Submitted on Briefs: October 19, 2016
APPEAL
FROM District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause Nos. DC-05-309, DC-13-430,
and DC-13-431 Honorable Robert L. Deschamps, III, Presiding
Judge
For
Appellant: Chad Wright, Chief Appellate Defender, Haley
Connell, Assistant Appellate Defender, Helena, Montana
For
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana
Kirsten Pabst, Missoula County Attorney, Shaun Donovan,
Deputy County Attorney, Missoula, Montana
OPINION
JAMES
JEREMIAH SHEA JUSTICE
¶1
Pursuant to Section I, Paragraph 3(c), 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
Ernest Fernandez appeals the multiple judgments of the Fourth
Judicial District, Missoula County, revoking his suspended
sentence on a felony incest conviction, and conviction and
sentencing for felony failure to register as a sexual
offender and felony issuing bad checks. We address whether
the District Court erred by rejecting Fernandez's plea
agreement by imposing restitution. We affirm.
¶3
In February 2006, Fernandez was convicted of felony incest
and sentenced to twenty years to the Department of
Corrections with sixteen years suspended. In August 2013, the
State filed a petition to revoke his suspended sentence and
charged Fernandez with failing to register as a sexual
offender in violation § 46-23-504, MCA, and issuing bad
checks in violation of § 45-6-316, MCA. In December
2013, Fernandez entered an open plea of no contest to the
issuing bad checks charge. The District Court advised
Fernandez, and he acknowledged he understood, that "if
you enter a no contest plea here today, that's
effectively a guilty plea and that allows me to sentence
you." Fernandez also signed a written Plea of Guilty and
Waiver of Rights in which he expressly acknowledged:
"[T]he [District] Court may order me to pay
restitution." In January 2014, Fernandez and the State
entered into a global plea agreement, pursuant to §
46-12-211(1)(b), MCA, ((1)(b) plea agreement) that included
all three charges, and listed "$00.00" for
restitution in the Fines and Fees Description chart. The
District Court followed the (1)(b) plea agreement regarding
sentencing, but ordered Fernandez to pay $2, 731.17 in
restitution and a 10% administrative fee as recommended by
the pre-sentence investigation (PSI). At sentencing,
Fernandez did not object to either the PSI's recommended
restitution or the District Court-ordered restitution. When
asked whether he was willing and able to pay restitution,
Fernandez replied: "I can get that paid off within the
next two years . . . And I would like to pay back restitution
. . . ."
¶4
Fernandez argues the District Court rejected the (1)(b) plea
agreement by imposing restitution greater than
"$00.00" and did not give him the opportunity to
withdraw his guilty pleas and admissions, thus erring by not
adhering to § 46-12-211(4), MCA, for rejecting a (1)(b)
plea agreement. The State argues the District Court did not
reject the plea agreement and § 46-12-211(4), MCA, was
not triggered, because the plea agreement simply modified
Fernandez's December open plea as to the term of
imprisonment the State could recommend. The State also argues
Fernandez acquiesced and actively participated in imposing
restitution as a condition of suspending his sentence for
issuing bad checks, and failed to object to the restitution
order despite multiple opportunities during sentencing. The
State contends Fernandez waived his right to raise the issue
of restitution for the first time on appeal because, not only
did he fail to object to the imposition of restitution at
sentencing, he unambiguously pronounced he would pay
restitution.
¶5
We review a criminal sentence for legality only, determining
whether the sentence falls within the statutory parameters.
State v. Walker, 2007 MT 205, ¶ 10, 338 Mont.
529, 167 P.3d 879 (citing State v. Kuykendall, 2006
MT 110, ¶ 8, 332 Mont. 180, 136 P.3d 983).
¶6
A (1)(b) plea agreement provides that the prosecutor agrees
that a specific sentence is the appropriate disposition of
the case. Section 46-12-211(1)(b), MCA. If the court rejects
a (1)(b) plea agreement, then § 46-12-211(4), MCA,
obligates the district court to: (1) inform the defendant
that it is rejecting the plea agreement; (2) advise the
defendant that the court is not bound by the plea agreement;
(3) afford the defendant the opportunity to withdraw his
guilty plea; and (4) advise the defendant that if he persists
in the guilty plea, the disposition of the case may be less
favorable to him than that contemplated by the plea
agreement. State v. Zunick, 2014 MT 239, ¶ 12,
376 Mont. 293, 339 P.3d 1228. We agree with the State that
Fernandez never objected to the imposition of restitution as
a condition of his issuing bad checks sentence, and therefore
waived his right to raise the restitution issue for the first
time on appeal. Walker, ¶ 13 ("We
generally refuse to review on appeal an issue to which a
party failed to object at the trial court). Moreover,
Fernandez pronounced his ability and willingness to pay
restitution, constituting a waiver of his argument that the
imposition of restitution is a rejection of his plea
agreement that should trigger § 46-12-211(4), MCA,
procedures. Walker, ¶¶ 16-18 (citing
State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d
661, and State v. Micklon, 2003 MT 45, 314 Mont.
291, 65 P.3d 559); State v. Harris, 1999 MT 115,
¶ 32, 294 Mont. 397, 983 P.2d 881 ("We will not put
a district court in error for an action in which the
appealing party acquiesced or actively participated.").
¶7
We have determined to decide this case pursuant tos Section
I, Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of
review. We conclude that Fernandez waived his right to raise
the restitution issue for the first time on appeal.
We
affirm.
We
Concur: MIKE McGRATH, LAURIE McKINNON, BETH ...