COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Michael A. Kakuk, Special Deputy County Attorney, Helena, Montana
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2015-301 Honorable Mike McMahon, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Michael A. Kakuk, Special Deputy County Attorney, Helena, Montana Filed: /s/_________
Clerk Justice Dirk Sandefur delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this case by memorandum opinion, which shall not be cited and does not serve as precedent. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Following her conviction by jury verdict on two counts of attempted theft by insurance fraud in violation of §§ 45-4-103, 45-6-301, and 33-1-1202, MCA, Dawn Marie Hamilton appeals the portion of her sentence requiring her to pay over $7,430 in fines, costs, and fees. The District Court sentenced Hamilton to two concurrent five-year suspended terms of commitment to the Department of Corrections (DOC) and imposed a $2,500 fine and various other statutorily-authorized costs and fees (i.e., felony surcharge, victim-witness fee, costs of assigned counsel, prosecution costs, presentence investigation report (PSI) fee, supervision fees, and court information technology surcharge). Hamilton asserts that the court erred by failing to first determine her ability to pay based on the specified statutory criteria. Hamilton asserts that the court further erred by illegally imposing a $500 felony surcharge in excess of the maximum allowed by § 46-18-236(1)(b), MCA ("the greater of $20 or 10% of the fine levied for each felony charge"). The State concedes that the imposed $500 felony surcharge exceeds the $250 maximum allowed by § 46-18-236(1), MCA, on a $2,500 fine but asserts that Hamilton waived her ability to pay objection. We reverse and remand. ¶3 We generally review criminal sentences for legality. State v. Thompson, 2017 MT 107, ¶ 6, 387 Mont. 339, 394 P.3d 197 (citing State v. Johnson, 2000 MT 290, ¶ 13, 302 Mont. 265, 14 P.3d 480). Though non-compliance with statutory prerequisites for the imposition of fines, costs, and fees generally does not render a sentence facially illegal, the imposition of such financial obligations is subject to review on direct appeal for threshold compliance with statutory prerequisites. See State v. Hinshaw, 2018 MT 49, ¶ 17, 390 Mont. 372, 414 P.3d 271; Thompson, ¶ 14 (citing State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892). Whether a district court complied with an applicable sentencing statute is a question of law reviewed de novo. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. We review predicate factual determinations for clear error. State v. Daricek, 2018 MT 31, ¶ 7, 390 Mont. 273, 412 P.3d 1044. ¶4 A sentencing court may not impose statutorily authorized fines, court costs, jury costs, costs of prosecution, costs of assigned counsel, or costs of pretrial, probationary, or community supervision unless the defendant is or will be able to pay. Sections 46-8-113(4), 46-18-231(3), 46-18-232(2), MCA. See also § 46-8-113(1), MCA ("court shall determine whether a convicted defendant should pay" costs of assigned counsel); § 46-18-236(2), MCA (court shall waive felony and misdemeanor surcharges upon determining defendant unable to pay fines and costs under §§ 46-18-231 and -232, MCA); and § 3-1-317(2), MCA (court discretion to waive court information technology surcharge due to inability to pay). "In determining the amount and method of payment" of statutorily authorized fines and costs, the court "shall take into account" the defendant's current financial resources, future ability to pay, and "the nature of the burden" that the obligation will impose. Sections 46-8-113(4), 46-18-231(3), 46-18-232(2), MCA. While we have yet to translate this clear and unequivocal duty into a state burden of proof and accompanying requirement for a specific court finding in every case, §§ 46-8-113(4), 46-18-231(3), and 46-18-232(2), MCA, nonetheless minimally require that the record at least reflect that the sentencing court "scrupulously and meticulously" considered the defendant's ability to pay based on reasoned consideration of the defendant's current financial resources, future ability to pay, and the nature of the burden that the obligation will impose on the defendant and dependents under the circumstances of each case. State v. Reynolds, 2017 MT 317, ¶¶ 20-29, 390 Mont. 58, 408 P.3d 503 (affirming imposition of prosecution costs, assigned counsel costs, supervision fees, and statutory surcharges despite failure to question defendant where court considered substantial record information pertinent to statutory criteria); State v. Gable, 2015 MT 200, ¶¶ 22-23, 380 Mont. 101, 354 P.3d 566 (affirming imposition of substantial prosecution and assigned counsel costs where record reflected reasoned consideration of PSI author testimony, PSI financial information, state sentencing memorandum arguments, and oral argument regarding defendant's ability to pay); Moore, ¶¶ 14-21 (reversing imposition of prosecution, assigned counsel, and jury costs based on failure to question defendant or consider available PSI information in reference to statutory criteria); State v. McLeod, 2002 MT 348, ¶¶ 34-35, 313 Mont. 358, 61 P.3d 126 (reversing imposition of financial obligation based solely on inaccurate PSI information); State v. Hubbel, 2001 MT 31, ¶¶ 36-38, 304 Mont. 184, 20 P.3d 111 (reversing imposition of costs of assigned counsel where court failed to inquire into defendant's ability to pay and resulting burden); State v. Farrell, 207 Mont. 483, 492-93, 676 P.2d 168, 173-74 (1984) (reversing imposition of restitution, court costs, and attorney fees where record devoid of any reasoned consideration of defendant's financial resources and the burden that the obligation would impose). However, the failure to adequately consider a defendant's ability to pay is a waivable statutory defect, generally waived by failure to make contemporaneous objection at the time of imposition of the financial obligation. Thompson, ¶¶ 15-17. ¶5 Here, the DOC-prepared PSI asserted that Hamilton had "an income and assets, but significant debt due to student loans and vehicle loans." But, based on "a 401K retirement account" and "some savings," the PSI concluded that Hamilton had "the ability to pay any court-ordered financial obligations." In conjunction with the recommended concurrent five-year suspended terms of commitment, the PSI thus recommended that the District Court order her to pay a total of $12,277.60 in fines, fees, and surcharges. However, at the sentencing hearing, prior to imposition of sentence, defense counsel disputed the PSI assertion, to wit:
DEFENSE COUNSEL: [T]he PSI writer writes that she can pay for any fees that the court would levy and I do not believe that is accurate. She qualifies for a public defender and has two minor children that she provides for, including their insurance. Which she gets child support for one child but not the other.
THE DEFENDANT: It's actually three minor children.
(Emphasis added.) ¶6 The State tacitly acknowledges that defense counsel at least generally objected to the fine, costs and fees but nonetheless asserts that Hamilton waived her right to seek appellate review of the court's threshold compliance with §§ 46-8-113(4), 46-18-231(3), and 46-18-232(2), MCA, by failing to again object after the actual imposition of sentence. The State essentially asserts that Hamilton could preserve the issue for appellate review only by objecting after the actual imposition of sentence. We disagree. The language of §§ 46-8-113(4), 46-18-231(3), and 46-18-232(2), MCA, neither provides, nor implies, any such rigid restriction. Nor have we squarely imposed such gloss over those statutes. We see no reason to do so now. Defense counsel timely objected to Hamilton's ability to pay any substantial fine, cost, or fee. The record is devoid of any subsequent reasoned consideration by the court of Hamilton's present or future ability to pay any significant court-imposed financial obligation, much less the burden that such an obligation would impose on her and her dependents. We hold that the District Court erroneously imposed a fine, costs, fees, and charges without sufficient consideration of the defendant's ability to pay based on the criteria referenced in §§ 46-8-113(4), 46-18-231(3), and 46-18-232(2), MCA. We therefore reverse the portion of the District Court's sentencing order requiring Hamilton to pay a fine, costs, fees, and charges and remand for rehearing to consider Hamilton's ability to pay such obligations under the criteria of §§ 46-8-113(4), 46-18-231(3), and 46-18-232(2), MCA. ¶7 We decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶8 Reversed and remanded.
"In determining the amount and method of payment" of fines the court must also "take into account the nature of the crime committed." Section 46-18-231(3), MCA. In determining a defendant's ability to pay the costs of assigned counsel, the court must specifically "question the defendant" about his or her "ability to pay." Section 46-8-113(3), MCA. --------
/S/ DIRK M. SANDEFUR We concur: /S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE