Voerding v. State , 332 Mont. 262 ( 2006 )

No. 05-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 125TED MATTHEW VOERDING,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause Nos. DV 2004-1115 & DC 2000-340,
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ted Matthew Voerding, pro se, Billings, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General,
Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: April 11, 2006
Decided: June 6, 2006
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Ted Matthew Voerding (“Voerding”), pro se, appeals from the Order of the District
Court of the Fourth Judicial District, Missoula County, partially denying his Petition for
Post-Conviction Relief. We affirm.
¶2 The sole issue on appeal is whether the District Court correctly interpreted
§ 46-18-403(2), MCA (1999), as requiring credit for time served against fines only, and not
against other court-imposed financial obligations such as fees, costs, and charges.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In November of 2000, Voerding pled guilty to the offense of intimidation, a felony, in
violation of § 45-5-203, MCA. Consequently, the District Court filed a Judgment sentencing
Voerding to a term of ten years with the Department of Corrections, with all ten years
suspended. Among the terms and conditions of Voerding’s suspended sentence, the
Judgment required Voerding to pay the following: (1) a $100.00 fine; (2) an $85.00 fine “to
go to the community service program”; (3) $325.00 to reimburse Missoula County for
Voerding’s court-appointed attorney; (4) $100.00 for the cost of the prosecution; (5) a fee of
$20.00 to go to the County Attorney Surcharge Fund, pursuant to § 46-18-236, MCA; (6) a
fee of $10.00 to go to the Victim-Witness Advocate Program Surcharge Fund, pursuant to
§ 46-18-236, MCA; (7) a $5.00 “Court Technology fee” pursuant to § 3-1-317(1)(a), MCA;1
1
As the State notes, the District Court incorrectly purported to impose a “fee” for “Court
technology” pursuant to § 3-1-317(1)(a), MCA. This statute provides only for a “surcharge for court
information technology,” and states that “[t]he surcharge imposed by this section is not a fee or fine
and must be imposed in addition to other taxable court costs, fees, or fines.” Section 3-1-317(3),
2
and (8) a probationary supervision fee of no less than $120.00 and no more than $360.00 per
year, at no less than $10.00 per month for the number of months under supervision, pursuant
to § 46-23-1031, MCA.
¶4 In March of 2001, the State filed its Petition seeking to revoke Voerding’s suspended
sentence, claiming that he had violated the terms and conditions of his probation. After
Voerding admitted the alleged violations, the District Court revoked his suspended sentence
and committed him to the Department of Corrections for a term of ten years, with eight years
suspended. In doing so, the court gave Voerding credit against his sentence for 303 days of
jail time previously served. Among the terms and conditions of Voerding’s suspended
sentence, the court imposed the same financial obligations that were contained in the
previous Judgment. Finally, the Judgment stated that “pursuant to Section 46-18-244(3)(c),
M.C.A., one-third (1/3) of any earnings by the Defendant in the Montana State Prison or any
other correctional institution shall be applied to the costs ordered in this cause.”
¶5 In January of 2003, the State filed another Petition to Revoke, claiming that Voerding
had again violated the terms and conditions of his probation. In January of 2004, after
extensive delays, Voerding admitted to several violations. Consequently, in February of
2004, the District Court revoked Voerding’s suspended sentence and sentenced him to a term
of eight years in the Montana State Prison, with no time suspended. The court’s Judgment
provided that Voerding would receive credit against his sentence for 334 days of jail time
MCA (emphasis added). However, we need not address this error further, as it is not an issue in
Voerding’s appeal.
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served. Further, although the Judgment explicitly stated that Voerding was not obligated to
pay any restitution, it also ordered that one-third of any of his earnings in prison “shall be
applied to the restitution/costs ordered in this cause” pursuant to § 46-18-244(3)(c), MCA.
¶6 The State filed a Motion seeking amendment of the Judgment because the court had
erroneously stated the period of time which Voerding had previously served in jail, and
erroneously stated the number of days which should have been credited against his sentence.
Consequently, the court amended the Judgment to state that Voerding would receive credit
against his sentence for 322 days of time previously served.
¶7 In November of 2004, Voerding filed his pro se Petition for Post-Conviction Relief.
With this Petition, Voerding first argued that the court’s Judgment was illegal because it
failed to provide him credit against his sentence for a period of jail time which he served in
Washington following his arrest pursuant to a Montana warrant. Second, Voerding argued
that the Judgment was illegal in its mandate that one-third of his prison earnings “be applied
to the restitution/costs ordered in this cause.” Voerding contended that this was improper
because, as the Judgment itself stated, he was not required to make a restitution payment.
Finally, Voerding argued that he was entitled to credit against his fines, pursuant to
§ 46-18-403(2), MCA, for the jail time he had served prior to revocation of his suspended
sentence.
¶8 The State conceded that Voerding’s prison earnings should not be appropriated for the
purpose of paying any restitution. Yet, the State argued, without citing legal authority, that
Voerding’s prison earnings should be used to satisfy all the various financial obligations
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imposed by the District Court. As to Voerding’s request for credit against his sentence based
on jail time spent in Washington, the State failed to provide any response. Finally, the State
conceded that Voerding was entitled to credit against his fines for jail time served prior to
revocation of his suspended sentence. However, the State also argued that Voerding was not
entitled to such credit against the other financial obligations imposed by the court. In
replying to this particular contention, Voerding argued that the term “fine” encompasses
other court-imposed financial obligations such as fees, charges, and costs. Accordingly,
Voerding claimed that he was entitled to credit for time served against all the financial
obligations imposed by the District Court.
¶9 In July of 2005, the District Court filed its Order, granting Voerding’s Petition in part,
and denying it in part. 2 First, the court ordered that Voerding be granted credit against his
sentence for the jail time he served in Washington, subject to verification by the Department
of Corrections. Second, the court ordered that the Judgment be amended so as to eliminate
2
The record before us does not demonstrate why the District Court addressed the merits of
Voerding’s Petition. Based on the record, it would appear that the court should have dismissed the
Petition pursuant to § 46-21-105(2), MCA, which provides that when a petitioner has been afforded
the opportunity for a direct appeal of his or her conviction, grounds for relief that were or could
reasonably have been raised on direct appeal may not be raised, considered, or decided in post-
conviction proceedings. We have consistently applied this statutory bar in order to prevent the abuse
of post-conviction relief proceedings by criminal defendants who would substitute those proceedings
for direct appeal. Basto v. State, 2004 MT 257, ¶ 15, 323 Mont. 80, ¶ 15, 97 P.3d 1113, ¶ 15
(citation omitted). Voerding apparently anticipated that the State would raise this statutory bar; in
his Petition he claimed that he had not appealed because his court-appointed counsel failed to
provide effective assistance. Yet, the State did not present an argument regarding this threshold
issue in opposing Voerding’s Petition. Further, the District Court did not address this issue in its
Order, and the parties have not addressed § 46-21-105(2), MCA, on appeal. Since this issue has not
been raised, we will not address it. State v. Herrick, 2004 MT 323, ¶ 28, 324 Mont. 76, ¶ 28, 101
P.3d 755, ¶ 28.
5
the order that one-third of Voerding’s prison earnings “be applied to the restitution/costs
ordered in this cause” pursuant to § 46-18-244(3)(c), MCA. Consequently, the court ordered
the “return of all monies collected for payment of fines or costs and fees since April 2004;
and reduction of any credit already received against his fees and costs.” Third, the court
ordered that Voerding be granted credit against his fines for time served prior to revocation
of his second suspended sentence. Finally, the court denied Voerding’s request for credit,
based on time served, against all his other court-imposed financial obligations.
¶10 From this partial denial of his Petition, Voerding now appeals.
STANDARD OF REVIEW
¶11 In determining whether a petition for post-conviction relief was properly granted or
denied, we review the district court’s findings of fact to determine whether they are clearly
erroneous, and we review the court’s conclusions of law to determine whether they are
correct. Griffin v. State, 2003 MT 267, ¶ 7, 317 Mont. 457, ¶ 7, 77 P.3d 545, ¶ 7 (citing
Porter v. State, 2002 MT 319, ¶ 13, 313 Mont. 149, ¶ 13, 60 P.3d 951, ¶ 13). Here, our
review is plenary because we are only considering a conclusion of law rendered by the
District Court.
DISCUSSION
¶12 In construing a statute, the intent of the legislature is controlling, and such intent must
first be determined from the plain meaning of the words used. Security Bank & Trust Co. v.
Connors (1976), 170 Mont. 59, 66, 550 P.2d 1313, 1317. This Court interprets statutory
language without inserting what has been omitted or omitting what has been inserted.
6
Section 1-2-101, MCA. Additionally, this Court interprets a statute by viewing it in light of
the statutory scheme in which it resides. Orr v. State, 2004 MT 354, ¶ 25, 324 Mont. 391,
¶ 25, 106 P.3d 100, ¶ 25 (citing State v. Heath, 2004 MT 126, 321 Mont. 280, 90 P.3d 426).
¶13 In resolving sentencing issues, we rely on the statutes in effect at the time the
defendant committed his or her offense. Dexter v. Shields, 2004 MT 159, ¶ 13, 322 Mont. 6,
¶ 13, 92 P.3d 1208, ¶ 13 (citing State v. Muhammad, 2002 MT 47, ¶ 24, 309 Mont. 1, ¶ 24,
43 P.3d 318, ¶ 24). Here, we rely on the 1999 version of the criminal code because Voerding
committed the offense of intimidation in July of 2000.
¶14 In pertinent part, § 46-18-403, MCA (1999), provides:
Credit for incarceration prior to conviction. (1) Any person incarcerated on
a bailable offense and against whom a judgment of imprisonment is rendered
must be allowed credit for each day of incarceration prior to or after
conviction, except that the time allowed as a credit may not exceed the term of
the prison sentence rendered.
(2) Any person incarcerated on a bailable offense who does not supply
bail and against whom a fine is levied on conviction of the offense must be
allowed a credit for each day of incarceration prior to conviction, except that
the amount allowed or credited may not exceed the amount of the fine.
In State v. Fisher, 2003 MT 33, 314 Mont. 222, 65 P.3d 223, we interpreted the same version
of § 46-18-403, MCA, as existed in 1999. In doing so, we held that “a sentencing court has
no discretion in applying § 46-18-403, MCA. It must employ both subsections and give the
defendant credit for each day of incarceration against both the sentence and any fine
imposed.” Fisher, ¶ 13. 3
3
After this Court decided Fisher, the 2005 Legislature amended § 46-18-403(2), MCA, so that it
now provides, in pertinent part: “A person incarcerated on a bailable offense who does not supply
7
¶15 On appeal, Voerding argues that § 46-18-403(2), MCA (1999), entitles him to credit
against all the financial obligations imposed by the District Court, not just the two fines
totaling $185.00, for the time he served prior to the revocation of his second suspended
sentence. In support of this argument, Voerding relies on a portion of our decision in Fisher
where we categorized fees, costs, and charges as “fines.” Specifically, Voerding relies on the
following statement which we rendered in explaining the facts of the case: “the court
imposed fines, as follows: $1,000 fine for the felony DUI, $450 reimbursement for public
defender costs, $40 surcharge, $50 victim/witness fee, $10 technology fee, and $20
probationary supervision fee.” Fisher, ¶ 5. Based on this sentence, and because the holding
in Fisher interpreted § 46-18-403(2), MCA, as requiring credit against “any fine imposed,”
Voerding argues that the term “fine” in § 46-18-403(2), MCA (1999), encompasses other
court-imposed financial obligations.
¶16 We conclude that the plain meaning of the word “fine” in the subject statute does not
encompass fees, costs, charges, or any other court-imposed financial obligations. We reach
this conclusion, in part, based on the commonly accepted meaning of the term “fine,” which
is defined as “[a] pecuniary criminal punishment or civil penalty payable to the public
treasury.” Black’s Law Dictionary 664 (8th ed. 2004). As criminal fines are punitive in
nature, they are distinct from other court-imposed financial obligations associated with a
criminal proceeding which are compensatory in nature, such as an assessment of fees for
bail and against whom a fine is levied on conviction of the offense may be allowed a credit for each
day of incarceration prior to conviction, except that the amount allowed or credited may not exceed
8
probationary supervision, or a charge to defray the local government’s costs in administering
the criminal justice system.
¶17 Our conclusion is also supported by reference to the surrounding statutes in Title 46
which distinguish fines from other court-imposed financial obligations. First, the structure of
the criminal statutory scheme distinguishes fines from other court-imposed financial
obligations by addressing them in different sections. The general provisions regarding
imposition of a fine are set forth in § 46-18-231, MCA, while the general provisions
regarding imposition of costs are set forth separately in § 46-18-232, MCA. Similarly, the
imposition of charges is separately addressed in, inter alia, § 46-18-236, MCA, while
restitution is separately addressed in, inter alia, § 46-18-241, MCA. Additionally, the
imposition of a fee for supervision by the Department of Corrections is addressed separately
in § 46-23-1031, MCA.
¶18 Second, the criminal statutes distinguish fines from other court-imposed financial
obligations in explicit terms. For example, § 46-18-236(1), MCA, which provides for the
imposition of a financial charge based in part on the number of misdemeanor and felony
charges brought against an individual, states that this charge “is in addition to other taxable
court costs, fees, or fines . . . .” Thereafter, § 46-18-236(3), MCA, states that “[t]he charges
imposed by this section are not fines and must be imposed in addition to any fine and may
not be used in determining the jurisdiction of any court.” Similarly, § 3-1-317, MCA, which
provides for the imposition of a “[u]ser surcharge for court information technology,” states
the amount of the fine.” (Emphasis added.)
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that “[t]he surcharge imposed by this section is not a fee or fine and must be imposed in
addition to other taxable court costs, fees, or fines.” Section 3-1-317(3), MCA. Finally,
§ 46-18-251(1), MCA, also recognizes a distinction between fines and other court-imposed
financial obligations, noting that an offender may be “subjected to any combination of fines,
costs, restitution, charges, or other payments . . . .” This statute then proceeds to delineate
proper allocation of funds collected from an offender toward each of these different
categories of financial obligations.
¶19 We must reject Voerding’s argument here because of the clear statutory distinction
between fines and other court-imposed financial obligations. However, we acknowledge that
Voerding’s contention is based on a meticulous reading of Fisher. Unfortunately, the portion
of Fisher which Voerding relies on, which is not a holding, constitutes an erroneous
characterization of all the defendant’s court-imposed financial obligations as “fines.” In
reality, the court imposed not only fines, but fees, charges, and costs as well. It is indeed
uncomfortable to cope with a mistake such as this, especially when it is brought to our
attention by a pro se litigant who, although untrained in the law, apparently exercised more
care in reading Fisher than we did in writing it. 4 Yet, we can not perpetuate this mistake by
expanding the meaning of “fines” to include other court-imposed financial obligations, such
as fees, charges, and costs, when these obligations are statutorily distinct from fines.
Accordingly, we overrule Fisher to the extent it suggests that the term “fine” in
4
Having concurred in Fisher, the author acknowledges his complicity in the mistake made therein.
10
§ 46-18-403(2), MCA, encompasses other types of court-imposed financial obligations such
as fees, charges, and costs.
¶20 It is true that Voerding’s argument here could succeed if we simply read
§ 46-18-403(2), MCA (1999), in isolation and construed it in light of our statement in Fisher
which erroneously categorized all the defendant’s court-imposed financial obligations as
“fines.” However, as noted above, we are required to construe statutes according to the
context in which they reside. Orr, ¶ 25. Here, the context–i.e., the surrounding statutes
which explicitly and implicitly distinguish the various types of court-imposed financial
obligations–clearly indicates that fines are distinct from other court-imposed financial
obligations such as fees, costs, and charges. Given our obligation to promote consistency in
the application of the criminal code, we can not hold that the term “fine,” as used in
§ 46-18-403(2), MCA (1999), encompasses fees, costs, and charges, while that term, as used
in the surrounding statutes, clearly does not encompass these additional court-imposed
financial obligations.
¶21 Moreover, as noted above, we must interpret statutory language without adding to it or
subtracting from it. Section 1-2-101, MCA. Here, to adopt Voerding’s argument would be
to improperly add terms such as “fee,” “cost,” and “charge” to § 46-18-403(2), MCA (1999).
CONCLUSION
¶22 In conclusion, our statement in Fisher which characterized all the defendant’s
court-imposed financial obligations as “fines” was not intended to indicate that the term
“fine,” as it is used in § 46-18-403(2), MCA (1999), encompasses any other type of
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court-imposed financial obligation. Thus, Fisher is hereby overruled to the extent that it
suggests that idea.
¶23 We conclude that the District Court properly interpreted § 46-18-403(2),
MCA (1999).
¶24 Affirmed. 5
/S/ JAMES C. NELSON
5
As we do not wish to promote inappropriate reliance on this decision, we must point out
that our holding is limited to the meaning of the term “fine” in the subject statute. We note
that § 46-18-403, MCA, provides for credit based on incarceration prior to conviction. Yet,
the District Court cited § 46-18-403, MCA, in ordering that Voerding receive credit for
incarceration which occurred after his conviction, and prior to the revocation of his second
suspended sentence. Because the parties did not raise the issue, we do not analyze whether
§ 46-18-403, MCA, is a proper basis for awarding credit for incarceration which occurred
after a conviction but prior to revocation of a suspended sentence. Herrick, ¶ 28.
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We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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