APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-145 Honorable Edward P. McLean, Presiding Judge
The opinion of the court was delivered by: Justice Beth Baker
Submitted on Briefs: February 13, 2013
Justice Beth Baker delivered the Opinion of the Court.
¶1 Ashli MacDonald appeals the judgment and sentence of the Fourth Judicial District Court, following her convictions for two felonies-assault of a minor and aggravated assault-arising from incidents involving her infant son, John Doe. MacDonald raises two issues on appeal:
¶2 1. Did the District Court err by ordering a change in parenting arrangements for John Doe as part of the criminal sentence, despite pending dependency and neglect proceedings?
¶3 2. Did the District Court err or exceed statutory mandates by ordering MacDonald to pay fees, costs and surcharges without inquiring into her ability to pay?
¶4 We affirm, but remand for the District Court to strike a portion of its written judgment.
PROCEDURAL AND FACTUAL BACKGROUND
¶5 On March 3, 2011, Ashli MacDonald brought her seven-week-old son, John Doe, to the Community Medical Center in Missoula, Montana, due to swelling and bruising in his upper right leg. She was accompanied by her boyfriend, Pete Lapham. An examination revealed that John Doe sustained a fracture to his upper right femur. Based on suspicion of "non-accidental trauma," the doctor conducted a routine skeletal survey of John Doe, which revealed an older, already healing fracture in his right humerus.
¶6 MacDonald and Lapham were directed to the police station and separately interviewed. MacDonald initially indicated that she was unaware of any potential causes of her son's injuries. After a break in the interview, however, she stated that she had recently become frustrated with John Doe when he was crying, grabbed him by his right leg, jerked him up, and flipped him over. At that point, his crying changed to a "pain cry" and she knew that she had hurt him. She described another instance when she had become similarly irritated with John Doe's crying and jerked his right arm. At her December 2011 jury trial, MacDonald testified that she had lied in her earlier statement because she wanted to "get out of there quicker" and return to the hospital to be with John Doe. She testified that Lapham, rather than she, was responsible for John Doe's injuries. The jury convicted MacDonald of assault on a minor and aggravated assault, both felonies.
¶7 The District Court ordered a pre-sentence investigation report, which was prepared and filed with the court on January 24, 2012. The court held a sentencing hearing on February 8, 2012. Andrew Cox, John Doe's father, appeared at the hearing and testified that he was concerned about John Doe's safety and care based on MacDonald's assault convictions and his observation that John Doe was often filthy and hungry while in MacDonald's custody. Asked by the court about his preferred residential arrangement, Cox stated that John Doe should live primarily with him and that MacDonald should be permitted supervised visitation. MacDonald's counsel noted that the parenting arrangements were being considered in MacDonald's dependency and neglect companion case and suggested that the court await the outcome of those proceedings, rather than decide the issue at sentencing. The District Court stated that it would "defer to the dependent neglect matter," but, "in the interim, we'll ...