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State v. Daricek

Supreme Court of Montana

February 27, 2018

STATE OF MONTANA, Plaintiff and Appellee,
MICHAEL CHARLES DARICEK, Defendant and Appellant.

          Submitted on Briefs: December 6, 2017

         APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 16-08 Honorable James A. Haynes, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana



         ¶1 Michael Daricek pleaded no contest to felony driving under the influence of alcohol (DUI) after being charged with his fourth DUI. The District Court committed Daricek to the Department of Corrections (Department) for thirteen months, with an additional five years suspended. The court imposed numerous conditions on Daricek's suspended sentence, including a requirement that Daricek pay the costs of his imprisonment, probation, and alcohol treatment "if financially able." Daricek appeals the imposition of this condition on the ground that the court failed to determine his ability to pay these costs. We affirm.


         ¶2 Daricek was arrested in January 2016 in Ravalli County for driving under the influence of alcohol after he crashed a snowmobile while intoxicated. The State charged him in the Twenty-First Judicial District Court with felony DUI under § 61-8-401, MCA; Daricek had three previous DUI convictions in Montana. The State also charged Daricek with reckless driving, but it later dismissed that charge. Daricek pleaded no contest to the DUI charge.

         ¶3 Prior to sentencing, the District Court ordered a Pre-Sentence Investigation (PSI) report. The report revealed that Daricek had a GED; that he was married with five children; that he was employed and made $13 an hour; that he had $55, 500 in assets, consisting of tools and vehicles; that he had $8, 000 in outstanding medical debts; that he had child support obligations in an unknown amount that Daricek reported may be around $6, 000; and that he paid $950 per month in rent. The PSI report recommended thirty-six conditions for "any period of community supervision." Condition 32 stated, "The Defendant, if financially able, as a condition of probation, shall pay for the cost of imprisonment, probation, and alcohol treatment for the length of time he/she is imprisoned, on probation, or in alcohol treatment. (§ 61-8-731, MCA)."

         ¶4 At the conclusion of the sentencing hearing, the District Court committed Daricek for thirteen months to the Department's custody, followed by a five-year suspended sentence, and issued a $1, 000 fine. The court also imposed "all of the conditions that are set forth in the Pre-Sentence Investigation Report."

         ¶5 Daricek's counsel objected to the imposition of condition 32, stating, "In spite of the fact that [Daricek] is working, he doesn't have the ability to pay costs of imprisonment, and I don't think that's appropriate in a case like this." The court imposed the condition over the objection, noting that Daricek was "fit [and] able to work, " that he was in good health, that he had obtained his GED and was employed, and that he could "earn money to pay off any fines, fees, surcharges imposed."

         ¶6 The court's written judgment provides, "During the suspended portion of his sentence, the Defendant shall comply with the following Conditions listed on the [PSI report] as follows." It lists all thirty-six conditions contained in the report, including condition 32. In its "Reasons for Sentence, " the court stated, "Defendant is 41 years of age, has a GED, is married with five children, and is currently employed. The record further indicates that the Defendant is in fair health, has no indication of mental or personality disorders, and is capable of working and paying restitution, fines, costs and reimbursing court appointed attorney's fees." Daricek appeals the imposition of condition 32.


         ¶7 Our review of criminal sentences that include at least one year of incarceration is for legality only. State v. Rickman, 2008 MT 142, ¶ 11, 343 Mont. 120, 183 P.3d 49. If a defendant challenges a sentencing condition, we first review the condition's legality, and then review for an abuse of discretion the condition's reasonableness under the particular facts of the case. City of Bozeman v. Cantu, 2013 MT 40, ¶ 11, 369 Mont. 81, 296 P.3d 461. A sentence is lawful when it falls within the statutory parameters. State v. Mingus, 2004 MT 24, ¶ 10, 319 Mont. 349, 84 P.3d 658. Whether a sentence is legal is a question of law that we review de novo to determine whether the court's interpretation of the law is correct. State v. Thompson, 2017 MT 107, ¶ 6, 387 Mont. 339, 394 P.3d 197. The sentencing court's ...

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