Opinion
DA 22-0557
09-24-2024
STATE OF MONTANA, Plaintiff and Appellee, v. STEPHANIE DAWN BLANK, Defendant and Appellant.
For Appellant: James M. Siegman, Attorney at Law, Jackson, Mississippi For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana Matthew C. Jennings, Interim County Attorney, Missoula, Montana
Submitted on Briefs: June 12, 2024
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-14-40 Honorable John W. Larson, Presiding Judge
For Appellant:
James M. Siegman, Attorney at Law, Jackson, Mississippi
For Appellee:
Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana
Matthew C. Jennings, Interim County Attorney, Missoula, Montana
OPINION
Laurie McKinnon Justice
¶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 Stephanie Dawn Blank appeals from an August 4, 2022 judgment of the Fourth Judicial District Court, Missoula County, ordering a three-year deferred imposition of sentence for theft. We affirm.
¶3 In 2014, Blank pleaded guilty to felony theft for stealing a blue sapphire and pearl necklace, a Rolex watch, and two diamond rings with a cumulative value of $13,090 from a couple for whom she provided caregiver services. Blank received a six-year deferred imposition of sentence and was ordered to pay $ 14,197 in restitution. The State previously filed two petitions for revocation before the third petition at issue in this appeal. The first petition was filed in May 2015 and subsequently amended in October 2015 to reflect pending felony drug charges. Blank was referred to Family Drug Treatment Court and successfully completed the program in December 2017. The second petition was fded in October 2019 based on failure to make restitution payments, alcohol usage, and a citation for misdemeanor Partner and Family Member Assault. Blank was again referred to Family Drug Treatment Court but did not successfully complete the program. Pursuant to the second petition, the district court revoked its original judgment and ordered a one-year deferred imposition of sentence.
Blank appealed this sentence based on the district court's imposition of the public defender fee without formal inquiry into her ability to pay. We remanded with an instruction to inquire as to Blank's ability to pay the public defender fee and dismissed without prejudice. State v. Blank, No. DA 14-0808, Order (Mont. Apr. 19, 2016).
Violations in the report attached to the first petition included failure to obtain employment, purchasing an automobile for $3,500 without prior approval, using and possessing alcohol, failing to complete community service, failing to enter and complete parenting class, and failing to make any payments towards restitution. At that time, the report stated that Blank owed $15,666.70 in restitution.
¶4 In November 2021, Officers Kali Matt and Charles Burton performed a welfare check at Blank's residence after being notified that her three children had been left unattended for approximately three weeks. Blank was reportedly staying at her boyfriend's residence caretaking for his mother while her older daughter provided leftover food from work for the younger siblings in Blank's absence. Officers noted holes in the walls and floors that had rotted through, broken windows with sharp edges in the bedroom, standing water in the bathroom, and garbage throughout. There was little food, and much of it was rotting. Power had been restored a week prior to the officers' visit after being turned off for approximately three weeks.
¶5 Based in part on this visit, the State filed its Third Petition to Revoke in January 2022. The attached Report of Violation alleged that Blank violated the conditions of her probation by owing $14,896.70 in restitution and fees without any payment since April 13, 2021, and by failing to conduct herself as a good citizen in accordance with the law based on leaving her three minor children unsupervised for three weeks without food, heat, or water. Following a hearing, the District Court found that the State met its burden for both alleged violations, revoked its previous sentence, and imposed a three-year deferred sentence subject to the same terms and conditions as her original sentence.
¶6 Blank challenges the District Court's judgment on four grounds: that the District Court did not have an updated inventory of her assets; that she cannot afford to pay the restitution; that the District Court did not orally pronounce a restitution amount at the dispositional hearing; and that the District Court did not have sufficient evidence to impose the deferred sentence.
¶7 We review a district court's decision to revoke a suspended or deferred sentence to determine whether the decision was supported by a preponderance of the evidence in favor of the State and, if so, whether the court abused its discretion. State v Oropeza, 2020 MT 16, ¶ 14, 398 Mont. 379, 456 P.3d 1023. Revocation decisions involve both legal and factual findings, and we review a district court's legal findings de novo and its factual findings for clear error. State v. Puccinelli, 2024 MT 114, ¶ 19, 416 Mont. 444, 549 P.3d 441. "A district court's factual findings are clearly erroneous if they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite firm conviction that a mistake has been made." Puccinelli, ¶ 19 (quoting State v. Johnson, 2018 MT 277, ¶ 10, 393 Mont. 320, 430 P.3d 494).
¶8 Preliminarily, Blank's challenges pertaining to the restitution amount and her ability to pay based on an updated inventory are not appropriate for appellate review. These terms are unchanged from the original sentence, and we will not review an original sentence in a revocation proceeding when the defendant did not challenge the original sentence on appeal. State v. Torres, 2017 MT 177, ¶ 10, 388 Mont. 161, 398 P.3d 279.
¶9 Blank also neglected to raise these issues at the hearing. She failed to object to either the amount of restitution or the lack of an inventory of assets relative to her ability to pay. We generally will not address issues raised for the first time on appeal. State v. Claus, 2023 MT 203, ¶ 13, 413 Mont. 520, 538 P.3d 14. As Blank notes, she is free to petition the sentencing court at any time to "adjust or otherwise waive payment of any part of any ordered restitution." Section 46-18-246, MCA. We disagree, however, that the evidence presented at the hearing could be automatically construed as such a petition and therefore preserved for appeal. Nor are these issues so tied to a fundamental right that they warrant plain error review, as Blank asserts.
¶10 Further, Blank's arguments on appeal seek to create questions of statutory interpretation where there are none, asserting violations of statutes that apply only to initial sentencing and not revocation proceedings. If Blank desires to challenge the restitution amount and ability to pay, she may do so before the District Court pursuant to § 46-18-246, MCA. We decline to otherwise review these issues.
¶11 Turning to Blank's remaining arguments, it is a misstatement of law to insist that the District Court needed to orally pronounce the restitution amount at the revocation disposition. Blank relies on State v. Dunkerson, 2003 MT 234, 317 Mont. 228, 76 P.3d 1085, an appeal from an initial order of restitution. We held that the district court erred by not specifying the total amount owed and method of payment. Dunkerson, ¶ 22. Even there-on an initial appeal under markedly different facts-we said nothing about the necessity of an oral pronouncement. While there appears to be some opacity around the current amount owed in the instant case, the District Court did not violate any pertinent statute or case law in orally stating, "I think you can proceed on both your restitution and your kids now. ... It will be the same conditions, but, you know, emphasizing the restitution now that you, I think, have gotten over the substance hurdles." Especially considering the history of the case, the District Court's oral disposition was clear and appropriately followed by the written judgment, and Blank indicated her understanding of the restitution and conditions with affirmative responses.
The District Court's judgment ordered the same terms and conditions as the March 2021 judgment, which in turn ordered the same terms and conditions as the November 2014 judgment, which specified a restitution amount of $14,197.00. The State's report accompanying the most recent petition listed $14,897.70, and a ledger offered into evidence at the dispositional hearing provides $13,504.00. Regardless, this Court is not the proper venue to conduct an accounting.
¶12 Finally, Blank challenges the sufficiency of the evidence on each of the violations. A deferred sentence may be revoked if the State proves by a preponderance of the evidence that the individual violated the terms and conditions of the sentence. Section 46-18-203(6)(a)(i), MCA. "A single violation of the terms and conditions of a sentence is sufficient to support a court's revocation of that sentence." State v. Tirey, 2010 MT 283, ¶ 21, 358 Mont. 510, 247 P.3d 701.
¶13 Regarding the first violation for failure to pay restitution, it is clear from the record that Blank failed to make any payment between April 2021 and February 2022. A violation for failure to make payments may be excused if the offender shows "sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender's part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered." Section 46-18-203(6)(b), MCA. However, here, Blank did not demonstrate that she had made a good faith effort to make even small payments towards her restitution obligation. Because the restitution amount was previously established in a prior judgment which Blank did not appeal, Blank was required to either make the restitution payments or demonstrate she make a good faith effort towards complying with the restitution order. She did neither. Accordingly, we conclude the District Court did not err when it found Blank had not make a good faith effort to make restitution payments. This violation alone is sufficient to support revocation. Tirey, ¶ 21.
¶14 Having determined the District Court's findings of fact were not clearly erroneous and that the District Court did not abuse its discretion in finding that the State had met its evidentiary burden, the District Court is affirmed.
¶15 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 concur: MIKE McGRATH, BETH BAKER, INGRID GUSTAFSON, JIM RICE J.