NO. 94-170

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MELVIN JOHN-THOMAS BLANCHARD,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brian P. Fay, Attorney at Law,

Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal S. Wellenstein, Assistant Attorney

General, Helena, Montana

Mike Salvagni, Gallatin County Attorney,

Gary Balaz, Deputy Gallatin County

Attorney, Bozeman, Montana

Filed:

Submitted on Briefs: December 1, 1994

Decided: February 14, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Defendant Melvin Blanchard appeals the sentence imposed by the

Eighteenth Judicial District Court, Gallatin County, ordering him

to make restitution to the victims of the thefts and burglaries to

which he admitted but was not charged or convicted. We affirm.

The issue on appeal is whether the District Court erred by

ordering Blanchard to make restitution for offenses to which he

admitted but was never charged or convicted as a condition of

deferred imposition of sentence.

On May 10, 1993, the State obtained leave to file an

information charging Blanchard with four counts of felony theft,

three counts of burglary, and one count of misdemeanor theft.

Blanchard appeared on May 13, 1993, and pled not guilty to the

charges. In November 1993, Blanchard's attorney arranged a plea

bargain with the State and sent a letter to the prosecuting

attorney which stated in pertinent part:

Pursuant to OUT telephone conversation of

November 9, 1993 I hereby propose the following plea

agreement:

. .

5 . That the Defendant will make restitution;

. .

7. That the Defendant cooperate with the Bozeman

City Police Department with respect to all thefts and

burglaries of which he has knowledge. . . .

8 . That the State will provide the Defendant with

transactional immunity for all testimony given with

regards to other thefts and burglaries of which he has

knowledge;
9 . That both parties will recommend that the Court

order a long form Pre-Sentence Investigation . . .

Hearing on the proposed plea agreement was held on

November 16, 1993. The letter from Blanchard's attorney was

admitted into evidence. Pursuant to the plea agreement, the State

moved for and was granted leave to amend the information. The

amended information charged Blanchard with four counts of burglary,

six counts of felony theft, and one count of misdemeanor theft.

The District Court questioned Blanchard regarding the plea

agreement. Blanchard stated that he approved of the agreement,

that he understood that the court had no obligation to accept the

agreement, and that he understood that the court could sentence him

to the maximum penalty for each count. Blanchard then pled guilty

to each of the eleven counts in the amended information. The court

accepted his guilty pleas and reserved ruling on the plea agreement

until sentencing. The court ordered the preparation of a

presentence investigation report and permitted Blanchard to remain

free on bail until the time of sentencing.

Probation and Parole Officer Bernie Driscoll prepared the

presentence investigation report. With respect to restitution, the

report provided as follows:

counts I, II, III and IV: Team Bozeman (Burglaries and

Thefts)

Restitution requested in the amount of $2,491.62

. .

Counts V and VI: Hobby TowiRaceway (Burglary and Theft)

Cash in the amount of $ 113.76

. . . .

3
count VII: Theft of Motorcycle Cover

Recovered - no restitution being

requested by [the victim]. . . . $ -Ocount VIII: Theft of Cellular Phone

Recovered $ -OCounts IX and X: Office Stop (Burglary and Theft)

Amount requested $1,415.00

Count XI: Toy Shop (Theft)

Property recovered $ -OCounts I - XI Total $4,020.38

Information provided to the Bozeman Police Department

regarding restitution owed for offenses that defendant

has admitted to, but has not formally been charged, is as

follows:

Hobby Town Raceway (Burglary) $100.00

Klip Joint (Burglary) 286.50

Checker Auto -OSilk Reflections (Burglary) 697.00

Video Hardware (Burglary) 500.00

Legendary Sounds 4,105.20

Uncharged Crimes Total $5,688.70

Driscoll recommended that Blanchard serve six months in county jail

and receive a six year deferred sentence "with the conditions

provided for in the plea agreement .'I

The sentencing hearing took place on February 8, 1994.

Blanchard's aunt and girlfriend testified on his behalf, and

letters from Blanchard's bail bondsman and employer were introduced

into evidence. The prosecuting attorney recommended that Blanchard

4
receive concurrent sentences and be required to make restitution

according to the tabulation in the presentence investigation

report. The prosecuting attorney stated:

And according to our plea agreement, the restitution

includes not only the crimes charged and pled guilty to,

but some other ones that the police thought he did, and

that he did come in later and admit that he did.

The prosecuting attorney explained that the police department had

suspected Blanchard of committing other crimes in the Bozeman area.

Blanchard subsequently admitted to Sergeant Tymrack that he had

committed the uncharged crimes set forth in the presentence

investigation report, and, pursuant to the plea agreement, the

prosecuting attorney told Blanchard that 'I he would have

transactional immunity for any evidence that he gave with regard to

his commission of [the uncharged1 burglaries and thefts."

Blanchard's attorney also requested that the District Court

adopt the provisions of the plea agreement and that the court

impose a deferred imposition of sentence. Blanchard's attorney

stated with regard to restitution:

I want to address one thing very briefly, that's the

restitution that's involved. And I don't want the Court

to get the impression that Mr. Blanchard is trying to get

out of something that he's responsible for, but the

restitution that he would be responsible for on the

crimes that he is not charged with but admitted to I

believe poses somewhat of a legal dilemma, in that the

state has offered transactional immunity, and I don't--

I'll leave that to your discretion, Judge, as to what you

want to do with that.

The District Court sentenced Blanchard, imposing a concurrent

six year deferred imposition of sentence on all felony counts, a

six month deferred imposition of sentence on the misdemeanor

5
counts, and conditions of deferment. As one of the conditions of

deferment, the court ordered Blanchard to pay restitution in the

amount of $9709. Blanchard appeals.

Did the District Court err by ordering Blanchard to make

restitution for the offenses to which he admitted but was never

charged or convicted as a condition of deferred imposition of

sentence?

"We review sentences for legality only and will not disturb a

District Court's sentencing decision absent a showing that the

District Court abused its discretion." State v. Hurlbert (1988),

232 Mont. 115, 123, 756 P.2d 1110, 1115.

Section 46-18-201, MCA, provides in part:

(1) Whenever a person has been found guilty of an

offense upon a verdict or a plea of guilty, the court

may:

(a) defer imposition of sentence . . . . The

sentencing judge may impose upon the defendant any

reasonable restrictions or conditions during the period

of the deferred imposition. Reasonable restrictions may

include:

ii;)' .restitution;

i xii) : . . any other reasonable conditions considered

necessary for rehabilitation or for the protection of

society; or

(xiii) any combination of the above.

Section 46-18-241(l), MCA, further provides:

Condition of restitution. (1) As provided in 46-18-201,

a sentencing court may require an offender to make

restitution to any victim of the offense.

Blanchard argues that an "offender," as that word is used in

§ 46-18-241(l), MCA, is a person who has been convicted of or who

has pled guilty to an offense, and that unless a person pleads

6
guilty to or is convicted of an offense, restitution cannot be

ordered for that offense. In support of his contention, Blanchard

points to 55 46-1%lOl(3) (a), -104(3), -404, and -501, MCA, which

use the word "offender" to refer to a person who has entered a

guilty plea or who has been convicted of a crime.

The State argues that the plea agreement alone controls the

amount of restitution ordered. According to the State, Blanchard

agreed to make restitution both for the crimes to which he pled

guilty and the crimes to which he admitted but was not charged. By

doing so, he waived his right to challenge the amount of

restitution ordered. According to the State, Blanchard did not

object at the time of sentencing to the amount of restitution

ordered, nor did he argue that the amount ordered differed from the

amount agreed upon in the plea agreement. Instead, his attorney

specifically stated with regard to restitution: "I'll leave that to

your discretion, Judge, as to what you want to do with that."

We determine that the District Court did not err in ordering

Blanchard to make restitution.

While this is a question of first impression in Montana, a

number of other jurisdictions have addressed the issue and have

held that an accused is liable for restitution for offenses to

which the accused (1) has admitted, (2) has been found guilty, or

(3) has agreed to pay restitution. Buffington v. State (Nev.

1994), 868 P.2d 643, 645 (reaffirming Erickson v. State (Nev.

19911, 821 P.2d 1042, 1043); State v. French (Ariz. Ct. App. 1990),

801 P.2d 482, 483; State v. Madril (N.M. Ct. App. 1987), 733 P.2d
365, 367; See State V. Voetberg (Or. 19891, 781 P.Zd 387, 388 (if

a defendant is not convicted, restitution is authorized only if he

admits the criminal conduct for which restitution is sought) ;

Kimbrell V. State (Alaska App. 1983), 666 P.Zd 454, 455 (it is

permissible in sentencing defendant on one charge to impose

restitution for separate dismissed charge if amount is certain, he

admits to responsibility, and he consents to make restitution);

State V. Gerald (Wis. 1973), 205 N.W.2d 374, 378-80, app. dismissed

(1973), 414 U.S. 804 (court did not deny defendant's due process

rights when requiring as a condition of probation, to which the

defendant agreed, that he make restitution for crimes he was not

charged with but which were "read in" to the record pursuant to

agreement that he not be prosecuted for them); see also State v.

Kennedy (Minn. 19871, 327 N.W.2d 3, 4-5 (court upheld condition of

restitution where record showed that parties contemplated that

restitution would be based on losses of all victims not merely

those named in counts to which defendant pled guilty); People v.

Quinonez (Colo. 1987), 735 P.2d 159, 163-64 (where defendant agrees

to make restitution at time of entering plea, he cannot later

disavow agreement on basis that no showing was made that he caused

victim's injury); Killough v. State (Ala. 1983), 434 So.2d 852,

853, cert. denied (1983) , 464 U.S. 1008 (defendant can be ordered to

pay restitution in excess of amount stated in indictment if he made

such agreement as part of plea bargain).

8
The plea agreement stated ' [tlhat the Defendant will make

restitution . .'I While the plea agreement does not indicate

for which burglaries and thefts restitution would be paid, the

presentence investigation report clearly set forth the amount of

restitution owed for eleven charged offenses and six uncharged

offenses to which Blanchard admitted. At the sentencing hearing,

the prosecutor stated that the plea agreement required restitution

for the uncharged offenses to which Blanchard admitted. Blanchard

did not object to or challenge the prosecutor's statement.

Similarly, Blanchard did not object to or challenge the inclusion

of the uncharged offenses in the presentence investigation report.

Blanchard clearly was aware of the contents of the report, and

requested that the district court adopt the report's recommendation

of a deferred imposition of sentence. Blanchard's attorney stated

at the sentencing hearing:

I don't want the Court to get the impression that Mr.

Blanchard is trying to get out of something that he's

responsible for, but the restitution that he would be

responsible for on the crimes that he is not charged with

but admitted to I believe poses somewhat of a legal

dilemma . . . .

Blanchard clearly did not deny responsibility for the uncharged

offenses; instead, defense counsel merely informed the court that

he believed "a legal dilemma" existed. It is, therefore,

undisputed that Blanchard admitted that he committed the uncharged

offenses.

The "lega

5 46-18-201(l)

.l dilemma" posed by defense counsel is resolved by

(a) (xii), MCA, which allows the district court to

9
impose any reasonable, rehabilitative conditions upon a deferred

imposition of sentence. In Dahlman v. District Court, Seventeenth

Judicial District (19851, 215 Mont. 470, 473, 698 P.2d 423, 425, we

upheld the district court's order requiring the defendant, as a

condition of sentence, to reimburse the medical expenses that he

incurred while in jail. We determined that the condition fell under

5 46-18-201(l) (a) (ix), MCA (1981), now codified at § 46-18-

201(l) (a) (xii), MCA. We stated that U [tlhe imposition of this

condition on defendant was reasonable for rehabilitation purposes

,1 . . . . Similarly, in State v. Shaver (1988), 233 Mont. 438,

448-50, 760 P.2d 1230, 1236-37, we upheld the district court's

condition of sentence requiring the defendant to pay child support.

The defendant in Shaver claimed that he was not given notice or

opportunity to be heard on the issue of child support. We noted

that the defendant had been served with the presentence

investigation report which set forth his child support payment

problems and prior misdemeanor nonsupport charges and convictions.

While the issue of child support was unrelated to the crime

charged, we determined that the district court properly imposed the

condition "for rehabilitative and restitution purposes." Shaver,

760 P.2d at 1237.

During the sentencing hearing in the instant case, the court

stated its reasons for deferring imposition of sentence:

The wisdom of the law is that these events, such as

you have been involved in, do happen. If they happen and

are perpetrated by a young person who is salvageable and

redeemable, then we are to look everywhere outside the

prison system itself to find a way to get to you to

10
redeem yourself and to get you to correct the behavior

that brought you before the Court. And it is primarily

for that reason that I'm not going to sentence you to

prison in this case. You certainly have slid by by a

gnat's eyelash.

. . .

Next, I was particularly motivated in this case by

. . your coach in high school and one of your teachers.

And he feels that you are redeemable . .

The repeated use of the words "redeem" and "redeemable" and the

specific statement about correcting certain behavior evidences the

District Court's intent to rehabilitate the defendant outside of

the prison system. We determine that the order requiring Blanchard

to pay $9709 serves both rehabilitative and restitution purposes.

See Shaver, 760 P.2d at 1237.

We hold that the District Court did not err in ordering

Blanchard to make restitution for the uncharged offenses because he

admitted committing the burglaries and thefts for which he received

transactional immunity, because the record provides evidence that

his admission was true, and because the conditions imposed by the

District Court serve a rehabilitative purpose.

Affirmed.

We concur:

..-.

February 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

BRIAN P. FAY

Attorney at Law

125 West Mendenhall

Bozeman, MT 59715

HON. JOSEPH P. MAZUREK, Attorney General

, Assistant

Justice Bldg.

Helena, MT 59620

Gary Balaz

Deputy County Attorney

615 S. 16th

Bozeman, MT 59715

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA