State v. Winter , 376 Mont. 284 ( 2014 )

September 2 2014
DA 13-0802
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 235STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUSTINE ELLEN WINTER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-09-424(B)
Honorable Katherine R. Curtis, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Scott E. Carlson, Carlson Law Office; Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant
Attorney General; Helena, Montana
Ed Corrigan, Flathead County Attorney; Lori Adams, Deputy County
Attorney; Kalispell, Montana
Submitted on Briefs: July 16, 2014
Decided: September 2, 2014
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Justine Ellen Winter (Winter) appeals from the second amended judgment and
sentence of the Montana Eleventh Judicial District Court, Flathead County, correcting illegal
portions of her sentence for deliberate homicide and specifying the total amount of
restitution that Winter must pay. We affirm.
ISSUES
¶2 We review the following issues:
1. Did the District Court lack the authority to specify in the Second Amended
Judgment and Sentence the total amount of restitution?
2. Did the District Court err by recommending parole restrictions?
3. Did the District Court err by basing the length of Winter’s sentence on the amount
of time it would take her to pay restitution?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 3, 2011, a jury found Winter guilty of two counts of deliberate homicide,
and a sentencing hearing was held on June 6, 2011. At the sentencing hearing, Winter asked
for a separate hearing on the amount of restitution to be paid and for time to brief the issue.
The District Court granted this request, and the parties were given until July 1, 2011, to file
briefs concerning restitution amounts, with reply briefs due on July 15, 2011. The District
Court also ordered Winter’s attorney to submit a proposed order scheduling the restitution
hearing.
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¶4 The court pronounced an oral sentence at the conclusion of the June 6, 2011
sentencing hearing, and a written judgment and sentence was entered on June 9, 2011
(hereinafter “the 2011 Judgment and Sentence”). It committed Winter to the Department of
Corrections for 30 years, with 15 years suspended. It also ordered Winter to pay restitution
as a condition of parole. However, the amount of restitution was left to be determined, per
Winter’s request, pending the parties’ briefs and a hearing on the matter.
¶5 On July 1, 2011, the State filed a brief in support of restitution, while Winter filed a
motion and brief to dismiss the restitution claims. Reply briefs were filed by both parties on
July 15, 2011. Rather than submitting a proposed order to schedule the restitution hearing,
Winter filed a notice of appeal on July 22, 2011, from the 2011 Judgment and Sentence. The
District Court had not yet scheduled a restitution hearing or specified the amount of
restitution to be paid.
¶6 On appeal to this Court, Winter argued, among other things, that the District Court
lacked authority to impose a parole eligibility restriction on a sentence committing her to the
Department of Corrections. This Court agreed, and we remanded the case to the District
Court to correct the illegal portions of the sentence. Order, State v. Winter, S. Ct. No.
DA 11-0429 (Aug. 27, 2012).
¶7 On remand, the District Court entered an amended judgment and sentence, which was
filed on October 3, 2012 (hereinafter “the First Amended Judgment and Sentence”). It again
committed Winter to the Department of Corrections for 30 years, with 15 years suspended.
The First Amended Judgment and Sentence also recommended conditions of parole and
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ordered conditions of probation, one of which was payment of restitution. The amount of
restitution was left unspecified. Winter did not appeal the First Amended Judgment and
Sentence.
¶8 Since the District Court never specified the amount of restitution to be paid, the State
filed a motion on January 4, 2013, for a ruling on restitution. In that motion, the State asked
that the District Court decide the restitution issues on the briefs and motions submitted
during July 2011. On August 9, 2013, the District Court entered an Order and Rationale on
Restitution. Winter objected to this order for reasons similar to those raised on this appeal.
Over Winter’s objection, the District Court entered a second amended judgment and sentence
on October 7, 2013 (hereinafter “the Second Amended Judgment and Sentence”), ordering
Winter to pay a total of $16,361 in restitution.
STANDARDS OF REVIEW
¶9 This Court reviews a sentence that includes at least one year of commitment to the
Department of Corrections for legality only. State v. Brownback, 2010 MT 96, ¶ 16, 356
Mont. 190, 232 P.3d 385. In conducting such review, we consider whether “the sentencing
court had statutory authority to impose the sentence, whether the sentence falls within the
parameters set by the applicable statute, and whether the court followed the affirmative
mandates of the sentencing statute.” Brownback, ¶ 16 (quoting State v. Perkins, 2009 MT
150, ¶ 8, 350 Mont. 387, 208 P.3d 386).
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¶10 We review discretionary trial court rulings in criminal cases for abuse of discretion.
State v. Loh, 275 Mont. 460, 466, 914 P.2d 592, 596 (1996) (citing State v. Sullivan, 266
Mont. 313, 324, 880 P.2d 829, 836 (1994)).
DISCUSSION
¶11 1. Did the District Court lack the authority to specify in the Second Amended
Judgment and Sentence the total amount of restitution?
¶12 Winter argues that (a) law of the case doctrine prohibited the District Court from
specifying the total amount of restitution in its Second Amended Judgment and Sentence and
(b) the State’s motion for restitution should have been deemed denied based on
M. R. Civ. P. 59 and Unif. Dist. Ct. R. 2. We hold that the District Court had the authority
to specify the total amount of restitution.
(a) Law of the case doctrine
¶13 Under the law of the case doctrine, a prior Montana Supreme Court decision resolving
an issue between the same parties is binding and may not be relitigated. State v. Wagner,
2013 MT 47, ¶ 18, 369 Mont. 139, 296 P.3d 1142; State v. Gilder, 2001 MT 121, ¶ 9, 305
Mont. 362, 28 P.3d 488. Despite Winter’s arguments to the contrary, this Court did not
resolve the issue of restitution in Winter’s first appeal, and the law of the case doctrine did
not ban the District Court from amending its judgment.
¶14 The law of the case doctrine does not prevent parties from litigating issues left
unresolved in previous appeals. Rather, “[t]he law of the case binds the parties only on those
issues that the court previously has decided.” In re Estate of Snyder, 2007 MT 146, ¶ 27,
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337 Mont. 449, 162 P.3d 87; see Gilder, ¶ 12 (“where . . . the supreme court . . . states in its
opinion a principle or rule of law necessary to the decision, such pronouncement becomes
the law of the case” (emphasis added)). Our decision in Winter’s first appeal determined the
legality of the imposed parole eligibility restrictions. As it did not resolve any issues of
restitution, it did not establish a law of the case that prevented the District Court from
specifying the total amount of restitution to be paid. Accordingly, there is also no law of the
case that prevents a decision in this appeal.
¶15 The law of the case doctrine also does not necessarily limit remand proceedings of a
district court to the issues discussed in the remand order, as Winter contends. Rather, as we
have previously held, “[o]n remand, the trial court may consider or decide any matters left
open by the appellate court, and is free to make any order or direction in further progress of
the case, not inconsistent with the decision of the appellate court, as to any question not
presented or settled by such decision.” Zavarelli v. Might, 239 Mont. 120, 125-26, 779 P.2d
489, 493 (1989). Following Winter’s first appeal, we remanded the case to the District Court
“to correct the illegal portions of the sentence.” We also stated that “[w]ithin its discretion,
the court may restate its parole eligibility restriction and conditions of parole as
recommendations.” Our order did not, however, settle any question concerning restitution.
Thus, the Second Amended Judgment and Sentence’s specification of the amount of
restitution was not inconsistent with our order.
¶16 Additionally, specifying the amount of restitution was not prohibited by our order in
Winter’s first appeal to correct the “illegal portions” of the sentence. We have repeatedly
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held that sentences that order restitution but do not specify the total amount of restitution that
the offender shall pay are illegal. In such cases, we have remanded and ordered the district
court to correct the illegal sentences by specifying the total amount of restitution to be paid.
See e.g. State v. Ring, 2014 MT 49, ¶ 36, 374 Mont. 109, 321 P.3d 800; State v. Johnson,
2011 MT 286, ¶ 16, 362 Mont. 473, 265 P.3d 638; State v. Heafner, 2010 MT 87, ¶¶ 7,
12-13, 356 Mont. 128, 231 P.3d 1087; Gilbert v. State, 2002 MT 258, ¶¶ 25-26, 312 Mont.
189, 59 P.3d 24. Nothing in our prior order restricted the District Court’s ability to address
the amount of restitution left unspecified in the 2011 Judgment and Sentence and the First
Amended Judgment and Sentence.
¶17 Furthermore, we do not agree with Winter’s argument that the District Court lost its
authority to specify the amount of restitution upon Winter’s first appeal. Although the
District Court was not able to specify the amount of restitution until over two years after
restitution was ordered, this delay was the result of Winter’s decision to appeal rather than to
submit a proposed order scheduling the restitution hearing. Neither party contests that the
District Court had the statutory authority to order and to specify the amount of restitution in
the 2011 Judgment and Sentence, and the District Court did not lose this authority by virtue
of the delay created by Winter. See State v. Bomar, 2008 MT 91, ¶ 33, 342 Mont. 281, 182
P.3d 47 (“A party waives the right to appeal an alleged error when the appealing party
acquiesced in, actively participated in or did not object to the asserted error.”); State v.
Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, 983 P.2d 881 (“We will not put a district court
in error for an action in which the appealing party acquiesced or actively participated.”).
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¶18 For these reasons, the law of the case doctrine did not prohibit the District Court from
specifying the total amount of restitution.
(b) M. R. Civ. P. 59 and Unif. Dist. Ct. R. 2
¶19 Winter contends that by granting the State’s motion for a ruling, the District Court
violated the time limits imposed by M. R. Civ. P. 59(e) and 59(f). Rule 59(e) states, in
relevant part, that “[a] motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” Similarly, M. R. Civ. P. 59(f) states, in relevant part,
that “[i]f the court does not rule on . . . a motion to alter or amend a judgment . . . within 60
days from its filing date, the motion must be deemed denied.” However, these rules are
inapplicable to the present case. Application of M. R. Civ. P. 59 is limited by M. R. Civ. P.
1 to “civil actions and proceedings.” As the present case is a criminal proceeding and not a
civil one, M. R. Civ. P. 59 is inapplicable.
¶20 However, the Uniform District Court Rules are applicable to this case, and Unif. Dist.
Ct. R. 2(b) provides that “[f]ailure to file briefs may subject the motion to summary ruling.
The moving party’s failure to file a brief shall be deemed an admission that the motion is
without merit.” Although Rule 2(b) was amended in 2011, the amendment was meant to
change the time limits for filing a brief, rather than to otherwise affect the operation of the
rule. See Order, In re Revisions to the Uniform District Court Rules, S. Ct. No. AF 07-0110
(Nov. 29, 2011). For the purposes of this analysis, therefore, there is no need to determine
which version of the rule to use or to limit our discussion of precedent to cases decided
following amendment of the rule.
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¶21 We have interpreted Rule 2(b) as “allowing the trial court discretion to either grant or
deny an unanswered motion.” Loh, 275 Mont. at 466, 914 P.2d at 596. Unif. Dist. Ct. R.
2(b) is intended to allow district courts to deal efficiently with ever-increasing case loads, but
it neither requires a court to grant nor requires a court to deny an unsupported motion,
instead allowing it discretion to do either. In re Marriage of Lundstrom, 2007 MT 304, ¶ 23,
340 Mont. 83, 172 P.3d 588; State v. Pizzolo, 283 Mont. 522, 525, 942 P.2d 709, 711 (1997);
Loh, 275 Mont. at 466, 914 P.2d at 596; In re Marriage of Grounds, 256 Mont. 397, 403,
846 P.2d 1034, 1038 (1993). Thus, even if the State failed to file a brief in support of its
motion for a ruling on restitution, we will not overturn the District Court’s decision to deny
summary ruling absent an abuse of discretion. Loh, 275 Mont. at 466, 914 P.2d at 596;
Moody v. Northland Royalty Co., 286 Mont. 89, 94-95, 951 P.2d 18, 22 (1997); Marriage of
Grounds, 256 Mont. at 403, 846 P.2d at 1038.
¶22 This Court determined in Marriage of Grounds that the district court did not abuse its
discretion when it granted a motion that was unsupported by a brief. 256 Mont. at 403, 846
P.2d at 1038. We reasoned that the district court “made its decision based upon further
consideration of the record and determined that the original findings of fact and conclusions
of law warranted [the motion].” Marriage of Grounds, 256 Mont. at 403, 846 P.2d at 1038.
Similarly, the District Court in the instant case made its decision to grant the State’s motion
for a ruling on restitution based on “the Defendant’s motion to dismiss and supporting and
opposition memoranda, the State’s motion for restitution ruling, [and] the affidavits of
pecuniary loss and testimony regarding restitution presented at the sentencing hearing.”
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Thus, as in Marriage of Grounds, the District Court here based its decision on consideration
of the record and, similarly, did not abuse its discretion by granting the State’s motion for a
ruling on restitution.
¶23 2. Did the District Court err by recommending parole restrictions?
¶24 A district court possesses the authority to make non-binding recommendations to the
Department of Corrections’ Board of Pardons and Parole as part of its judgment. State v.
Champagne, 2013 MT 190, ¶ 52, 371 Mont. 35, 305 P.3d 61 (2013); see Heafner, ¶ 13.
Upon finding that the parole restrictions were illegally imposed in Winter’s first appeal, we
ordered the District Court “to correct the illegal portions of the sentence,” and we suggested
that “the court may restate its parole eligibility restrictions and conditions of parole as
recommendations.” The District Court did not exceed its authority by choosing to restate its
conditions as recommendations.
¶25 3. Did the District Court err by basing the length of Winter’s sentence on the amount
of time it would take her to pay restitution?
¶26 Winter argues that her sentence was improperly based on the amount of time it would
take her to pay restitution. She alleges that the sentence is therefore illegal as a violation of
her right to due process under the Montana and Federal Constitutions.
¶27 Although Winter raises this issue for the first time on appeal, this Court may review
the issue under State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). In Lenihan, we
decided that an appellate court may “review any sentence imposed in a criminal case, if it is
alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is
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made at the time of sentencing.” 184 Mont. at 343, 602 P.2d at 1000. We have held that an
allegation, such as the one Winter makes, that a sentence violates constitutional guarantees of
due process is a reviewable allegation of illegality. State v. Haldane, 2013 MT 32, ¶¶ 39-40,
368 Mont. 396, 300 P.3d 657. Thus, Winter’s allegation that her sentence is illegal as a
violation of her right to due process is reviewable under Lenihan.
¶28 However, Winter’s sentence was not based on the amount of time it would take her to
pay restitution, and the sentence does not violate her right to due process. Winter cites State
v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d 539; and State v. Farrell, 207 Mont. 483,
676 P.2d 168 (1984), as cases analogous to her own. In both of these cases, the defendants
were sentenced to the maximum allowable term in order to give them the longest time
possible to make payments on restitution. Pritchett, ¶¶ 3, 26; Farrell, 207 Mont. at 494, 676
P.2d at 174. This Court found that in both instances, the constitutional right to due process
was violated. Pritchett, ¶ 30; Farrell, 207 Mont. at 498, 676 P.2d at 176.
¶29 The present case is distinguishable from Pritchett and Farrell. We have previously
found Pritchett and Farrell to be inapplicable where, as here, the maximum sentence is not
imposed on a defendant. State v. Benoit, 2002 MT 166, ¶¶ 36-37, 310 Mont. 449, 51 P.3d
495. Furthermore, while the District Courts in Pritchett and Farrell explicitly indicated a
relationship between restitution and sentence length, Pritchett, ¶¶ 33-34, Farrell, 207 Mont.
at 494, 676 P.2d at 174, the District Court in the present case considered many factors when
crafting a sentence. These included the Defendant’s age and mental and emotional
condition; the degree of harm caused by the defendant’s action; opportunity for the
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defendant’s rehabilitation and reintegration into society; and the Pre-Sentence Investigation
Report. While the District Court did indicate that it expected the Defendant “to meet the
financial obligations imposed by the court,” it did not make these financial obligations the
basis of the sentence imposed.
¶30 Thus, we hold that the District Court did not base the length of Winter’s sentence on
the amount of time it would take her to pay restitution, and that it did not violate Winter’s
constitutional right to due process.
CONCLUSION
¶31 We hold that the District Court had the authority to specify in its Second Amended
Judgment and Sentence the total amount of restitution; that the District Court did not err by
recommending parole restrictions; and that the District Court did not base the length of
Winter’s sentence on the amount of time it would take her to pay restitution. Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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