State v. Laurie Corbino

2012 MT 174N

• Court: Montana Supreme Court
• Decided: August 10, 2012
• Docket: 11-0517
• Status: Published

Opinion

August 10 2012

DA 11-0517

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 174N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

LAURIE KAY CORBINO,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 10-105 Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant Attorney General, Helena, Montana

William F. Fulbright, Ravalli County Attorney, Hamilton, Montana

Submitted on Briefs: July 11, 2012 Decided: August 10, 2012

Filed:

__________________________________________ Clerk Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), 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 Laurie Kay Corbino (Corbino) appeals a judgment and commitment entered by the

Twenty-First Judicial District, Ravalli County. We affirm.

¶3 On February 16, 2011, Corbino entered into a plea agreement wherein she pled guilty

to felony burglary. Corbino admitted to entering the Lendmans’ residence and committing

theft by taking cosmetic items that belonged to them. In the presentence investigation report,

Mrs. Lendman submitted an affidavit of pecuniary loss wherein she listed as missing two

large bags of personal items and a large gold ring with opal, emeralds and diamonds.

Because the other items were recovered, the only restitution Mrs. Lendman requested was

$1,500 for the ring. Corbino admitted to taking the personal items, but denied taking the

ring.

¶4 At Corbino’s sentencing hearing, Mrs. Lendman testified that the ring was missing

and that law enforcement officers did not find the ring in two searches of Corbino’s

residence. Corbino testified and again denied taking any jewelry. The District Court

concluded that Mrs. Lendman “offered the most credible testimony regarding the loss of the

ring” and ordered restitution of $1,500 for the ring.

2 ¶5 The District Court also determined that “with no current resources, [the Defendant

does not have the] ability to pay for the type of programs that she needs if she were on

probation, including the [Cognitive Principles and Restructuring] program.” Defense

counsel objected to Corbino’s sentence on the grounds that she was being incarcerated based

on her inability to pay. The court denied Corbino’s objection because, even though Corbino

had a counselor for her drug and alcohol addictions, Corbino’s compulsive thievery was

different than addiction. Corbino appeals.

¶6 Corbino argues on appeal that a defendant is required to pay restitution for only that

property which formed the basis of her offense. State v. Beavers, 2000 MT 145, ¶ 11, 300

Mont. 49, 3 P.3d 614 (overruled on other grounds, State v. Herman, 2008 MT 187, n.1, 343

Mont. 494, 188 P.3d 978). Corbino argues further that she never admitted taking the ring,

was never found guilty of taking the ring, and never agreed to pay restitution for the ring,

therefore she is not liable for the value of the ring. See State v. Breeding, 2008 MT 162,

¶ 19, 343 Mont. 323, 184 P.3d 313. She also argues that her due process rights have been

violated because her sentence is based on her indigence. See State v. Pritchett, 2000 MT

261, ¶ 28, 302 Mont. 1, 11 P.3d 539. The State disagrees with Corbino.

¶7 We review a sentence that is eligible for sentence review for legality only. State v.

Gunderson, 2010 MT 166, ¶ 37, 357 Mont. 142, 237 P.3d 74. Our review for legality is

confined to ascertaining whether the sentencing court had statutory authority to impose the

sentence, whether the sentence falls within the parameters of the applicable sentencing

statutes, and whether the district court abided by the affirmative mandates of the applicable 3 sentencing statute. Breeding, ¶ 10. This determination is a question of law, and as such

review is de novo. Breeding, ¶ 10. Review of constitutional questions is plenary. Pritchett,

¶ 27.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. It is

manifest from the face of the briefs and the record before us that the District Court properly

applied the law to the facts of this case. The District Court’s restitution condition is legal,

and Corbino’s sentence does not violate her constitutional due process rights.

¶9 Affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ BRIAN MORRIS /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE