State v. Wunderlich

348 P.3d 170 (Table)

STATE of Montana, Plaintiff and Appellee

v.Jeremy Allen WUNDERLICH, Defendant and Appellant.

No. DA 13–0604.

Supreme Court of Montana.

Submitted on Briefs Sept. 17, 2014.

Decided Oct. 28, 2014.

For Appellant: Johnna K. Baffa, Van de Wetering & Baffa, P.C., Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Alison E. Howard, Deputy County Attorney, Kalispell, Montana.

Opinion

Justice PATRICIA COTTER delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 In December 2010, Jeremy Wunderlich entered the Kalispell home of James Handcock and stole guns, a computer and a set of binoculars, among other things. Wunderlich and his roommate sold or pawned these stolen items. Following the issuance of an Information and a Warrant of Arrest on April 20, 2012, Wunderlich was arrested and charged with felony burglary. Wunderlich initially entered a not guilty plea in July 2012. Subsequently, the State agreed to amend the information to felony theft and in February 2013, Wunderlich changed his plea to guilty.

¶ 3 In March 2013, Handcock submitted an affidavit claiming the value of his loss from Wunderlich's theft was $1,135. Handcock provided no documentation to support his claimed value. Wunderlich requested a restitution hearing intending to contest Handcock's values. This hearing was scheduled for May 14, 2013, but the State was granted a continuance. On June 6, 2013, the court conducted a “hearing in aggravation or mitigation of punishment.” Wunderlich was aware that Handcock was not present at the hearing. A detailed discussion of Wunderlich's restitution obligation was conducted in open court. Wunderlich presented documentation supporting lower replacement values than the values presented by Handcock.

¶ 4 At the conclusion of the hearing, the court sentenced Wunderlich to three years, suspended, subject to certain conditions. He was ordered to pay $1,135 restitution to Handcock as well as public defender fees of $800, suspended, and a supervision fee. The court issued its Judgment and Sentence on July 22, 2013. Wunderlich filed a Notice of Appeal on September 10, 2013.

¶ 5 Wunderlich argues on appeal that the court erred when it based its award of restitution on Handcock's affidavit because the record contains no evidence substantiating Handcock's submitted values. Wunderlich also claims he was denied the opportunity to cross-examine Handcock. He asserts that we should reverse the District Court's ruling based upon these grounds.

¶ 6 Under § 46–18–201(5), MCA, the District Court must require “payment of full restitution to the victim” who has sustained a pecuniary loss. “Pecuniary loss” is defined, in part, as “the full replacement cost of property taken ... as a result of the offender's criminal conduct.” Section 46–18–243(1)(b), MCA. Section 46–18–242(1), MCA, provides that whenever the court believes that a victim has sustained a pecuniary loss, the court must order that “an affidavit that specifically describes the victim's pecuniary loss and the replacement value in dollars of...