State v. Patterson

385 Mont. 334

384 P.3d 92

2016 MT 289

State of Montana, Plaintiff and Appellee,

v.Corey Allen Patterson, Defendant and Appellant.

DA 15-0734

Supreme Court of Montana.

Submitted on Briefs: October 12, 2016

Decided: November 15, 2016

For Appellant: Elizabeth L. Griffing, Axilon Law Group, PLLC, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Mac Bloom, Deputy County Attorney, Missoula, Montana.

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 Corey Allen Patterson (Patterson) appeals from the judgment for conviction of burglary entered against him by the Fourth Judicial District Court, Missoula County, challenging the amount of restitution he was ordered to pay.

¶ 2 We affirm, and address the following issue:

Did the District Court err in determining the amount of restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In September and October of 2013, Patterson and Jesse Alma King (King) broke into storage units in Missoula. They stole firearms, ammunition, gun cases, archery equipment, and other miscellaneous items. Ralph Tracy (Tracy), one of the victims, reported that 16 firearms were stolen. Brian Rogers (Rogers), a second victim, reported 12 firearms were stolen. During the investigation, firearms belonging to Tracy and Rogers were recovered from various pawn shops and from Patterson's sister, who did not know they were stolen. Patterson and King were each charged with two counts of burglary.¹

¶ 4 Plea agreements were discussed, but were not agreed upon. On May 5, 2015, King and Patterson each entered open guilty pleas on two counts of burglary. A hearing on restitution was conducted, at which the District Court was advised that the parties had agreed to restitution in the amount of $23,762. A minute entry in the District Court case register regarding the amount of restitution noted the defendants would be jointly and severally liable, but did not include an allocation to particular costs. Following the hearing, the District Court ordered the preparation of a Presentence Investigation Report (PSI), which was filed on September 1, 2015. The PSI proposed a higher restitution amount and included a letter and spreadsheet from Tracy detailing his claims, along with a new $1,300 claim from Cash One Pawn.

¶ 5 At the sentencing hearing, the parties discussed the additional $1,300 claim from Cash One Pawn. Patterson questioned the $1,300 claim and pointed out that a restitution amount had previously been determined. The State responded that Cash One Pawn's restitution request was received after the parties had agreed to the $23,762 amount and, because the pleas were open, the additional restitution was a matter of the District Court's discretion. The District Court expressed a concern that the law required it to consider the request and, ultimately, the parties agreed that the $1,300 was appropriate for restitution.

¶ 6 Also, during the hearing, an attorney for Tracy asked to be heard. Tracy had not been part of the negotiations between the State and the defense and wanted to present his restitution request. The District Court ruled it would hear the request. Tracy testified and was cross-examined, explaining that he lived in Nevada and had traveled to Montana for the sole purpose of searching for his stolen property. Tracy stated that he had spent a considerable amount of time driving to and checking pawn stores around Montana, including shops in Missoula, Butte, Great Falls, Helena, and Kalispell. Tracy presented a spreadsheet itemizing his claims. It included the amount of time (84 hours) he had spent searching, his lost wages, travel expenses, damage to the firearms, and miscellaneous expenses, totaling $5,039.94, which are challenged on appeal by Patterson.²

¶ 7 Patterson objected to Tracy's restitution request. The sentencing hearing was continued to give the defense additional time to analyze and respond to the restitution requests. At the continued hearing, the District Court concluded that all of Tracy's requested restitution amounts should be included in the restitution total. As part of his sentence, Patterson was ordered to pay, jointly and severally with King, $28,592 in restitution.

¶ 8 On appeal, Patterson challenges the restitution ordered for Tracy's lost wages, damages to the firearms, mileage expenses, and copying costs.

STANDARDS OF REVIEW

¶ 9 A criminal sentence is reviewed for legality.

State v. Simpson , 2014 MT 175, ¶ 8, 375 Mont. 393, 328 P.3d 1144 (citing State v. Benoit , 2002 MT 166, ¶ 18, 310 Mont. 449, 51 P.3d 495 ). We review the imposition of criminal sentences to determine if they are statutorily authorized. State v. Henderson , 2015 MT 56, ¶ 13, 378 Mont. 301, 343 P.3d 566 (citing State v. Thorpe , 2015 MT 14, ¶ 7, 378 Mont. 62, 342 P.3d 5 ). Restitution cases create mixed questions of fact and law. Upon appeal, we review these mixed questions de novo . State v. Cerasani , 2014 MT 2, ¶ 11, 373 Mont. 192, 316 P.3d 819 (citing State v. Warclub , 2005 MT 149, ¶ 21, 327 Mont. 352, 114 P.3d 254 ). Factual findings regarding the measure of restitution are reviewed under the clearly erroneous standard. State v. Passwater , 2015 MT 159, ¶ 9, 379 Mont. 372, 350 P.3d 382 (citing State v. Aragon , 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841 ); State v. Barrick , 2015 MT 94, ¶ 11, 378 Mont. 441, 347 P.3d 241 (citing State v. O'Connell , 2011 MT 242, ¶ 7, 362 Mont. 171, 261 P.3d 1042 ). Factual findings are clearly erroneous if they are not supported by substantial evidence. Barrick , ¶ 11 (citing O'Connell , ¶ 7 ). Conclusions of law regarding the measure of restitution are reviewed for correctness. Barrick , ¶ 11 (citing State v. Pritchett , 2000 MT 261, ¶ 18, 302 Mont. 1, 11 P.3d 539 ).

DISCUSSION

¶ 10 Did the District Court err in determining the amount of restitution?

¶ 11 Both parties cite to Barrick in support of their arguments. In Barrick, we considered whether the victims' lost wages incurred in cooperating in Barrick's prosecution could be properly ordered to be repaid as restitution. Barrick , ¶ 16. Because the unpaid wages were neither an out-of-pocket expense under § 46–18–243(1)(d), MCA, nor a damage that the victims could recover “in a civil action arising out of the facts or events” of the crime under § 46–18–243(1)(a), MCA, we held that the wages were not properly assessed as restitution under § 46–18–243, MCA. In doing so, we analyzed substantive civil law and, based upon the conversion statute,³ concluded that recoverable losses for conversion, an applicable civil claim, included only the value of the converted property and compensation for “the time and money properly expended in pursuit of the property.” Barrick , ¶ 23. We thus denied the claim for lost wages incurred by the victims in cooperating in the litigation of the case. Barrick , ¶ 24.

¶ 12 Regarding Tracy's $2,520 lost wages claim, Patterson argues that Barrick did not definitively hold that lost wages incurred in pursuit of converted property are recoverable, but rather noted some uncertainty in the law. Patterson notes that Montana's conversion statute, § 27–1–320, MCA, was drafted based on the Field Civil Code and that both California and North Dakota have similar statutes also originating from the Field Civil Code, leading to his citation of Gladstone v. Hillel , 203 Cal.App.3d 977, 250 Cal.Rptr. 372 (1988) and Harwood State Bank v. Charon , 466 N.W.2d 601 (N.D. 1991). In Gladstone, the conversion victim sought reimbursement of expenses actually incurred in preparation for litigation under Cal. Civ. Code § 3336(2) (LexisNexis 2016), as “fair compensation for the time and money properly expended in pursuit of the property.” The victim's damages were denied. Similarly, in Harwood, a case we cited in Barrick, the North Dakota Supreme Court was asked to determine if attorney fees could be claimed under N.D. (2016) Cent. Code § 32–03–23(3), as “a fair compensation for the time and money properly expended in pursuit of property.” The North Dakota Supreme Court held the fees could not be claimed.

¶ 13 In both Gladstone and Harwood, the expenses and fees requested by the conversion victims were deemed to have been incurred in the litigation against the wrongdoers, not as out-of-pocket expenses incurred to recover the property. Gladstone , 250 Cal.Rptr. at 381 (“The court held ‘[accounting expenses] ... were incurred in preparation for litigation and not in pursuit of property.’ ”); Harwood , 466 N.W.2d at 605 (“[T]he phrase ‘time and money properly expended in pursuit of the property’ is not an express authorization of attorney's fees.”).⁴ We made the same distinction in Barrick. Barrick , ¶ 23(“ ‘[C]ourts have distinguished between time spent in pursuit of converted property,’ which is generally compensable, ‘and time spent in litigation,’ which is generally not compensable.”). This distinction is supported by the plain language of § 27–1–320, MCA, and we concur with the District Court that Tracy's lost wages, incurred in pursuit of his stolen property, are recoverable in a civil action for conversion, and are properly reimbursable as restitution for pecuniary loss under § 46–18–243(1)(a), MCA. The District Court found that Tracy's efforts to locate his property were expected and directly related to obtaining his firearms.

¶ 14 The same rationale applies to Tracy's mileage and copying costs. Tracy claimed $1,010 for driving to Montana from Nevada, as well as driving around Montana searching for his firearms. Tracy testified that none of this travel would have occurred had he not been directly engaged in pursuing and recovering his property, which the District Court found to be credible. He also claimed $9.94 in copying costs, which he would not have normally incurred. Tracy's mileage costs were reimbursable as a pecuniary loss under § 46–18–243(1)(a), MCA, and his copying costs under § 46–18–243(...