State v. Gilbert

No. 04-285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 368STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROGER LeRUE GILBERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DC-99-109
Honorable John W. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Roger L. Gilbert, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Micheal W.
Wellenstein, Assistant Attorney General, Helena, Montana
Robert McCarthy, Silver Bow County Attorney; Samm T. Cox,
Deputy County Attorney, Butte, Montana
Submitted on Briefs: November 4, 2004
Decided: December 21, 2004
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 On remand from this Court after a previous appeal, the Second Judicial District Court,
Silver Bow County, amended its judgment and order committing Roger LeRue Gilbert to the
custody of the Montana Department of Corrections. Gilbert appeals and we affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court correctly measure the amount of Gilbert's restitution
obligation?
¶4 2. Did the presentence investigation report adequately document Gilbert's financial
resources and his future ability to pay restitution?
¶5 Gilbert raised an issue relating to the validity of the District Court's parole restriction
in his opening brief. Because he conceded in his reply brief that the issue has become moot,
we do not address it.
BACKGROUND
¶6 In 1999, Gilbert pled guilty to negligent arson and burglary, and judgment was
entered against him. Gilbert later petitioned the District Court for postconviction relief,
which the court denied. When Gilbert appealed the denial of his petition for postconviction
relief, we held--in pertinent part--that the sentencing court had improperly delayed
determining the amount of his restitution obligation until he began serving the suspended
portions of his sentence or was granted parole or supervised release. Gilbert v. State, 2002
MT 258, ¶ 26, 312 Mont. 189, ¶ 26, 59 P.3d 24, ¶ 26 (hereinafter, Gilbert I). We remanded
2
for clarification of the District Court's intent regarding parole eligibility and restitution.
Gilbert I, ¶¶ 21, 26.
¶7 On remand, the District Court first vacated its sentence and judgment against Gilbert
and then resentenced him and entered its judgment. It committed Gilbert to the custody of
the Department of Corrections (DOC) for terms of years, with some suspended, for negligent
arson and burglary, and determined that he would be ineligible for parole or participation in
any type of supervised release program while serving his unsuspended terms of imprison-
ment. The District Court also imposed terms and conditions for the suspended portion of
Gilbert's sentences, including a requirement that he pay $24,000 in restitution in minimum
installments of $200 per month. Gilbert appeals.
ISSUE 1
¶8 Did the District Court correctly measure the amount of Gilbert's restitution obligation?
¶9 The original and amended presentence investigation reports state that the replacement
cost of the building Gilbert destroyed by fire is $5,375,000. Both reports then list the
amounts of losses claimed by various other individuals and businesses damaged by the fire.
The total restitution amount is stated as $5,721,684.57. The District Court ordered
restitution in the amount of $24,000.
¶10 Gilbert contends the District Court used an incorrect measure to determine the amount
of restitution he must pay. Specifically, he states both the original and amended presentence
investigation reports used the replacement cost method to set the value of the building he
3
destroyed by fire, instead of the actual value of the property at the time the loss occurred as
required under State v. Pritchett, 2000 MT 261, ¶ 24, 302 Mont. 1, ¶ 24, 11 P.3d 539, ¶ 24.
¶11 Gilbert is correct that the actual value, rather than the replacement cost of property,
is the proper standard for use in determining full restitution. See Pritchett, ¶ 24. However,
a district court may not be reversed by reason of any error unless the record shows the error
was prejudicial. See § 46-20-701(1), MCA. Here, Gilbert has not established that he was
prejudiced, because the District Court did not require him to pay full restitution. The court
adopted the recommendation of the amended presentence investigation report that Gilbert
be ordered to pay a total of $24,000 in restitution. The large majority of that amount,
$20,298.72, is to be paid to the owner of the building destroyed by the fire. The court
ordered Gilbert to pay lesser portions of the restitution to seven other victims with damages
from the fire. The total restitution Gilbert must pay, which includes damages for the building
which Gilbert says has been incorrectly valued and to seven other victims, is but a minuscule
fraction of the replacement cost of the building. We hold that Gilbert has not established
error by the District Court in setting the amount of restitution.
ISSUE 2
¶12 Did the presentence investigation report adequately document Gilbert's financial
resources and his future ability to pay restitution?
¶13 Citing Pritchett, State v. Hilgers, 1999 MT 284, 297 Mont. 23, 989 P.2d 866, and
State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098, Gilbert contends the presentence
investigation report (PSI) is illegal because it failed to adequately document his financial
4
resources and his future ability to pay restitution. In those three cases, we remanded for
additional documentation to support restitution, for reasons which are not present here. In
Pritchett, ¶ 3, the PSI contained no documentation of Pritchett's current assets and liabilities
or estimates of his future ability to pay restitution. In Hilgers, ¶ 13, the PSI contained no
information specifically addressing the issues of Hilgers' financial resources or ability to pay
the amount of restitution ordered. Finally, in Brown, 263 Mont. at 226, 867 P.2d at 1100,
the PSI did not assign a monetary value to all of Brown's current assets and provided no
documentation of his future ability to pay restitution.
¶14 In State v. Heath, 2004 MT 126, 321 Mont. 280, 90 P.3d 426, the defendant relied
on the same cases Gilbert relies on here in arguing that the PSI did not adequately document
his resources, future employability and ability to pay. In that case, the PSI noted the
defendant was currently unemployed but had worked in restaurants and construction in the
past. It indicated he had obtained a GED. It noted he had no assets, debts of $1,000, and no
support obligation for his three children. The report stated Heath had family in Billings, and
opined that he should be required to "secure and maintain full-time, legitimate employment."
Heath, ¶ 42. We stated the deficiencies noted in Pritchett, Hilgers and Brown were not
present and held the documentation was adequate. Heath, ¶ 44.
¶15 Here, the amended PSI filed in February of 2003 noted Gilbert was currently
unemployed but had worked as a motor vehicle body man. It indicated he had obtained a
GED and attended community college. The report further noted he had no assets and no
support obligation for his two children, but had debts of $2,000. According to the PSI,
5
Gilbert told the reporting officer he earns $1,000 per month when he is employed. We
conclude that, as in Heath, the amended PSI in the present case adequately documented
Gilbert's financial resources and future ability to pay restitution.
¶16 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
6