                                                                                          August 13 2013


                                          DA 12-0547

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 222



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

THOMAS DANIEL BROTHERS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 10-306C
                        Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Jonathan King, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General; Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Kalispell, Montana


                                                    Submitted on Briefs: June 12, 2013
                                                               Decided: August 13, 2013


Filed:

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

¶1     Defendant and Appellant Thomas Brothers (Brothers) appeals the Eleventh Judicial

District Court’s award of $1,069.02 in restitution to the State. We reverse.

                                          ISSUE

¶2     We restate the sole issue on appeal as follows:

¶3     Did the District Court err by ordering Brothers to pay restitution to the State?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     Brothers was charged with sexual assault, incest, and indecent exposure by

information on September 1, 2010. The District Court issued a warrant and Brothers was

arrested in New Mexico on January 10, 2011. Brothers pled guilty to one count of sexual

assault on February 24, 2012, as part of a plea agreement. The agreement recommended a

15-year prison sentence with 10 years suspended. The agreement allowed Brothers to

withdraw his plea if the District Court imposed a different sentence. The Court accepted

Brothers’ plea and conducted a sentencing hearing on July 5, 2012.

¶5     At the sentencing hearing, the State requested that Brothers pay $1,069.02 in

restitution to reimburse the State for the cost of extraditing Brothers from New Mexico. The

State did not provide an affidavit or any testimony in support of this request. Brothers

objected, claiming that the restitution was “just brought up.” The Court eventually ordered

$1,069.02 in restitution without either receiving an affidavit or testimony from the State to

determine the proper amount. The Court also deviated from the plea agreement’s sentencing



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recommendation, imposing a term of 20 years in Montana State Prison with 10 years

suspended.

¶6     Brothers subsequently withdrew his guilty plea due to the Court’s imposition of a

sentence longer than that recommended by the plea agreement. Brothers and the State

thereafter filed a motion stipulating to an amendment of the judgment and sentence. The

parties recommended the Court reconsider the July 5, 2012 sentence and impose the plea’s

recommended 15-year sentence with 10 suspended.

¶7     The District Court held a hearing on the parties’ stipulation to amend the judgment

and sentence on July 11, 2012. The Court noted that the parties requested that Brothers be

re-sentenced to Montana State Prison for a term of 15 years, 10 suspended “pursuant to the

same conditions as previously were imposed last week[.]” The Court then re-sentenced

Brothers to the requested term and noted that it was also imposing “the restitution that was

previously ordered for your return – your extradition costs[.]” Brothers appeals the

imposition of restitution without the State producing either an affidavit or testimony

describing the costs of his extradition.

                                STANDARD OF REVIEW

¶8     Pursuant to § 46-18-201(5), MCA, if a person has been found guilty of an offense,

whether by a verdict of guilty or by a plea of guilty or nolo contendre, and the sentencing

judge finds that a “victim” has sustained a “pecuniary loss,” as the terms are defined in § 46-

18-243, MCA, then the sentencing judge shall, as part of the sentence, require payment of

full restitution to the “victim,” as provided in §§ 46-18-241 through -249, MCA. State v.
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Jent, 2013 MT 93, ¶ 9, 369 Mont. 468, 299 P.3d 332. Such analysis requires the sentencing

judge to apply the statutory definition of “victim” to the factual circumstances of the case.

Jent, ¶ 9. This constitutes a mixed question of law and fact. Jent, ¶ 9 (citing State v.

Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352, 114 P.3d 254).

¶9     In our review on appeal, we will not disturb factual findings unless they are clearly

erroneous, and whether those facts satisfy the legal standard is reviewed de novo. Jent, ¶ 10

(citing Warclub, ¶ 23). We also review de novo whether a district court had statutory

authority to impose the sentence, whether the sentence falls within the applicable sentencing

parameters, and whether the court adhered to mandates of the applicable sentencing statutes.

State v. Johnson, 2011 MT 116, ¶ 12, 360 Mont. 443, 254 P.3d 578.

                                       DISCUSSION

¶10    Both the State and Brothers agree that the District Court lacked the authority to

impose restitution because it failed to follow the statutory mandate that a victim’s pecuniary

loss be substantiated in an affidavit or through live testimony. However, while neither party

has raised the specific argument on appeal, we conclude that the District Court lacked the

authority to impose restitution because the State is not a “victim” as required by § 46-18-

201(5), MCA, and defined in § 46-18-243(2)(a), MCA.

¶11    Sentencing courts are required to impose a sentence that includes payment of full

restitution whenever the court finds the “victim” of an offense has sustained a pecuniary loss.

Section 46-18-201(5), MCA; Johnson, ¶ 16; State v. Hunt, 2009 MT 265, ¶ 16, 352 Mont.

70, 214 P.3d 1234. A “victim” is defined as:
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        (i) a person who suffers loss of property, bodily injury, or death as a result of:
                (A) the commission of an offense;
                (B) the good faith effort to prevent the commission of an offense; or
                (C) the good faith effort to apprehend a person reasonably suspected
                of committing an offense;
       (ii) the estate of a deceased or incapacitated victim or a member of the
       immediate family of a homicide victim;
       (iii) a governmental entity that suffers loss of property as a result of the
       commission of an offense in this state or that incurs costs or losses during the
       commission or investigation of an escape, as defined in 45-7-306, or during
       the apprehension or attempted apprehension of the escapee;
       (iv) an insurer or surety with a right of subrogation to the extent it has
       reimbursed the victim of the offense for pecuniary loss;
       (v) the crime victims compensation and assistance program established under
       Title 53, chapter 9, part 1, to the extent that it has reimbursed a victim for
       pecuniary loss; and
       (vi) any person or entity whom the offender has voluntarily agreed to
       reimburse as part of a voluntary plea bargain.

Section 46-18-243(2)(a), MCA (emphasis added).

¶12    We recently considered when the State can be a “victim” for the purposes of the

restitution statutes in State v. Jay, 2013 MT 79, 369 Mont. 332, 298 P.3d 396. There, the

district court ordered the defendant to pay $600 in restitution to the State for expenses

incurred in interviewing an expert defense witness. Jay, ¶ 14. We concluded that a “victim”

under § 46-18-243(2)(a), MCA, included a governmental entity “only when that entity

suffers property damage in the commission of a crime, or incurs costs in the investigation or

apprehension of an escaped person.” Jay, ¶ 48. We then found neither situation to be

present, as the State had incurred expenses only by interviewing a defense witness. Jay, ¶

48. Thus, we concluded that the State was not a “victim” entitled to restitution under § 46-

18-201(5), MCA. Jay, ¶ 48.

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¶13    The same reasoning applies here. The State sought restitution for expenses incurred

extraditing Brothers from New Mexico. Like Jay, the expenses were not the result of

property damage suffered during the commission of a crime or of the investigation or

apprehension of an escapee. According to § 46-18-243(2)(a), MCA, and Jay, the State is

therefore not a “victim” and is not entitled to seek restitution from Brothers. We accordingly

vacate the $1,069.02 in restitution awarded to the State.

                                      CONCLUSION

¶14    Because we conclude that the State was not a “victim” for the purposes of the

restitution statutes, we conclude that the District Court lacked the authority to award

restitution to the State.

¶15    Reversed and remanded for entry of an amended judgment consistent herewith.


                                                  /S/ MICHAEL E WHEAT


We concur:

/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ JIM RICE




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