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State v. Brothers

Supreme Court of Montana

August 13, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
THOMAS DANIEL BROTHERS, Defendant and Appellant.

Submitted on Briefs: June 12, 2013.

Appeal From District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 10-306C Honorable Stewart E. Stadler, Presiding Judge

For Appellant Wade Zolynski, Chief Appellate Defender, Jonathan King, Assistant Appellate Defender; Helena, Montana

For Appellee Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana.

MICHAEL E WHEAT JUSTICE.

¶ 1 Defendant and Appellant Thomas Brothers (Brothers) appeals the Eleventh Judicial District Court's award of $1, 069.02 in restitution to the State. We reverse.

ISSUE

¶ 2 We restate the sole issue on appeal as follows:

¶ 3 Did the District Court err by ordering Brothers to pay restitution to the State?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Brothers was charged with sexual assault, incest, and indecent exposure by information on September 1, 2010. The District Court issued a warrant and Brothers was arrested in New Mexico on January 10, 2011. Brothers pled guilty to one count of sexual assault on February 24, 2012, as part of a plea agreement. The agreement recommended a 15-year prison sentence with 10 years suspended. The agreement allowed Brothers to withdraw his plea if the District Court imposed a different sentence. The Court accepted Brothers' plea and conducted a sentencing hearing on July 5, 2012.

5 At the sentencing hearing, the State requested that Brothers pay $1, 069.02 in restitution to reimburse the State for the cost of extraditing Brothers from New Mexico. The State did not provide an affidavit or any testimony in support of this request. Brothers objected, claiming that the restitution was "just brought up." The Court eventually ordered $1, 069.02 in restitution without either receiving an affidavit or testimony from the State to determine the proper amount. The Court also deviated from the plea agreement's sentencing recommendation, imposing a term of 20 years in Montana State Prison with 10 years suspended.

¶ 6 Brothers subsequently withdrew his guilty plea due to the Court's imposition of a sentence longer than that recommended by the plea agreement. Brothers and the State thereafter filed a motion stipulating to an amendment of the judgment and sentence. The parties recommended the Court reconsider the July 5, 2012 sentence and impose the plea's recommended 15-year sentence with 10 suspended.

ΒΆ 7 The District Court held a hearing on the parties' stipulation to amend the judgment and sentence on July 11, 2012. The Court noted that the parties requested that Brothers be re-sentenced to Montana State Prison for a term of 15 years, 10 suspended "pursuant to the same conditions as previously were imposed last week[.]" The Court then re-sentenced Brothers to the requested term and noted that it was also imposing "the restitution that was previously ordered for your return - your extradition costs[.]" Brothers appeals the ...


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