DA 07
- 0365 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 162
ST ATE OF MONTANA, Plaintiff and Appellee, v. BENJAMIN BREEDING, Defendant and Appellant.
APPEAL FROM: D istrict Court of the Eighteenth Judicial District,

In and For the County

of Gallat in, Cause No. DC 2005
- 075 Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD:

For Appellant: Hillary S. Prugh, Angel, Coil

&Bartlett, Bozeman, Montana For Appelle e : Hon. Mike McGrath, Montana Attorney General, Tammy K. Pl

ubell, Assistant Attorney

General, Helena, Montana Marty Lambert, Gallat in Count y Attorney, Ashley Harrington, Deputy County A ttorney, Bozeman, Montana

Submitted on Briefs: March 12, 2008 Decided: May

8, 2008 Filed:

__________________________________________ Clerk May 8 20082

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Benjamin Breeding was convicted of felony theft in the District Court for the Eighteenth Judicial District , Gallatin County. The District Court imposed a sentence that included $7,082.42 in restitution. B reeding appeals, contending that the District Court did not have authority to impose restitution on him of more than $1,40 8 .89in this case
. We agree and thus reverse the court’s imposition of the excess $5,67 3 .53 in restitution. BACKGROUND ¶2 On January 5, 2004, Sherri Smith reported her 1993 Jeep Grand Cherokee stolen from an alley in Bozeman, Montana. A pparently , she had started the vehicle to warm it up and had left the engine running and the doors unlocked while she finished up at work. Seizing on this opportunity, Ryan Se ghetti, who had just come out of the Crystal Bar, hopped in the vehicle and drove off. Seghetti went to the home of an individual identified in the record simply as “Matt,” who lived in Belgrade. Breeding was at Matt’s house whenS eghetti arrived. S eghetti suggested that they all go for a drive , and Breeding and Matt agreed. ¶3 Se ghetti eventually dec ided to take the Jeep off
- road. Whiledriving through a field, he hit a snow - covered haystack, causing significant body damage to the ve hicle ’s front end
. Se ghetti then drove Matt back to his house, after which Se ghetti suggested to Breeding that they drive to West Yellowstone or Big Sky. B reedin g, however, proposed that they drive to California(where Breeding’s father l ived) , and they decided to do that instead. Breeding was aware at this point that the Jeep had been stolen. Se ghettiand Breeding took turns driving to San Diego, where Se ghetti ultimately was stopped by3

police due to a broken left
- turn signal. The Jeep was impounded and eventuallyreturned to Smith. ¶4 The Bozeman police learned through their investigation that Seghetti and Breeding were involved in the theft. Indeed, Se ghetti and Breeding both admitted as much during interviews with the police in April and December 2004. The State charged Breeding with felony theft, in violation of § 45
- 6
- 301, MCA, on March 18, 2005. He initially pleaded not guilty, but the parties ultimately entered into a plea agreement under § 46
- 12
- 211(1)(c), MCA. Pursuant to the State’s proposal, Breeding agreed to plead guilty to felony theft and the State agreed not to oppose a defense motion for his release on his own recognizancep ending sentence . Furthermore, Breeding and the State agreed to recommend jointly that he be sentenced to the Department of Corrections (“DOC”) for a period of five years, all suspended
. ¶5 The District Court accepted Breeding’s gui lty plea on December 19, 2006, and ordered apresentence investigation. A probation/parole officer with the DOC conducted the investigation and filed a report (“PSI”) on February 1, 2007. Among other things, the PSI contained a recommendation that Breeding pay restitution for damage done to Smith’s vehicle. Breeding objected to this recommendationin two pre sentencing me moranda and again at the sentencing hearing
. H e asserted that of the $7,382.42 requested by Smith, $5,673.53 derived exclusively from body damage to her Jeep. H e argued that hecould not be charged with the $5,673.53 because Se ghetti was in exclusive control of the vehiclewhen it was damaged ; because Breeding did not assist or encourage Se ghetti in driving the Jeep recklessly into thef ield where Se ghetti hit the haystack but,4

rather, tried to dissuade Se ghetti from driving errantly and wildly; and because Breeding cannot be held liable for the damage simply by being present when it occurred. Relying on State v. Beavers , 2000 MT 145, ¶ 12, 300 Mont. 49, ¶ 12, 3 P.3d 614, ¶ 12, Breeding further argued that a defendant may not be ordered to pay restitution in excess of the damages caused by his criminal conduct. In this regard, Breeding emphasized that there were two distinct events related to the theft of the Jeep: f irst, Se ghetti stole the vehicle, picked up Breeding and Matt, and then damaged it; and second, Breeding suggested that he and Seghetti drive to Californiain the ve hicle , and Breeding participated in driving the vehicle to San Diego with knowledge that it had been s tolen. ¶6 The prosecutor responded that because Breeding engaged in a “ joint venture ”with Se ghetti to travel to California in the stolen Jeep , Breeding was “ accountable ”f or Se ghetti’s actions ( even though Breeding had pleaded guilty to theft , not accountabi lity)
. The prosecutor also argued that “while that Jeep was in hiscontrol, whether or not he was behind the driver wheel or not, he should be held responsible, jointly and severally, of course, for the damage caused to the ve hicle.”The prosecutor pointed out that the Jeep was in a damaged condition at the point Breeding and Se ghetti drove it to California , and he asserted that “but for” Breeding’s conduct of stealing the Jeep, “this vehicle would not have been injured and the victim would not be out an additional $5,000.” ¶7 The District Court decidedthat Breeding could be charged with the damage to the Jeep, reasoning as follows:

In this case, Mr. Breeding apparently did not actively participate at the initial theft of the vehicle involved. H owever, he did participate in that he joined the co - defendant [Seghetti] on a trip to Californiato visit Mr.5

Breeding’s father and, at that time, he knew that the vehicle was stolen and he participated in driving the ve hicle to Californiaknowing that the vehicle wass tolen. A

nd while he was not driving at the time that the vehicle was damaged and did not necessarily encourage the conduct that resulted in the damage, the Court agree swith the State that participating in the offense does qualify Mr. Breeding as being jointly and severally responsible for the restitution for the damage in this case. The Court makes that determination after consideration of the arguments and legal principles identified by [defense counsel] in her brief. The Court agrees that it’s maybeamore marginal case than sometimes and somewhat different than, for instance, the case cited of [ Sloan v. Fauque , 239 Mont. 383, 784 P.2d 895 (1989) ]. However, the Court thinksthat Mr. Breeding’s knowledge that the vehicle was stolen and his active participation in taking the vehicle out of state to California does make him sufficiently responsible, and that his involvement was more than just that he was simply pre sent when the damage occurred. Therefore, the Court finds that he should be responsible for the full amount of restitution for the damage to the vehicle, as well as the other restitution expenses requested by the victim in this matter. ¶8 The parties had agreed earlier that $300.00 of the $7,382.42 requested by Smith was for music tapesthat were still in the Jeep. Therefore , the District Court reduced the $7,382.42 amount by $300.00 and imposed a restitution obligation of $7,082.42
. The court stated that Breeding and Se ghetti (who was sentenced in Cause No. DC
- 05
- 074) were jointly and severallyresponsible for this amount. F inally , the court imposed the agreed
- to five
- year suspended sentence
. Breeding now appeals. ISSUE ¶9 The sole issue on appeal is whether the District Court lacked authority to impose a restitution obligation on Breeding for the body damage to the Jeep. STANDARD SOF REVIEW ¶10 With a criminal sentence (such as Breeding’s suspended sentence) thati s statutorily ineligible for review by the Sentence Review Division because it lacks at least6

one year of actual incarceration, our reviewi s two - tiered: w e review the sentence for both legality and abuse of discretion. State v. Herd, 2004 MT 85, ¶¶ 16
- 23 , 320 Mont. 490, ¶¶ 16
- 23 , 87 P.3d 1017, ¶¶ 16
- 23
. Our review for legality is confined to determining whether the sentencing court had s tatutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. State v. Stephenson , 20 08 MT 64, ¶ 15, 342 Mont. 60, ¶ 15, 179 P.3d 502, ¶ 15. This determination is a question of law and, as such, our review is de novo. Stephenson , ¶ 15. A

s entencing court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Brotherton , 2008 MT 119, ¶ 10, ___ Mont. ___, ¶ 10, ___ P.3d ___, ¶ 10. ¶11 We review a district court’s findings of fact under the clearly erroneouss tandard
. State v. Weaver, 2008 MT 86, ¶ 9, 342 Mont. 196, ¶ 9, 179 P.3d 534, ¶ 9
. Findings of fact are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. Weaver, ¶ 9. DISCUSSION ¶12 A district court’s authority to impose sentences in criminal cases is defined and constrained by statute, and a district court has no power to impose a sentence in the absence of specific statutory authority. State v. Setters , 2001 MT 101, ¶ 21, 305 Mont. 253, ¶ 21, 25 P.3d 893, ¶ 21
. Under §§ 46
- 18
- 201(5)and
- 241(1), MCA (2003), i f a7

person has been found guilty of an offense and the sentencing judge finds that any

“victim”has sustained a “pecuniary loss, ”the sentencing judge “ shall, ”a s part of the sentence, require the offender to payfull restitution to the victim
. A “victim” is a person “who suffers loss of property, bodily injury, or death as a result of .
. . the commission of an offense
. . . .” S ection 46
- 18
- 243(2)(a)(i)(A), MCA (paragraph break omitted). “Pecuniary loss” means:

(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender’s criminal activities
. . . ; (b) the full replacement cost of property taken, destroyed, harmed, or otherwise devalued as a result of the offender ’ s criminal conduct; . . . . Section 46
- 18
- 243(1), MCA
. ¶13 Thus, a sentencing judge is not only authorized, but required to impose a restitution obligation on the offender if a person has suffered loss of property as a result of the commission of the offense. Correspondingly , this causal standard means that an offender is not responsible for restitution for offenses that he or she did not commit. See State v. Beavers , 2000 MT 145, ¶¶ 9
- 11 , 300 Mont. 49, ¶¶ 9
- 11 , 3 P.3d 614, ¶¶ 9
- 11 . The issue in th ecaseat hand, therefore, is whether the damage to Smith’s Jeepwas a result of Breeding’s offense. ¶14 A person commits the offense of theft when he or she “purposely or knowingly obtains or exerts unauthorized control over property of the owner and .
. . has the purpose of depriving

the owner of the property , ”§ 45
- 6
- 301(1)(a), MCA (paragraph break omitted), or “purposely or knowingly obtains control over stolen property knowing the8

property to have been stolen by another and .
. . has the purpose of depriving the owner of the property , ”§ 45
- 6
- 301(3)(a), MCA (paragraph break omitted). ¶15 The facts underlying Breeding’s plea of guilty to this o ffense all relateto his driving Smith’sJeep to San Diego
. According to the State’s probable cause affidavit in support of the Information , Se ghetti admitted he was responsible for taking Smith’s Jeep from the alley; Se ghetti went to Belgrade, and he, Breeding , and Matt “drove around” in the Jeep; S eghetti admitted to crashing the Jeep into a haystack; B reeding brought up the idea of traveling to San Diegoin the Jeep , which the two proceeded to do; B reeding admitted that he went with Seghetti to San Diego, despite having knowled ge that Seghetti stole the Jeep ; and the two of them shared the driving. This recitation is consistent with the report o f the investigating officer, who determined the following: S eghetti stole the Jeep from the alley in Bozeman and drove it to Matt’s home in Belgrade, where he met Matt and Breeding; they rode around in the vehicle and were drunk; Se ghetti admitted to wrecking the vehicle when he ran into a haystack in a field; Se ghetti then dropped Matt off and told Breeding that he was going to take the vehicle to Big Sky or West Yellowstone; Breeding brought up the idea of taking the Jeep to San Diego, which they did; Breeding knew the car was stolen when he mentioned going to San Diego; and Breeding drove the ve hicle at various times during the trip. At the conclusion of the report, the officer suggested that Breeding be prosecuted for felony theft on the following basi s: “Breeding admitted that he knew the vehicle was stolen when he obtained control of it by driving and used the vehicle for the trip to San Diego, CA.” Likewise, according to the PSI, in response to the question, “ In your own words, what did you do to get9

arrested on this charge?” Breeding responded: “ I drove a stolen car when I was on my way to California to see my father.” ¶16 There is nothing in the record indicating that the charge against Breeding and the offense to which he pleaded guilty were based on any of the events that occurred prior to his suggesting that he and Se ghetti drive the Jeep to California and his participating in that endeavor (by driving part of the distance). As noted by the District Court in its Reasons for Sentence, Breeding “did not actively participate at the initial theft of the vehicle,” Breeding “was not driving at the time that the vehicle was damaged,” and Breeding “did not necessarily encourage the conduct that resulted in the damage.” ¶17 The District found, and Breeding doesnot dispute, that he joined Seghettion a trip to California and

he knew , “ at that time, ” that the vehicle had beens tolen but he nevertheless participated in driving itto California
. However, there is no evidence that Breeding “purposely or knowingly” obtained or exerted unauthorized control over the Jeep , with “the purpose of depriving [Smith] of the property,” at any time prior to or contemporaneous with the vehicle’s being damaged by Seghetti
. ¶18 In this regard, Breeding told the investigating officer that when Se ghetti arrived at Matt’s house, Breeding asked Se ghetti where he had gotten the Jeep and Se ghetti stated that it belonged to his (S eghetti’s) uncle. Furthermore, Breeding stated that he did not learn that the vehicle had been stolen until he confronted Se ghetti about damaging his uncle’s Jeepby driving it into the haystack, at which point Se ghetti revealed that , in fact , it was a stolen vehicle. The State did not refute these statements. F or that matter, the State presented no evidence that B reeding’s offense of theft

— which was premised on his10

participating in driving the Jeep to California

— was causally related to the earlier damage to the vehicle
. The State was required to submit evidence to that effect before Breeding could be charged with paying restitution for this damage. Cf. State v. Mikesell, 2004 MT 146, ¶ 26, 321 Mont. 462, ¶ 26, 91 P.3d 1273, ¶ 26( “Mikesell is entitled to have the restitution award supported by evidence.”)
. Thus, there being no causal connectionin the record betw een Breeding’s commission of theft and the damage inflicted on the Jeep earlier by Seghetti, there is no basis for requiring Breeding to pay restitution for that damage. ¶19 The District Court stated in its Reasons for Sentence “that Mr. Breeding’s knowledge that the vehicle was stolen and his active participation in taking the vehicle out of state to California does make him sufficiently responsible , and that his involvement was more than just that he was simply present when the damage occurred.” Notably , thec ourt’s observation that Breeding was not just simply present when the damage occurred is inconsistent with its earlier finding that Breeding “did not necessarily encourage the conduct that resulted in the damage.” In any event , while an offender is liab le for restitution for offenses to which he or she has admitted, has been found guilty, or has agreed to pay restitution, seeState v. Blanchard, 270 Mont. 11, 16, 889 P.2d 1180, 1183 (1995); Beavers , ¶ 8, the only offense to which Breeding has admitted, has been found guilty, and has agreed to pay restitution is the theft that occurred when he participated in driving the Jeep to California. There is no statutory authority for imputing to Breeding the damage caused in the course of Se ghetti’s offense. Indeed, we have previously recognized that “[a] defendant may not be ordered to pay restitution in excess11

of the damages caused by his criminal conduct.” Beavers , ¶ 12 (internal quotation marks omitted). CONCLUSION ¶20 For the foregoing reasons, we hold that the D istrict Court lacked authority to require Breeding to pay restitution for damage to the Jeep which did not occur as a result of his offense of theft. A ccordingly, the restitutionobligation on Breeding’s sentence to cover the cost of the damage which oc curred when Se ghetti drove Smith’s vehicle into a haystack ( $5,67 3 .53) is illegal and must be reversed. W e remand with instructions to strike this portion of Breeding’s sentence.
/S/ JAMES C. NELSON We Concur: /S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE