Matter of D.G.J. a Youth

2015 MT 347N, 363 P.3d 1147, 382 Mont. 410, 2015 Mont. LEXIS 635

• Court: Montana Supreme Court
• Decided: December 22, 2015
• Docket: 15-0035
• Status: Published

Opinion

December 22 2015

DA 15-0035 Case Number: DA 15-0035

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 347N

IN THE MATTER OF:

D.G.J.,

A Youth.

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Pondera, Cause No. DJ 14-02 Honorable Robert G. Olson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wendy Holton, Attorney at Law, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana

Mary Ann Ries, Pondera County Attorney, Conrad, Montana

Submitted on Briefs: October 21, 2015 Decided: December 22, 2015

Filed:

__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of 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 D.G.J. appeals from disposition of the Ninth Judicial District Court, Pondera

County, awarding restitution. D.G.J. argues on appeal that he was denied due process

when the State did not provide either an affidavit or testimony from the victims regarding

the amount of restitution; that the District Court relied on replacement cost instead of

market value; and that D.G.J.’s ability to pay was not considered. We affirm.

¶3 Conrad City Police Department (CPD) began investigating a series of vehicle

break-ins occurring over a period between approximately July 31 and August 6, 2014. It

was apparent that individuals were entering unlocked vehicles, without permission, and

removing money and other valuable items. A rifle, cash, prescription pills, cologne, two

iPods, a pair of sunglasses, and a wallet were reported missing from various vehicles.

Additionally, one person reported her car window had been broken and another reported

a cooler full of alcoholic beverages had been taken from his front porch.

¶4 D.G.J. was spotted in the area of Conrad where many of the break-ins were

reported and was detained after being found sleeping in a vehicle with a rifle matching

the description of the earlier reported stolen weapon. During several interviews with

2 CPD, D.G.J. and another youth, T.D., admitted to “car-hopping” over the summer, or

traveling around searching for unlocked vehicles containing valuables.

¶5 On September 3, 2014, the State filed a Petition alleging D.G.J. perpetrated

conduct which, if committed by an adult, would constitute felony Theft by

Accountability, in violation of §§ 45-2-301 and 45-6-301, MCA, (Count I); misdemeanor

Criminal Trespass to Vehicles by Accountability, in violation of §§ 45-2-301 and

45-6-202, MCA, (Count II); and misdemeanor Theft by Accountability, in violation of

§§ 45-2-301 and 45-6-301, MCA, (Count III). Upon an agreement, the State dismissed

felony Count I and D.G.J. pled True to misdemeanor Counts II and III. The District

Court determined D.G.J. was a Delinquent Youth and ordered he be jointly and severally

liable for full restitution totaling $888.00. The District Court’s disposition on restitution

is the subject of this appeal.

¶6 D.G.J. argues on appeal that the District Court violated his right to due process

when it imposed a restitution award in contravention of §§ 46-18-241 and -242, MCA,

because the State failed to present either a sworn affidavit describing the victims’

pecuniary losses or testimony from the victims at the sentencing hearing. D.G.J. also

argues that the District Court erred in relying on replacement value instead of market

value and in failing to consider his ability to pay restitution.

¶7 At the restitution hearing, instead of providing an affidavit or testimony from the

victims, the State presented evidence of the victims’ losses through testimony of the

CPD’s Chief of Police, Gary Dent. Chief Dent testified using a compilation chart he

created that listed the items reported missing between July 31 and August 6, 2014 and an

3 estimate of the item’s value. The value estimations were taken from police reports.

D.G.J. made no objection or argument regarding the State’s evidence on the basis that the

values were based on replacement value, rather than market value. Consequently, the

District Court did not consider whether imposition of replacement value as compared to

market value was appropriate. D.G.J. also did not object or question his ability to pay the

amount of restitution imposed by the court.

¶8 The State argues D.G.J. failed to preserve his arguments on appeal. This Court

“generally refuse[s] to review on appeal an issue to which the party failed to object to at

the trial court.” State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892

(citation omitted). In order to preserve an issue for appeal, a party has an obligation to

make the basis and grounds of the objection clear to the trial court. State v. Vukasin,

2003 MT 230, ¶ 27, 317 Mont. 204, 75 P.3d 1284. The principle of this rule is not to

place a “trial court in error where that court has not been given the opportunity to rule on

the admissibility of evidence and to correct itself.” Vukasin, ¶ 29. Here, D.G.J. objected

to Chief Dent’s testimony related to restitution amounts based on “best evidence, hearsay,

[and] confrontation” and the District Court granted him a standing objection on those

grounds. However, the rules of evidence do not apply at sentencing, M. R. Evid.

101(c)(3); State v. Collier, 277 Mont. 46, 63, 919 P.2d 376, 387 (1996), and it was

incumbent upon D.G.J. to state his reasons for objecting to the testimony. None of the

arguments currently advanced on appeal were ever presented for the District Court’s

consideration. The general one-word objections D.G.J. used did not notify the District

Court of the grounds now raised on appeal: that the failure of the victims to file

4 affidavits or testify in person at the hearing violated his constitutional right to due

process; that the District Court relied upon replacement value instead of market value;

and failed to consider his ability to pay. D.G.J. has failed to preserve his alleged errors

for appeal.

¶9 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.

¶10 Affirmed.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER /S/ JIM RICE