State v. T. Hagberg

• Court: Montana Supreme Court
• Decided: June 30, 2026
• Docket: DA 23-0515
• Status: Published
• Author: Swanson

Opinion

06/30/2026

DA 23-0515 Case Number: DA 23-0515

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 135

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TERRY LEE HAGBERG,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DC 2022-36 Honorable Nickolas C. Murnion, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tammy A. Hinderman, Appellate Defender Division Administrator, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana

C. Kristine White, Rosebud County Attorney, Forsyth, Montana

Submitted on Briefs: April 15, 2026

Decided: June 30, 2026 Filed:

__________________________________________ Clerk Chief Justice Cory J. Swanson delivered the Opinion of the Court.

¶1 Terry Lee Hagberg (Hagberg) appeals the July 2023 judgment and sentence of the

Montana Sixteenth Judicial District Court for Driving a Motor Vehicle Under the Influence

of Alcohol or Drugs (DUI) (4th or subsequent), a felony in violation of § 61-8-1002(1)(b),

MCA (2021). Hagberg challenges only one aspect of the judgment: the imposition of a

$5,000 fine required by § 61-8-1008, MCA (2021). We affirm the imposition of the $5,000

fine and remand for a determination of Hagberg’s ability to pay.

¶2 We restate the issues on appeal as follows:

Issue One: Whether Hagberg waived his right to appellate review of a fine imposed by the District Court when he agreed to the fine in his plea agreement and at sentencing.

Issue Two: Whether the District Court erred by imposing a $5,000 mandatory minimum fine pursuant to § 61-8-1008, MCA, and suspending $2,500 of the fine.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Hagberg, now seventy years old, began drinking alcohol when he was about

fourteen. By his early twenties, Hagberg had created a habit of drinking beer daily.

Hagberg eventually added whiskey to his daily regimen and has consumed approximately

one pint of whiskey per day for the past twenty years. In the early afternoon of July 24,

2022, Hagberg began drinking his usual whiskey and soda in a large travel mug before

driving from Ryegate to Forsyth to go fishing with a friend. Upon arrival in Forsyth and

after finding out his friend had moved to Miles City, Hagberg decided to drive to the

Howdy Hotel to stay for the night. By this time, Hagberg had consumed approximately

three of the travel mugs full of whiskey and soda and a few beers.

2 ¶4 At approximately 8:45 p.m. that same night, Rosebud County Deputy Sheriff’s

Dylan Plympton, observed Hagberg drive by the Town Pump in his pickup. Shortly after

Hagberg drove by, the driver of another vehicle notified Deputy Plympton that Hagberg

had driven off the road into the grass, returned to the roadway, and then drove through a

stop sign. While Deputy Plympton was driving to catch up to Hagberg, he observed

Hagberg turn down the wrong ramp on the interstate, stop his vehicle, reverse, and come

to a stop in the wrong lane.

¶5 Deputy Plympton stopped Hagberg as he attempted to turn onto the correct interstate

ramp and asked Hagberg why he had tried to enter the wrong side of the interstate. Hagberg

responded he was trying to find the Howdy Hotel, where he used to live. Deputy Plympton

observed Hagberg slurring his words with a dazed expression and flushed face. Deputy

Plympton had increased suspicion that Hagberg was driving under the influence because

Hagberg would have passed the Howdy Hotel’s giant sign on Front Street before reaching

the interstate. Deputy Plympton requested Hagberg step out of his vehicle and perform a

Horizontal Gaze Nystagmus test. Hagberg was unable to stand under his own power—in

part due to a broken foot—and demonstrated six out of six indications of impairment during

the test. Hagberg’s eyes were glossy, and he told Deputy Plympton he was seeing double.

Deputy Plympton placed Hagberg under arrest for DUI and transported him to the jail.

Hagberg refused both the breath test and the blood test, so Deputy Plympton obtained a

warrant for a blood draw. Hagberg’s toxicology report from the blood draw showed a BAC

of 0.272, over three times the legal limit.

3 ¶6 Upon further investigation, Deputy Plympton learned Hagberg was driving with a

suspended license and had three prior DUI convictions. On October 13, 2022, the State

charged Hagberg by Information with DUI (fourth or subsequent offense), a felony, in

violation of § 61-8-1002(1)(b), MCA (2021), and Driving a Motor Vehicle While Privilege

to do so is Suspended or Revoked. On March 14, 2023, Hagberg signed an

Acknowledgment and Waiver of Rights and Plea Agreement (Plea Agreement) pleading

guilty to DUI in exchange for dismissal of the Driving While Suspended charge.

¶7 Hagberg had been denied admission into the Courts Assisting Military Offenders

(CAMO) treatment court prior to the sentencing hearing, which was the only exception to

the mandatory minimum custodial sentence. Accordingly, the District Court sentenced

Hagberg to a thirteen-month Department of Corrections (DOC) commitment, with a

recommendation for placement at the Warmsprings Addictions Treatment and Change

program (WATCh), followed by a consecutive, suspended four-year DOC commitment.

The court specified, if Hagberg completed the treatment program, the remainder of the

thirteen-month commitment would be served on probation. The court also imposed the

statutory minimum fine of $5,000 and credited Hagberg $200 for time served. Hagberg

requested that the District Court suspend half of the fine because of his medical debt.

Accordingly, the court suspended $2,500 of the fine.

STANDARD OF REVIEW

¶8 We review criminal sentences for legality. State v. Spang 2026 MT 107, ¶¶ 7-9,

428 Mont. 150, 589 P.3d 630 (citing State v. Cole, 2026 MT 52, ¶ 5, 427 Mont. 64,

585 P.3d 955). To determine legality, we consider "whether the sentence falls within the

4 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.” State v. Yeaton, 2021 MT 312, ¶ 8, 406 Mont. 465, 500 P.3d 583

(quoting State v. Ingram, 2020 MT 327, ¶ 8, 402 Mont. 374, 478 P.3d 799). We review

whether a district court adheres to the applicable sentencing statute de novo. State v. Horn,

2026 MT 79, ¶ 6, 427 Mont. 402, 588 P.2d 102 (citing State v. Dowd, 2023 MT 170, ¶ 6,

413 Mont. 245, 535 P.3d 645). “We review a claim that a sentence violates a constitutional

provision de novo.” Spang, ¶ 5 (citing State v. Ber Lee Yang, 2019 MT 266, ¶ 8, 397 Mont.

486, 452 P.3d 897.

DISCUSSION

¶9 Issue One: Whether Hagberg waived his right to appellate review of a fine imposed by the District Court when he agreed to the fine in his plea agreement and at sentencing.

¶10 Hagberg asserts since the Plea Agreement and sentencing occurred under precedent

that was overruled while his appeal was pending, he did not waive appellate review of his

challenge to the fine. The State argues the imposition of the fine was legal, and Hagberg

waived his right to appeal when he acquiesced to the fine.

¶11 A defendant does not waive the right to appellate review by agreeing to a sentence

which was required by law at the time of sentencing. Spang ¶¶ 7-9 (finding Spang did not

waive his right to appeal when he agreed to a fine in his plea agreement—which was

supported by caselaw at the time of the agreement—when the constitutionality of the fine

was later called into question by subsequent cases). Since the law at the time of the Plea

5 Agreement and sentencing was questioned by subsequent rulings during Hagberg’s

pending appeal, he did not waive appellate review.

¶12 Issue Two: Whether the District Court erred by imposing a $5,000 mandatory minimum fine pursuant to § 61-8-1008, MCA, and suspending $2,500 of the fine.

¶13 Hagberg asserts the District Court erred when it imposed a $5,000 fine under

§ 61-8-1008, MCA (2021)—which sets a mandatory minimum fine for felony DUIs—

when this Court determined the “nearly identical” statute, § 61-8-731(3), MCA (2019), to

be facially unconstitutional in State v. Gibbons. See generally State v. Gibbons, 2024 MT

63, ¶ 66, 416 Mont. 1, 545 P.3d 686, overruled in part by Cole (holding a mandatory fine

unconstitutionally removes the sentencing court’s discretion to relinquish the fine after

conducting an ability to pay analysis pursuant to § 46-18-231(3), MCA). The State first

responds that Hagberg erroneously conflates § 61-8-731(3), MCA (2019)—the statute at

issue in Gibbons—with § 61-8-1008(1)(a)(i), MCA (2021)—the statute at issue here—and

contends the latter statute is instead successor to § 61-8-731(1)(a), MCA (2019).

Additionally, the State asserts since this is Hagberg’s fourth offense DUI, he would not

meet the threshold requirement to be sentenced pursuant to § 61-8-1008(2), MCA (2021)—

successor to § 61-8-731(3), MCA (2019)—and was instead sentenced pursuant to

§ 61-8-1008(1)(a), MCA (2021)—successor to § 61-8-731(1)(a), MCA (2019).

¶14 The State makes this distinction to argue § 61-8-731(1)(a), MCA (2019), was not

declared unconstitutional in Gibbons, and therefore its successor statute,

§ 61-8-1008(1)(a)(i), MCA (2021), has not yet been declared unconstitutional. Hagberg

concedes he was sentenced for his fourth DUI pursuant to § 61-8-1008(1)(a)(i), MCA

6 (2021), but argues the fine imposed on him was nonetheless the same as the fine held to be

facially unconstitutional in Gibbons.

¶15 These arguments are resolved by our recent decision in Cole—which overruled

Gibbons to the extent it held § 61-8-731(3), MCA (2019), was facially unconstitutional—

and our recent decisions clarifying the subsections of § 61-8-731, MCA (2019), are

indistinguishable for purposes of analysis under Cole. Cole, ¶¶ 22-29; Spang, ¶ 15 (citing

State v. Horn, 2026 MT 79, ¶ 11, 427 Mont. 402, 588 P.3d 102). In Spang, we noted that

an important distinction between § 61-8-731(3), MCA (2019) and § 61-8-731(1)(a)(iii),

MCA (2019), is their use of the conjunctions “and” and “or.” Spang, ¶ 15 (stating the

district court only had discretion under § 61-8-731(3), MCA (2019), to relinquish the fine

entirely due to that subsection’s use of the conjunction “or”). This distinction is no longer

relevant under the successor statutes. Unlike § 61-8-731(3), MCA (2019), its successor

statute, § 61-8-1008(2), MCA (2021), requires the district court to impose a custodial

sentence and a fine. Regardless of the differences between the subsections of the statute,

the analysis under Cole is the same.

¶16 In Cole, we determined § 46-18-231(3), MCA, may be harmonized with mandatory

fine provisions by means of the express authority granted to sentencing judges to suspend

sentences under § 46-18-201(2), MCA. Cole, ¶ 11. Under Cole, the sentencing court must

impose the mandatory fine under the appropriate sentencing statute, determine the

defendant’s ability to pay the fine pursuant to § 46-18-231(3), MCA, and then suspend the

fine to the extent the defendant lacks the ability to pay. Cole, ¶ 14.

7 ¶17 Here, the record shows the District Court sentenced Hagberg to the DOC for 13

months followed by four years suspended, recommended he be screened for placement at

a residential alcohol treatment program, conditioned probation on completion of the

program, and suspended half of the minimum $5,000 fine. This sentence supports that

Hagberg was sentenced pursuant to § 61-8-1008(1)(a), MCA (2021), which is the

appropriate sentencing statute. The record supports the District Court conducted an

analysis of Hagberg’s ability to pay and suspended a portion of the fine accordingly.

However, the District Court did so prior to Cole. We therefore do not inquire into the

adequacy of the District Court’s analysis of Hagberg’s ability to pay, since the arguments

of the parties and the court’s findings may differ per our holding in Cole. We therefore

vacate the portion of the Judgment dealing with the fine and remand to the District Court

to make appropriate findings of Hagberg’s ability to pay before determining the appropriate

amount of the mandatory fine which may be suspended.

CONCLUSION

¶18 The District Court’s judgment imposing a $5,000 fine is affirmed and we remand

for a determination of Hagberg’s ability to pay.

/S/ CORY J. SWANSON

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE

8 Justices Katherine M. Bidegaray, Ingrid Gustafson, and Laurie McKinnon, dissenting.

¶19 We agree with the Court that Hagberg did not waive appellate review of his

challenge to the fine. We dissent, however, from the majority’s decision to affirm the

mandatory imposition of a $5,000 fine under § 61-8-1008(1)(a)(i), MCA, and to remand

only for post-imposition ability-to-pay findings under Cole.

¶20 For the reasons stated in our dissent in State v. Cole, 2026 MT 52, 427 Mont. 64,

585 P.3d 955, we continue to believe State v. Gibbons, 2024 MT 63, 416 Mont. 1, 545 P.3d

686, correctly held that a sentencing statute requiring a mandatory minimum fine violates

the Excessive Fines Clauses of the United States and Montana Constitutions when it

prevents the sentencing court from considering the defendant’s ability to pay and other

proportionality factors before imposing the fine. The constitutional defect lies in

mandatory imposition, not merely later collection or enforcement.

¶21 This record illustrates the problem. The District Court recognized that its “hands

are pretty tied on these cases,” imposed the statutory $5,000 fine, and then suspended

$2,500 based on Hagberg’s financial condition. Although that approach may satisfy the

procedural mechanics of Cole, it does not cure the foundational constitutional defect

identified in Gibbons. A court that must first impose a $5,000 fine before considering

whether that floor is inherently disproportionate has not exercised the sentencing discretion

the Excessive Fines Clauses require. The majority’s remand does not cure that problem; it

merely permits the District Court to repeat the same mandatory-imposition sequence with

more explicit findings. Under Gibbons, once the District Court determined Hagberg could

not pay the only fine the statute allowed—a $5,000 mandatory minimum—the proper result

9 was to impose no fine. Remanding for further proceedings under Cole merely forces the

District Court to participate in a procedural workaround that circumvents Hagberg’s

fundamental constitutional rights.

¶22 Furthermore, the majority’s remand confirms the difficulty with Cole’s framework.

Cole treats ability to pay as a post-imposition suspension question. The Excessive Fines

Clauses require more. A sentencing court must exercise its discretion to decide, before

imposing a fine, whether the fine is proportionate in light of the offense and the offender’s

ability to pay. A mandatory minimum that requires imposition first and discretion later

does not satisfy that constitutional requirement.

¶23 Hagberg is a seventy-year-old individual in poor health, unemployed, and burdened

by medical and credit card debt up to $45,000 while supporting both himself and his partner

on a fixed retirement income. The court reduced some financial obligations because of his

financial condition, noted he had not paid the PSI fee, suspended half of the mandatory

fine, and credited Hagberg $100 for time served. Remanding this matter to require the

District Court to perform a Cole analysis is an exercise in futility that ignores the

unconstitutional nature of the initial $5,000 mandatory imposition. A suspended fine

remains a legal obligation and a judgment against the Defendant. Those facts show why

the Constitution requires individualized sentencing discretion before imposition of a fine,

not merely a later decision about how much of a mandatory fine to suspend.

¶24 We would reverse the portion of the judgment imposing the $5,000 fine and remand

for the District Court to strike the fine in its entirety.

10 /S/ KATHERINE M. BIDEGARAY /S/ INGRID GUSTAFSON /S/ LAURIE McKINNON