DA 06-0775 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 229

STATE OF MONTANA, Plaintiff and Respondent,

v. HERMAN KRUM, Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC 03-93, Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD: For Appellant: Kevin S. Brown, Paoli & Brown, P.C., Livingston, Montana For Respondent: Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney Gene ral, Helena, Montana Brett D. Linneweber, County A ttorney, Livingston, Montana

Submitted on Briefs: August 22, 2007 Decided: September 11, 2007

Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 Defendant Herman Krum appeals his convic tion for two counts of felony sexual assault. As part of Krum’s sentence, the Di strict Court ordered him to pay “assessments” to three community entitie s. Krum challenges the sentence ’s legality, and argues that the District Court was without authority to im pose these assessments. We reverse and

remand with instructions to strike the illegal portion of the sentence. ¶2 We restate the issues as follows: ¶3 I. Did the District Court err in sentencing Krum to pay a $5,000 assessment to the Park County Court Automation Fund, a $2,500 assessment to the Tri- County Network for Domestic Violence, and a $2,500 assessment to Park County Big Brothers and Sisters as part of his sentence for felony sexual assault? ¶4 II. If so, what is the appropriate remedy?

BACKGROUND ¶5 On June 30, 2006, a jury found Herman Krum guilty of two counts of felony sexual assault under § 45-5-502(1), (3), MCA (2 001). Krum’s victim, K.G., was a nineyear-old female. ¶6 Following the trial, the district proba tion officer prepared a pre-sentence investigation report (PSI). Krum underwen t a psychosexual evaluation, which identified

him as a Level I Low Risk Offender. The PSI recommended a suspended prison sentence, so that Krum might begin a sex o ffender treatment program sooner. The PSI also recommended multiple conditions of prob ation, including payment of restitution to the victim, and prohibition of all contact with children under the age of eighteen. None3 of the recommended conditions contained a requi rement to pay fines or assessments to community entities. ¶7 At Krum’s sentencing hearing, the vic tim and her family members testified in opposition to Krum’s release on any form of probation. Two other witnesses testified that they had also been sexua lly assaulted by Krum. The Di strict Court sentenced Krum to the Montana Department of Corrections fo r twenty years. Th e term was suspended with the exception of two years, as provided for under § 45- 5-502 at the time. Section 45-5-502(3), MCA (2001). The District Cour t’s sentence was subject to a number of terms and conditions, including the successful completion of an approved sex offender treatment program and payment of re stitution to the victim’s family. ¶8 The District Court also im posed the following condition:

The defendant has sufficien t funds to pay a $5,000.00 assessment to the Park County Court Automation Fund, $2, 500.00 to the Tri-County Network for Domestic Violence, an d $2,500.00 to Park County Big Brothers and Sisters, all to give back to society a nd those who assist a nd help others who are victims of these type of offenses. This is the only provision of th e sentence which Krum appeals. STANDARD OF REVIEW ¶9 This Court reviews a criminal sentence for legality to de termine whether the sentence is within the statutory parameters. State v. Hicks , 2006 MT 71, ¶ 41, 331 Mont. 471, ¶ 41, 133 P. 3d 206, ¶ 41. See also State v. Ruiz , 2005 MT 117, ¶ 8, 327 Mont. 109, ¶ 8, 112 P.3d 1001, ¶ 8.4 DISCUSSION ¶10 I. Did the District Court err in sentenci ng Krum to pay a $5 ,000 assessment to the Park County Court Auto mation Fund, a $2,500 asse ssment to the Tri-County Network for Domestic Violence, and a $2,500 assessment to Park County Big

Brothers and Sisters? ¶11 The district court’s authority to sentence a criminal defendant is both defined and constrained by statute. Hicks , ¶ 41. See also Ruiz , ¶ 12. It is well established that “the court has no power to impose a sentence in th e absence of specific statutory authority.”

Hicks , ¶ 41. See also Ruiz , ¶ 12. Thus, “a sentence not ba sed on statutory authority is an illegal sentence.” Hicks , ¶ 41 (citing Ruiz , ¶ 12). ¶12 A. Are the assessments authorized as statutory fines for the crime of sexual

assault? ¶13 A person convicted of sexual assault may be fined up to $50,000, if the victim is less than sixteen years old and the offender is three or more years older than the victim. Section 45-5-502(3), MC A (2001). Here, Krum was more th an six decades older than his victim, who was nine years old at the time of the assault. Thus, the District Court had statutory authority to fine Krum in an amount up to $50,000 for each of his felony sexual

assault convictions. ¶14 The District Court did not include a fine per se in Krum’s sentencing, but did include several “assessments” to be paid to community entities wh ich serve victims of

sexual abuse.5 ¶15 The Montana Code requires that all fund s collected as fines or costs from a criminal defendant must be paid by the cl erk of the district court to the Montana Department of Revenue for deposit into th e General Fund. Section 46-18-235(1)(a), MCA. Here, however, the District Court or dered that the assessments be paid to community entities instead of the Department of Revenue. The District Court cannot redirect the money collected from the defend ant simply by labeling it an “assessment”

instead of a “fine.” The State has not id entified any statutory authority which would

allow district courts to redirect the di sposition of fines collected from criminal defendants. Thus, the “assessments” ordered by the District Court cannot be considered “fines” authorized by § 45-5-502(3), MCA. ¶16 B. Are the assessments authorized as a necessary and reasonably related

limitation on the sentence? ¶17 The State argues that the District Court had discretion to impose the assessments

as restrictions or conditions on the sent ence under § 46-18-202(1)(f), MCA. This section provides that the sentencing judge may im pose “any other limitation reasonably related to the objectives of rehabilitati on and the protection of the victim and society” where necessary. Section 46-18-202(1)(f), MCA. ¶18 This Court has upheld two types of sent encing conditions under § 46-18-202(1)(f): first, limitations on a defe ndant’s conduct, and second, pa yments of restitution from the

defendant to the victim. See e.g. Ruiz , ¶ 11; State v. Vernes , 2006 MT 32, ¶ 30, 331 Mont. 129, ¶ 30, 130 P. 3d 169, ¶ 30. In evaluating the legality of a condition under § 46- 18-202(1)(f), we will consider whether a reas onable nexus between the condition and the6 underlying felony exists. See e.g. State v. Armstrong , 2006 MT 334, ¶¶ 10-11, 335 Mont. 131, ¶¶ 10-11, 151 P.3d 46, ¶¶ 10-11. ¶19 We have held that in limited instances, § 46-18-202(1)(f) “authorizes restitution in

cases where there is a connection between the crime and the pecuniary loss of the

victim.” Vernes , ¶ 30. See also State v. McIntire , 2004 MT 238, ¶ 18, 322 Mont. 496, ¶ 18, 97 P.3d 576, ¶ 18. In McIntire , we found that this sect ion authorized the payment of restitution to the victim, because ther e was “a direct connection and correlation between the burglary and the pecuniary loss to the victim.” McIntire , ¶ 18. In Vernes , the restitution was also paid di rectly from the defendant to th e victim, this time to cover

the victim’s medical costs. Vernes , ¶ 30. ¶20 The State argues that the assessments are reasonably related to Krum’s underlying felony convictions. However, it is unnece ssary for us to c onsider whether the

assessments have a sufficient nexus to Kr um’s crimes, because § 46-18-202(1)(f) does not provide the necessary stat utory authority for imposing th e assessments in the first place. The assessments ordered by the Dist rict Court are not “ limitations” on Krum’s conduct. Instead, they are a ffirmative duties to make dona tions to commun ity entities.

Neither can the assessments be characterized as restitution, because the money is being paid to community entities rath er than to the victim. The District Court separately provided for the victim’s compensation and restoration by ordering Krum to pay restitution for her counseling costs. Restitu tion paid directly to the victim may be authorized by § 46-18- 202(1)(f), but payments made to th ird party organizations are not.7 ¶21 In sum, the assessments are not author ized by either § 45 -5-502(3) or § 46-18- 202(1)(f). Without express st atutory authority, the District Court may not impose the assessments as part of Krum’s sentence. Th us, the portions of the sentence pertaining to the assessments are illegal. ¶22 II. If so, what remedy is appropriate? ¶23 The remedy for an illegal sentence va ries. Where the illegal portion of the sentence is a condition of a suspended senten ce, this Court has t ypically remanded with instructions to strike the offending portion. Hicks , ¶ 44. Where the i llegal portion affects the entire sentence, or in inst ances where this Court is unabl e to tell what action the trial court would have taken under a correct applica tion of the law, remand for resentencing is the preferred remedy. Hicks , ¶ 44. ¶24 Here, the illegal part of the sentence is only one of several conditions placed on Krum’s sentence. Without the illegal assessments, Krum will still have to pay over $10,000 in restitution to the victim and to the Park Coun ty Detention Center, and in various administrative fees and surcharges. He will have to serve at least two years in prison. Krum’s sentence also contains over twenty other detailed terms and conditions, including the requirement of completing an approved sex o ffender treatment program, and the absolute prohibition of all contact with the victim and all other children under the age of eighteen. ¶25 After reviewing the sentence in its entirety, it is clear that the decision to strike the illegal assessments will not affect the rest of the sentence. We are confident that the remaining portions of the sentence meet th e State’s statutory goals of punishing the8 offender, rehabilitating both the victim and the offender, and protecting the victim and the public. Section 46-18-101(2), MCA . CONCLUSION ¶26 The District Court erred in sentencing Kr um to pay “assessments” of $5,000 to the Park County Court Automation Fund, $2,500 to the Tri-County Network for Domestic Violence, and $2,500 to Park County Big Brot hers and Sisters. Th ese assessments were made without statutory authority, and as such , are illegal. Thus, we reverse and remand with instructions to strike the illegal portion of the sentence.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BRIAN MORRIS