State v. Dowd

413 Mont. 245

535 P.3d 645

STATE of Montana, Plaintiff and Appellee,

v.Derrell Russell DOWD, Defendant and Appellant.

DA 21-0647

Supreme Court of Montana.

Submitted on Briefs: July 19, 2023

Decided: September 12, 2023

For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Jeffrey Zwang, Deputy County Attorney, Libby, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Derrell Russell Dowd appeals financial conditions of his sentence from the Nineteenth Judicial District Court. Dowd pleaded guilty to felony driving under the influence pursuant to § 61-8-401, MCA. Despite Dowd's objections that he could not afford to pay, the District Court imposed a $5,000 fine and several costs, surcharges, and fees as recommended by Dowd's Presentence Investigation Report (PSI). Dowd appeals the imposition of the additional charges; he does not appeal the fine.

¶2 We reverse the District Court's imposition of costs, surcharges, and fees. The court misapprehended the effect of the evidence at Dowd's sentencing hearing when it concluded that Dowd had the ability to pay because his "assets outweigh his liabilities." We remand for the court to strike the costs, surcharges, and fees from the Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The State charged Dowd with DUI (fourth offense felony), operating a motor vehicle without liability insurance, and criminal possession of drug paraphernalia based on an incident that occurred in early March 2021. In exchange for dismissing the two misdemeanor charges, Dowd pleaded guilty to the felony DUI. The parties jointly recommended a thirteen-month commitment to the Department of Corrections (DOC) for Dowd's placement in a treatment facility, with a three-year suspended sentence to follow the treatment program. The parties also agreed to a $5,000 fine. At sentencing, Dowd argued that, though in the plea agreement, the fine could not be imposed because it was subject to an ability-to-pay analysis, and he could not afford it. Dowd further requested that the court suspend the additional financial conditions suggested in the PSI due to his inability to pay.

¶4 At the time of sentencing, Dowd was sixty-one years old and living with severe chronic pain. The PSI corroborated Dowd's testimony at sentencing that his only source of income was $940 in Social Security Disability Insurance (SSDI). Dowd further testified that he owned the mobile home in which he lived, and that it was valued at about $8,000. According to the PSI, Dowd's only asset was a vehicle valued at $1,000. Dowd testified that he paid $300 for the vehicle. The State asked Dowd whether he could use the money that he had been paying toward a pretrial alcohol monitoring device and "put [it] towards [his] fines and fees[.]" Dowd answered that he could, but then told the court that his wife had worked weekends to help him pay for the monitoring device. She had since lost her job after getting sick from COVID-19. Dowd testified that he had no disposable income after he paid his expenses, he had no money in an investment account, and his checking account would have $21 after he paid his lot rent that month.

¶5 After reviewing the PSI and hearing Dowd's testimony, the District Court found that Dowd's "assets outweigh his liabilities ... and that [ ]he has the ability to pay." The court ordered that, in addition to the $5,000 fine, Dowd pay between $360 and $1,080 in supervision fees, under § 46-23-1031(1)(a)(i), MCA ;¹ a $20 felony surcharge, under § 46-18-236(1)(b), MCA ; a $50 surcharge for victim and witness advocacy programs, under § 46-18-326(1)(c), MCA; a $10 court information technology fee, under § 3-1-317(1)(a), MCA ; a $50 PSI fee, under § 46-18-111(3), MCA ; and a $100 prosecution fee, under § 46-18-232(1), MCA. It waived the cost of assigned counsel.

STANDARD OF REVIEW

¶6 We review criminal sentences for legality, "review[ing] de novo whether the court adhered to the applicable sentencing statute." State v. Fisher , 2021 MT 255, ¶ 25, 405 Mont. 498, 496 P.3d 561 (citation omitted); State v. Moore , 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212 (citation omitted). If a sentencing condition is legal, "we then review its reasonableness to determine whether the district court abused its discretion." State v. Reynolds , 2017 MT 317, ¶ 15, 390 Mont. 58, 408 P.3d 503 (citation omitted).

¶7 "A district court's determination of a defendant's ability to pay an imposed fine, fee, cost, or other charge is essentially a finding of fact that this Court will reverse only if it is clearly erroneous." Fisher , ¶ 25 (quoting State v. Hotchkiss , 2020 MT 269, ¶ 13, 402 Mont. 1, 474 P.3d 1273 (internal quotations omitted)). "A court's findings of fact are clearly erroneous if they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made." Reynolds , ¶ 16 (citation omitted).

DISCUSSION

¶8 Dowd maintains he demonstrated in the District Court that he cannot afford to pay the costs, surcharges, and fees, and argues that the imposition of these obligations, therefore, is illegal. He contends that a sentencing court may order these charges in addition to a fine only when the evidence establishes that the defendant has the ability to pay them. He argues that no evidence supported the District Court's finding because he gave unrefuted testimony that his only source of income is SSDI and his only assets are "an old vehicle and a mobile home in which he lives."

¶9 The State counters that the District Court imposed not only a legal sentence but a mandated sentence when it ordered the specific monetary conditions. It cites to § 61-8-731(4)(b), MCA, arguing that "a person who is financially able to pay the costs of imprisonment, probation, and alcohol treatment" must do so as a condition of probation. The State maintains that the District Court "properly considered Dowd's ability to pay before requiring Dowd to pay fees and surcharges" and it "properly deferred the ability to pay analysis for supervision fees to the DOC." Finally, the State argues that the District Court imposed a legal sentence because it did not "target" Dowd's SSDI, citing Dowd's testimony that "he could pay fines and fees with the monies he had previously used to pay for a pretrial alcohol monitoring device."

¶10 Each of the costs, surcharges, and fees imposed by the District Court at Dowd's sentencing includes a caveat that makes waiver of the charges either mandatory or discretionary upon a finding that the defendant does not have the ability to pay. The statutory surcharges associated with felonies and the legal expenses of prosecuting a defendant must be waived if the court finds that the defendant cannot afford to pay. Sections 46-18-232(2), -236(2), MCA. The defendant must pay the $50 PSI fee only if the court determines that the defendant is able to do so. Section 46-18-111(3), MCA. The sentencing court has the discretion to "reduce or waive a fee ... or suspend the monthly payment of the supervisory fee if it determines that the payment would cause the person a significant financial hardship." Section 46-23-1031(1)(c), MCA. The sentencing court also has discretion to waive the information technology fee if the defendant is unable to pay. Section 3-1-317(2), MCA.

¶11 We have affirmed the imposition of costs, surcharges, and fees when the sentencing court demonstrated a "serious inquiry and separate determination" of the defendant's ability to pay. See e.g. , Reynolds , ¶ 29 ; State v. Gable , 2015 MT 200, ¶ 10, 380 Mont. 101, 354 P.3d 566. We have reversed when the sentencing court failed to discuss on the record the ability to pay or to consider the financial hardship that charges would impose. See e.g. , Moore , ¶¶ 14, 21 ; State v. McLeod , 2002 MT 348, ¶ 34, 313 Mont. 358, 61 P.3d 126.

¶12 Review of the record indicates that the District Court conducted an ability-to-pay analysis regarding Dowd's $5,000 fine. The court addressed the PSI, and it heard testimony about Dowd's ability to work and financial circumstances. It also listened to Dowd's testimony about the financial hardship he would experience if ordered to pay. At the conclusion of Dowd's testimony, the District Court found that his "assets outweigh his liabilities," and Dowd therefore had the ability to pay. Dowd does not appeal the imposition of the fine, noting its mandatory nature under § 61-8-731(1)(a)(iii), MCA (2019). See State v. Mingus , 2004 MT 24, ¶ 15, 319 Mont. 349, 84 P.3d 658.

¶13 "A court must examine the fees considering a defendant's other financial obligations, employment opportunities, available assets, and any present or future hardship imposing the fee may have." State v. Hardin , 2023 MT 132, ¶ 32, 413 Mont. 26, 532 P.3d 466. Dowd presented his sole assets to the court in the form of the $8,000 mobile home in which his family lives and a vehicle that he acquired for $300. Both the PSI and Dowd's testimony reflected that his only income was $940 per month in SSDI. Dowd testified that he was unable to pay for his pretrial monitoring device by himself, explaining that his wife worked weekends to help him with this expense. She no longer could assist Dowd with his court obligations because she lost her job due to illness. On this evidence, the District Court found Dowd able to pay between $590 and $1,310 (depending on the supervision fees as determined by his probation and parole officer) in addition to his $5,000 fine, noting that his "assets outweigh his liabilities."

¶14 The record evidence does not support the court's conclusion. After paying $600 to rent the lot for his mobile home, Dowd has $340 remaining from his SSDI...