State v. Passmore

September 16 2014
DA 13-0622
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 249STATE OF MONTANA,
Plaintiff and Appellee,
v.
TERENCE RICHARDSON PASSMORE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DC 06-60
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terence Richardson Passmore (self-represented); Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Brenda K. Elias, Assistant
Attorney General; Helena, Montana
Wm. Nels Swandal, Park County Attorney, Interim; Catherine Truman,
Special Deputy County Attorney; Livingston, Montana
Submitted on Briefs: July 16, 2014
Decided: September 16, 2014
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Terence Richardson Passmore appeals from the order of the Sixth Judicial District
Court, Park County, denying his Petition for Remission of Fines/Costs. We restate the
issue as follows:
¶2 Did the District Court abuse its discretion by denying Passmore’s petition for
remission of restitution?
¶3 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Following a jury trial in November and December 2007, Appellant Terence
Richardson Passmore was convicted of felony sexual intercourse without consent and
felony sexual assault against two young sisters, who were ages 12 and 13 at the time of
the offenses. The District Court designated Passmore a Level I sex offender and
sentenced him to 35 years imprisonment, with five years suspended. The District Court
also ordered Passmore to “pay restitution, to compensate the victims of his crimes for 52
hours of counseling, in the maximum amount of $12,100, within 5 years, based on
[Passmore’s] ability to pay.” We affirmed the District Court’s judgment in State v.
Passmore, 2010 MT 34, 355 Mont. 187, 225 P.3d 1229.
¶5 Passmore filed a petition for postconviction relief in September 2010, citing
ineffective assistance of counsel and improper exclusion of exculpatory evidence. The
District Court denied Passmore’s petition in March 2012, and we affirmed the District
Court in Passmore v. State, 2013 MT 154N, 370 Mont. 555, 311 P.3d 444.
2
¶6 In April 2013, Passmore filed a petition for remission of restitution in the Sixth
Judicial District.1 The District Court held a hearing on Passmore’s petition on August 28,
2013. Passmore appeared pro se via video conference from Crossroads Correctional
Facility in Shelby. Catherine Truman of the Attorney General’s Office appeared in
person on behalf of the State.
¶7 The State called three witnesses: Passmore’s two victims, C.R.S. and J.R., and
C.R.S.’s husband. Passmore called no witnesses and offered a summary of his inmate
financial accounts as evidence. Because of a no-contact order between Passmore and his
victims, the camera and video screen in the courtroom were covered with a blanket
during testimony so that the witnesses and Passmore could not see each other. Passmore
was still able to hear everything in the courtroom. The District Court did not permit
Passmore to cross-examine the witnesses himself, but rather had Passmore submit his
questions to the judge, who then relayed them to the witnesses.
¶8 C.R.S. testified that as a result of Passmore’s abuse of her, she has intimacy issues
which cause stress in her marriage and her relationship with her young son. She
explained that her parents had paid for her to receive counseling before Passmore’s trial,
which was helpful. She would like more treatment, but has not been able to afford it
because her husband was in college and she earns a small income as a line cook.
Although she now has health insurance, it has limited mental health coverage and a large
deductible.
1
Passmore’s petition was titled “Petition for the Remission of Fines/Cost.” However, in the
petition, at the hearing, and in subsequent briefing, Passmore sought only the remission of his
restitution obligation.
3
¶9 J.R. testified that as a result of Passmore’s abuse of her, she has trust issues and
problems with interpersonal relationships. She received treatment, covered by Medicaid,
for her bipolar disorder which was exacerbated by Passmore’s abuse. The State
introduced a letter and medical bills documenting J.R.’s treatment. J.R. testified that she
wanted to see a counselor who specializes in treating sexual abuse victims but was unable
to afford the fee. Medicaid would not cover this counselor and, in any event, J.R.’s
Medicaid coverage was due to expire at the end of August 2013, because she had secured
employment. She does not have health insurance through her employer.
¶10 After testimony, both parties gave oral argument. Passmore reiterated the
arguments in his petition, and the State requested an extension of the five-year period of
the restitution condition of Passmore’s sentence.
¶11 On August 30, 2013, the District Court issued an order denying Passmore’s
petition and extending the time frame for submission of restitution claims by three years.
The order explains the District Court’s rationale, noting that it “finds credible the
testimony of the victims to the effect that the counseling is very much needed and that,
for financial reasons, the victims have previously been unable to pay for the upfront costs
of the counseling.” The District Court also recognized “that the amount of restitution
payments that [Passmore] is able to pay is limited due to his incarceration.”
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STANDARD OF REVIEW
¶12 We review a district court’s decision to grant or deny a post-trial motion in a
criminal case for an abuse of discretion.2 State v. Ferre, 2014 MT 96, ¶ 11, 374 Mont.
428, 322 P.3d 1047. “A court abuses its discretion if it acts arbitrarily without the
employment of conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice.” State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d
811. “The burden to demonstrate an abuse of discretion is on the party seeking reversal
based on an unfavorable trial court ruling.” State v. Sheehan, 2005 MT 305, ¶ 18, 329
Mont. 417, 124 P.3d 1119.
DISCUSSION
¶13 Passmore argues that his restitution obligation should have been remitted because
his victims did not testify truthfully about their financial inability to obtain counseling.
Despite their testimony, Passmore contends that their failure to seek counseling in the
past five years proves they neither want nor need counseling. Therefore, Passmore
argues the Court should have waived his remaining restitution obligation pursuant to
§ 46-18-246, MCA. We disagree.
¶14 Section 46-18-246, MCA, provides, in relevant part:
If the court finds that the circumstances upon which it based the imposition
of restitution, amount of the victim’s pecuniary loss, or method or time of
payment no longer exist or that it otherwise would be unjust to require
payment as imposed, the court may adjust or waive unpaid restitution . . . .
2
In his reply brief, Passmore requests that we exercise plain error review. We decline to do so,
as that is not the proper standard of review for this case.
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This statute is permissive; if at least one of the four conditions is met, the court may
waive or adjust a restitution obligation.
¶15 Passmore claims that “current established court records” provide “direct,
undeniable evidence” that his victims lied and it is therefore unjust to uphold his
restitution obligation. However, the District Court found “credible the testimony of the
victims to the effect that the counseling is very much needed and that, for financial
reasons, the victims have previously been unable to pay for the upfront costs of the
counseling.” As the trier of fact, the District Court had the opportunity to observe the
witnesses and is therefore better suited to determine credibility than this Court. Ditton v.
DOJ, Motor Vehicle Div., 2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d 1268. We will not
substitute our judgment as to witness credibility for that of the district court. Seyferth v.
DOJ, Motor Vehicle Div., 277 Mont. 377, 385, 922 P.2d 494, 499 (1996).
¶16 The “current established court record” Passmore cites is a civil settlement
agreement that is not in the record. We do not consider evidence that is not in the record
on appeal. State v. Azure, 2002 MT 22, ¶ 38, 308 Mont. 201, 41 P.3d 899. We recognize
that Passmore is unrepresented in this appeal, and we give pro se litigants a certain degree
of latitude. Neil Consultants, Inc. v. Lindeman, 2006 MT 80, ¶ 8, 331 Mont. 514, 134
P.3d 43 (citing First Bank (N.A.)-Billings v. Heidema, 219 Mont. 373, 376, 711 P.2d
1384, 1386 (1986)). However, “that latitude cannot be so wide as to prejudice the other
party, and it is reasonable to expect pro se litigants to adhere to procedural rules.” Neil
Consultants, ¶ 8.
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¶17 In this appeal, Passmore also references the testimony of C.R.S. and J.R. during
the criminal trial in which they admit they received money in settlement of a civil suit
against the Church of God. This, he argues, proves that they had money for counseling
and would have sought counseling within the past five years if they had needed it. This
argument was not raised before the District Court, and “we will not put a district court in
error for failing to address an issue or an argument that was not made before it.” State v.
Clary, 2012 MT 26, ¶ 19, 364 Mont. 53, 270 P.3d 88 (citing Day v. Payne, 280 Mont.
273, 276, 929 P.2d 864, 866 (1996)).
¶18 The District Court found that the circumstances underlying the original imposition
of restitution—the victims’ need for counseling to treat the mental trauma caused by
Passmore’s abuse—still exist. In that regard, we note that any proceeds C.R.S. and J.R.
may have received from the civil settlement cannot constitute a change of circumstance
because the settlement predated the imposition of restitution. Moreover, the amount of
the victims’ pecuniary loss, which includes “future medical expenses that the victim can
reasonably be expected to incur as a result of the offender’s criminal conduct,
including . . . counseling,” § 46-18-243(1)(c), MCA, has not changed; neither has the
method or time of payment. Passmore’s 2008 sentence provides that he “will continue to
make monthly restitution payments until he has paid full restitution.” Though the District
Court’s order grants the victims an additional three years to obtain counseling, it does
nothing to modify the condition requiring Passmore to continue to make payments until
his restitution obligation is satisfied.
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¶19 Further, upholding the restitution requirement is not unjust, as Passmore argues.
Restitution is a fundamental component of Montana’s laws for the punishment of crime.
See Mont. Const. art. II, § 28(1) (“Laws for the punishment of crime shall be founded on
the principles of prevention, reformation, public safety, and restitution for victims,”) and
§ 46-18-201(5), MCA (providing that judges must require payment of restitution as part
of the sentence in cases where the victim has suffered a pecuniary loss). Passmore was
ordered to pay restitution to his victims not because they could not otherwise afford
counseling, but rather because it was Passmore’s crimes against them that caused them to
require counseling.
¶20 The record provides evidence that both victims want and need counseling. The
record further provides evidence that J.R. has received counseling within the past five
years. The District Court is well within the bounds of reason in determining that
Passmore should not be released from his restitution obligation.
CONCLUSION
¶21 Passmore has failed to meet his burden to demonstrate that the District Court
abused its discretion in denying his petition.
¶22 Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE
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