IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
MELVIN JOHN-THOMAS BLANCHARD,
Defendant and Appellant.
District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry Moran, Judge presiding.
COUNSEL OF RECORD:
Brian P. Fay, Attorney at Law,
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
Submitted on Briefs:
December 1, 1994
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.
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,
obtained leave to file an
information charging Blanchard with four counts of felony theft,
and one count of misdemeanor theft.
Blanchard appeared on May 13, 1993,
and pled not guilty to the
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:
November 9, 1993 I hereby propose the following plea
That the Defendant will make restitution;
That the Defendant cooperate with the Bozeman
City Police Department with respect to all thefts and
burglaries of which he has knowledge. . . .
That the State will provide the Defendant with
immunity for all testimony given with
regards to other thefts and burglaries of which he has
That both parties will recommend that the Court
order a long form Pre-Sentence Investigation . . .
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.
amended information charged Blanchard with four counts of burglary,
six counts of felony theft, and one count of misdemeanor theft.
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.
accepted his guilty pleas and reserved ruling on the plea agreement
presentence investigation report and permitted Blanchard to remain
free on bail until the time of sentencing.
Probation and Parole Officer Bernie Driscoll prepared the
With respect to restitution, the
presentence investigation report.
report provided as follows:
counts I, II, III and IV:
Restitution requested in the amount of
Counts V and VI:
Hobby TowiRaceway (Burglary and Theft)
Cash in the amount of
. . . .
Theft of Motorcycle Cover
Recovered - no restitution being
requested by [the victim]. . . .
Theft of Cellular Phone
Counts IX and X:
Stop (Burglary and Theft)
Toy Shop (Theft)
Counts I - XI Total
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
Hobby Town Raceway (Burglary)
Klip Joint (Burglary)
Silk Reflections (Burglary)
Video Hardware (Burglary)
Uncharged Crimes Total
Driscoll recommended that Blanchard serve six months in county jail
and receive a six year deferred sentence
The sentencing hearing took place on February 8,
and girlfriend testified on his behalf,
letters from Blanchard's bail bondsman and employer were introduced
into evidence. The prosecuting attorney recommended that Blanchard
receive concurrent sentences and be required to make restitution
according to the tabulation
in the presentence
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.
committed the uncharged crimes
set forth in the presentence
pursuant to the plea agreement, the
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.
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
and conditions of deferment.
As one of the conditions of
the court ordered Blanchard to pay restitution in the
amount of $9709.
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
"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
(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
i xii) . any other reasonable conditions considered
necessary for rehabilitation or for the protection of
any combination of the above.
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
MCA, is a person who has been convicted of or who
has pled guilty to an offense,
and that unless a person pleads
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)
-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
he waived his
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.
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,
(3) has agreed to pay restitution.
868 P.2d 643,
(2) has been found guilty, or
645 (reaffirming Erickson v. State (Nev.
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
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
Kimbrell V. State (Alaska App. 1983), 666 P.Zd 454, 455 (it is
in sentencing defendant on one charge to impose
restitution for separate dismissed charge if amount is certain, he
and he consents to make restitution);
State V. Gerald (Wis. 1973), 205 N.W.2d 374, 378-80, app. dismissed
414 U.S. 804 (court did not deny defendant's due process
rights when requiring as a condition of probation,
to which the
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,
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).
' [tlhat the Defendant will make
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,
for the uncharged offenses to which Blanchard admitted.
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.
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 . . . .
offenses; instead, defense counsel merely informed the court that
undisputed that Blanchard admitted that he committed the uncharged
The "lega .l dilemma" posed by defense counsel is resolved by
5 46-18-201(l) (a) (xii),
MCA, which allows the district court to
impose any reasonable,
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
201(l) (a) (xii), MCA.
We stated that
U [tlhe imposition of this
condition on defendant was reasonable for rehabilitation purposes
. . . . ,1
P.2d 1230, 1236-37,
Shaver (1988), 233 Mont. 438,
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.
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
charged, we determined that the district court properly imposed the
rehabilitative and restitution purposes."
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
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
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.
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.
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
Helena, MT 59620
Deputy County Attorney
615 S. 16th
Bozeman, MT 59715
CLERK OF THE SUPREME COURT
STATE OF MONTANA