State v. McDonough

511 P.3d 1002 (Table)

STATE of Montana, Plaintiff and Appellee,

v.Desirae Ellen MCDONOUGH, Defendant and Appellant.

DA 20-0268

Supreme Court of Montana.

Submitted on Briefs: January 19, 2022

Decided: June 28, 2022

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

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant, Attorney General, Helena, Montana, Marcia Boris, Lincoln County Attorney, Libby, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. The case title, cause number, and disposition will be included in our quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Desirae Ellen McDonough (McDonough) appeals the imposition of restitution in the amount of $92,189.50 in her March 2020 judgment of conviction in the Montana Nineteenth Judicial District Court, Lincoln County, on the offense of elder exploitation, a felony in violation of § 45-6-333, MCA (2015). We affirm.

¶3 On October 17, 2017, the State charged McDonough with elder exploitation and two counts of witness tampering, a felony in violation of § 45-7-206, MCA, all allegedly committed in April 2015 through August 2017. In support of the elder exploitation charge, the State's Information alleged that McDonough:

purposely or knowingly obtained[,] used[,] or attempted to obtain or use an older person's funds with the intent to temporarily or permanently deprive the [ ] person of the use, benefit, or possession of the funds to benefit someone other than [that] person and [while] in a position of trust or confidence with the [77 year-old subject,] ... obtained multiple loans from [him] under false pretenses ... [with] no intention of repaying [them].^{[1 ]}

¶4 At a pretrial hearing on a motion to dismiss for lack of probable cause, the alleged victim (French) testified that, after earlier introducing himself to McDonough in response to her brokerage business office sign, the two reached an agreement under which McDonough would refer qualified individuals to French for personal loans on specified terms. Starting in 2010, however, McDonough herself began borrowing money from French. He testified that, in April of 2015, at her suggestion, they agreed to consolidate her prior loans, and McDonough and her partner then executed a secured promissory note on the combined sum of $70,826.50, at 12% interest. French testified that, based on McDonough's representations of personal emergencies, he thereafter made several more loans to her, some of which were unsecured and interest free, in the total principal amount of $18,600. He testified that McDonough made payments totaling $3,700 in 2015 and 2016, but stopped making payments after October 2016.

¶5 French testified that, after McDonough discovered that her partner gave French four bad checks totaling $10,000 on a closed or insufficient bank account and was being prosecuted for writing bad checks, she threatened that French would be federally prosecuted if he did not tell law enforcement that he had received $10,000 in payment on her loans. He testified that she also later threatened him with litigation if he disclosed any information to law enforcement about their financial dealings.

¶6 Pursuant to a plea agreement, McDonough ultimately pled "no contest" to elder exploitation in return for dismissal of the witness tampering charges, and the State's joint sentencing recommendation for a deferred six-year sentence, with restitution to be determined upon hearing. As the admitted basis for the charge, McDonough asserted at the change of plea hearing that a no contest plea was in her best interests and thus admitted that, between "April 2015 to August 2017," she "nearly obtained or attempted to obtain [ ] French's money with the intent to temporarily or permanently deprive him of that money." At the restitution hearing, based on French's affidavit of pecuniary loss as included in the presentence investigation report, the State sought restitution in the total amount of $92,189.50, including $70,826.50 in outstanding loan debt consolidated under the April 2015 note, $18,600 in subsequent loan debt, less approximately $3,700 in payments made, plus approximately $6,300 in related attorney fees/costs. While she disputed the tabulation of outstanding loan debt based on amounts of prior payments made and the amount of restitution imposed on her partner upon conviction for writing bad checks, McDonough did not dispute the initial loan debt consolidated in the April 2015 note ($70,826.50) or the total initial amounts of the subsequent loans ($18,600). On sentencing, the District Court imposed a six-year deferred sentence pursuant to the plea agreement and ordered McDonough to pay $92,189.50 in restitution.

¶7 On appeal, McDonough asserts that the District Court erroneously determined that her outstanding loan debt to French included $70,826.50. She essentially asserts that the calculation erroneously failed to account for the limited terms of the subsequent April 2015 promissory note which reflected and consolidated her prior loan disbursements from French. She ultimately asserts that the State presented insufficient evidence to prove that, in the timeframe specified in the charging documents, she caused French to incur actual pecuniary loss in the amount claimed. See §§ 46-18-201(5), -241(1), -243(2)(a)(i)(A), MCA (sentencing court shall "require payment of full restitution to" a "victim" in the amount of "loss" suffered "as a result of ... the commission of an offense"); State v. Cole , 2020 MT 259, ¶¶ 4-8 and 16, 401 Mont. 502, 474 P.3d 323 (reversing imposed restitution for costs of methamphetamine use remediation of entire apartment due to lack of proof of causation where the subject criminal conduct was limited to possession of residue and glass pipe discovered in one room of the apartment); State v. Simpson , 2014 MT 175, ¶¶ 20-24 and 29, 375 Mont. 393, 328 P.3d 1144 (reversing imposed restitution for two stolen/damaged boats not included in the list of charged items the defendant admitted to stealing); State v. Breeding , 2008 MT 162, ¶¶ 18-19, 343 Mont. 323, 343 P.3d 313 (reversing imposed restitution for claimed vehicle damage that occurred before the admitted acts constituting the charged theft due to lack of proof of causation); In re B.W. , 2014 MT 27, ¶¶ 23-31, 373 Mont. 409, 318 P.3d 682 (reversing imposed restitution due to lack of proof of causation to extent based on vandalism committed by third-parties on days other than those on which defendant's vandalism occurred); State v. Hatfield , 256 Mont. 340, 346, 846 P.2d 1025, 1029 (1993) ("court has no power to impose a sentence in the absence of specific statutory authority").

¶8 Issues not preserved by contemporaneous objection are generally waived and thus not subject to review on direct appeal. Section 46-20-104(2), MCA ; State v. Thibeault , 2021 MT 162, ¶ 9, 404 Mont. 476, 490 P.3d 105 (citing State v. Parkhill , 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244 ; State v. Ashby , 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 ; and State v. Kotwicki , 2007 MT 17, ¶¶ 8 and 22, 335 Mont. 344, 151 P.3d 892 ). As a narrow sentence-specific exception to the general rule, "unpreserved assertions of error that a particular sentence or sentencing condition was either facially illegal (i.e., of a type or character not authorized by statute or otherwise in excess of the statutorily authorized range or limit for that type of sentence or condition), or facially legal but authorized by a facially unconstitutional statute, are subject to review for the first time on appeal." Thibeault , ¶ 9 (citing State v. Coleman , 2018 MT 290, ¶¶ 7-11, 393 Mont. 375, 431 P.3d 26 ; Parkhill , ¶ 16; State v. Strong , 2009 MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848 ; Kotwicki , ¶¶ 6-22; State v. Garrymore , 2006 MT 245, ¶¶ 9-15, 17, and 35, 334 Mont. 1, 145 P.3d 946 ; State v. Lenihan , 184 Mont. 338, 342-43, 602 P.2d 997, 999-1000 (1979) ). However, while "[a]n otherwise facially legal sentence or condition is nonetheless illegal if not imposed in compliance with affirmative statutory prerequisites or mandates for that type of sentence or condition," "unpreserved challenges to sentences or conditions on the...