04/28/2020
DA 19-0118 Case Number: DA 19-0118
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 106N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LAWRENCE STEPHEN CHAIN,
Defendant and Appellant,
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-17-415D Honorable Dan Wilson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Attorney at Law, Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Hannah E. Tokerud, Assistant Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: January 15, 2020
Decided: April 28, 2020
Filed:
0,-_6..-if __________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. Its 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 In 2017, Lawrence Stephen Chain accidentally rear-ended another vehicle while
waiting in a fast food drive-through line with his young son buckled in his vehicle. Upon
a determination that his blood at the time included an illegal level of the active chemical
ingredient in marijuana (THC), Chain pled guilty under a plea agreement to criminal child
endangerment, a felony in violation of § 45-5-628, MCA. The District Court ultimately
imposed a three-year suspended commitment to the Montana Department of Corrections
(DOC) and a $30,000 fine, with various statutory fees and charges, payable in full within
one year. Chain appeals the $30,000 fine, and resulting $3,000 felony surcharge, on the
asserted grounds that the court erroneously failed to adequately consider his ability to pay
and that the fine was in any event disproportionate in violation of the excessive fines clause
of the Eighth Amendment to the United States Constitution. We affirm.
¶3 Upon Chain’s guilty plea, DOC conducted a presentence investigation and filed a
report (PSI) as required by § 46-18-111, MCA. Based on information provided by Chain,
the PSI reported that he had an annual income of $360,000 from his wildland firefighting
and woodstove businesses and that he had $1,009,000 in assets, including two boats and
two homes, with secured debts totaling $260,000. Inter alia, the PSI recommended a 2 $5,000 fine. However, citing Chain’s prior history of driving under the influence, a net
worth of almost $750,000, a gross annual income in excess of $350,000, and its conclusion
that he could “easily pay” a larger fine, the court instead imposed a $30,000 fine. Chain
did not contemporaneously object to the amount of the fine or the adequacy of the court’s
consideration of his ability to pay.
¶4 About two hours after the close of the sentencing hearing, defense counsel moved
the court to consider supplemental testimony from Chain’s wife regarding his ability to pay
the imposed fine and related charges. Subject to reservation about its authority to do so,
the court then heard the proffered supplemental testimony. Chain’s wife testified that she
handled their finances and that the $360,000 annual income figure listed in the PSI was
“not accurate” because it represented Chain’s 2017 “gross income,” rather than his net
income. Asserting that 2017 had been “a very atypical year” for his firefighting business,
she asserted that his typical gross income was closer to $80,000 per year. She testified
further that they had yet to determine their 2016 and 2017 income tax obligations, and thus
could not yet more accurately state Chain’s actual net income for those years. She further
claimed that Chain’s assets were encumbered by significantly more debt than reported in
the PSI and that their secondary residence was then listed for sale due to difficulty in
servicing their debt. Her testimony further revealed that they also owned a third, previously
undisclosed, boat purchased for $58,000 from Chain’s earnings. She testified that they
titled the third boat in her name for various reasons including, inter alia, the need to shield
it from Chain’s creditors and unspecified pending “legal things.” After hearing the 3 testimony, the court denied Chain’s motion to revise the original fine on the stated grounds
that it lacked the authority to subsequently amend the original sentence and that the wife’s
supplemental testimony was in any event not credible, if not deceptive.
¶5 We review criminal sentences only for constitutional and statutory legality (i.e.,
compliance with constitutional and statutory parameters and affirmative statutory
requirements). State v. Coleman, 2018 MT 290, ¶ 8, 393 Mont. 375, 431 P.3d 26; State v.
Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502; State v. Montoya, 1999 MT
180, ¶ 15, 295 Mont. 288, 983 P.2d 937. As a general rule, a defendant must
contemporaneously object to preserve assertions of sentencing illegality for appeal. State
v. Ashby, 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 (citing State v. Kotwicki, 2007
MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892). The failure to contemporaneously object
generally effects a waiver for purposes of subsequent appellate review.
Section 46-20-104(2), MCA; State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d
1244; Kotwicki, ¶ 22.
¶6 However, as a narrow, sentence-specific exception to the general contemporaneous
objection/waiver rule, we will review assertions raised for the first time on appeal that a
sentence is either facially illegal (i.e., not authorized by statute or in excess of statutory
authorization) or facially legal but authorized by a facially unconstitutional statute. State
v. Coleman, 2018 MT 290, ¶¶ 7-9, 393 Mont. 375, 431 P.3d 26; Parkhill, ¶ 16; Kotwicki,
¶ 8; State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 1000 (1979). By definition,
the Lenihan exception does not apply to sentences that that are not facially illegal, or 4 imposed pursuant to a facially unconstitutional statute, but alleged to be nonetheless illegal
due to failure to comply with affirmative statutory requirements or imposed pursuant to a
statute that is unconstitutional as applied. E.g., Coleman, ¶¶ 7-11 (Lenihan not applicable
to constitutional challenge to no-cell phone/internet access sex offense condition);
Parkhill, ¶ 16; (Lenihan not applicable to constitutional challenge to no-contact PFMA
condition); State v. Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638 (Lenihan
not applicable to facially legal restitution obligation challenged due to insufficient
documentation); State v. Strong, 2009 MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848
(Lenihan applicable to facial equal protection challenge of sentencing statute but not
as-applied challenge); Kotwicki, ¶¶ 8-22 (Lenihan not applicable to facially legal fine
challenged due to failure to adequately consider ability to pay—distinguishing State v.
McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126); State v. Nelson, 274 Mont. 11, 17-20,
906 P.2d 663
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04/28/2020
DA 19-0118 Case Number: DA 19-0118
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 106N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LAWRENCE STEPHEN CHAIN,
Defendant and Appellant,
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-17-415D Honorable Dan Wilson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Attorney at Law, Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Hannah E. Tokerud, Assistant Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: January 15, 2020
Decided: April 28, 2020
Filed:
0,-_6..-if __________________________________________ Clerk Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. Its 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 In 2017, Lawrence Stephen Chain accidentally rear-ended another vehicle while
waiting in a fast food drive-through line with his young son buckled in his vehicle. Upon
a determination that his blood at the time included an illegal level of the active chemical
ingredient in marijuana (THC), Chain pled guilty under a plea agreement to criminal child
endangerment, a felony in violation of § 45-5-628, MCA. The District Court ultimately
imposed a three-year suspended commitment to the Montana Department of Corrections
(DOC) and a $30,000 fine, with various statutory fees and charges, payable in full within
one year. Chain appeals the $30,000 fine, and resulting $3,000 felony surcharge, on the
asserted grounds that the court erroneously failed to adequately consider his ability to pay
and that the fine was in any event disproportionate in violation of the excessive fines clause
of the Eighth Amendment to the United States Constitution. We affirm.
¶3 Upon Chain’s guilty plea, DOC conducted a presentence investigation and filed a
report (PSI) as required by § 46-18-111, MCA. Based on information provided by Chain,
the PSI reported that he had an annual income of $360,000 from his wildland firefighting
and woodstove businesses and that he had $1,009,000 in assets, including two boats and
two homes, with secured debts totaling $260,000. Inter alia, the PSI recommended a 2 $5,000 fine. However, citing Chain’s prior history of driving under the influence, a net
worth of almost $750,000, a gross annual income in excess of $350,000, and its conclusion
that he could “easily pay” a larger fine, the court instead imposed a $30,000 fine. Chain
did not contemporaneously object to the amount of the fine or the adequacy of the court’s
consideration of his ability to pay.
¶4 About two hours after the close of the sentencing hearing, defense counsel moved
the court to consider supplemental testimony from Chain’s wife regarding his ability to pay
the imposed fine and related charges. Subject to reservation about its authority to do so,
the court then heard the proffered supplemental testimony. Chain’s wife testified that she
handled their finances and that the $360,000 annual income figure listed in the PSI was
“not accurate” because it represented Chain’s 2017 “gross income,” rather than his net
income. Asserting that 2017 had been “a very atypical year” for his firefighting business,
she asserted that his typical gross income was closer to $80,000 per year. She testified
further that they had yet to determine their 2016 and 2017 income tax obligations, and thus
could not yet more accurately state Chain’s actual net income for those years. She further
claimed that Chain’s assets were encumbered by significantly more debt than reported in
the PSI and that their secondary residence was then listed for sale due to difficulty in
servicing their debt. Her testimony further revealed that they also owned a third, previously
undisclosed, boat purchased for $58,000 from Chain’s earnings. She testified that they
titled the third boat in her name for various reasons including, inter alia, the need to shield
it from Chain’s creditors and unspecified pending “legal things.” After hearing the 3 testimony, the court denied Chain’s motion to revise the original fine on the stated grounds
that it lacked the authority to subsequently amend the original sentence and that the wife’s
supplemental testimony was in any event not credible, if not deceptive.
¶5 We review criminal sentences only for constitutional and statutory legality (i.e.,
compliance with constitutional and statutory parameters and affirmative statutory
requirements). State v. Coleman, 2018 MT 290, ¶ 8, 393 Mont. 375, 431 P.3d 26; State v.
Stephenson, 2008 MT 64, ¶ 15, 342 Mont. 60, 179 P.3d 502; State v. Montoya, 1999 MT
180, ¶ 15, 295 Mont. 288, 983 P.2d 937. As a general rule, a defendant must
contemporaneously object to preserve assertions of sentencing illegality for appeal. State
v. Ashby, 2008 MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 (citing State v. Kotwicki, 2007
MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892). The failure to contemporaneously object
generally effects a waiver for purposes of subsequent appellate review.
Section 46-20-104(2), MCA; State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d
1244; Kotwicki, ¶ 22.
¶6 However, as a narrow, sentence-specific exception to the general contemporaneous
objection/waiver rule, we will review assertions raised for the first time on appeal that a
sentence is either facially illegal (i.e., not authorized by statute or in excess of statutory
authorization) or facially legal but authorized by a facially unconstitutional statute. State
v. Coleman, 2018 MT 290, ¶¶ 7-9, 393 Mont. 375, 431 P.3d 26; Parkhill, ¶ 16; Kotwicki,
¶ 8; State v. Lenihan, 184 Mont. 338, 342-43, 602 P.2d 997, 1000 (1979). By definition,
the Lenihan exception does not apply to sentences that that are not facially illegal, or 4 imposed pursuant to a facially unconstitutional statute, but alleged to be nonetheless illegal
due to failure to comply with affirmative statutory requirements or imposed pursuant to a
statute that is unconstitutional as applied. E.g., Coleman, ¶¶ 7-11 (Lenihan not applicable
to constitutional challenge to no-cell phone/internet access sex offense condition);
Parkhill, ¶ 16; (Lenihan not applicable to constitutional challenge to no-contact PFMA
condition); State v. Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638 (Lenihan
not applicable to facially legal restitution obligation challenged due to insufficient
documentation); State v. Strong, 2009 MT 65, ¶¶ 7-16, 349 Mont. 417, 203 P.3d 848
(Lenihan applicable to facial equal protection challenge of sentencing statute but not
as-applied challenge); Kotwicki, ¶¶ 8-22 (Lenihan not applicable to facially legal fine
challenged due to failure to adequately consider ability to pay—distinguishing State v.
McLeod, 2002 MT 348, 313 Mont. 358, 61 P.3d 126); State v. Nelson, 274 Mont. 11, 17-20,
906 P.2d 663, 666-68 (1995) (Lenihan not applicable to facially legal sentence challenged
due to failure to properly consider non-violent offender status).1
¶7 The maximum penalty authorized for criminal child endangerment is 10 years in
prison, a $50,000 fine, or both. Section 45-5-628(3), MCA. However, a sentencing court
1 Distinct from the sentence-specific Lenihan exception, the common law plain error doctrine is a separate and generally applicable exception to the contemporaneous objection/waiver rule. See State v. Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612; State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968. We generally will not apply the plain error exception in the sentencing context in circumvention of the Lenihan exception. Coleman, ¶ 12; State v. Robertson, 2015 MT 266, ¶¶ 12-13, 381 Mont. 75, 364 P.3d 580; State v. Mainwaring, 2007 MT 14, ¶ 20, 335 Mont. 322, 151 P.3d 53. Chain did not seek plain error review here.
5 may not impose an otherwise authorized fine “unless the offender is or will be able to pay
the fine.” Section 46-18-231(1), (3), MCA. “In determining the amount and method of
payment” of a fine, the court “shall take into account the nature of the crime committed,
the financial resources of the offender, and the nature of the burden that payment of the
fine will impose.” Section 46-18-231(3), MCA. Upon conviction of a felony, sentencing
courts must additionally impose a surcharge of “the greater of $20 or 10% of the fine
levied” unless the offender is unable to pay, or unable to pay within a reasonable time,
upon consideration of the ability to pay as required under § 46-18-231(3), MCA.
Section 46-18-236(1)(b), (2), MCA.
¶8 Here, Chain did not contemporaneously object at the sentencing hearing to the
amount of the fine imposed or the adequacy of the court’s manifest consideration of his
ability to pay under § 46-18-231(3), MCA. The $30,000 fine, and resulting felony
surcharge, were expressly authorized by statute and neither exceeded statutorily authorized
amounts. As in Nelson and Kotwicki, rather than a facial challenge to the statutory legality
of his sentence, Chain’s assertion that the District Court failed to adequately consider his
ability to pay as required by §§ 46-18-231(3) and -236(2), MCA, is an indirect challenge
based on alleged non-compliance with a statutory prerequisite for the fine. Similarly, as in
Coleman and Parkhill, his assertion that the fine was in any event disproportionate in
violation of the Eighth Amendment to the United States Constitution is essentially an
as-applied constitutional challenge rather than a facial challenge to the authorizing statute.
Accordingly, we hold that the narrow Lenihan exception does not apply to Chain’s 6 assertions of sentencing illegality and that he thus waived them by failing to
contemporaneously object at the sentencing hearing. We therefore need not address his
secondary, unsupported assertion that the District Court erroneously concluded that it had
no authority to re-open sentencing to amend its original sentence.
¶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. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent.
¶10 We affirm.
/S/ DIRK M. SANDEFUR
We concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE