State v. Reynolds

390 Mont. 58

408 P.3d 503

2017 MT 317

STATE of Montana, Plaintiff and Appellee,

v.Murry Kim REYNOLDS, Defendant and Appellant.

DA 16-0488

Supreme Court of Montana.

Submitted on Briefs: August 23, 2017

Decided: December 28, 2017

For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman ; Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana

Justice Michael E Wheat delivered the Opinion of the Court.

¶ 1 Murry Kim Reynolds (Reynolds) was convicted of felony Driving While Under the Influence of Alcohol, fourth or subsequent offense (DUI), and two misdemeanors: Failure To Have Liability Insurance In Effect and Failure To Drive On The Right Side Of The Roadway. He does not challenge his convictions on appeal; however, he appeals from the June 21, 2016 Judgment in which the District Court imposed fines, surcharges, prosecution costs, public defender costs, and court technology fees. We affirm in part and reverse in part.

¶ 2 We restate the issues on appeal as follows:

Issue One: Did the District Court err by failing to adequately determine Reynolds's ability to pay before imposing fines, surcharges, prosecution costs, and public defender fees?

Issue Two: Did the District Court err by imposing statutory surcharges and court user fees?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On November 19, 2014, Reynolds was charged by Information in Ravalli County with felony DUI and two misdemeanors: Failure To Have Liability Insurance In Effect and Failure To Drive On The Right Side Of The Roadway. On March 5, 2015, Reynolds and the State entered into a plea agreement, in which the State agreed to drop the misdemeanors and Reynolds would plead guilty to the felony. The court ordered a presentence investigation (PSI) report, which was filed on June 18, 2015. The PSI report specifically addressed the felony charge and made recommendations for sentencing and imposition of fees. The PSI report also discussed Reynolds's financial situation.

¶ 4 Specifically, the PSI reported that: (1) Reynolds had been employed part-time at Caras Property Management earning approximately $1,500 per month; (2) his assets were $3,000 and his debts were $5,000; (3) his wife was employed part-time earning approximately $700 per month; (4) he paid $500 in rent monthly; (5) he owned two vehicles valued at $5,500 and tools valued at $3,000, and outstanding loans on the vehicles totaled $5,000. The PSI also reported that Reynolds planned to be semi-retired and to expand his welding into a part-time business, and that he was in "fair" health, but had kidney stones and was on medication for high blood pressure. The PSI report concluded Reynolds had the ability to pay the fines and fees associated with the felony DUI, including an $800 public defender fee.¹ Reynolds requested the court to "be as lenient as possible" due to his record, age, and health.

¶ 5 Prior to sentencing, Reynolds filed an unopposed motion to withdraw his guilty plea, which the District Court granted. A jury trial was held on May 9-10, 2016, on all three charges. At trial, Reynolds testified he was retired, but that prior to retirement he was employed as a maintenance man at a local rental agency and a welder. Reynolds testified his past jobs were "tough work," resulting in numerous physical injuries and ailments, which prevented him from doing too much physical work. He testified he had been diagnosed with PTSD and had been on medication for the condition for the past eight years. The jury found Reynolds guilty on all three charges.

¶ 6 At the May 19, 2016 sentencing hearing, the District Court commented that the Montana Supreme Court had recently handed down a new case requiring him, as the judge, to have detailed findings regarding the defendant's ability to pay for any fines, fees, or costs it imposed. The District Court then delayed sentencing, as it did not have the actual fees incurred by the public defender's office for Reynolds's defense or Reynolds's current employment status, prospects, or financial situation. The court required Reynolds to produce his tax returns; a full financial statement, including holdings; his wife's finances; and property, real or otherwise. In response to the District Court order, Reynolds produced his 2015 joint income tax return, which showed a total income of $19,144. The bank statements showed deposits totaling $1,830.54 for April 2016 and $1,766.83 for May 2016. Both totals for the month include a $1,090 social security deposit.

¶ 7 At the June 2, 2016 sentencing hearing, Reynolds's public defender filed notice stating he had incurred $5,829 in fees while representing Reynolds. During the hearing Reynolds testified that (1) he was not currently employed; (2) his only income was social security benefits; (3) he planned to work "on the side" as a welder but lost his driver's license due to his DUIs; (4) he paid $500 per month in rent; (5) he had two vehicles, each with an outstanding loan—$1,000 on his Chevy and $1,800 on his wife's Buick—with monthly payments of $100 on each vehicle; and (6) he had no other debts. Reynolds opined that he would lose his social security benefits during incarceration, which would hurt his family financially.

¶ 8 The District Court then directly questioned Reynolds regarding his ability to work and earn money.

THE COURT: So, sir, it sounds like if you can do welding on the side you're at least capable of work, earning money; yes?

REYNOLDS: Easy work, easy welding work, not crawling around someplace up tall.

¶ 9 The District Court referenced the PSI report and asked if there were any changes or corrections offered by either party. The only change requested was the report's indication that this was a plea agreement. The District Court then asked about the State's sentencing report. The State recommended the statutory sentence, thirteen months in the Department of Corrections (DOC) followed by a five-year suspended sentence and the minimum fine, $1,000. Reynolds's counsel recommended a thirteen-month sentence, that the suspended sentence be reduced from five to three years, and that Reynolds pay the minimum fine but no other court costs, fees, or attorney's fees. Reynolds's counsel reminded the court it is "required to make specific finding that Mr. Reynolds is or will be able to pay all those fines, fees, [and] court costs" and that the court "must take into account financial resources, his future ability to pay, and the nature of the burden that payment would put him in." Reynolds's counsel argued Reynolds's only source of income is social security, which is not subject to any garnishment, and in fact cannot be used in determining income. Further, Reynolds's counsel argued that the imposition of any fees or costs would create a hardship because all of Reynolds's money is currently going toward paying rent, vehicle loans, groceries, gas, and other essentials of life.

¶ 10 The District Court proceeded with sentencing. It acknowledged that the PSI was written one year prior to the current sentencing hearing and that the report indicated Reynolds was in fair health. The District Court acknowledged that Reynolds had testified he was "still busy doing some employment," and that no evidence contradicted the fact that Reynolds was still in fair health. The District Court determined that Reynolds was "fit, able to work, earn money to pay toward your fines, fees, and surcharges without considering your social security," based on Reynolds's recent employment at Caras Property Management, where he was making $1,500 per month, and his ability to weld on the side. The District Court calculated the yearly burden the fines, fees, and costs would impose on Reynolds.

¶ 11 The District Court sentenced Reynolds to thirteen months to the custody of the DOC; if Reynolds completed the residential alcohol treatment program, any remainder of the thirteen months would be suspended. The initial sentence would be followed by a five-year suspended DOC commitment. The court imposed fees, fines, statutory surcharges, and the full public defender fee on Reynolds. The District Court attempted to calculate a payment plan for Reynolds but had some mathematical errors. The District Court stated that "the reasons for the court's sentence should be obvious": three DUIs and continued risky behavior of drinking and driving, his disrespectful attitude² toward Trooper Gane the night of the DUI, his obvious alcohol problem, and the benefits five years of probation could provide. Additionally, the court acknowledged the sentence was consistent with the recommendations of the State, the probation and parole office, and the prior plea agreement in this case.

¶ 12 Reynolds's counsel objected to the court costs, jury costs, and the public defender fee. He argued, based on Reynolds's social security income and financial resources, that it is unreasonable that Reynolds can be found to have the ability to pay this fee; that it is a hardship under § 46-18-232, MCA ; and that it is a violation of Mr. Reynolds's constitutional right to trial. The District Court acknowledged the objection and upheld the fees. The court again stated it was not basing Reynolds's ability to pay on his social security income, but based it on Reynolds's trial testimony that he was fit and able to earn money and had been doing so recently.

¶ 13 A week later, on June 9, 2016, the court sentenced Reynolds for the two misdemeanor charges. On the failure to have liability insurance charge, the court sentenced Reynolds to ten days in jail, all suspended. On the driving on the wrong side of the roadway charge, the court imposed a $10 fine.

¶ 14 The court issued its written judgment on June 21, 2016. Regarding the felony DUI, Reynolds was sentenced to thirteen months to the DOC, followed by a five-year...