No. 14786 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

THE STATE OF MONTANA, Plaintiff and Respondent,

VS. JAMES LENIHAN, Defendant and ~~~eliant.

Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Sandra K. Watts argued, Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Sheri K. Sprigg, argued,Assistant Attorney General,

Helena, Montana

Submitted: November 2, 1979 Decided

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r -< Filed: -,$,Mr. Justice Gene B. Daly delivered the Opinion of the Court.



### his is an appeal from the District Court of the Eighth Judicial ~istrict, Cascade County. Defendant was charged by information on September 1, 1978,with burglary, a felony, and criminalpossession of dangerous drugs, a misdemeanor. At his arraignmenton September 12, 1978,defendant entered a plea of not guilty to both offenses. On January 2, 1979, defendantmoved to withdraw his not guilty plea and entered a plea of guilty to the charge of burglary, a felony in violation of section 45-6-204,MCA. The county attorney's officemoved to dismiss the misdemeanor possession of dangerous drugs charge, and the courtdismissed that charge. After a presentence report and testimonywere presented to the court, sentencewas imposed. Defendant's three-year sentencewas deferred on the following conditions: (1)That defendantwas to serve sixty days in the Cascade County jail with no release privileges; (2)That defendantwas placed under the rules and regulationsof the adultprobation and parole bureau; (3) That defendantwas forbidden to use or have in his possession any alcohol or drugs; (4) That defendantwas ordered not to associate with any individuals on probation or parole; (5) That defendantwas subject to search and seizure without warrant by any law enforcement officer who had reasonable suspicion to believe that defendant had incriminating evidence; and (6) That defendantwas to pay the Cascade County attorney's office the sum of $250 as reimbursement for his attor-ney feeswith the payment schedule to be worked outby his probation officer. The defendant in this casewas found to be indigent and

was appointed counsel through the Cascade County public defender's office. Appointed counsel represented defendant through all stages of the case. It is from the condition requiring defendant to pay $250 as reimbursement for his attorney fees ordered in the deferred imposition of sentence that defendant appeals. Two issueshave been presented to this Court for review: 1. Is the issue raised by defendantproperly reviewable on appeal? 2. Did the District Court err in ordering an indigent defendant to reimburse the county for attorney fees as part of a condition of deferred imposition of sentence? Defendant firstargues that because Montana does not have a recoupment statute, the District Court's order to reimburse the attorney fees is invalid. He contends that section 46-18-201,MCA, does not grant authority to a district judge to impose such a condition. Defendant cites State

### v. Babbit (1978), 

## -Mont. 

## , 574 P.2d 998, 35 St.Rep. 154, and State v. Cripps (1978), Mont. 

## , 582 P.2d 312, 35 St.Rep. 967, for the proposition that the imposition of a fine is not specified

as an allowable restriction or condition upon deferred impositionof sentence or upon suspended execution of sentence. The argument ismade that an order for reimbursement of fees and a fine are indistinguishable and that in the absence of a recoupment statute, the District Court has no authority to make such an order.Defendant goes on tocitetwo Supreme Court cases, Jamesv. Strange (1972), 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, and Fuller v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642, involving staterecoupment statutes, for theproposition that theremust be a recoupment statute tomake such an order because only then can the courtmeasure whether ornot adequate safeguardswereprovided for theprotection of the defendant during the recoupment process. Finally, the ABA Standards atPart VI, Section 6.4, and

a 1976Washington StateBar report are citedby defendant for the proposition that the process of recoupment raises serious constitutionalquestions. Therefore, without a statuteproviding adequate safeguards, recoupment isnot recommended. The State's firstargument challenges thisCourt's power toreview, contending thatdefendant did not object to the challenged condition inthe DistrictCourt. The State's main contention is thatreimbursement of attorney fees is a reasonable condition of deferred imposition of sentence under section 46-18-201 (1) (a)(v)

## , MCA. The argument ismade thatlack of specific authority for any condition imposed does not bar imposition of thatcondition under the above statuteas long as it isreasonable. The Statedistinguishes Babbit and argues thata condition of reimbursement isanalogous torestitution toa crimevictim and different from the payment of a fine. The Statecites Statev. Smith (1978), 118Ariz. 345, 576 P.2d 533, for the proposition that a condition of payment to the government of the costs of incarceration is valid despite the lack of specific statutory authority andargues that the situation inthe instantcase is similar. It is argued that a condition of payment for costs to societyrelates directly tothe reformation of the offender and is therefore valid. The Stateagrees, however, that the authority on thismatter isdivided. Before reaching the substantive issue involved herein, it is firstnecessary todiscuss the State's contention that defendant's failure toobject to his sentence inthe trial courtprecludes our reviewing thismatter. In this case, the Court has been placed inan undesirableposition, more sobecause this is a criminal proceeding. Our hearing the matter has been challenged because no objectionwas recorded inthe DistrictCourt. Defense counsel relates thatobjections weremade inchambers where the firstdiscussion of these conditionswas had, but no record

was taken and so none isavailable to this Court. There is

no need for these problems, and we have commented on this type of matter on previous occasions. This Court isnot going towillingly continue tobe placed inthiskind of circumstance and cannot emphasize too strongly thata proper record must be had atall stages of the proceedings with particular emphasis on criminal matters. Traditionally, inboth civiland criminal matters, this Court has not accepted forreview issueswhich were not objected toatthe trial level. Statev. Armstrong (1977), 172Mont. 296, 562 P.2d 1129; Statev. ~adi (1975), 168 Mont. 320, 542 P.2d 1206; Statev. Paulson (1975)r 167Mont. 310, 538 P.2d 339. This Court, however, has never specifically ruled on the question presented here. That is, whether an objection atthe trial level isa prerequisite to the challenging of asentencing order on appeal. This issue has been ruled on in other jurisdictions with varying results. A poll of such jurisdictions reveals thatArkansas (Hayniev. State (1975), 257 Ark. 542, 518 S.W.2d 492), Idaho (Pulver v. State (1968), 92 Idaho 627, 448 P.2d 241), and Kansas (Peterson v. State (1967), 200 Kan. 18, 434 P.2d 542), have held that an appellatecourt cannot review a sentence if there was no objection to it atthe trial level. Illinois (People v. Depratto (1976), 36 Ill.App.3d 338, 343 N.Ed.2d 628), Indiana (Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822), Florida (Kohn v. State (19741, 

### -Fla.App. 

## , 289 So.2d 48), Pennsylvania (Commonwealthv. Lane (1975), 236 Pa.Super. 462, 345 A.2d 233), and Oregon (Statev. Braughton (19771, 28 0r.App. 891, 561 P.2d 1040), on the other hand, do not require an objection before the validity of a sentence can be reviewed. Statev. Braughton, supra, is similar to the instant

case. Braughton involved a plea agreement wherein the defendant was sentenced toten years inprison, which was suspended on the condition that he make restitution to five businesses which were the victims of crimes forwhich he had

never been charged. Defendant objected to thisportion of his sentence on the grounds that the court exceeded its statutory authority in imposing this condition. Before reaching the merits of the case, the state raised the question of whether the sentencing order entered was subject to review atallinlightof the fact that the defendant made

no objection to the order atthe timeof its entry. The court stated: 

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. . The sentencing authority of a court exists solelyby virtue of a statutorygrant of power and therefore cannot be exercised inany manner not specifically authorized 

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# . . Where, as in this case, it is alleged that a sentencing court has exceeded its statutory authority in imposing a specific sentence,an objection below is not a prerequisite to the challenging of the sentencing order alleged to be void." Braughton, 561 P.2d at 1041, note 2. (Citationsomitted.) It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutorymandates, even if no objection ismade at the time of sentencing. As a practical matter, thismay be a defendant's only hope in cases involving deferred imposition of sentence. If a defendant objects to one of the conditions, the sentencing judge could very well decide to forego the deferred sentence and send him to prison. To guard against thispossibility, a defendant often timesmust remain silent

even in the face of invalid conditions. We, therefore, accept jurisdiction in thismatter. While the substantive issue involved in this case is claimed to be one of first impression, it is only a variation of Statev. Babbit, supra, and others. Babbit involved a defendant who was convicted of criminal possession of dangerous drugs and given a deferred imposition of sentence. As one of the conditionsof his sentence, defendantwas ordered to pay $200 to the County of Missoula to be placed into a drug enforcement fund and was in the nature of a fine. The offense Babbit was convicted of provided for imposition of a prison term upon conviction, but not for the imposition of a fine. This Court ruled that under what is now section 46-18-201(1), MCA, a fine could not be imposed as a condition of a deferred imposition of sentencewhere there was not a reasonable association betweenthe fine imposed and the crime committed or where itwas not found to be a reasonable or necessary condition of probation

or for the protection of the public. 574 P.2d at 1001, 1002. Under the circumstances in Babbit, this Court held that a fine could not be imposed as a condition of the deferred imposition of sentence. In deciding Babbit, this Court relied heavily on an Arizona case, State v. Pitts (1976), 26 Ariz.App. 390, 548 P.2d 1202, citing the following rationale:

II I

# .. . Imposition of a fine is the passing of a sentence and not the suspension of sentence. The fact that the court terms it a condition of probation does not render it any the less a sentence. We are not here dealinswith a condi- 

### ---- d-- tion of probation which requires the defendant -- to make restitution to the crime victim. That -- -- would be a whollv differentmatter.' 

# . .. "TheArizona court further reasoned that if a fine (ashere and not related to our guidelines) were to be allowed asmerely a condition of probation, the default in payment could result in revocation of probation and imprisonment 

### -- for the maximum period allowed by the statute for the crime £0; which defendantwas convicted. In that event the failure to pay a small finemay result in defendant's imprisonment far exceeding the period ordinarily permitted." State v. Babbit, 574 P.2d at 1001. (Emphasissupplied.) The State attempts to distinguish Babbit and argues that a condition requiring reimbursement of attorney fees is analogous to restitution to a crime victim and distinguishable from the payment of a fine. Various cases are cited for the proposition that reimbursement of attorney fees is permissible under statutes similar to our section 46-18-201, MCA, if certain constitutional guidelines are met. State v. Foust (1972), 13N.C.App. 382, 185 S.E.2d 718; State v. Smith (1978), 118Ariz.App. 345, 576 P.2d 533; State v. Rogers Iowa r State 

### v. Barklind (1975), 12Wash.App. 818, 532 P.2d 633.The leading case on the above guidelines is Fuller v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. The United States Supreme Court in Fuller upheld an Oregon recoupment statute which placed certain limitations on the actual recoupmentprocess. They were as follows: (1)A requirement of repaymentmay be imposed only upon

a convicted defendant; (2)A courtmay not order a convicted person to pay these expenses unless he is or will be able to pay them; the sentencing courtmust take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose; no requirement to pay may be imposed if it appears at the time of sentencing that there is no likelihood that a defendant's indigency will end; (3)A convicted person under an obligation to repaymay at any time petition the courtwhich sentenced him for remission of the payment of costs or of any unpaid portion thereof; and (4)No convicted person may be held in contempt for failure to repay if he shows that his defaultwas not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment. Fuller v. Oregon, 40 L.Ed.2d at 650. There is no statute inMontana which specifically enumerates the Fuller guidelines. Further, the District Courtmakes no mention in its order of those guidelines. Failure to do so revives the fears espoused by this Court in Babbit: 

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. . the default in payment could result in revocation of probation and imprisonment 

## -- for the maximum period allowed by the statute for thecrime which defendantwas convicted. In that event the failure to pay a small finemay result in defendant's imprisonment far exceeding the period ordinarily permitted." 574 P.2d at 1001. This Court is aware of the financial burden placed on the counties and the State by the criminal justice system. We do not disagree with the proposition of reimbursement to the State. On the contrary,we applaud the trial judge for his efforts. However,we feel that recoupmentprovisions should be made to operate with considerationsgiven to ability to repay, and in the event of default, the penalty should be a form of civil liability rather than possible criminal sanctions. Recoupment is not a magic word, and it may be possible and desirable to perfect a system outside that kind of legislation. The judgment of the deferred imposition of sentence is remanded to the District Courtwith instructions to vacate the repayment of attorney fees condition complained of and enter its order accordingly.

We concur:



# FA^J, %@4& Chief Justice