State v. Krause ( 2016 )

09/27/2016
DA 15-0700
Case Number: DA 15-0700
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 241N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TERRY DUANE KRAUSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-11-319(B)
Honorable Robert B Allison, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry D. Krause, Self-Represented, Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney, Alison E. Howard, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: August 17, 2016
Decided: September 27, 2016
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its 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 Terry Duane Krause appeals the order by the Eleventh Judicial District Court,
Flathead County, denying his Petition for Remission of Fines, Costs and Restitution. We
address whether the District Court abused its discretion when it denied Krause’s Petition
for Remission of Fines, Costs and Restitution. We affirm.
¶3 On September 27, 2011, Krause was charged with one count of purposely or
knowingly exploiting a developmentally disabled person in violation of § 52-3-825(3)(a),
MCA. Krause convinced C.R., a mentally ill woman, to write checks for his medication.
Krause told C.R. that if she wrote the checks, he would pay them off with his anticipated
gambling winnings before the checks were deposited. C.R. believed Krause was paying
off the checks as promised; however, collection agencies contacted C.R. after she wrote
fifty-three nonsufficient funds checks totaling $3,688.83.
¶4 On June 21, 2012, Krause entered into a plea agreement with the State, whereby
he agreed to plead guilty to the exploitation charge in exchange for the dismissal of a
felony charge of issuing a bad check. On October 25, 2012, the District Court accepted
Krause’s guilty plea and the State’s recommended deferred sentence for a period of six
years, and ordered Krause to pay $3,688.83 in restitution to C.R. and an additional
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$14,621.41 to victims in the dismissed matter. The District Court also ordered Krause to
determine whether accrued Social Security Disability back pay totaling $6,412 could be
reissued as partial payment of his restitution award, to which Krause agreed. On
February 7, 2013, Krause’s probation officer filed a report of violation, alleging Krause
failed to report to the Butte Probation and Parole Office after his sentencing hearing and
never made any payments on his restitution obligations. On February 27, 2013, the State
filed a petition to revoke Krause’s deferred imposition of sentence. Krause denied the
allegations, but failed to appear for his revocation hearing.
¶5 On December 5, 2013, the District Court found that Krause violated the conditions
of his deferred sentence, and committed Krause to the custody of the Department of
Corrections for ten years with three years suspended. The suspended portion of Krause’s
sentence imposed the same conditions as his deferred sentence. On January 15, 2014, the
District Court issued the written revocation order, which Krause did not appeal. He later
filed an application for sentence review, and the Sentence Review Division affirmed his
sentence. On July 6, 2015, Krause filed a motion to be released of all financial
obligations, asserting that he had no income while incarcerated, and that when released
on parole, he cannot work due to a disability and will only receive $843 in monthly
disability income. On September 11, 2015, the District Court issued an order denying the
motion. On November 12, 2015, sixty-two days after the order, Krause filed his notice of
appeal. Krause’s petition requested remission of the restitution imposed and referenced
his anticipated $920 a month disability pay as evidence of his inability to pay with no
other change in circumstances beyond his control.
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¶6 We review the grant or denial of a post-trial motion for an abuse of discretion.
State v. Griffin, 2007 MT 289, ¶ 10, 339 Mont. 465, 172 P.3d 1223. Under
§ 46-18-201(5), MCA, when an offender is found guilty of an offense and the sentencing
court finds that a victim has sustained a pecuniary loss, the court shall require payment of
full restitution to the victim. Unlike § 46-18-232(2), MCA, which requires the sentencing
court to consider an offender’s ability to pay other costs, § 46-18-241, MCA, does not
require a court to consider an offender’s financial resources or ability to pay with regard
to restitution. See State v. Kuykendall, 2006 MT 110, ¶ 12, 332 Mont. 180, 136 P.3d 983
(citing State v. Workman, 2005 MT 22, ¶ 15, 326 Mont. 1, 107 P.3d 462). The
sentencing court shall require an offender to make full restitution to victims that sustained
a pecuniary loss, including an economic loss, unless the court finds that “because of
circumstances beyond the offender’s control, the offender is not able to pay any
restitution.” Section 46-18-241(3), MCA.
¶7 Although we grant wider latitude to pro se litigants in pro se proceedings,
Krause’s appeal alleges no facts and cites nothing in the record to support a contention
that he is unable to pay any restitution because of circumstances beyond his control. See
State v. Ferre, 2014 MT 96, ¶ 16, 374 Mont. 428, 322 P.3d 1047. We conclude the
District Court did not abuse its discretion when it denied Krause’s Petition for Remission
of Fines, Costs and Restitution based on hardship. He agreed to pay over $6,400 in
disability back pay, which the District Court considered in initially giving him a
probationary sentence. However, he failed to make any payments toward restitution
during his probation. Krause’s Petition does not meet any of the standards for relief from
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restitution. Because we decide this case on the merits, we decline to address whether
Krause’s appeal should be dismissed as untimely or whether this Court should affirm the
District Court’s order denying Krause’s Petition for Remission of Fines, Costs and
Restitution on the grounds that the petition was untimely and contained only claims that
were procedurally barred. However, we note § 46-18-246, MCA, provides that a petition
to adjust or otherwise waive payment of ordered restitution or amount paid pursuant to
§ 46-18-241(2)(a), MCA, may be filed at any time.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. 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 District Court’s denial of Krause’s
Petition for Remission of Fines, Costs, and Restitution was not an abuse of discretion.
We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
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