State v. E. Yeaton

2021 MT 312, 500 P.3d 583, 406 Mont. 465

Opinion

12/14/2021

DA 20-0041 Case Number: DA 20-0041

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 312

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ERIC D. YEATON,

Defendant and Appellant.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC-19-16 Honorable Matthew J. Cuffe, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana

Marcia Boris, Lincoln County Attorney, Libby, Montana

Submitted on Briefs: September 1, 2021

Decided: December 14, 2021

Filed:

oe,,6tA- -if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Eric D. Yeaton (Yeaton) appeals a November 22, 2019 judgment and sentence from

the Nineteenth Judicial District Court in Lincoln County. Yeaton pleaded guilty to felony

operation of a noncommercial vehicle by a person with a blood alcohol concentration

(BAC) of .08 or more, in violation of §§ 61-8-406 and -731, MCA. The District Court

imposed a five-year sentence of imprisonment with two years suspended and fees and fines

totaling $5560, as well as an order to pay imprisonment, probation, and alcohol treatment

costs “if financially able.” These latter, financial aspects of the sentence are the subject of

his appeal.

¶2 We restate the issues on appeal as follows:

Issue One: Is it legal under federal and state law to order fines, fees, and surcharges against a defendant whose current income is only social security benefits?

Issue Two: Did the District Court improperly fail to inquire into Yeaton’s ability to pay the fines, fees, and surcharges ordered?

Issue Three: Did the District Court err by ordering the payment of imprisonment, probation, and alcohol treatment costs “if financially able,” with financial ability to be determined at a time later than sentencing?

¶3 We affirm on Issues One and Three and reverse and remand on some of the costs in

Issue Two.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Yeaton was arrested following a traffic stop on January 20, 2019. A blood test

showed him to have been driving with a BAC greater than .08, a violation of § 61-8-406,

MCA. Yeaton had at least four prior intoxicated driving convictions, and he had attended

2 a residential alcohol treatment program pursuant to a prior conviction, as provided for in

§ 61-8-731(2), MCA. These facts subject Yeaton to the felony punishment rules and

probationary conditions set out in § 61-8-731(3)-(4), MCA.

¶5 Yeaton pleaded guilty to the BAC offense, and the Lincoln County District Court

held a sentencing hearing. At the sentencing hearing, the parties and the court discussed

Yeaton’s presentence investigation report (PSI) and the financial aspects of the sentencing

recommendations contained in the PSI, most of which the District Court adopted in its

judgment. Yeaton offered the District Court several corrections to the PSI on file, which

was drafted by referencing an older PSI of Yeaton’s. In addition to clarifying some other

details, Yeaton noted that his assets and debts in the new PSI should be listed as “none”

rather than “unknown.” Yeaton’s attorney then raised with the District Court two issues

from the PSI’s numbered recommendations.

¶6 The first regarded fees and other financial charges. The District Court agreed to

drop some of the recommended fees but kept several: a $5000 fine,1 a $500 administrative

surcharge,2 a $50 DUI-specific surcharge,3 and a $10 court information technology fee.4

Yeaton objected to these fines and fees on the grounds that he could not afford them and

that they could not be levied against a defendant whose sole income source was social

1 Under § 61-8-731(3), MCA. 2 Under § 46-18-236(1)(b), MCA. 3 Under § 46-18-236(1)(c), MCA. 4 Under § 3-1-317, MCA. 3 security disability payments. On the social security point, Yeaton cited State v. Eaton,

2004 MT 283, 323 Mont. 287, 99 P.3d 661, during the sentencing hearing.

¶7 Yeaton’s second argument regarded financial charges for the costs of chemical

dependency evaluation, aftercare treatment during probation, and imprisonment. The

PSI’s recommended provision stated that the defendant, “if financially able, as a condition

of probation, shall pay for the cost of imprisonment, probation, and alcohol treatment . . . .”

The District Court adopted this language in its judgment and sentence. Yeaton argues on

appeal that this provision violates statutes and this Court’s precedents requiring district

court findings about ability to pay.

STANDARD OF REVIEW

¶8 This Court reviews sentencing conditions, fines, and fees “first for legality, then for

abuse of discretion as to the condition’s reasonableness under the facts of the case.”

State v. Ingram, 2020 MT 327, ¶ 8, 402 Mont. 374, 478 P.3d 799 (citing State v. Daricek,

2018 MT 31, ¶ 7, 390 Mont. 273, 412 P.3d 1044). We determine legality by considering

only “whether the sentence falls within the statutory parameters, whether the district court

had statutory authority to impose the sentence, and whether the district court followed the

affirmative mandates of the applicable sentencing statutes.” Ingram, ¶ 8 (citing State v.

Himes, 2015 MT 91, ¶ 22, 378 Mont. 419, 345 P.3d 297).

4 DISCUSSION

¶9 Issue One: Is it legal under federal and state law to order fines, fees, and surcharges against a defendant whose current income is only social security benefits?

¶10 Shortly after Yeaton filed his first brief in this appeal, we issued our decision in

State v. Ingram, 2020 MT 327, 402 Mont. 374, 478 P.3d 799. Ingram resolved the exact

issue that Yeaton raises regarding social security.

¶11 In Eaton, we held that a district court may not levy a financial charge calculated as

a percentage of a defendant’s net income including social security benefits. Eaton,

¶¶ 23-27. This violates a federal law that protects such payments from garnishment and

other “legal process.” See 42 U.S.C. § 407(a). However, in Ingram, we considered a

mandatory fine issued with no reference to the income source from which it would be paid.

We recognized that income sources can change over time and made a distinction between

creating a debt and requiring social security benefits be used to satisfy a debt. Ingram,

¶¶ 11-12. The former does not violate federal law, while the latter does.

¶12 Ingram thus makes clear that the fines, fees, and surcharges the District Court

included in Yeaton’s sentence are legal. The $5000 fine, as discussed below, was a

statutory minimum. The $500 fee was a percentage of the fine, as directed by statute. And

the $50 and $10 charges were flat statutory rates. None of these charges, therefore, were

made in reference to Yeaton’s social security income or required to be paid from that

5 income source.1 The State may not collect from Yeaton’s social security benefits to satisfy

these debts, but it is permitted to impose them.

¶13 Issue Two: Did the District Court improperly fail to inquire into Yeaton’s ability to pay the fines, fees, and surcharges ordered?

¶14 Yeaton also raised arguments about his inability to afford the $5560 of fines, fees,

and surcharges ordered by the District Court. These costs fit into two categories: a $5000

fine issued pursuant to § 61-8-731(3), MCA, and $560 in fees and surcharges pursuant to

§§ 46-18-236 and 3-1-317, MCA.

¶15 The legality of the $5000 fine in Yeaton’s judgment is made clear by State v.

Mingus, 2004 MT 24, 319 Mont. 349, 84 P.3d 658. In Mingus, we held that statutory

provisions that require an inquiry into ability to pay—in §§ 46-18-231 and -232, MCA—

do not apply to statutorily mandated fines. Mingus, ¶ 15. Yeaton acknowledged in District

Court that the $5000 fine was mandatory. Yeaton raises a new argument on appeal that

the fine might be discretionary, but even if he were able to show it was, such an issue

creates an “objectionable sentence, not an illegal sentence.” State v. Kotwicki, 2007 MT

17, ¶ 21, 335 Mont. 344, 151 P.3d 892. We review sentencing decisions for legality, and

Yeaton’s $5000 fine is within statutory parameters. Daricek, ¶ 7; § 61-8-731(3), MCA.

1 The Dissent characterizes such charges as “at minimum, an indirect attempt to target [] protected benefits” and argues that they therefore should be unlawful. Dissent, ¶ 30. This reiterates the issue that we previously addressed and decided in Ingram. Our task in this case becomes to apply the law as previously settled, which warrants the conclusion that Yeaton’s fines and fees do not on their own violate federal social security protections.

6 Because Yeaton failed to object to the fine on these grounds in District Court, he waived

this issue and cannot raise it now on appeal.1 Kotwicki, ¶ 22.

¶16 However, the $560 in fees and surcharges falls under different rules than the larger

mandatory fine from the DUI statutes. These fees and surcharges are subject to the

ability-to-pay inquiry required by §§ 46-18-232 and -236(2), MCA. Again, a district

court’s failure to make the inquiry renders a sentence only objectionable, not illegal—but

here, Yeaton sufficiently objected regarding his ability to afford these fees and surcharges.

When the District Court asked Yeaton’s attorney whether any provisions in the PSI should

be rejected, Yeaton’s attorney told the District Court that “[o]ne of the things that Mr.

Yeaton struggles with is obviously paying for things . . . [s]o, obviously, all of the fines

and fees I am asking to be waived . . . he gets social security and he cannot afford those.”

The State colors this objection as referring only to the Eaton argument addressed above,

but we view the attorney’s objection as sufficient to invoke the protections of §§ 48-18-232

and -236(2), MCA. The attorney specified that the basis for his objection to these

provisions was Yeaton’s ability to afford them. See Pumphrey v. Empire Lath & Plaster,

2006 MT 99, ¶ 30, 332 Mont. 116, 135 P.3d 797 (noting an objection is sufficient if it

“specifies the reason for disagreement”); State v. Castle, 1999 MT 141, ¶ 11, 295 Mont. 1,

1 The Dissent would permit Yeaton’s general affordability objection to preserve such issues as the textual mandatory/discretionary argument Yeaton raised for the first time on appeal. Dissent, ¶¶ 33-38. However, Yeaton’s counsel and the District Court had a direct exchange about the $5000 fine in which the District Court asked for confirmation that the fine was mandatory and Yeaton’s counsel responded “yes.” Yeaton’s counsel proceeded to object to that fine as a violation of federal social security protections specifically. We view the totality of the exchange about fines and fees as a sufficient objection to the District Court’s ordering of discretionary fines subject to §§ 48-18-232 and -236(2), MCA—the $560 that we reverse—but not a sufficient objection regarding the interpretation of a statute conceded by Yeaton to impose a mandatory fine. 7 982 P.2d 1035 (noting that under evidentiary rules, objections can be sufficient if the

“specific ground is apparent from the context”).

¶17 Here, the District Court addressed Yeaton’s objection to these fees and surcharges

at the same time as it considered the mandatory fine and the social security issue. The

District Court then treated the mandatory fine the same as the fees and surcharges when it

imposed all these costs without further discussion of Yeaton’s financial resources.

However, as noted, the fees and surcharges are subject to more strenuous inquiry rules, and

the District Court did not make the “serious inquiry or separate determination” that we

have required under the statutes that apply to these costs. State v. McLeod, 2002 MT 348,

¶ 34, 313 Mont. 358, 61 P.3d 126; Ingram, ¶ 16. We therefore reverse and remand the

$560 in financial penalties with instruction to conduct further proceedings in compliance

with §§ 48-18-232 and -236(2), MCA.

¶18 Issue Three: Did the District Court err by ordering the payment of imprisonment, probation, and alcohol treatment costs “if financially able,” with financial ability to be determined at a time later than sentencing?

¶19 When a person is convicted for at least the fourth time for driving with excessive

BAC under § 61-8-406, MCA, another provision of Montana law applies: § 61-8-731(4)(b),

MCA.1 This second law requires the convicting district court to order “a person who is

financially able to pay the costs of imprisonment, probation, and alcohol treatment[.]”

1 The 2021 Montana Legislature made amendments that rearranged some of the statute’s numbering. At the time of Yeaton’s sentencing and at the time we decided Ingram and Daricek, the relevant provision was at § 61-8-731(4)(b), MCA, which is the number used throughout this Opinion. In 2004, at the time we decided Mingus, the provision was at § 61-8-731(3)(b), MCA; the text of that Opinion cites that number, but for continuity we cite the provision as applicable to Yeaton, § 61-8-731(4)(b), MCA, throughout. 8 ¶20 At sentencing, some district courts have taken to applying the plain text of that

statute more or less verbatim. They order the fines, as required, with the conditional

language “if financially able” attached. This practice effectively defers to the Department

of Corrections (DOC) a later determination about whether the defendant will be able to

cover the costs.

¶21 We have condoned this practice before. Unlike the fees and surcharges laws

addressed above, which specify several factors the district court “shall take into account,”

this law simply makes the costs mandatory but conditional. See Daricek, ¶ 10 n.1.

Furthermore, we have observed that the costs incurred through imprisonment, probation,

and treatment are not fully known until after those stages are complete. It is DOC that

ultimately assesses these costs “in accord with the conditions set by a sentencing judge.”

Daricek, ¶ 12 (quoting § 46-23-1011(1), MCA). Thus, the conditional language in

§ 61-8-731(4)(b), MCA, was “a determination directed to the Department of

Corrections[.]” Ingram, ¶ 14.

¶22 The District Court included the conditional “if financially able” language in

Yeaton’s sentencing order on the imprisonment, probation, and treatment costs. However,

despite our earlier acceptance of this practice, Yeaton points to our discussions in Mingus

and Daricek and argues that the District Court should also have explored his likelihood of

affording these costs before conditionally ordering them.

¶23 In Mingus, the district court had placed the conditional language in its written

sentencing order, but when it orally pronounced the sentence in the courtroom, it had

ordered the costs without providing the condition and while also observing that the

9 defendant would be unlikely to be able to pay them. Mingus, ¶¶ 6, 20. Only the oral

sentence controlled our judgment in that case, and we held that the unconditional order,

combined with an observation of a likely inability to pay, ran afoul of § 61-8-731(4)(b),

MCA. Mingus, ¶¶ 20-22.

¶24 In Daricek, the district court’s order had included the “if financially able” condition,

which we concluded “complied with the plain language of § 61-8-731(4)(b), MCA.”

Daricek, ¶ 14. In contrast with the comment about likely inability to pay in Mingus, the

district court in Daricek had observed that the defendant was “fit and able to work” and

therefore probably could pay the costs. We held that this was sufficient to satisfy our

holding in Mingus that the district court needed to make “specific findings.” Daricek,

¶¶ 17-18.

¶25 Here, Yeaton argues that the District Court acted more like in Mingus than in

Daricek. The District Court looked at Yeaton’s PSI and had a brief discussion with the

parties about his ability to pay the various fines, fees, and costs, as we have addressed

above. Regarding the costs in § 61-8-731(4)(b), MCA, Yeaton’s attorney advocated that

they be treated as discretionary. The District Court, however, disagreed and said it would

let DOC decide, by using the “if financially able” language. Unlike in Daricek, the District

Court did not opine on Yeaton’s employability. Yeaton argues that without such a finding,

his costs should be remanded like we remanded those in Mingus.

¶26 However, the District Court comported with the plain holdings of Daricek and

Ingram that providing the conditional language complies with § 61-8-731(4)(b), MCA. In

Ingram, we also affirmed a sentencing order with this same language and no comment on

10 employability, and we noted that the district court “properly deferred” to DOC. We

reiterated that it is DOC, “not the sentencing court, which assesses the defendant’s ability

to underwrite the costs associated with his or her sentence,” viewing this process as

sufficient to ensure that defendants will not be obligated to pay these costs if they are

financially unable. Ingram, ¶ 15. The District Court’s order here was structured just like

the one we affirmed in Ingram, and it is easily distinguishable from the one in Mingus that

was issued unconditionally. Therefore, the sentence was legal, and the District Court did

not err in its order.

CONCLUSION

¶27 The fines, fees, and surcharges in the District Court’s sentence did not violate

federal law protecting social security income. The District Court acted legally and within

its discretion to condition payment of imprisonment, probation, and treatment costs on a

later determination of Yeaton’s ability to pay. The District Court also acted legally in

imposing the $5000 fine because it was mandatory. However, the District Court did not

make the requisite separate inquiry into Yeaton’s ability to pay the $560 in fees and

surcharges, and Yeaton sufficiently objected about his ability to afford them. We thus

reverse and remand on the $560 in fees and surcharges with instructions to conduct the

inquiry required by §§ 48-18-232 and -236(2), MCA.

¶28 Affirmed in part and reversed in part with remand for further proceedings.

/S/ MIKE McGRATH

We Concur:

11 /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶29 I concur with the Court’s analysis of Yeaton’s $560 in surcharges and fees under

Issue 2. However, I dissent as to its conclusions on Issue 1, Yeaton’s $5,000 fine under

Issue 2, and Issue 3. While I admire the Court’s attempt to clarify our jurisprudence in this

area of law, I disagree with its conclusions and analysis.

¶30 With respect to Issue 1, I would conclude the trial court’s imposition of a $5,000

fine under § 61-8-731(3), MCA, when Yeaton’s only source of income was protected

Social Security benefits, constituted an improper attempt to attach that benefit in violation

of § 42 U.S.C. 407(a). I take further issue with the Court’s continued failure to connect

the dots when a district court orders an indigent defendant whose only source of income

derives from Social Security benefits to pay fines, fees, and surcharges. When a defendant

has no assets, is disabled, and only receives a minimal amount of protected Social Security

benefits monthly, I believe an order requiring payment from the defendant constitutes, at

minimum, an indirect attempt to target those protected benefits.

¶31 In this instance, the District Court was aware of Yeaton’s indigent and disabled

status and lack of assets but nonetheless ordered him to pay all fines and fees on the basis

they were mandatory. I cannot interpret that as anything other than subjecting Yeaton and

others like him to the Sisyphean task of satisfying both their judicially imposed fines and

their basic human needs such as food and housing, all from a meager income. The Court’s

12 conclusion that the judgment is legal because the District Court failed to expressly mention

Yeaton’s Social Security benefits ignores this reality. Yeaton will remain unable to regain

his civil rights and the full benefits of citizenship of the State of Montana until the judgment

against him is satisfied. Given Yeaton’s age and disability status, it is unlikely he would

ever be successful at paying any large judgment against him. Inevitably, Yeaton would, at

some point, come between a rock and a hard place. Given the nature of the task, Yeaton

would be coerced into using his meager Social Security benefits to avoid revocation of

probation or satisfy the judgment, at the cost of other needs, or risk continuing to be seen

as less than a full citizen. In my opinion, this constitutes no real choice at all and serves

no legitimate rehabilitative purpose. Likewise, the Court’s position remains unsound. The

Court simultaneously recognizes Yeaton’s Social Security benefits may not be attached to

satisfy his judgment, but nonetheless affirms the imposition of the debt, fully aware that no

other assets exist for Yeaton to pay off the debt. I cannot agree with such an untenable

position.

¶32 I dissent on Issue 2 as to Yeaton’s $5,000 fine. First, the Court’s reliance on Mingus

proves ill-placed. Certainly, Mingus stands for the troubling proposition that statutorily

mandated fines do not require an ability-to-pay inquiry. However, I take greater issue with

the unnoticed distinction in the pertinent statutory section. Primarily, Mingus was

sentenced under a different subsection of § 61-8-731, MCA, that pertaining to fourth DUIs;

Yeaton was sentenced under the subsection pertaining to fifth or subsequent DUIs. Thus,

the relevant language of § 61-8-731, MCA, at the time Mingus was sentenced differs from

the statutory language relevant at Yeaton’s sentencing. At the time of sentencing in

13 Mingus, no argument existed that the fine at issue was discretionary. Mingus was

sentenced under § 61-8-731(1), MCA (2002), which provided a person shall be punished

in the following manner: (a) a sentence of 13 months at a correctional facility or program;

(b) a sentence of not more than five years with the Department of Corrections or

Montana State Prison; and (c) a fine of not less than $1,000 or more than $10,000.

Conversely, as discussed in ¶¶ 6-9, the language of § 61-8-731(3), MCA (2019), at the time

of Yeaton’s sentencing contained permissive, rather than mandatory, language.

Accordingly, I would not conclude Mingus, as it pertains to mandatory and discretionary

fines, makes anything clear in the instant case.

¶33 In addition to the ill-suited reliance on Mingus, the Court’s conclusion fails to fully

represent the record and cursorily dismisses Yeaton’s contention that the $5,000 fine was

discretionary. I believe Yeaton properly raised this argument below and would conclude

the fine was improper. At the hearing, defense counsel and the District Court engaged in

the following exchange regarding probation conditions:

[Defense counsel]: One of the things that Mr. Yeaton struggles with is obviously paying for things. His income is $550. So, obviously, all of the fines and fees I am asking to be waived. 13 B, C, D, E, F, G and H. He gets social security and cannot afford those.

. . .

Additionally, #28 [concerning costs of probation and imprisonment] I realize that it says ‘if financially able’ as a cost of probation to pay the cost of imprisonment, we would ask-he’s not financially able so we would ask that #28 be struck. . . .

[District Court]: When you started telling me subsections.

14 [Defense counsel]: B, C, D, E, F, G and H. We would ask that all of those be struck considering his income.

[District Court]: Now G is the mandatory fine?

[Defense counsel]: Yes, Your Honor, but I believe that the federal law overrides that requirement of that fine. So I don’t believe that Montana State can take his social security disability of $550 for that.

[District Court]: With respect to your position on 13G.

[Defense counsel]: Yes, Your Honor.

[District Court]: Has that been litigated anywhere?

[Defense counsel]: Um, yes, it has. I know State v. Eaton. . .

The Court adopts the State’s argument that, by citing federal law as the basis for the waiver

of the fine, Yeaton waived his argument that the fine was discretionary. I believe the

Court’s conclusion on this point contradicts itself and distorts the record. Based on the

foregoing exchange, the Court concludes that Yeaton waived his argument that the

mandatory fine was discretionary but, based on the sentence asking for “all of the fines and

fees” to be waived, preserved the argument that the fees and surcharges were discretionary.

Opinion, ¶¶ 15-16. I would not contort the record to reach such conflicting conclusions.

While Yeaton clearly acknowledged the fine was mandatory, that admission came in

response to the District Court’s question and after asking the District Court to waive all

fines on the basis that he would be unable to afford them. In my opinion, asking the

District Court to waive “all of the fines and fees” (emphasis added) cannot be construed as

anything other than asking the Court to do just that: exercise discretion and waive every

15 single fine and fee. As such, I would address Yeaton’s argument that the “mandatory” fine

was discretionary.

¶34 In interpreting statutes, this Court’s duty “is simply to ascertain and declare what is

in terms or in substance contained therein, not to insert what has been omitted or to omit

what has been inserted.” Section 1-2-101, MCA. We have previously declined to

“insert the disjunctive ‘or’ when the legislature chose to employ the conjunctive ‘and.’”

State v. Miller, 231 Mont. 497, 517, 757 P.2d 1275, 1288 (1988). We have also previously

noted “[i]n its common usage, ‘or’ connotes the disjunctive, and it is used to express an

alternative or give a choice of one among two or more things.” Meyer v. State Farm Mut.

Auto. Ins. Co., 2000 MT 323, ¶ 17, 303 Mont. 1, 15 P.3d 899 (citing Black’s Law

Dictionary (6th ed. 1990)).

¶35 In 2019,1 the version of § 61-8-731(3), MCA, applicable during Yeaton’s sentencing

hearing provided that a person shall be sentenced to “not less than 13 months or more than

5 years or be fined an amount of not less than $5,000 or more than $10,000, or both.”

(Emphasis added.) I see no reason to do the inverse and insert an “and” where the

legislature chose to employ “or.” See Miller, 231 Mont. at 517, 757 P.2d at 1288.

Moreover, and contrary to the State’s arguments, the statutory scheme set forth in

1 During the 2021 Legislative session, the Legislature amended § 61-8-731(3), MCA, to provide for punishment by “a fine of not less than $5,000 or more than $10,000 and by imprisonment in the state prison for a term of not more than 10 years.” 2021 Mont. Laws ch. 473, § 1 (emphasis added). I note, during testimony, proponents of the amendments testified “A lot of the people who are in this situation don’t have the financial ability to pay a lot of fines, and any imposition of a fine by a judge must first, um, requires a finding the person has the ability to pay.” House Judiciary Hearing Minutes in re HB 115 (Jan. 22, 2021) (11:10:57-11:11:10) (emphasis added). As relevant to Issue 3, proponents further stated, numerous times, the view that the Department of Corrections was depriving district court judges of their power. 16 § 61-8-731, MCA, indicates the Legislature proved capable of differentiating between

mandatory and permissive punishments.

¶36 The State’s contention that interpreting § 61-8-731, MCA, as discretionary would

lead to an absurd result by punishing fourth DUIs more severely than fifth DUIs falls flat.

Preliminarily, I note that such a scheme already existed at the time of Yeaton’s sentencing.

Section 61-8-731(1), MCA (2019), provided the following punishments for the first

through fourth DUI offenses:

(a)(i) being sentenced to the department of corrections for placement in an appropriate correctional facility or program for a term of not less than 13 months or more than 2 years. The court shall order that if the person successfully completes a residential alcohol treatment program approved by the department of corrections, the remainder of the sentence must be served on probation. The imposition or execution of the sentence may not be deferred or suspended, and the person is not eligible for parole.

(ii) being sentenced to either the department of corrections or the Montana state prison or Montana women’s prison for a term of not more than 5 years, all of which must be suspended, to run consecutively to the term imposed under subsection (1)(a); and

(iii) a fine in an amount of not less than $5,000 or more than $10,000; or

(b)(i) being sentenced to an appropriate treatment court program for a term of not more than 5 years, with required completion; and

(ii) a fine in an amount of not less than $5,000 or more than $10,000.

(Emphasis added.)

This statutory scheme, then, provided individuals charged with their first through fourth

DUI may be sentenced to up to two years at a community correctional facility, five years

with the Department of Corrections or state prison, and a fine. In my opinion, the language

of § 61-8-731(1), MCA (2019), additionally bolsters Yeaton’s argument that his fine

17 imposed under subsection (3) was discretionary. While it is true that we strive to avoid

absurd results, our “role is not to determine the prudence of a legislative decision . . . [i]t

is for the legislature to pass upon the wisdom of a statute.” Rohlfs v. Klemenhagen, LLC,

2009 MT 440, ¶ 20, 354 Mont. 133, 227 P.3d 42 (citations omitted). Nor does inartful

legislative drafting “excuse us from the responsibility of construing a statute as faithfully

as possible to its actual text.” In re N.A., 2021 MT 228, ¶ 13 n.1, 405 Mont. 277,

495 P.3d 45 (citations omitted). The Legislature has indeed acted to resolve this inartful

drafting. However, at the time Yeaton was sentenced, I see no logical construction of

§ 61-8-731(3), MCA (2019), supporting the contention that the fine was mandatory.

I would conclude the fine imposed on Yeaton was discretionary.

¶37 In cases involving discretionary fines, whenever a defendant is “found guilty of an

offense for which a felony penalty of imprisonment could be imposed, the sentencing judge

may, in lieu of or in addition to a sentence of imprisonment, impose a fine only in

accordance with subsection (3).” Section 46-18-231(1)(a), MCA; Mingus, ¶ 15 (emphasis

added). Subsection (3) provides a “sentencing judge may not sentence an offender to pay

a fine unless the offender is or will be able to pay the fine.” Section 46-18-231(3), MCA.

The sentencing judge is further required to consider the nature of the crime committed, the

financial resources of the offender, and the nature of the burden that payment of the fine

would impose. Section 46-18-231(3), MCA. That is exactly the case here. Yeaton was

charged with a felony under § 61-8-731, MCA. His sentence arose from

§ 61-8-731(3), MCA, which provided for a felony penalty of imprisonment in lieu of or in

addition to a fine. The Court notes the District Court’s failure to make a serious inquiry

18 into Yeaton’s ability to pay either the mandatory fine or the fees and surcharges. The

District Court failed to abide by the statutory requirements of § 46-18-231(3), MCA.

¶38 A final note on the Court’s conclusion that, even if Yeaton properly preserved his

argument the $5,000 fine was discretionary, such sentence would only be objectionable,

not illegal. The Court’s conclusion seems to assert that Yeaton could preserve the issue

only by objecting after the actual imposition of the sentence. Section 46-18-231(3), MCA,

neither provides nor implies any such restriction. Nor have we ever imposed such

restriction on that statute. Yeaton timely objected to his ability to pay any fine or fee on

the basis that he could not afford to pay. The District Court failed to consider his ability to

pay either the fine or the surcharges and fees. Accordingly, I would conclude Yeaton

properly objected, the $5,000 fine was discretionary, and the District Court improperly

failed to consider Yeaton’s ability to pay.

¶39 I find the Court’s conclusion as to issue 3 equally troubling. The Court concludes

the District Court’s order here is “just like the one we affirmed in Ingram.” This conclusion

parses Yeaton’s argument too finely, narrows the scope of Mingus, and fails to clarify the

conflicts between Mingus and Ingram. Straining to distinguish the instant case, the Court

appears to construe Yeaton’s argument as requiring the District Court to comment

expressly on the matter of his employability and no other aspect of his ability to pay.

(“Unlike in Daricek, the District Court did not opine on Yeaton’s employability. Yeaton

argues that without such a finding his costs should be remanded . . . In Ingram, we also

affirmed a sentencing order with this same language and no comment on

employability . . . .” Opinion, ¶¶ 25-26.) Yeaton makes no such argument. Instead, Yeaton

19 contends the District Court failed to inquire into any aspect of his ability to pay the costs

of treatment. The record supports Yeaton’s contention, and the plain holding of Mingus

did not require specific findings of the defendant’s future employability, but rather, an

inquiry into the defendant’s future ability to pay any costs of treatment. Mingus, ¶ 22.

¶40 I agree with the Court that clarity is needed in our precedent to guide Montana’s

trial courts when imposing financial conditions. The clarity I would offer, and which I

believe is constitutionally and statutorily required, is that a defendant’s indigency should

always be considered by the sentencing court when financial obligations are imposed as

part of a criminal sentence. It has become unnavigable for trial courts and litigants to parse

out distinctions this Court has iterated between mandatory fines, discretionary fines, fees,

surcharges, treatment and aftercare costs, counsel fees, and restitution. To add to the

confusion, this Court has nuanced the law regarding when an objection must be made, what

constitutes an objection and to which financial condition the defendant objected, which

financial condition is informed by an ability to pay analysis, and what entity bears the

responsibility of making such an assessment. It would seem to me that clarification might

look something like this: when a criminal defendant says to a court they have no money or

assets this is sufficient to invoke the court’s assessment of ability to pay. Relevant to the

issues here, our Mingus, Daricek, and Ingram progeny is very troubling.

¶41 This Court’s decision in Mingus held for the first time that § 46-18-231, MCA,

which requires a court to consider an offender’s ability to pay before imposing a fine, only

applied to discretionary, and not mandatory, fines. The Court arrived at this conclusion

without citing any precedent and despite no such limitation existing in the plain language

20 of the statute. However, because I would hold that Yeaton’s $5,000 fine was imposed

pursuant to a discretionary sentencing statute, it is unnecessary to address whether Yeaton’s

indigency should be considered in the context of a mandatory fine. Mingus, however,

should inform other aspects of this Court’s decision as it addressed several financial

conditions imposed in Mingus’s sentence. Here, Mingus’s express holding that a

“court must make specific findings to determine whether” a defendant is financially able

to pay the costs of imprisonment, probation, and alcohol treatment is instructive.

Mingus, ¶ 22. Moreover, we remanded in Mingus for the trial court, not the Department

of Corrections, to make the requisite findings regarding Mingus’s ability to pay for the

aftercare program. Mingus, ¶¶ 23-24.

¶42 In Daricek, this Court concluded that the responsibility for assessing ability to pay

treatment costs could be borne by the Department of Corrections. We held that §§ 53-1-501

and 53-1-502, MCA, properly deferred to the Department of Corrections responsibility for

assessing an offender’s ability to pay treatment costs. Daricek, ¶ 14. We attempted to

distinguish Mingus on the ground that the trial court in Daricek made specific findings

concerning Daricek’s ability to pay. Daricek, ¶¶ 17-18. We noted the district court’s

“specific finding . . . that Daricek likely would be able to work upon release from custody

. . . did not run afoul of Mingus.” Daricek, ¶ 17. We tenuously “threaded the needle” in

Daricek to avoid entanglement with Mingus, ultimately resting our conclusion on two

grounds: the district court’s compliance with the plain language of § 61-8-731(4)(b), MCA,

and the district court’s specific findings as required by Mingus. Daricek, ¶ 18. We noted

21 “Section 61-8-731(4)(b), MCA, requires no more than what the District Court did.”

Daricek, ¶ 18.

¶43 In Ingram, Ingram argued that Mingus should be overruled because a sentencing

court’s failure to consider an offender’s ability to pay a fine, regardless of whether it was

mandatory or discretionary, was unconstitutional. Ingram, ¶¶ 9-10. We declined to

address the issue, finding that it had not been preserved. Ingram, ¶ 10. Next, we turned to

whether the sentencing court should assess Ingram’s ability to pay treatment costs.

Ingram, ¶ 13. Inconsistent with Mingus, we held in Ingram that “it is the Department of

Corrections, not the sentencing court, which assesses the defendant’s ability to underwrite

the costs associated with his or her sentence.” Ingram, ¶ 15. The Ingram Court thus failed

to appreciate the nuances of Daricek and in doing so jettisoned Mingus’s requirement that

the sentencing court make specific findings of an offender’s ability to pay treatment costs.

Ingram failed to address the requirement in Mingus, arguably diluted subsequently in

Daricek, that the district court make a specific finding of the defendant’s ability to pay.

Instead, by eliding over this requirement, Ingram implicitly overruled Mingus by utilizing

only part of Daricek’s analysis and by relieving the sentencing court of any requirement to

assess ability to pay treatment costs. The Court builds on Ingram’s faulty reasoning and

implicit rejection of Mingus by clinging to the conditional language of the District Court’s

order and allowing the sentencing court to delegate its responsibility to assess ability to

pay treatment costs to the Department of Corrections.

¶44 In my opinion, allowing the Department of Corrections to assess completely the

ability of a defendant to pay treatment costs, without any finding by the District Court

22 concerning the defendant’s ability to pay, contradicts this Court’s longstanding precedent

and the State of Montana’s correctional and sentencing principles. “Sentencing and

punishment must be certain, timely, consistent, and understandable.” State v. Betterman,

2015 MT 39, ¶ 28, 378 Mont. 182, 342 P.3d 971 (quoting § 46-18-101(3)(a), MCA). Must,

of course, is “mandatory, rather than permissive.” Montco v. Simonich, 285 Mont. 280,

287, 947 P.2d 1047, 1051 (1997) (citations omitted). I believe deferring entirely to the

Department of Corrections to determine defendants’ ability to pay at some point in the

future creates a looming shadow of punishment and deprives defendants of the certainty

sentencing and punishment must provide. I would accept Yeaton’s call to reconsider

Ingram, Mingus and Daricek, and to clarify our precedent as it relates to the imposition of

financial obligations on an indigent defendant.

¶45 Turning now to the specifics of the Court’s analysis in the context of this troubling

trilogy, the Court concludes that Mingus is “easily distinguishable” on the basis that the

oral pronouncement of Mingus’s sentence unconditionally required Mingus to pay without

consideration of his financial ability. In my opinion, this tenuous and minor distinction

does not render Mingus’s analysis of ability to pay treatment costs wholly inapplicable, as

the Court concludes.2 Here, as in Mingus, the District Court was fully aware of Yeaton’s

financial status and lack of assets. Mingus, ¶ 21. Here, as in Mingus, the District Court

ordered Yeaton to pay the costs of treatment without making the requisite findings

regarding Yeaton’s ability to pay. Mingus, ¶¶ 7, 23. I see no meaningful reason Mingus,

2 Again, I agree with that part of Mingus that holds an indigent’s ability to pay treatment costs should be considered by the sentencing court. 23 as it pertains to treatment costs, should not apply; nor any reason not to accept Yeaton’s

call to address the inherent conflict between Mingus and Ingram and Daricek.

¶46 The Court’s continued inability to provide defendants a clear expectation of the

circumstances in which they can expect courts to consider their ability to pay

court-imposed fines and fees troubles me. I remain hopeful that one day this issue will

present itself in a manner more acceptable to the Court. In the meantime, I cannot say

perpetuating the cycle of poverty by allowing courts to wantonly impose exorbitant fees

on indigent defendants is ‘justice.’ For all of these reasons, I would readdress Ingram and

conclude Yeaton’s $5,000 fine and the imposition of costs of treatment and imprisonment

were improper. As I believe the $5,000 fine was discretionary under the statute, this case

is perhaps not the proper case to reconsider whether an ability to pay analysis is

constitutionally required for mandatory fines.

/S/ LAURIE McKINNON