State v. Foley ( 2020 )

06/09/2020
DA 19-0332
Case Number: DA 19-0332
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 152N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
STEVEN MICHAEL FOLEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-13-344 (C)
Honorable Heidi J. Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Steven Michael Foley, Self-Represented, Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Rob Cameron, Assistant
Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: May 6, 2020
Decided: June 9, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Laurie McKinnon 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 Representing himself, Steven Michael Foley (Foley), appeals from an Order on
Petition for Restitution Adjustment entered in his criminal case in the Eleventh Judicial
District Court, Flathead County. We affirm.
¶3 Foley pled guilty to attempted deliberate homicide for the shooting of his wife,
Jodi Stimson (Stimson), and was sentenced on November 18, 2014. Foley was ordered to
pay restitution of $10,095.06 for Stimson’s medical expenses. After the shooting, Stimson
sought a divorce from Foley and a decree was entered on May 29, 2014 (amended on
June 16, 2014), that, in part, awarded Stimson $10,095.06 for her medical expenses.
¶4 Foley filed a petition in the District Court on April 5, 2019, requesting an
“adjustment” in restitution in his underlying criminal case. Foley’s petition alleged: (1) the
restitution amount should be offset for the amount he was ordered to pay in the divorce
proceeding; and (2) the District Court failed to consider his ability to pay at the time of
sentencing. On May 16, 2019, the District Court denied Foley’s petition.
¶5 In his appeal, Foley raises numerous issues, many of which are intertwined with his
marital property distribution decreed five years earlier. Foley argues comparative
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negligence should reduce restitution in the instant underlying criminal proceeding; he is
entitled to do community service in lieu of making restitution payments to Stimson; the
District Court erred by failing to credit Foley for a vehicle in the dissolution decree; and
the District Court erred by imposing restitution without considering Foley’s ability to pay.
¶6 This Court has consistently held that it will not consider issues raised for the first
time on appeal. In re T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, 54 P.3d 38. We will
construe Foley’s arguments and allegations of error broadly but will only address those
issues first raised in the trial court. Accordingly, we will only consider whether the
District Court clearly erred in denying Foley’s request to modify restitution in his criminal
case, the proceeding from which this appeal has been filed. With respect to Foley’s
restitution in his criminal case, we apply the same rule and consider only those issues first
considered by the trial court.
¶7 Foley argued in the District Court that it was error to require him to pay restitution
after Stimson already had a civil judgment for her medical expenses awarded in the decree
of dissolution. Foley also contends that the District Court did not consider his ability to
pay when it awarded restitution in his criminal case.
¶8 The District Court recognized that, pursuant to § 46-18-201(5), MCA, the
sentencing judge must require payment of full restitution to the victim. The District Court
concluded there would be no risk of a double payment or unjust enrichment by requiring
the payment of Stimson’s medical expenses in both cases. The District Court reasoned that
satisfaction of the decree’s requirement that Foley pay Stimson $10,095.06 for the medical
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expenses he caused would also satisfy his sentencing requirement that he pay $10,095.06
in restitution for her medical expenses. We agree. The District Court’s interpretation of
the law was correct and its findings of fact, to the extent any were made, were not clearly
erroneous. State v. Conley, 2018 MT 83, ¶ 9, 391 Mont. 164, 415 P.3d 473.
¶9 Foley also contends the District Court did not consider his ability to pay when
ordering restitution. The State corrected its restitution figure to reflect Stimson’s medical
expenses, and Foley stipulated to the State’s recommended changes regarding restitution.
In its order denying Foley’s post-judgment motion, the District Court also indicated it had
considered Foley’s financial background as reflected in the Presentence Investigation
Report when Foley was sentenced. Regardless, Foley’s alleged error that his ability to pay
was not considered by the court amounts to an objectionable sentence, which must be raised
in the trial court at the time of sentencing or it is waived. State v. Coleman, 2018 MT 290,
¶ 7, 393 Mont. 375, 431 P.3d 26. The condition that Foley pay Stimson’s medical expenses
does not amount to an illegal sentence, which may first be considered on appeal.
Coleman, ¶ 7.
¶10 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. Affirmed.
/S/ LAURIE McKINNON
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We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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