DA 13-0065

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 177N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

ANTHONY ALEX ROLL,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 2011-48

Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski, Assistant 

Appellate Defender; Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant 

Attorney General; Helena, Montana

Scott Twito, Yellowstone County Attorney; David Carter, Deputy County 

Attorney; Billings, Montana

Submitted on Briefs: June 11, 2014

 Decided: July 8, 2014

Filed:

__________________________________________

Clerk

July 8 2014
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Justice Jim Rice 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 Anthony Roll (Roll) appeals from the judgment of the Thirteenth Judicial District 

Court, Yellowstone County, sentencing him to two five-year terms of commitment with 

the Department of Corrections (DOC), plus fines and restitution, for two counts of 

Deceptive Practices. The District Court ordered the two terms to run concurrently with

each other, but consecutively to an unrelated federal sentence Roll had already received. 

Roll appeals from the order making the state sentences run consecutively with his federal 

sentence.

¶3 In January 2011, Roll was charged by information with two felony counts of 

Deceptive Practices exceeding $1,500 in violation of § 45-6-317(1)(d)(i), MCA. The 

State gave notice of its intent to have Roll designated a persistent felony offender (PFO). 

On August 26, 2011, an Acknowledgement of Waiver of Rights and Plea Agreement was 

filed with the District Court. Under the agreement, Roll agreed to plead guilty to both 

counts as a PFO, and the State agreed to recommend a sentence of five years to the DOC 

with a $3,000 fine, plus restitution, on each count. The State also agreed to recommend 

that the two sentences run concurrently to each other. 
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¶4 On October 3, 2011, Roll withdrew his pleas of not guilty and entered guilty pleas 

on both counts. Roll twice requested a continuance of the sentencing on the basis of a 

pending federal case. He noted that “[i]t is in the interests of justice that Defendant’s 

federal sentencing be completed prior to the State matter due to its impact on the Federal 

Sentencing Guidelines.” The State did not object, and the court continued the sentencing 

hearing as requested.

¶5 Sentencing was ultimately held on November 1, 2012. The State recommended 

the sentence provided in the plea agreement, but added a recommendation that the 

sentence be consecutive to the fourteen and one-half year federal sentence Roll had 

recently received. The State based the request on the fact that it would be “very, very 

difficult for the Department of Corrections to collect any restitution for these victims.” 

Roll acknowledged that he had recently received a “rather lengthy federal sentence,” and

argued that “the claim of restitution by the State is going to fall on pretty hollow 

grounds.” Roll requested a sentence concurrent with the federal time, and noted that the 

restitution obligation could be “enforced through whatever means the State may have in 

regard to his Bureau of Prisons inmate responsibility programs.”

¶6 The court noted that Roll had a significant criminal history since he was a 

juvenile, with “criminal convictions for [nearly] every year since 2000,” and despite all 

the programs provided through his previous sentences he had never “changed [his] 

behavior.” The court also explained to Roll that the charges to which he had pled guilty 

involved 
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real live victims, and they deserve to be made whole, and you deserve to be 

punished for that conduct also; and if the Department of Corrections’ 

ability to collect restitution is hindered in some way, I think the Court needs 

to impose a sentence that makes the collection of restitution from you easier 

so that these victims can be made whole. 

The court ultimately followed the State’s sentencing recommendation, and concluded that 

between the Federal Board of Prisons, and then the Department of 

Corrections, I certainly hope that there will be programs offered to you and 

you will take advantage of them so that you are no longer involved in the 

criminal justice system which you’ve basically been involved in all your 

life since a very young age.

¶7 Roll appeals the court’s judgment, arguing that the court’s consideration of his 

ability to pay restitution while serving his federal sentence resulted in a sentence 

improperly “based upon his status as an indigent person.” 

¶8 We review a sentence of more than one year for legality only. State v. Gunderson, 

2010 MT 166, ¶ 38, 357 Mont. 142, 237 P.3d 74. This Court reviews de novo whether 

the district court violated the defendant’s constitutional right to due process at sentencing. 

State v. Jackson, 2007 MT 186, ¶ 5, 338 Mont. 344, 165 P.3d 321.

¶9 As a preliminary matter, the parties argue over whether Roll sufficiently preserved 

the issue raised herein for appeal. The transcript reveals that Roll never raised a due 

process argument or made any argument that his ability to pay restitution should not be 

considered. After the State recommended a sentence consecutive to his federal sentence, 

Roll simply requested a concurrent sentence and stated that the State would be able to 

enforce the restitution obligation “through whatever means [it] may have in regard to his 

Bureau of Prisons inmate responsibilities programs,” so “the restitution matter can be 
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taken care of in that regard.” Thus, Roll did not raise the issue presently before this 

Court in the District Court, and has failed to properly preserve the issue for appeal. 

However, we undertake review of the issue pursuant to the Lenihan exception. See State 

v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979).

¶10 We have held that “[d]ue process requires only that indigency or poverty not be 

used as the touchstone for imposing the maximum allowable punishment.” State v. 

Farrell, 207 Mont. 483, 499, 676 P.2d 168, 177 (1984). This is true because under a due 

process analysis, “it [is] arbitrary and unfair to subject a defendant to the maximum 

sentence simply because he may not be able to pay restitution in less than that amount of 

time.” State v. Pritchett, 2000 MT 261, ¶ 29, 302 Mont. 1, 11 P.3d 539.

¶11 Roll argues that the District Court’s consideration of his ability to pay restitution 

in ordering his state sentence to run consecutively to his federal sentence was a violation 

of his right to due process. He claims to be in the same position as the defendants in 

Farrell, Pritchett, and State v. Haldane, 2013 MT 32, 368 Mont. 396, 300 P.3d 657. In 

each of those cases the defendants were sentenced to the maximum allowable term in 

order to give them the longest time possible to make payments on restitution. Farrell, 

207 Mont. at 494, 676 P.2d at 174; Pritchett, ¶¶ 3, 26; Haldane, ¶¶ 12, 43. In each case, 

we reversed and remanded for resentencing, concluding that sentencing a defendant to 

the maximum term based solely on his inability to pay restitution was a violation of due 

process. Farrell, 207 Mont. at 498-99, 676 P.2d at 176-77; Pritchett, ¶ 37; Haldane, 

¶ 43.
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¶12 The State counters that this case is more in line with State v. Benoit, 2002 MT 166, 

310 Mont. 449, 51 P.3d 495. In Benoit, ¶ 8, the defendant entered a plea of guilty 

pursuant to a non-binding plea agreement whereby the State agreed to recommend a 

two-year deferred imposition of sentence with various conditions, including the payment 

of restitution. The district court determined the restitution owed to be $15,933.90, and 

sentenced the defendant to a six-year deferred imposition of sentence in part based upon 

the length of time it would take to pay this amount. The court also granted the defendant 

the opportunity to withdraw her guilty plea after two years from the date of entry of 

judgment if she satisfied all conditions within that time. Benoit, ¶ 17. Benoit argued that 

by increasing the deferment period from two years to six years, the maximum allowable 

period for a deferred imposition of sentence, to insure payment of restitution, the court 

had violated her right to due process. Benoit, ¶ 33. We disagreed that the sentence was 

the “maximum allowable punishment” because the crime to which she had pled guilty 

carried a maximum sentence of ten years, and declined to apply our holdings from 

Farrell and Pritchett due to that fact. Benoit, ¶¶ 34, 37.

¶13 We agree with the State that our holdings in Farrell, Pritchett, and Haldane do not 

control here. As a PFO, Roll faced a penalty for each offense of “not less than 5 years or 

more than 100 years.” Section 46-18-502(1), MCA. Roll agreed to plead guilty to both 

counts in exchange for a recommendation by the State of two five-year terms to DOC, to 

be concurrent with each other. The District Court followed this recommendation, 

sentencing Roll to the statutory minimum term for his offenses and the sentence he had 
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agreed to in the plea agreement. Though the relation of the state sentence with the 

federal sentence was not a subject of the plea agreement, we note that Montana law 

presumes that multiple sentences will run consecutively. State v. Auld, 2006 MT 189, 

¶ 25, 333 Mont. 125, 142 P.3d 753 (“the public policy of Montana is to have sentences, 

wherever imposed, run consecutively unless otherwise ordered by a court”) (citing

§ 46-18-401, MCA; overruled in part on other grounds in Whitlow v. State, 2008 MT 140, 

¶ 18 n.4, 343 Mont. 90, 183 P.3d 861). Additionally, Roll requested a continuance of the 

sentencing hearing in order to allow him the opportunity to be sentenced in his federal 

case to a lesser sentence, without the inclusion of two additional felony convictions in the 

federal sentencing guideline calculations. The District Court granted this request. 

Accordingly, Roll cannot be said to have been sentenced to anywhere near the maximum 

term as were the defendants in Farrell, Pritchett, and Haldane.

¶14 More importantly, we disagree with Roll’s depiction that the District Court’s only 

consideration in determining whether or not to make the state sentence consecutive to his 

federal sentence was his ability to pay restitution. Though the court explained that it 

found the payment of restitution to be an important factor, it also explained that it

considered his criminal history, age, and other factors, and hoped to allow Roll access to 

various programs in order to provide him the opportunity to end his involvement with the 

criminal justice system. Had the sentence been made concurrent to the federal sentence, 

the DOC commitment would have expired long before he would have been able to take 

advantage of such programs.
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¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our Internal Operating Rules, which provides for noncitable memorandum opinions. The 

issues in this case are legal and are controlled by settled Montana law. Roll has not met 

his burden to demonstrate reversible error. Affirmed. 

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA