DA 15-0074

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 311N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

ERNEST FERNANDEZ,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause Nos. DC-05-309, DC-13-430,

and DC-13-431

Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Chief Appellate Defender, Haley Connell, Assistant 

Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, 

Assistant Attorney General, Helena, Montana 

Kirsten Pabst, Missoula County Attorney, Shaun Donovan, Deputy 

County Attorney, Missoula, Montana

Submitted on Briefs: October 19, 2016

 Decided: November 29, 2016

Filed:

__________________________________________

Clerk

11/29/2016
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Justice James Jeremiah Shea delivered the Opinion for the Court.

¶1 Pursuant to Section I, Paragraph 3(c), 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 Ernest Fernandez appeals the multiple judgments of the Fourth Judicial District, 

Missoula County, revoking his suspended sentence on a felony incest conviction, and 

conviction and sentencing for felony failure to register as a sexual offender and felony 

issuing bad checks. We address whether the District Court erred by rejecting 

Fernandez’s plea agreement by imposing restitution. We affirm.

¶3 In February 2006, Fernandez was convicted of felony incest and sentenced to 

twenty years to the Department of Corrections with sixteen years suspended. In August 

2013, the State filed a petition to revoke his suspended sentence and charged Fernandez 

with failing to register as a sexual offender in violation § 46-23-504, MCA, and issuing 

bad checks in violation of § 45-6-316, MCA. In December 2013, Fernandez entered an 

open plea of no contest to the issuing bad checks charge. The District Court advised 

Fernandez, and he acknowledged he understood, that “if you enter a no contest plea here 

today, that’s effectively a guilty plea and that allows me to sentence you.” Fernandez 

also signed a written Plea of Guilty and Waiver of Rights in which he expressly 

acknowledged: “[T]he [District] Court may order me to pay restitution.” In January 

2014, Fernandez and the State entered into a global plea agreement, pursuant to 
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§ 46-12-211(1)(b), MCA, ((1)(b) plea agreement) that included all three charges, and 

listed “$00.00” for restitution in the Fines and Fees Description chart. The District Court 

followed the (1)(b) plea agreement regarding sentencing, but ordered Fernandez to pay 

$2,731.17 in restitution and a 10% administrative fee as recommended by the 

pre-sentence investigation (PSI). At sentencing, Fernandez did not object to either the 

PSI’s recommended restitution or the District Court-ordered restitution. When asked 

whether he was willing and able to pay restitution, Fernandez replied: “I can get that 

paid off within the next two years . . . And I would like to pay back restitution . . . .”

¶4 Fernandez argues the District Court rejected the (1)(b) plea agreement by 

imposing restitution greater than “$00.00” and did not give him the opportunity to 

withdraw his guilty pleas and admissions, thus erring by not adhering to § 46-12-211(4), 

MCA, for rejecting a (1)(b) plea agreement. The State argues the District Court did not 

reject the plea agreement and § 46-12-211(4), MCA, was not triggered, because the plea 

agreement simply modified Fernandez’s December open plea as to the term of 

imprisonment the State could recommend. The State also argues Fernandez acquiesced 

and actively participated in imposing restitution as a condition of suspending his sentence 

for issuing bad checks, and failed to object to the restitution order despite multiple 

opportunities during sentencing. The State contends Fernandez waived his right to raise 

the issue of restitution for the first time on appeal because, not only did he fail to object 

to the imposition of restitution at sentencing, he unambiguously pronounced he would 

pay restitution. 
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¶5 We review a criminal sentence for legality only, determining whether the sentence 

falls within the statutory parameters. State v. Walker, 2007 MT 205, ¶ 10, 338 Mont. 

529, 167 P.3d 879 (citing State v. Kuykendall, 2006 MT 110, ¶ 8, 332 Mont. 180, 136 

P.3d 983). 

¶6 A (1)(b) plea agreement provides that the prosecutor agrees that a specific 

sentence is the appropriate disposition of the case. Section 46-12-211(1)(b), MCA. If the 

court rejects a (1)(b) plea agreement, then § 46-12-211(4), MCA, obligates the district 

court to: (1) inform the defendant that it is rejecting the plea agreement; (2) advise the 

defendant that the court is not bound by the plea agreement; (3) afford the defendant the 

opportunity to withdraw his guilty plea; and (4) advise the defendant that if he persists in 

the guilty plea, the disposition of the case may be less favorable to him than that 

contemplated by the plea agreement. State v. Zunick, 2014 MT 239, ¶ 12, 376 Mont. 293, 

339 P.3d 1228. We agree with the State that Fernandez never objected to the imposition 

of restitution as a condition of his issuing bad checks sentence, and therefore waived his 

right to raise the restitution issue for the first time on appeal. Walker, ¶ 13 (“We 

generally refuse to review on appeal an issue to which a party failed to object at the trial 

court). Moreover, Fernandez pronounced his ability and willingness to pay restitution, 

constituting a waiver of his argument that the imposition of restitution is a rejection of his 

plea agreement that should trigger § 46-12-211(4), MCA, procedures. Walker, ¶¶ 16-18 

(citing State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661, and State v. Micklon, 

2003 MT 45, 314 Mont. 291, 65 P.3d 559); State v. Harris, 1999 MT 115, ¶ 32, 294 
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Mont. 397, 983 P.2d 881 (“We will not put a district court in error for an action in which 

the appealing party acquiesced or actively participated.”). 

¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for memorandum opinions. In the opinion 

of the Court, the case presents a question controlled by settled law or by the clear 

application of applicable standards of review. We conclude that Fernandez waived his 

right to raise the restitution issue for the first time on appeal. We affirm.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ JIM RICE