (providing, with limited exceptions, that a youth
may not be detained or placed in a facility used for the confinement of adults accused or
convicted of criminal offenses); §§ 41-5-1301, -1302, MCA (permitting youth matters to
be resolved through informal dispositions and consent adjustments, in lieu of formal
proceedings); §§ 41-5-1401, -1402, MCA (specifying procedures for commencing a
formal proceeding against a youth); § 41-5-1431(3), MCA (stating that the standard of
proof in probation revocation of a youth is the same standard used in probation
revocation of an adult, but that, “[i]n all other respects,” the proceedings “are governed
by the procedures, rights, and duties applicable to proceedings on petitions alleging that
the youth is delinquent or a youth in need of intervention”); § 41-5-1501, MCA
(permitting a consent decree in lieu of an adjudication); § 41-5-1502, MCA (specifying
procedures at an adjudicatory hearing); § 41-5-1524(3), MCA (requiring youth records to
be maintained in a separate management information system and not to be included in an
adult offender management system, unless the youth has been adjudicated as an adult);
§ 41-5-1604(1)(a), MCA (distinguishing between “juvenile dispositions under 41-5-1512
or 41-5-1513” and “any sentence allowed by the statute that establishes the penalty for
the offense . . . and that would be permissible if the offender were an adult”).
                                          23
shall determine the manner and amount of restitution after full consideration of the

convicted person’s ability to pay the restitution.” Section 45-6-101(2), MCA. The

statute further provides: “Amounts involved in criminal mischiefs committed pursuant to

a common scheme or the same transaction . . . may be aggregated in determining

pecuniary loss.” Section 45-6-101(4), MCA. Nevertheless, there can be no dispute,

based on the aforementioned provisions of the Youth Court Act, that K.E.G. has not been

“convicted” of criminal mischief.      Section 41-5-106, MCA.        Therefore, § 45-6-101,

MCA, by its terms, is inapplicable. The State’s incorporation of a particular criminal

statute into a petition alleging that a youth is delinquent is for the purpose of bringing the

youth to court and providing the youth with notice of the allegations which, “if [the youth

were] an adult, would constitute a criminal offense.” Section 41-5-103(11)(a), MCA.

Incorporation of the criminal statute into a youth court petition for purposes of charging

does not thereby remove the proceedings from the operation of the Youth Court Act and

subject the youth to sentencing as if the youth were a convicted adult offender.

¶41    The dispositions that the youth court may impose on a delinquent youth are set

forth in § 41-5-1513, MCA. A couple of these dispositions involve the application of

Title 46. See §§ 41-5-1512(1)(k), -1513(1)(a), MCA (authorizing the youth court to place

a delinquent youth under home arrest as provided in Title 46, chapter 18, part 10, MCA);

§ 41-5-1513(1)(c), (1)(d), (2), MCA (authorizing the youth court to require a delinquent

youth adjudicated for a violent or sexual offense to register as a violent or sexual offender

pursuant to Title 46, chapter 23, part 5, MCA). However, aside from these two specific

grants of authority to apply particular provisions of Title 46, there is no general grant of
                                          24
authority to the youth court to apply the sentencing provisions of Titles 45 and 46 to a

youth adjudicated as delinquent. Rather, the Legislature intended such youths to be

subject to the dispositions enumerated in the Youth Court Act itself.

¶42    For all of these reasons, I disagree with the Court’s contention that it is not

applying adult sentencing provisions to K.E.G., and I respectfully dissent from the

Court’s decision to apply those provisions to the disposition of a youth adjudicated as

delinquent under the Youth Court Act. I instead would apply the provisions set forth in

the Youth Court Act itself.

              III. The Court’s Failure to Apply the Causal Requirement

¶43    This brings me to the issue argued by K.E.G. on this appeal: that there is no

causal connection between his unlawful conduct and his restitution obligation for the

aggregate damages.

¶44    Within the context of criminal offenses, we have consistently stated that “a causal

relation between the offender’s criminal conduct and the pecuniary loss is the touchstone

for determining whether a person or entity is a victim entitled to restitution. We will not

hold an offender accountable for restitution for offenses he or she did not commit.” City

of Billings v. Edward, 2012 MT 186, ¶ 26, 366 Mont. 107, 285 P.3d 523 (citations and

internal quotation marks omitted); accord State v. Brownback, 2010 MT 96, ¶ 20, 356

Mont. 190, 232 P.3d 385; State v. Breeding, 2008 MT 162, ¶ 13, 343 Mont. 323, 184

P.3d 313; State v. Beavers, 2000 MT 145, ¶¶ 9-11, 300 Mont. 49, 3 P.3d 614. As the

statutes referenced in these cases require restitution for damages that “arise out of” or are

“a result of” the offender’s unlawful conduct (see §§ 46-18-201(5), -241(1), -243(1),
                                         25
-243(2)(a), MCA), we have held that an offender may not be ordered to pay restitution in

excess of the damages caused by that conduct. Beavers, ¶ 12; Breeding, ¶¶ 13-19. We

also have recognized that some pecuniary losses may be so attenuated as to no longer be

considered “a result of” the offense. Brownback, ¶ 20 n. 1.

¶45    Given this precedent, the Court’s reliance on the criminal mischief statute for the

proposition that “ ‘amounts involved in criminal mischiefs committed pursuant to a

common scheme . . . may be aggregated in determining pecuniary loss’ ” is unpersuasive.

Opinion, ¶ 13 (quoting § 45-6-101(4), MCA). Assuming for the moment, and purely for

the sake of argument, that this adult sentencing statute is applicable to a youth such as

K.E.G., the question then becomes: What does “pecuniary loss” mean? That term is

defined, for restitution purposes, as the full replacement cost of property taken, destroyed,

harmed, or otherwise devalued “as a result of” the offender’s criminal conduct. Section

46-18-243(1)(b), MCA. Accordingly, while amounts involved in criminal mischiefs

committed pursuant to a common scheme may be aggregated, the “pecuniary loss”

forming the basis of any restitution award must have been “a result of” the offender’s

criminal conduct. Section 45-6-101(4), MCA, does not vitiate this causal requirement.

The Court’s reasoning that “vandalism sprees are not uncommonly the province of

young, immature offenders,” Opinion, ¶ 15, does not excuse the Court’s failure to limit

K.E.G.’s restitution obligation—as he argues on appeal—to those damages that he

actually caused.

¶46    Unlike the adult sentencing statutes cited above, the youth disposition statutes do

not mandate restitution in all cases. Rather, a restitution obligation “may” be imposed on
                                         26
a youth in an “appropriate” case.       See §§ 41-5-102(2)(c), -1304(1)(d), -1512(1)(d),

-1513(1)(a), -1521(1), MCA.       Even in the “appropriate” case, however, the youth

statutes—like the adult statutes—mandate that restitution be “for damages that result

from the offense for which the youth is disposed.”               Sections 41-5-1512(1)(d),

-1513(1)(a), MCA. Like the adult statutes, the youth statutes define “victim” as a person

who has suffered property, physical, or emotional injury “as a result of” the youth’s

unlawful conduct. Section 41-5-103(44)(a), MCA. This “result from” and “as a result

of” language creates the same causal requirement that we held exists in the adult statutes.

See Edward, ¶¶ 25-26; Brownback, ¶ 20; Breeding, ¶¶ 12-13; Beavers, ¶¶ 8, 12. Hence,

it follows that a youth may not be ordered to pay restitution in excess of the damages

caused by the youth’s unlawful activities. I note, further, that in the context of a youth

court proceeding, it is particularly important that the youth understand he or she is being

held responsible only for the damage resulting from the delinquent act. As set forth in

the Youth Court Act, its purpose is to provide “judicial procedures in which the parties

are ensured a fair, accurate hearing . . . .” Section 41-5-102(4), MCA.

¶47    The dispositive question in this appeal, then, is what damages occurred “as a result

of” K.E.G.’s unlawful conduct. In the Petition filed with the Youth Court, the County

Attorney alleged that:

       from about December 22, 2011, to January 1, 2012, the Youth, [K.E.G.],
       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 . . . [in]
       violation of Sections 45-6-101 and 45-2-101(8), Montana Code Annotated.

                                          27
Four youths were identified in the Petition as participating with K.E.G. to damage

vehicles. But the State did not allege a conspiracy among the youths, § 45-4-102, MCA,

or allege that K.E.G. was legally accountable for the other youths’ conduct, § 45-2-301,

MCA. Either allegation might arguably have expanded K.E.G.’s culpability beyond the

two-day timeframe for which he admitted delinquent conduct, if he had tendered an

admission to conspiracy or accountability.     K.E.G. was alleged, however, to have

embarked on a common scheme to injure, damage, or destroy property from “about”

December 22 to January 1. His admissions to only two nights of delinquent conduct still

constituted a common scheme.

¶48   At his initial appearance, K.E.G. denied the County Attorney’s allegations in the

Petition. At a subsequent hearing, however, K.E.G. admitted that he did engage in

criminal mischief (common scheme) within the alleged timeframe, though not over the

entire timeframe. The Court’s assertion that K.E.G. “acknowledged that he acted as part

of a common criminal plan that resulted in 200 reports of vandalism against homes and

vehicles in Billings between December 22, 2011, and January 1, 2012,” Opinion, ¶ 14, is

factually incorrect. K.E.G. never admitted to acting as part of such a “plan”—which is

essentially a mischaracterization of the charge here as one of “conspiracy.”     While

admitting that he had damaged or destroyed property on December 26 and 27, K.E.G.

continued to deny engaging in such activity on any other night between December 22 and

January 1.

¶49   This is reflected in the following colloquy among K.E.G., his counsel (Mr. Duke),

and the Youth Court:
                                       28
                   MR. DUKE: He is going to admit to the petition that he was
      involved with two days on the criminal mischief . . . .
                   THE COURT: All right. So -- well, [K.E.G.], based on what
      your counsel has related to me, I need to make sure that you understand
      what your rights are. [The court proceeded to advise K.E.G. of his rights.]

                                        .   .   .

                    THE COURT: Okay. If you make admissions today, there
      isn’t going to be a trial, and you are, in essence, waiving your right to a
      trial. You understand that?
                    THE YOUTH: Yes.
                    THE COURT: And the State isn’t going to have to prove
      anything. You understand that?
                    THE YOUTH: (Nods.) For the -- for the two other days that
      I wasn’t involved or what?
                    THE COURT: For -- well, for what you were admitting to.
      Okay?
                    MR. DUKE: Right, if you admit, they don’t have to prove
      those two days.
                    THE YOUTH: Okay.
                    MR. DUKE: Do you understand that?
                    THE YOUTH: Yes.

¶50   K.E.G.’s admission to only two days is also reflected in the factual basis he

provided for the admission:

                   THE COURT: Okay. In the petition, you are alleged to be a
      delinquent youth by virtue of committing the offense of criminal mischief,
      common scheme, a felony, alleged to have occurred on or about December
      22nd, 2011, to January 1st, 2012. With regard to that offense, how do you
      plead?
                   THE YOUTH: Guilty.
                   THE COURT: Do you admit or deny it?
                   THE YOUTH: I admit.
                   THE COURT: Okay. And, Mr. Duke, are you going to --
      would you like to assist your client in having him tell me what it is he did?
                   MR. DUKE: Yes, just a few questions, Your Honor.

                                   EXAMINATION

      BY MR. DUKE:
                                       29
               Q. [K.E.G.], on December 26th and December 27th, were you here
       in Billings, Yellowstone County?
               A. Yes.
               Q. And you were riding around in a vehicle with other youths,
       whose initials are J.E., L.P., K.G.?
               A. Mm-hmm.
               Q. And perhaps T.B.?
               A. Yes.
               Q. And on those two nights you participated by breaking various
       windows from vehicles?
               A. Yes.
               Q. And what did you use to break the windows?
               A. A bat and a couple of them with a co2 bb gun.
               Q. And you believe that the amount of loss on those two days
       exceeds $1,500?
               A. Yes.
               Q. And if you would estimate, how many vehicles that were
       damaged during those two?
               A. Myself or altogether?
               Q. Well, with the group that was -- you are with that night? Of
       those two days, excuse me.
               A. Both nights put together, I would say around 30 cars,
       30 windows.
                     MR. DUKE: I have no further questions, Your Honor.
                     THE COURT: Well, [K.E.G.], based on that description, it
       does appear to me that you in fact did commit these -- this offense and I’m
       going to accept your admission.

¶51    In imposing the aggregate restitution amount, the Youth Court stated that “while

you may not have been present at every act of criminal mischief, you have admitted to

being responsible as part and parcel of a common scheme, and the common scheme

asserted in the petition was the entire common scheme, and all of the days of this

criminal mischief that went on with the various participants.” K.E.G. pointed out that he

had not admitted to “the entire common scheme” alleged in the Petition. In response, the

court stated: “I am not functioning under the belief that [K.E.G.] was present at every act

                                        30
of criminal mischief alleged in the restitution matters. I believe that he was there two

days, as he has said. I do believe that he, however, did admit to that common scheme.”

¶52    Based upon this record, I believe the Youth Court’s and this Court’s determination

that K.E.G. admitted to (as the Court puts it) “a common criminal plan that resulted in

200 reports of vandalism against homes and vehicles in Billings between December 22,

2011, and January 1, 2012,” is not correct.        While the State alleged that K.E.G.’s

common scheme occurred “from about December 22, 2011, to January 1, 2012,” the

transcript of the proceeding clearly establishes that K.E.G. never admitted to a common

scheme spanning those dates. K.E.G. and his counsel were very clear—both before

making his admission and during the recitation of the factual basis for the admission—

that his offense took place on December 26 and 27, and only those two nights. K.E.G.

maintained his denial as to the other eight nights and brought alibi witnesses to the

disposition hearing to establish that he was not present on those other nights.

¶53    Significantly, the State chose to accept K.E.G.’s admission to only a portion of the

delinquent acts alleged in the Petition.      The State chose not to proceed with an

adjudicatory hearing in which the State might prove K.E.G.’s involvement in more than

just two nights. Despite this decision, however, the State has sought to hold K.E.G.

accountable for conduct that K.E.G. denied and that the State chose not to prove. Neither

the State nor the Youth Court nor this Court has identified any legal authority supporting

this acceptance of an admission where a factual basis for the other eight nights has not

been established and, in fact, has been specifically denied by K.E.G. It has never been

established factually that K.E.G.’s common scheme extended to any other night(s)
                                         31
between December 22 and January 1, or that the damages which occurred on the other

nights “resulted from” K.E.G.’s unlawful conduct on December 26 and 27.

¶54    In its Sentencing Memorandum Regarding Restitution (filed in the Youth Court on

April 23, 2012), the State argued that K.E.G. had “encourag[ed]” the other youths to

commit the vandalism on all ten nights and that K.E.G. thus bore responsibility for the

other youths’ actions on nights when K.E.G. was not present—i.e., as the State put it, “In

for a penny, in for a pound.” The fact remains, however, that the State did not charge

K.E.G. under an accountability theory.       See §§ 45-2-301, -302, MCA. K.E.G. was

charged with criminal mischief over a ten-night period, he admitted to a two-night

common scheme, and the State chose not to prove the other eight nights. The State

cannot now avoid the consequences of this choice by rewriting the charge to be one of

conspiracy or accountability for criminal mischief.

¶55    I believe the Court errs in affirming the Youth Court’s imposition of a restitution

obligation for the aggregate damages that occurred over the entire ten-day period. I

would reverse the Youth Court’s order and remand with instructions to impose restitution

in the amount of $16,020.63. This is the total pecuniary loss on December 26 and 27. As

noted, K.E.G. conceded that he is jointly and severally liable for this amount, and he did

not challenge his ability to pay it.

¶56    In conclusion, based on the foregoing, I concur in the Court’s decision to reverse,

but I dissent from the Court’s analysis in reaching that decision and from the Court’s




                                        32
instruction to the Youth Court to consider on remand K.E.G.’s ability to pay the full

$78,702.09.5


                                               /S/ LAURIE McKINNON




      5
        According to the State’s Sentencing Memorandum Regarding Restitution, the
$78,702.09 figure includes amounts from outside the date range alleged in the Petition.
Even if K.E.G. is responsible for all damages inflicted by all youths between December
22, 2011, and January 1, 2012—a proposition with which I do not agree—the Court fails
to explain why he is also responsible for damages inflicted before December 22 and after
January 1.
                                       33
