05/28/2024
DA 22-0476 Case Number: DA 22-0476
IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 114
STATE OF MONTANA,
Plaintiff and Appellee,
v.
NELDIA MARIE PUCCINELLI,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-11-90 Honorable Howard F. Recht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Charlotte Lawson, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bjorn E. Boyer, Assistant Attorney General, Helena, Montana
Bill Fulbright, Ravalli County Attorney, David Lakin, Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: May 1, 2024
Decided: May 28, 2024
Filed:
__________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Appellant Neldia Marie Puccinelli (Neldia) appeals from the August 25, 2022
Judgment on Revocation of Suspended Sentence issued by the Twenty-First Judicial
District Court, Ravalli County. Neldia asserts the District Court erred when it determined
she had not made a good faith effort to pay court-ordered restitution and revoked her
suspended sentence, when it failed to waive or modify her restitution, and when it failed to
give her credit for elapsed time against the new sentence imposed. Contrarily, the State
asserts the District Court made no error.
¶2 We restate the issue on appeal as follows:
Whether the District Court abused its discretion when it revoked Appellant’s suspended sentence based on her alleged failure to pay full restitution.
We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Neldia worked for ProMark in Florence from 2006-09. Her employment was
terminated when it was discovered she had taken funds from the company through payroll
and company checks and also had inappropriately used the company credit/debit card for
personal expenditures. ProMark filed a civil suit—ProMark, Inc. v. Neldia Puccinelli, No.
DV 09-328, Twenty-First Judicial District Court, Ravalli County—against Neldia seeking
damages in the amount taken by Neldia from ProMark together with costs of suit and other
relief the court deems just and proper. On December 9, 2009, Neldia and ProMark entered
into a Settlement Agreement “to fully, finally and forever settle and resolve all claims for
relief, causes of action, claims for injuries and damages, and any other issues or matters
2 related to or stemming from the facts, circumstances and allegations that form the basis for
this lawsuit[.]” Pursuant to the Settlement Agreement, Neldia was to transfer to ProMark
all right, title and interest to specific items of personal property listed in the agreement and
then make 84 monthly payments of $350 to ProMark commencing May 5, 2010. Neldia
transferred all the items of personal property delineated in the Settlement Agreement to
ProMark, commenced making the $350 per month payments on May 5, 2010, and
continued to make monthly payments thereafter. On January 4, 2010, the civil case was
dismissed as fully settled with prejudice.
¶4 Nineteen months after the civil case was dismissed as settled, on August 9, 2011,
the State filed an Information charging Neldia with three counts of theft by embezzlement
totaling approximately $30,000—alleging in Count 1 that she diverted approximately
$18,000 from ProMark to her personal accounts through the company’s payroll, in Count 2
that she diverted approximately $6,400 from ProMark to her personal accounts through the
company’s checks, and in Count 3 that she diverted approximately $5,600 from ProMark
to her personal accounts through the company’s credit/debit card. At the time the criminal
case was filed, Neldia had transferred all of the personal property set forth in the Settlement
Agreement to ProMark and had consistently made monthly payments of $350 to
ProMark—totaling $5,250.
¶5 On April 4, 2012, Neldia entered into a Plea Agreement with the State. That
agreement provided the State would file an Amended Information consolidating the
previously filed three counts into one count of theft by embezzlement and Neldia would
3 then enter a guilty or no contest plea to the charge. The parties would jointly recommend
the court impose a fully suspended DOC commitment and “that the [c]ourt set the amount
of restitution consistent with the Settlement Agreement entered into in Promark, Inc v.
Neldia Puccinelli, Cause No DV-09-328, filed in this [c]ourt, payable as required in that
agreement” and further “to be paid by laws of civil agreement.” On April 4, 2012, the State
filed an Amended Information charging Neldia with one count of theft by embezzlement
alleging Neldia diverted “more than $30,000.00 of her employer’s funds to her personal
accounts by use of the company’s payroll, checks and credit/debit cards[.]” Neldia then
entered a guilty plea to the single charge in the Amended Information.
¶6 On June 6, 2012, Neldia appeared for sentencing. Both parties recommended the
court impose a fully suspended DOC commitment to provide Neldia time to pay restitution.
At that time, Neldia was current on her monthly restitution payments of $350 and had
already paid $9,100 to ProMark toward the $29,400 to be paid pursuant to the Settlement
Agreement. Despite this, the original sentencing court speculated, “the [c]ourt has a strong
suspicion that the Defendant will stop paying restitution if given a probationary sentence
as recommended by the parties” and that upon her doing so, the court would not be able to
revoke her probationary sentence for nonpayment as her only source of income was from
Social Security disability. Based on this speculation, the court rejected the plea agreement
and imposed a 10-year commitment to the Montana Women’s Prison, with 5 years
suspended and Neldia was taken into custody. As Neldia’s sole source of income, her
Social Security disability payments, ceased during her incarceration, this sentence virtually
4 guaranteed Neldia would not be able to continue to make the $350 per month restitution
payments she had consistently been making. The court also ordered Neldia to pay
$67,235—over $37,000 more than the loss claimed in the Amended Information and the
amount settled for in the civil action—in restitution and ordered that she “continue to make
monthly restitution payments until [she] has paid full restitution, even after incarceration
or supervision has ended[.]”
¶7 While incarcerated, Neldia’s disability payments were suspended and her financial
situation deteriorated. Her husband, a disabled veteran, was left to pay all the household
expenses, including their mortgage, without any financial assistance from Neldia. Neldia
was paroled on July 31, 2014, and discharged her prison sentence and began serving the
suspended portion of her sentence on May 13, 2017. During her incarceration, the DOC
took a portion of her inmate account and applied it towards restitution. Upon release,
Neldia resumed making regular payments towards restitution, albeit not at the level she
previously had as Neldia and her husband struggled to regain financial stability related to
her suspension of income while incarcerated.
¶8 Upon her release, Probation & Parole (P & P) did not review Neldia’s financial
condition with her and did not set or recommend any particular monthly restitution amount.
Neldia submitted monthly payments and P & P accepted those payments. At no time prior
to P & P seeking revocation was Neldia cautioned or warned that her restitution payments
were insufficient, that P & P considered her to be in violation of the conditions of her
probation, or that she could face revocation for failing to pay more in restitution. While P
5 & P is required to utilize the Montana incentives and interventions grid (MIIG) to guide
responses to negative behavior by individuals under supervision, “including responses to
violations of supervision conditions, in a swift, certain, and proportional manner,” § 46-23-
1028(1), MCA, no response was made by Neldia’s probation officer under the MIIG and
no assistance was provided to Neldia during her probation with regard to her financial
condition and appropriate management thereof to meet P & P’s expectations of her with
regard to restitution.
¶9 On January 14, 2022, five months before Neldia was set to discharge her probation,
the State filed a Petition for Revocation of Suspended Sentence report of violation alleging
Neldia violated the restitution conditions of her sentence. The Affidavit in Support of
petition for Revocation of Order Suspending asserted a “Compliance Violation” and
provided a “Brief summary” of the violation:
This is a unique situation where no intervention was appropriate.
The Defendant has had no violations of her [c]ourt conditions during her time on supervision, either as a parolee, or a probationer, other than failing to pay the balance of her restitution. She has never failed a drug or alcohol test and reports reliably for supervision. She is retired and has some ongoing health issues.
Her supervising officer further recommended that DOC supervision “is of little purpose at
this point.”
¶10 On January 27, 2022, the District Court ordered the Office of Public Defender to
assign Neldia counsel. On February 3, 2022, Neldia’s counsel noticed her appearance and
filed a request for discovery. On March 16, 2022, Neldia filed a motion for modification
6 of restitution pursuant to § 46-18-246, MCA. In this motion, Neldia sought reduction or,
alternatively, waiver of the remaining balance of her restitution. She asserted that, at the
time of sentencing, the State inaccurately presented to the court that $67,234.63 was still
owing in restitution and further she had not received credit for the $9,100 she had paid
prior to that time nor had she received credit for the value of the personal property she
previously transferred to ProMark pursuant to the Settlement Agreement. She noted that
since sentencing she had made nearly another $8,000 in restitution payments. She further
averred she was 69 years old, in poor health, and had no substantial assets such that it
would be just for the court to waive the remaining restitution.
¶11 On May 3, 2022, the court held an adjudication hearing. At the outset of the hearing,
Neldia’s counsel reminded the court of Neldia’s outstanding motion to modify or waive
the restitution. The court agreed Neldia should present all of her evidence regarding her
motion at the same time as the adjudicatory hearing, reasoning that if the court concluded
there was no violation, there was no disposition to worry about, and otherwise the evidence
would be available for consideration. At the adjudicatory hearing, Neldia’s probation
officer, Nate Martin, testified, “[h]er supervision has been without trouble. I mean, the
only note I found was a missed appointment in 2014. Otherwise, her super -- she’s always
on time. She’s made regular payments. She appears and answers questions, and her home
visits have been without issue.” He acknowledged that throughout her entire probationary
time Neldia had made consistent, monthly payments towards restitution and that she had
“[a]bsolutely” been an “exemplary probationer” prompting him to comment, “[t]hat’s
7 remarkable, from my perspective.” He acknowledged DOC had not credited Neldia with
any of the payments she made to ProMark prior to her sentencing. He admitted that
although he was required to make sure she made regular payments to her ability, he had
never asked her for financial documents or discussed her financial situation with her other
than discussing “her restitution fairly early on in her supervision and that it was unlikely
that at the rate she was paying it that she would have it paid off by the time her supervision
ended.”
¶12 Merritt Rogers, who previously owned ProMark with her late husband, testified at
the adjudication hearing. She acknowledged that ProMark sued Neldia civilly and entered
into a Settlement Agreement. Although she had some quibble with the value of the
personal property Neldia transferred to ProMark, she acknowledged signing the Settlement
Agreement and the items of personal property set forth in the Settlement Agreement had
been transferred from Neldia to ProMark. Further, she generally confirmed Neldia had
made regular payments of $350 per month in restitution as required by the Settlement
Agreement until Neldia’s incarceration. Ms. Rogers also testified that she sold ProMark’s
assets and ProMark is no longer in business.
¶13 Neldia testified that her current sole source of income is $1,800 per month in Social
Security retirement benefits—having transitioned from receiving disability benefits when
she turned 65. She has no retirement or other savings account. She testified to being 69
years old and having health problems including anxiety, depression, lupus, and heel spurs.
She related a history of a suicide attempt and that she still fights with suicidal ideation. She
8 outlined she spends her retirement benefits on her monthly expenses which include:
$200-$250 in utilities; $148 in Medicare insurance; $250-300 for a loan on her septic
system (with an interest rate of 35% due to her poor credit history and inability to borrow
other funds); $300 in groceries; $140 for trash; $28 for her cell phone; $50-$100 per month
in restitution; and $500 for her vehicle (which she purchased to replace her prior
non-functional vehicle) which she intends to keep the remainder of her life. She testified
that her husband is a disabled veteran. She and her husband own a home they purchased
twenty years prior but there was no equity in the home as they had refinanced several times.
Her husband pays most all of the mortgage and property taxes. She related their home had
gone into foreclosure during the last year, but they had been able to make a payment
agreement with the lender to keep the home. She testified she has historically made
restitution payments as she was financially able to do. She believed that once her septic
system loan was paid in six to eight months, she would have more money available to pay
restitution but currently and in the past has financially been unable to pay more in
restitution than she has paid. She testified that as per the civil Settlement Agreement, the
total value of property she agreed to transfer and did transfer to ProMark was $35,792 and
that she was current on the $350 monthly payments up to the date she went to prison. She
related that at sentencing the court did not take into account any of the transfer of personal
property or payments she had made when it imposed restitution. After her original
sentencing, she attempted to get credit for such through the DOC who originally advised
her to send them information and they would take care of it. She provided them the
9 information as to the personal property transfer and payments made, but they then
responded there was nothing they could do. She attempted to appeal but her appeal was
denied as untimely. She then sought help from the public defender’s office but as she had
no active case, she was declined assistance. When she obtained current counsel after the
revocation petition was filed against her, counsel filed the motion seeking to modify or
waive her remaining restitution obligation.
¶14 At the conclusion of Neldia’s testimony, the District Court determined Neldia had
violated the terms and conditions of her suspended sentence as she had not “completely
paid restitution.” The court further proclaimed:
The [c]ourt finds that by the Defendant’s own admission she has the ability to make at least some payments. She testified that her budget includes the payments that she has been making per month, and that she has the ability to continue to make those payments and anticipates being able to make additional payments or payments of an additional value in the future, but at the present, her testimony is that she can make at least the payments that she has been making.
After this pronouncement Neldia’s counsel pointed out to the court its obligation to make
a finding as to whether Neldia had made a good faith effort to make payments on her
restitution prior to revoking the suspended portion of her sentence. Counsel also expressed
confusion as to what the court was intending to do with Neldia’s pending motion to modify
or waive restitution. The court responded,
Well, I intended to deal with that at the disposition. Frankly, I find it a bit too late. I mean, at this particular point in time to ask the [c]ourt to modify the restitution amount that was set forth in a Judgment that was imposed back in, what, 2012, yeah, I’m not inclined to do that. I do understand the argument that your client is making that she has done her best, basically made
10 a good faith effort. So I will, again, deal with those issues, but it sounds like we can deal with this all on a law and motion setting.
¶15 After a brief initial dispositional hearing on June 1, 2022, the District Court
requested the parties brief the issue of street time credit. In its June 9, 2022 memorandum
regarding street time credit, the State acknowledged Neldia had already paid $23,059.42 in
restitution1 and argued the testimony of Probation Officer Martin and Neldia’s payment
history to DOC provided substantial evidence Neldia had not made a good faith effort to
pay restitution. The State faulted Neldia for prioritizing other payments, such as her
vehicle payment, over restitution payments and relied on State v. Johnson, 2018 MT 277,
393 Mont. 320, 430 P.3d 494, in support of its arguments.
¶16 In her June 10, 2022 Brief in Support of Street Time Credit, Neldia asserted she
should receive full credit for five years of street time toward any re-imposition of sentence.
Citing §§ 46-18-247(2) and 46-18-203(6)(b), MCA (2017) and State v. Corriher, 2021 MT
275, ¶ 10, 406 Mont. 120, 497 P.3d 579, Neldia asserted the court may not revoke a
suspended sentence for failing to pay restitution if the default is not attributable to a lack
of good faith effort to obtain and pay the restitution. Pursuant to § 46-18-203(6)(b), MCA,
“when a failure to pay restitution is the basis for the [revocation] petition, the offender may
excuse the violation by showing sufficient evidence that the failure to pay restitution was
not attributable to a failure on the offender’s part to make a good faith effort to obtain
1 Despite this acknowledgement and despite the court-ordered condition that required her to perform the terms of the civil Settlement Agreement, DOC has never credited Neldia for the personal property items and monthly cash payments she made to ProMark prior to sentencing. As such, the District Court was mistakenly led to believe Neldia continued to owe nearly $66,000 in restitution. 11 sufficient means to make the restitution payments as ordered.” Neldia noted the State’s
acknowledgment she had paid $23,059.42 in restitution, which did not include the $9,100
she made in monthly payments prior to her incarceration nor the transfer of personal
property made pursuant to the civil Settlement Agreement. Neldia again asserted her
alleged failure to pay restitution in full was a single compliance violation, requiring
intervention under the MIIG before revocation of her suspended sentence pursuant to
§ 46-18-203(8), MCA, and also asserting entitlement to street time credit pursuant to
§ 46-18-203(7)(b), MCA. Neldia argued that P & P did not provide her any assistance or
guidance about the monthly restitution amount it was seeking nor inquire into her budget
or ability to pay and that it was clear from their actions P & P believed her to be in
compliance with the restitution order by allowing and accepting the monthly payments she
made without intervention.
¶17 The District Court reconvened the dispositional hearing on June 29, 2022. At the
outset of the hearing, Neldia’s counsel advised the court she believed the violation to be a
compliance violation such that Neldia was entitled to credit for street time and also that
since ProMark had been dissolved, there was no longer a victim and there was no order
amending the judgment requiring payment to an individual. The court then agreed with
defense counsel stating, “I think this is a compliance violation.” The court went on to find
that Neldia had “the ability to make the same and greater restitution payments that she has
been making in the past, by her own admission[.]” The court then iterated, “the [c]ourt
will revoke the suspended sentence and continue the suspended sentence without change
12 under 46-18-203(7)(a)(1)(i).” When defense counsel questioned as to whether the court
was giving credit for street time, the court responded, “I have recognized that it’s a
compliance violation and I have continued the sentence without change, and I think that’s
the extent of what I need to do.” This prompted the prosecutor to inquire as to whether the
court was reimposing a five-year sentence to begin anew or continuing her on the
probationary sentence she was serving, which the prosecutor noted would now have
expired as of May 13. The prosecutor advised the court she believed under § 46-18-203(7),
MCA—which deals with non-compliance violations—the court could essentially re-begin
another five-year suspended sentence. Defense counsel reiterated she believed the
violation to be a compliance violation to which the court again agreed, “[s]o I have found
that it’s a compliance violation. I think that’s pretty clear.” To which, defense counsel
again asserted the court must consider her entitlement to street time credit. The prosecutor
then brought up the possibility of transferring the criminal restitution to a civil judgment
which the court asserted would be simpler. Ultimately, the dispositional hearing was
continued to permit the parties to confer to determine if they desired to go the civil route
or make their arguments as to street time credit.
¶18 On July 20, 2022, the court reconvened the dispositional hearing. The court noted
briefing had been filed by both parties. The court did not invite either party to speak further
and, contrary to its prior holding, proclaimed, “[t]he violation of failing to pay restitution
is not a compliance violation. I find that the Defendant is not entitled to street-time credit.”
The court then iterated if Neldia was entitled to street time credit, she would basically not
13 have to pay the entire restitution ordered. As such, citing § 46-18-203(7)(a)(iii), MCA, the
court revoked her suspended sentence and committed her to the DOC for five years, all
suspended, with “the same conditions and restitution requirements as was in the original
Judgment with no credit for street time.” Neldia appeals.
STANDARD OF REVIEW ¶19 We review a district court’s decision to revoke a suspended sentence to determine
whether the court abused its discretion. State v. Jardee, 2020 MT 81, ¶ 5, 399 Mont. 459,
461 P.3d 108. Revocation decisions involve both legal and factual findings, and we review
a district court’s legal findings de novo and its factual findings for clear error. Jardee, ¶ 5.
“A district court’s factual findings are clearly erroneous if they are not supported by
substantial credible evidence, if the court misapprehended the effect of the evidence, or if
a review of the record leaves this Court with the definite firm conviction that a mistake has
been made.” Johnson, ¶ 10. “Finally, ‘the interpretation and construction of a statute is a
matter of law and we review whether the district court interpreted and applied a statute
correctly de novo.’” Jardee, ¶ 5 (quoting State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont.
383, 195 P.3d 819).
DISCUSSION
¶20 Whether the District Court abused its discretion when it revoked Appellant’s suspended sentence based on her alleged failure to pay full restitution.
¶21 Neldia asserts the State presented insufficient evidence to carry its burden of proof
that Neldia violated the restitution condition of her suspended sentence which required she
pay restitution “in a timely manner” rather than setting forth a specific payment in full 14 deadline. Neldia further asserts, as provided in § 46-18-203(6)(b), MCA, that even if the
restitution condition could be interpreted to require full restitution payment before sentence
discharge, Neldia excused the violation by showing her failure was not attributable to a
failure on her part to make a good faith effort to make the restitution as ordered.
¶22 The State contrarily asserts a single violation is sufficient to support revocation,
citing § 46-18-247(1), MCA, and asserting “[a] failure to pay restitution as ordered by the
district court is sufficient grounds to revoke an offender’s sentence.” The State also asserts
the Judgment required Neldia to perform the terms of the civil Settlement Agreement which
she did not do, thus warranting her revocation. Finally, the State relies on Johnson as
supporting revocation of Neldia’s suspended sentence and re-imposition of a new
suspended sentence.
¶23 Condition 2. (n) of the June 21, 2012 Judgment and Commitment required Neldia
to pay restitution in a timely manner. It also required Neldia’s supervising officer to
“determine the amount of payments” and that she “will continue to make monthly
restitution payments until he/she has paid full restitution, even after incarceration or
supervision has ended[.]” Condition 2. (mm) also required her to perform the terms of the
civil Settlement Agreement.
¶24 Pursuant to § 46-18-247, MCA, if an offender is in default of restitution, the court
may require the offender to appear and show cause why the offender should not be confined
for failure to obey the sentence. Pursuant to § 46-18-203(6)(b), MCA, when failure to pay
restitution is the basis for the revocation petition, “the offender may excuse the violation
15 by showing sufficient evidence that the failure to pay restitution was not attributable to a
failure on the offender’s part to make a good faith effort to obtain sufficient means to make
the restitution payments as ordered.”
¶25 When seeking revocation of a suspended sentence, different outcomes are provided
statutorily depending on whether the offender’s violation is a noncompliance violation or
a compliance violation. Pursuant to § 46-18-203(7), MCA, if the court finds the offender
has violated the terms and conditions of a suspended sentence and that the violation is a
noncompliance violation, the court may revoke the suspended sentence and impose any
new sentence that does not include a longer imprisonment or commitment term than the
original sentence. Under this instance, if a suspended sentence is revoked, “the judge shall
consider any elapsed time, consult the records and recollections of the probation and parole
officer, and allow all the elapsed time served without any record or recollection of
violations as a credit against the sentence.” Section 46-18-203(7)(b), MCA.
¶26 Pursuant to § 46-18-203(8), MCA, if the court finds the offender has violated the
terms and conditions of a suspended sentence and that the violation is a compliance
violation, the court is then required to determine whether the appropriate violation
responses under the incentives and interventions grid have been “exhausted and
documented in the offender’s file” and, if not, “notify the [DOC] and refer the matter back
to the hearings officer.” Section 46-18-203(8)(c), MCA, provides a court may sentence an
offender for a compliance violation as if it were a noncompliance violation under § 46-18-
203(7), MCA, if the court determines “the offender’s conduct indicates that the offender
16 will not be responsive to further efforts under the incentives and interventions grid[.]” The
MIIG in place at the time the petition for revocation was filed against Neldia provided for
graduated interventions in response to an offender’s “[f]ailure to pay restitution, when
ability to pay is demonstrated.” Montana Incentives/Intervention Grid for Adult Probation
& Parole, Department of Corrections Probation & Parole Division Operational Procedure,
Procedure No. PPD 6.3 101(A) (DOC June 17, 2019).
¶27 We recognize Neldia’s chance for successful payment of the full restitution ordered
was diminished at the time Neldia was originally sentenced when the court anticipated that,
despite Neldia’s over 2-year history of successfully making restitution payments pursuant
to the civil Settlement Agreement, she would stop making restitution payments if given a
fully suspended sentence. Thus, in response to this anticipatory breach, the court rejected
a fully suspended sentence—which would have provided Neldia ten years of supervised
time to pay the restitution and would not have resulted in suspension of her disability
benefits—and instead imposed five years of unsuspended prison time, followed by five
years of suspended time. Neldia’s incarceration resulted in her disability income being
suspended while she was incarcerated which snowballed into financial instability for her
household as her husband’s income alone was insufficient to meet their mortgage, property
tax, and other household expenses.
¶28 Upon release, Neldia’s supervising officer did not specifically determine the amount
of Neldia’s restitution payments, did not consult with her about her finances, and other than
discuss that he did not expect she would pay off the restitution prior to expiration of her
17 sentence, and did not advise her of his expectations related to restitution. Throughout her
entire probationary period, Neldia’s supervising officer did not assist her in budgeting or
decision-making regarding her finances, did not advise or notify her that he considered her
in default of her restitution or in violation of her probation, and did not counsel her that he
intended to seek revocation of her suspended sentence should she not make full restitution
by the time her sentence was set to expire. In fact, the only discussion they did have about
her payment of restitution was that he did not expect she could pay it in full before her
sentence expired. Neldia was led to believe she was satisfactorily meeting the requirements
of her probation.
¶29 Upon proceeding to a revocation hearing, it was incumbent on the District Court to
first determine whether the alleged violation was a compliance or non-compliance
violation. In making this determination the District Court twice determined that Neldia’s
violation was a compliance violation—declaring “I think this is a compliance violation”
and again reiterating, “I have found that it’s a compliance violation. I think that’s pretty
clear”—and then contrarily determined it was not a compliance violation—“[t]he violation
of failing to pay restitution is not a compliance violation.” Neldia’s supervising officer in
his affidavit clearly indicated the alleged violation to be a compliance violation. As
previously noted, the MIIG contemplates failure to pay court-ordered financial obligations,
including restitution when ability to pay is demonstrated, as a compliance violation subject
to graduated interventions as provided in the MIIG. Montana Incentives/Intervention Grid
for Adult Probation & Parole, Department of Corrections Probation & Parole Division
18 Operational Procedure, Procedure No. PPD 6.3 101(A) (DOC June 17, 2019). There was
no evidence presented, or really any allegation, that the alleged violation was anything
other than a compliance violation.2 Thus, the District Court’s determination that it was a
noncompliance violation is not supported and was error.
¶30 As the asserted violation was a compliance violation, the options available to the
court upon revocation are provided for in § 46-18-203(8), MCA. Under § 46-18-203(8)(a),
MCA, when the violation is a compliance violation, the court must determine whether the
appropriate violation responses under the MIIG have been exhausted and documented in
the offender’s file and, if not, notify DOC and refer the matter back to the hearings officer.
If, however, the court determines that based on the offender’s conduct, the offender will
not be responsive to further efforts under the MIIG, the judge may sentence the offender
as if the violation was a noncompliance violation under § 46-18-203(7), MCA. Under this
option, the court must then give the offender credit for all of the elapsed time served
2 PPD 6.3.101 Montana Incentives/Interventions Grid for Probation and Parole, DOC Probation and Parole Operational Procedures, defines a “Non-Compliance Violation” as:
A violation of the conditions of supervision that is: • a new criminal offense; - as interpreted by the Department’s Legal Office and for the purposes of this procedure, an initial appearance and court advisement for a new criminal offense is sufficient evidence of a violation of the conditions of supervision; - an interstate offender must be convicted of the new crime. • possession of a firearm in violation of a condition of supervision; • behavior by the offender or any person acting at the offender’s direction that could be considered stalking, harassing, or threatening the victim of the offense or a member of the victim’s immediate family or support network; • absconding; or • failure to enroll in or complete a required sex offender treatment program or a treatment program designed to treat violent offenders. 19 without any recollection or record of violations as a credit against the sentence. Section
46-18-203(7)(b), MCA. The court must also determine whether the violation should be
excused as the offender made a sufficient good faith effort to pay the restitution—“that the
failure to pay the restitution was not attributable to a failure on the offender’s part to make
a good faith effort to obtain sufficient means to make the restitution payments as ordered.”
Section 46-18-203(6)(b), MCA. The State asserts Johnson is controlling in this regard.
¶31 In 2008, Johnson was charged with five counts of felony theft, three counts of felony
exploitation of an older person, two misdemeanor counts of theft and one misdemeanor
count of exploitation of an older person. The State alleged Johnson defrauded elderly
clients while selling insurance and annuities. Johnson pled guilty to two felony counts of
theft and his sentence was deferred for a period of six years on various conditions, including
that he pay $87,339.50 in restitution. Shortly before his deferral period was set to expire,
the State brought a revocation action asserting Johnson failed to make a good faith effort
to pay restitution. At the time of the petition for revocation, Johnson had paid a total of
$3,799 (4.3%) of the restitution ordered and had not made a restitution payment in seven
months. Johnson, ¶¶ 3-5. At the revocation hearing, three supervising officers testified
that Johnson’s lack of effort and interest in working lower paying jobs kept him from steady
employment. He worked a total of only 14-16 months across three different jobs during
the nearly 6-year deferral period. He quit jobs and was fired from others. He failed to
inform DOC of all his sources of income including inheritance and commissions from prior
sales. He also made payments of $100 per month toward his daughter’s student loan,
20 although he acknowledged she had the ability to make the payments herself. All three
supervising officers testified Johnson had not made a good faith effort to pay the restitution
ordered. Johnson, ¶ 6.
¶32 Given the very divergent facts here to those in Johnson, we do not find Johnson to
be controlling. Johnson, unlike Neldia, had a college education, was not disabled, had
undisclosed sources of income, and throughout his deferral period made payments on his
daughter’s student loan when she had the financial ability to make the payments. One of
his supervising officers testified she felt like she worked harder than Johnson did to keep
him on track. Johnson failed to make any restitution payment in the seven months prior to
filing the revocation petition. See Johnson, ¶¶ 5-8. Here, Neldia fully disclosed her sole
source of income—Social Security disability transitioning to Social Security retirement at
age 65—and no evidence was presented that she had the ability to work or receive
additional income. She received no inheritance. She disclosed all of her income. She did
not make installment payments on a family member’s debts. Her supervising officer did
not testify that she lacked effort and interest in working but instead recognized she had
health problems. Her supervising officer did not testify Neldia did not make a good faith
effort to pay her restitution, but instead testified that had she not made restitution efforts,
he would not have characterized her performance on supervision as exemplary. During
her suspended period, Neldia made consistent restitution payments, had no significant
break in payments, and there is no evidence she paid anyone else’s expenses. Finally,
21 Johnson predated the statutory requirement to develop and implement the MIIG such that
imposition of graduated interventions was not required at the time of Johnson.
¶33 At the adjudication and initial disposition hearings, the District Court seemed to
accept that Neldia had made good faith efforts to pay restitution noting she had made
restitution payments consistent with her financial ability to do so and noting she would
continue to have the ability to continue to make the same and, after payment of the loan for
her septic system, make greater restitution payments. Despite this, at the final dispositional
hearing, without explanation, the District Court pronounced Neldia did not make a good
faith effort to pay restitution.
¶34 From our review of the record, at hearing the State did present evidence that Neldia
did not pay her restitution in full as ordered, but presented no evidence Neldia had the
financial ability to pay the restitution in full or that she did not make a good faith effort to
pay restitution throughout her probationary period. Neldia provided uncontested evidence
of her dire financial situation which was made worse by her initial incarceration. Although
the State took issue with some of Neldia’s financial choices—such as her purchase of a
vehicle with a monthly payment of $500—it did not present evidence as to what a
reasonable monthly vehicle expense would be for an individual with poor credit and it did
not present evidence to overcome Neldia’s uncontested evidence that her failure to make
full restitution was not based on a lack of good faith effort to do so, but rather on her
financial inability to pay. Neldia’s supervising officer was aware of her restitution
obligation and discussed with her he did not believe she would be able to pay the restitution
22 in full before her sentence expired. Her supervising officer testified Neldia was an
exemplary probationer and had she not made regular restitution payments, he would not
have characterized her as such. He further testified it was his job to require her to make
regular payments to her ability and at no time prior to filing his report of violation had he
addressed with her any deficiency he perceived in her making good faith payment of her
restitution.
¶35 It is incumbent on a supervising officer to work with an offender and to make sure
the offender is apprised of any violations perceived or asserted by the supervising officer
so the offender can take steps to address the deficiency. This is the very purpose of the
MIIG. It is inappropriate, when restitution is at issue, to accept an offender’s regular
restitution payments and then wait until the offender is years into a suspended sentence and
when the offender is nearly ready to discharge the sentence file a petition for revocation
asserting ongoing violations dating back years for failure to make full restitution. Pursuant
to the MIIG, P & P has an obligation to monitor offenders it supervises to determine their
financial ability to meet court-ordered financial obligations, including restitution, and
address, through graduated interventions, their failures in this regard prior to seeking
revocation.
¶36 The District Court’s factual findings that the violation was a noncompliance
violation and that Neldia did not make a good faith effort to pay restitution are clearly
erroneous as they are not supported by substantial credible evidence, they misapprehend
the effect of the evidence, and upon our review of the record, leave this Court with the
23 definite firm conviction that a mistake has been made. The evidence of record
overwhelmingly supports characterization of the violation as a compliance violation which
should have been excused pursuant to § 46-18-203(6)(b), MCA. We thus conclude, on the
record before us, the District Court abused its discretion when it revoked Neldia’s
suspended sentence based on her failure to pay full restitution.
¶37 As we reverse the court’s revocation of Neldia’s suspended sentence, it is not
necessary to address whether the court erred in denying Neldia’s motion seeking to modify
or waive restitution, whether the court erred when it denied Neldia credit for elapsed street
time, or the legal propriety of providing restitution to an entity that no longer exists.
CONCLUSION
¶38 We reverse and remand to the District Court to vacate the August 25, 2022 Judgment
on Revocation of Suspended Sentence and dismiss the petition for revocation.
/S/ INGRID GUSTAFSON
We concur:
/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE