97-041




                                                                                            No.        97-041

                                                             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                            1997




                                                                    STATE OF MONTANA,

                                                                         Plaintiff and Respondent,

                                                                                           v.

                                                                                                         JEREMY CORD WOODS,

                                                                          Defendant and Appellant.




                  APPEAL FROM:                          District Court of the First Judicial District,
                                                           In and for the County of Lewis and Clark,
                                                       The Honorable Thomas C. Honzel, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                     For Appellant:

                                                        Jeremy Cord Woods, Deer Lodge, Montana (pro se)

                                                                                    For Respondent:

                                Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant
                                                  Attorney
                                 General, Helena, Montana; Mike McGrath, Lewis and Clark County
                          Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena,
                                                  Montana.



                                                                               Submitted on Briefs: September 4, 1997

                                                                               Decided:                December 23, 1997
                                                                               Filed:


                                                              __________________________________________

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                                                                                            Clerk

                   Justice William E. Hunt, Sr., delivered the Opinion of the Court.


          Jeremy Cord Woods (Appellant) appeals from an order of the First Judicial
                                          District
   Court, Lewis and Clark County, granting the Stateþs petition for destruction of
                                          evidence
                    held by the Helena Police Department. We affirm.
                            We frame the issues on appeal as follows:
         1.     Did the District Court err when it imposed restitution as part of the
                                   underlying sentence?
          2.     Did the District Court err when it granted the Stateþs petition for
                                       destruction
                                       of evidence?
           3.     Was Appellantþs restitution obligation discharged in his Chapter 7
                                  bankruptcy proceeding?
             4.    Did the District Court err when it failed to appoint counsel to
                                         represent
                              Appellant in this proceeding?

                                                           BACKGROUND
           On November 5, 1993, Appellant was charged by information with issuing a bad
    check, a felony in violation of õ 45-6-316, MCA. The information alleged that on
      October 13, 1993, Appellant issued a check on his account at Seafirst Bank in
  Washington to Norwest Bank in Helena, Montana, for $3,830.00, knowing that it would
            not be paid by the depository. On January 6, 1994, he pled guilty.
         After further investigation, it was discovered that Appellant had written over
  $30,000.00 worth of bad checks during a check writing þspree.þ Appellant was still
 writing bad checks as of the date his probation officer had prepared the presentence
investigation. That probation officer recommended that the court require Appellant
                                             to
 make full restitution for all bad checks, once all checks were accounted for. The
                                          officer
           estimated that the checks amounted to þtens of thousandsþ of dollars.
            Following receipt of the presentence investigation, Appellant prepared a
                                          þReport
to the Court [and] Defendantþs Corrections of Presentence Investigation.þ Appellant
                                            did
  not dispute the probation officerþs conclusion regarding the amount of bad checks
                                         written,
   and he did not dispute the recommendation that he make full restitution. To the
                                         contrary,
 Appellant apologized to the banks and merchants he defrauded and agreed to make full
                                       restitution.
          Appellant subsequently pled guilty to two additional offenses, theft and bail
jumping, that he committed after the original charge was filed. On May 26, 1994, the
  court sentenced Appellant to ten years at the Montana State Prison on the bad check
   charge. For the two additional charges, the court sentenced him to two five-year
                                           terms,
both suspended. The suspended portions of his sentence were to run concurrently with

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    each other, but consecutively to his ten-year prison sentence. The court also
                                            ordered
       Appellant to pay full restitution, as determined by the courtþs restitution
                                       officer. The
 restitution officer determined that the restitution totaled $35,823.49. Appellant
                                            did not
                            appeal his conviction or sentence.
            On July 15, 1996, the State filed a petition for destruction of evidence,
                                         requesting
that merchandise seized by the Helena Police Department following Appellantþs arrest
                                              in
     October 1993, be returned to their rightful owner and that the value of those
                                           returned
items as well as currency that was seized be applied towards Appellantþs restitution
   obligation. The State alleged that the items it proposed to return þwere either
                                         identified
  by merchants or [Appellant] or his girlfriend who was present when the checks were
   written as having been purchased with the bad checks.þ Those items included four
firearms, ammunition, gun cleaning equipment, a holster, a TV/radio, jewelry, tools,
       compact discs, cassette tapes, clothing, videos, a Sony discman, speakers,
                                        headphones,
  amplifiers, cassette decks, other stereo equipment, a Chevrolet Nova automobile, a
   scanner, and cash in excess of $9,000.00. The State also proposed to return some
       personal items to Appellant, and to destroy a few remaining items, such as
                                       miscellaneous
                receipts, adult magazines, identification papers and keys.
              Appellant contested the petition and requested that the court appoint
                                         counsel to
 represent him. The District Court denied his request for counsel on the basis that
    þWoods [was] not facing further incarceration or additional punishment.. . .þ
                                          Appellant
     appealed the denial of his request for an attorney to this Court. This Court
                                          concluded
     that Appellantþs substantial rights were not affected by the District Courtþs
                                         refusal to
       appoint counsel to represent him, and that consequently his appeal was not
                                       authorized by
            õ 46-20-104(1), MCA. Accordingly, this Court dismissed the appeal.
          The District Court subsequently granted the Stateþs petition for destruction
                                              of
evidence, but stayed execution of the order pending final disposition by this Court.
                                              On
December 17, 1996, Appellant filed a notice of appeal from the District Courtþs order
and also requested that this Court appoint counsel to represent him in presenting his
 appeal. On February 24, 1997, we denied his request for appointment of counsel. We
  explained that his entitlement to counsel under õ 46-8-104, MCA, was dependent upon
   the existence of a criminal action or proceeding. We noted that the petition for
      destruction of evidence is not a criminal proceeding, and Appellant, who was
                                          sentenced
      and convicted nearly two years prior to the filing of the petition, faced no
                                         additional
    charges, incarceration or punishment. Thereafter, Appellant filed his appellate

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                                                                             brief pro
                                                                                se.
                                                  STANDARD OF REVIEW
        We review issues of law to determine whether the courtþs interpretation and
application of the law is correct. Peters v. State (Mont. 1997), __ P.2d __, __, 54
                                         St.
                                  Rep. 1185, 1186.
                                                         ISSUE ONE
           Did the District Court err when it imposed restitution as part of the
                                     underlying
                                      sentence?

         Appellant contends that the District Court erred when it imposed restitution
                                          as part
  of his sentence in May 1994. He claims that the presentence investigation report
                                          did not
  contain any documentation of the victimsþ pecuniary loss and did not reference his
 financial resources or ability to pay restitution, as required by õ 46-18-242, MCA.
  Additionally, he insists that because he was only found guilty of issuing one bad
                                           check
   in the amount of $3,830.00, his restitution obligation should be limited to that
                                          amount.
    He maintains that the District Court therefore erred in setting his restitution
                                      obligation to
                               an amount over $35,000.00 .
           This Court has no jurisdiction to hear this issue. The rules of appellate
                                        procedure
    provide that a notice of appeal must be filed within 60 days from the date of a
                                         criminal
       judgment. Rule 5(b), M.R.App.P. In this case, the District Court ordered
                                     restitution on
   May 26, 1994, and Appellant did not appeal that judgment. The current notice of
                                           appeal
from the order granting the Stateþs petition for destruction of evidence, was filed
                                             on
December 17, 1996. Because his right to appeal the 1994 judgment against him expired
 more than two years ago, he cannot now raise the issue in this latest and unrelated
 appeal. State v. Rice (1996), 275 Mont. 81, 85, 910 P.2d 245, 246 (citing State v.
                      Haskins (1992), 255 Mont. 202, 841 P.2d 542).
                                                           ISSUE TWO
              Did the District Court err when it granted the Stateþs petition for
                                      destruction of
                                         evidence?

          Appellant contends that the District Court erred by granting the Stateþs
                                     petition for
destruction of evidence, because in so doing, the District Court allowed the State
                                         þto
convert [his] personal propertyþ in excess of the actual pecuniary loss of $3,830.00
 caused by his crime. He maintains that such an order violates his constitutional
                                        rights
     embodied in Article II, Sections 3, 4, 15, 17, and 22 of the Montana State

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                                     Constitution
 and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
        We have already held, however, that Appellant waived any arguments regarding
    the amount of his restitution obligation when he failed to timely appeal the
                                      underlying
  judgment. Furthermore, at the time of sentencing, Appellant fully understood and
accepted responsibility for repaying all the banks and merchants whom he defrauded.
                                          In
     response to the probation officerþs recommendation that Appellant pay full
                                     restitution,
which was in the þtens of thousandsþ of dollars, Appellant stated in his þReport to
                                         the
          Court [and] Defendantþs Corrections of Presentence Investigationþ:
                  In my period of incarceration I have had much time to think and
         evaluate myself as a whole. I wish to begin by saying þIþm sorry.þ I want
           to make my apologies to everyone involved and ask for your forgiveness.
            To the banks and merchants, I will make the necessary arrangements to
         make reparation to you all. Please be patient, there is a considerable sum
          to repay. I will do my best to return the money as quickly as possible.

   Accordingly, because Appellant waived any argument challenging the amount of his
  restitution obligation, and indeed fully accepted responsibility for making full
                                      restitution
   at the time of sentencing, we hold that the lower court did not err in ordering
                                        property
      with a value in excess of $3,830.00 be returned to the defrauded merchants.
          Appellant next contends that the State misinterprets the District Courtþs
                                      restitution
order by seeking restitution in an amount over $3,830.00. Appellant is wrong. As we
  have already pointed out, the District Courtþs order did not limit restitution to
                                       the amount
for that one bad check. Rather, it ordered Appellant to þpay full restitutionþ in an
amount to be determined by the restitution officer after all the bad checks had been
                                          fully
     accounted for.     Finally, Appellant maintains that the Stateþs petition was
                                        untimely.
   He contends that because his restitution obligation was made a condition of the
                                        suspended
portions of his sentence, he is not required to pay restitution until he is released
                                           from
    prison. However, Appellant misapprehends the nature and purpose of the present
proceedings. Appellant, who is incarcerated and has no income, is not being ordered
                                            to
       presently pay restitution from any earnings, and the failure to fully pay
                                  restitution at this
 time will not result in the revocation of the suspended portions of his sentence.
                                         What is
at issue here is the manner in which to dispose of evidence seized by the police.
                                          Such
 evidence is the fruit of Appellantþs crimes and does not rightfully belong to him.
                                           The
procedure employed by the State provides the means for appropriating or disposing of

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    such evidence when prosection is complete and no further legal proceedings are
     contemplated. See õõ 46-5-306 through 46-5-309, MCA. Although the State has
    characterized the proceeding as a þpetition for destruction of evidence,þ the
                                      majority of
the items are not actually being destroyed. The record shows that instead, the cash
                                          will
  be turned over to the restitution department to reimburse Appellantþs victims, and
                                           the
consumer items will be returned to the merchants whom Appellant defrauded. As a part
of the proceeding, the State has appropriately requested that the returned assets be
                                        applied
 towards Appellantþs restitution obligation.    Allowing Appellant to keep the fruits
                                         of his
crimes, simply because he has not yet been released from prison and has not yet begun
to serve the suspended portions of his sentence, flies in the face of all notions of
                                        justice
  and has no basis in the law. We hold that the District Court did not err when it
                                        granted
                                 the Stateþs petition.
                                      ISSUE THREE
        Was Appellantþs restitution obligation discharged in his Chapter 7 bankruptcy
                                      proceeding?

         Appellant contends that the lower court erred when it failed to account for
                                            his
Chapter 7 bankruptcy proceeding, which was pending when the State filed the petition
                                            for
   destruction of evidence.    He cites Pennsylvania Department of Public Welfare v.
 Davenport (1990), 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588, and argues that his
  restitution obligation was discharged. According to Appellant, the District Court
               therefore had no authority to grant the Stateþs petition.
          The State contends that Appellant waived any argument that his restitution
obligation was discharged in bankruptcy, because he failed to raise that issue to the
   District Court and now presents it to this Court for the first time on appeal.
                                        However,
  the bankruptcy court did not issue the discharge order until January 9, 1997, one
                                           month
 after the District Court granted the petition on December 11, 1996. Appellant thus
                                           could
       not have argued to the District Court that his restitution obligation was
                                    discharged. We
   hold that Appellant did not waive this argument, and we address the merits of his
                                      contention.
             We reject Appellantþs argument that a discharge order in a Chapter 7
                                       bankruptcy
 proceeding also discharges restitution obligations imposed by a criminal court. In
                                          a case
directly on point, the United States Supreme Court ruled to the contrary.     In Kelly
                                             v.
Robinson (1986), 479 U.S. 36, 50, 107 S.Ct. 353, 361, 93 L.Ed.2d 216, 229, the United
   States Supreme Court held that õ 523(a)(7) of the Bankruptcy Code, which excepts
                                         certain

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 debts from discharge, þpreserves from discharge any condition a state criminal court
    imposes as part of a criminal sentence.þ Accordingly, restitution obligations
                                        imposed as
       a condition of probation in state criminal actions are nondischargeable in
                                       proceedings
 under Chapter 7 of the Bankruptcy Code, 11 U.S.C. õ 701 et seq. Kelly, 479 U.S. at
        53. The Court based its decision on the stateþs interest in unfettered
                                  administration of its
 criminal justice system; the historical construction of the earlier Bankruptcy Act
                                          of 1898
that excepted restitution orders from discharge; and the absence of any evidence that
 Congress intended to change that construction when it enacted the Bankruptcy Code in
                              1978. Kelly, 479 U.S. at 53.
             Appellant relies on Davenport, but that case is not applicable for two
                                          reasons.
First, that case involved Chapter 13, not Chapter 7, proceedings.      In Davenport, the
  Supreme Court held that restitution obligations constituted dischargeable þdebtsþ
                                           within
  the meaning of the Bankruptcy Code, 11 U.S.C. õ 101(11). Davenport, 495 U.S. at
                                            555.
  Because the statutory exception to discharge of debts relied on in Kelly, õ 523(a)
                                            (7),
      does not extend to Chapter 13 proceedings, the Supreme Court concluded that
                                       restitution
 payments are dischargeable pursuant to Chapter 13. Davenport, 495 U.S. at 555. In
                                             so
  ruling, however, the Supreme Court emphasized that its decision þdoes not signal a
 retreat from the principles applied in Kelly.þ Davenport, 495 U.S. at 563. Because
 Appellantþs case involved Chapter 7 and not Chapter 13 bankruptcy proceedings, Kelly
                                         controls.
          In any event, Davenport is no longer good authority for the proposition that
     restitution obligations are dischargeable even in Chapter 13 proceedings. In
                                       response to
    Davenport, Congress amended Chapter 13 to specifically exclude from discharge a
     restitution obligation included in a criminal sentence. See Criminal Victims
                                        Protection
   Act of 1990, Pub.L. 101-581, õ 3, 104 Stat. 2865, codified at 11 U.S.C. õ 1328(a)
                                            (3).
   The Davenport result has thus been overruled by statute. We therefore hold that
 Appellantþs restitution obligation was not discharged by the order of the Bankruptcy
                                           Court.
                                                           ISSUE FOUR
           Did the District Court err when it failed to appoint counsel to represent
                                         Appellant
                                   in this proceeding?

        Appellant maintains that he is entitled to representation by an attorney in
                                     presenting
 his appeal. He contends that the District Court violated õ 46-8-104, MCA, as well
                                       as the
 right to counsel guaranteed by the Montana State Constitution and the United States
   Constitution. The State, on the other hand, contends that the doctrine of res

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                                        judicata
precludes Appellant from raising that issue. We agree with the State that Appellant
                                          is not
                           entitled to relitigate that issue.
        In Scott v. Scott (Mont. 1997), 939 P.2d 998, 54 St. Rep. 548, we defined the
doctrine of res judicata to be þa final judgment which, when rendered on the merits,
                                            is
an absolute bar to a subsequent action between the same parties or those in privity
                                           with
   them, upon the same claim or demand.þ Scott, 939 P.2d at 1001 (citing Fiscus v.
Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197).
In this case, we have already held that Appellant is not entitled to appointment of
                                         counsel
   pursuant to õ 46-8-104, MCA. On December 17, 1996, Appellant filed a motion for
 appointment of counsel and by order filed February 24, 1997, this Court denied that
  motion for the same reasons that the District Court below denied his motion.    We
                                         stated:
           We are now presented with essentially the same requests presented to the
         District Court. In addition, these requests are made within essentially the
            same context as was present below. We will resolve this matter in much
                           the same manner as did the District Court:

                       Woodsþ entitlement to counsel under õ 46-8-104, MCA is dependent
                  upon the existence of a criminal action or proceeding. However, the
                 petition for destruction of evidence, brought pursuant to õõ 46-5-306
                   through 46-5-309, MCA, is not a criminal action or proceeding, as
               indicated by the stated purpose of the statutes and as established by the
                relevant facts: Woods was convicted and sentenced for issuing bad checks
                nearly two years ago, and faces no additional charges, incarceration, or
              punishment related to that conviction. Therefore, this Court concludes that
                            Woods is not entitled to appointment of counsel.

Our earlier holding is now res judicata, and we will not revisit it on appeal. The
                                        order
   of the District Court denying Appellantþs motion for appointment of counsel is
                                      affirmed.
                                          Affirmed.

                                                                                                            /S/    WILLIAM E. HUNT, SR.


                                                                            We Concur:

                                                                /S/ JAMES C. NELSON
                                                                 /S/ KARLA M. GRAY
                                                              /S/ TERRY N. TRIEWEILER
                                                              /S/ W. WILLIAM LEAPHART




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