                                                                                          September 16 2014


                                          DA 13-0622

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 249



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TERENCE RICHARDSON PASSMORE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause No. DC 06-60
                        Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Terence Richardson Passmore (self-represented); Shelby, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant
                        Attorney General; Helena, Montana

                        Wm. Nels Swandal, Park County Attorney, Interim; Catherine Truman,
                        Special Deputy County Attorney; Livingston, Montana



                                                    Submitted on Briefs: July 16, 2014
                                                               Decided: September 16, 2014


Filed:

                        __________________________________________
                                           Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Terence Richardson Passmore appeals from the order of the Sixth Judicial District

Court, Park County, denying his Petition for Remission of Fines/Costs. We restate the

issue as follows:

¶2     Did the District Court abuse its discretion by denying Passmore’s petition for

remission of restitution?

¶3     We affirm.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶4     Following a jury trial in November and December 2007, Appellant Terence

Richardson Passmore was convicted of felony sexual intercourse without consent and

felony sexual assault against two young sisters, who were ages 12 and 13 at the time of

the offenses.   The District Court designated Passmore a Level I sex offender and

sentenced him to 35 years imprisonment, with five years suspended. The District Court

also ordered Passmore to “pay restitution, to compensate the victims of his crimes for 52

hours of counseling, in the maximum amount of $12,100, within 5 years, based on

[Passmore’s] ability to pay.” We affirmed the District Court’s judgment in State v.

Passmore, 2010 MT 34, 355 Mont. 187, 225 P.3d 1229.

¶5     Passmore filed a petition for postconviction relief in September 2010, citing

ineffective assistance of counsel and improper exclusion of exculpatory evidence. The

District Court denied Passmore’s petition in March 2012, and we affirmed the District

Court in Passmore v. State, 2013 MT 154N, 370 Mont. 555, 311 P.3d 444.


                                           2
¶6     In April 2013, Passmore filed a petition for remission of restitution in the Sixth

Judicial District.1 The District Court held a hearing on Passmore’s petition on August 28,

2013. Passmore appeared pro se via video conference from Crossroads Correctional

Facility in Shelby. Catherine Truman of the Attorney General’s Office appeared in

person on behalf of the State.

¶7     The State called three witnesses: Passmore’s two victims, C.R.S. and J.R., and

C.R.S.’s husband. Passmore called no witnesses and offered a summary of his inmate

financial accounts as evidence. Because of a no-contact order between Passmore and his

victims, the camera and video screen in the courtroom were covered with a blanket

during testimony so that the witnesses and Passmore could not see each other. Passmore

was still able to hear everything in the courtroom. The District Court did not permit

Passmore to cross-examine the witnesses himself, but rather had Passmore submit his

questions to the judge, who then relayed them to the witnesses.

¶8     C.R.S. testified that as a result of Passmore’s abuse of her, she has intimacy issues

which cause stress in her marriage and her relationship with her young son.                She

explained that her parents had paid for her to receive counseling before Passmore’s trial,

which was helpful. She would like more treatment, but has not been able to afford it

because her husband was in college and she earns a small income as a line cook.

Although she now has health insurance, it has limited mental health coverage and a large

deductible.

1
  Passmore’s petition was titled “Petition for the Remission of Fines/Cost.” However, in the
petition, at the hearing, and in subsequent briefing, Passmore sought only the remission of his
restitution obligation.
                                                3
¶9     J.R. testified that as a result of Passmore’s abuse of her, she has trust issues and

problems with interpersonal relationships. She received treatment, covered by Medicaid,

for her bipolar disorder which was exacerbated by Passmore’s abuse.             The State

introduced a letter and medical bills documenting J.R.’s treatment. J.R. testified that she

wanted to see a counselor who specializes in treating sexual abuse victims but was unable

to afford the fee. Medicaid would not cover this counselor and, in any event, J.R.’s

Medicaid coverage was due to expire at the end of August 2013, because she had secured

employment. She does not have health insurance through her employer.

¶10    After testimony, both parties gave oral argument.          Passmore reiterated the

arguments in his petition, and the State requested an extension of the five-year period of

the restitution condition of Passmore’s sentence.

¶11    On August 30, 2013, the District Court issued an order denying Passmore’s

petition and extending the time frame for submission of restitution claims by three years.

The order explains the District Court’s rationale, noting that it “finds credible the

testimony of the victims to the effect that the counseling is very much needed and that,

for financial reasons, the victims have previously been unable to pay for the upfront costs

of the counseling.” The District Court also recognized “that the amount of restitution

payments that [Passmore] is able to pay is limited due to his incarceration.”




                                             4
                                STANDARD OF REVIEW

¶12    We review a district court’s decision to grant or deny a post-trial motion in a

criminal case for an abuse of discretion.2 State v. Ferre, 2014 MT 96, ¶ 11, 374 Mont.

428, 322 P.3d 1047. “A court abuses its discretion if it acts arbitrarily without the

employment of conscientious judgment or exceeds the bounds of reason, resulting in

substantial injustice.” State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d

811. “The burden to demonstrate an abuse of discretion is on the party seeking reversal

based on an unfavorable trial court ruling.” State v. Sheehan, 2005 MT 305, ¶ 18, 329

Mont. 417, 124 P.3d 1119.

                                        DISCUSSION

¶13    Passmore argues that his restitution obligation should have been remitted because

his victims did not testify truthfully about their financial inability to obtain counseling.

Despite their testimony, Passmore contends that their failure to seek counseling in the

past five years proves they neither want nor need counseling. Therefore, Passmore

argues the Court should have waived his remaining restitution obligation pursuant to

§ 46-18-246, MCA. We disagree.

¶14    Section 46-18-246, MCA, provides, in relevant part:

       If the court finds that the circumstances upon which it based the imposition
       of restitution, amount of the victim’s pecuniary loss, or method or time of
       payment no longer exist or that it otherwise would be unjust to require
       payment as imposed, the court may adjust or waive unpaid restitution . . . .



2
  In his reply brief, Passmore requests that we exercise plain error review. We decline to do so,
as that is not the proper standard of review for this case.
                                                   5
This statute is permissive; if at least one of the four conditions is met, the court may

waive or adjust a restitution obligation.

¶15    Passmore claims that “current established court records” provide “direct,

undeniable evidence” that his victims lied and it is therefore unjust to uphold his

restitution obligation. However, the District Court found “credible the testimony of the

victims to the effect that the counseling is very much needed and that, for financial

reasons, the victims have previously been unable to pay for the upfront costs of the

counseling.” As the trier of fact, the District Court had the opportunity to observe the

witnesses and is therefore better suited to determine credibility than this Court. Ditton v.

DOJ, Motor Vehicle Div., 2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d 1268. We will not

substitute our judgment as to witness credibility for that of the district court. Seyferth v.

DOJ, Motor Vehicle Div., 277 Mont. 377, 385, 922 P.2d 494, 499 (1996).

¶16    The “current established court record” Passmore cites is a civil settlement

agreement that is not in the record. We do not consider evidence that is not in the record

on appeal. State v. Azure, 2002 MT 22, ¶ 38, 308 Mont. 201, 41 P.3d 899. We recognize

that Passmore is unrepresented in this appeal, and we give pro se litigants a certain degree

of latitude. Neil Consultants, Inc. v. Lindeman, 2006 MT 80, ¶ 8, 331 Mont. 514, 134

P.3d 43 (citing First Bank (N.A.)-Billings v. Heidema, 219 Mont. 373, 376, 711 P.2d

1384, 1386 (1986)). However, “that latitude cannot be so wide as to prejudice the other

party, and it is reasonable to expect pro se litigants to adhere to procedural rules.” Neil

Consultants, ¶ 8.


                                             6
¶17    In this appeal, Passmore also references the testimony of C.R.S. and J.R. during

the criminal trial in which they admit they received money in settlement of a civil suit

against the Church of God. This, he argues, proves that they had money for counseling

and would have sought counseling within the past five years if they had needed it. This

argument was not raised before the District Court, and “we will not put a district court in

error for failing to address an issue or an argument that was not made before it.” State v.

Clary, 2012 MT 26, ¶ 19, 364 Mont. 53, 270 P.3d 88 (citing Day v. Payne, 280 Mont.

273, 276, 929 P.2d 864, 866 (1996)).

¶18    The District Court found that the circumstances underlying the original imposition

of restitution—the victims’ need for counseling to treat the mental trauma caused by

Passmore’s abuse—still exist. In that regard, we note that any proceeds C.R.S. and J.R.

may have received from the civil settlement cannot constitute a change of circumstance

because the settlement predated the imposition of restitution. Moreover, the amount of

the victims’ pecuniary loss, which includes “future medical expenses that the victim can

reasonably be expected to incur as a result of the offender’s criminal conduct,

including . . . counseling,” § 46-18-243(1)(c), MCA, has not changed; neither has the

method or time of payment. Passmore’s 2008 sentence provides that he “will continue to

make monthly restitution payments until he has paid full restitution.” Though the District

Court’s order grants the victims an additional three years to obtain counseling, it does

nothing to modify the condition requiring Passmore to continue to make payments until

his restitution obligation is satisfied.


                                            7
¶19      Further, upholding the restitution requirement is not unjust, as Passmore argues.

Restitution is a fundamental component of Montana’s laws for the punishment of crime.

See Mont. Const. art. II, § 28(1) (“Laws for the punishment of crime shall be founded on

the principles of prevention, reformation, public safety, and restitution for victims,”) and

§ 46-18-201(5), MCA (providing that judges must require payment of restitution as part

of the sentence in cases where the victim has suffered a pecuniary loss). Passmore was

ordered to pay restitution to his victims not because they could not otherwise afford

counseling, but rather because it was Passmore’s crimes against them that caused them to

require counseling.

¶20      The record provides evidence that both victims want and need counseling. The

record further provides evidence that J.R. has received counseling within the past five

years.    The District Court is well within the bounds of reason in determining that

Passmore should not be released from his restitution obligation.

                                      CONCLUSION

¶21      Passmore has failed to meet his burden to demonstrate that the District Court

abused its discretion in denying his petition.

¶22      Affirmed.

                                                     /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
                                                 8
