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State v. Cleveland

Supreme Court of Montana

August 14, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
RICHARD LANE CLEVELAND, JR., Defendant and Appellant.

          Submitted on Briefs: July 25, 2018

          District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DC 15-32 Honorable Blair Jones, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana

          Alex R. Nixon, Carbon County Attorney, Red Lodge, Montana

          OPINION

          Ingrid Gustafson, Justice.

         ¶1 Richard Lane Cleveland, Jr. (Cleveland) appeals from the October 3, 2016 Sentence & Judgment entered by the Twenty-Second Judicial District Court, Carbon County. We reverse and remand for amendment of the Judgment consistent with this Opinion.

         ¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in ordering restitution to individuals or entities without affidavit or testimony of the individuals or entities specifically describing their pecuniary loss.
2. Whether the written Judgment conforms to the oral sentence pronouncement.
3. Did the Judgment contain an error when it imposed a per count technology fee, rather than the statutorily required per case technology fee?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Cleveland was initially charged by Information on August 7, 2015. The State filed three subsequent Amended Informations, ultimately charging Cleveland with ten felony counts and eight misdemeanor counts ranging from attempted burglary, burglary, criminal mischief, theft and driving while license suspended or revoked. Cleveland entered into a plea agreement pursuant to § 46-12-211(1)(c), MCA, whereby he would plead to three felony counts (Count I: Attempted Burglary; Count VII: Burglary; and Count X: Burglary) and the State agreed to dismiss the remaining charges with prejudice. As part of the plea agreement, Cleveland acknowledged and accepted he was responsible for paying restitution to all businesses he impacted with the caveat, "I understand the State has the burden to establish and prove the restitution amount, and I have the right to challenge the State's determination."

         ¶4 On May 25, 2016, Cleveland pled guilty pursuant to the plea agreement. On August 10, 2016, the District Court held a restitution hearing. Prior to the hearing, the State had filed several restitution affidavits from multiple victims. At the beginning of the hearing, the State advised the court that one victim who had not filed an affidavit was available to testify, and two victims who had filed affidavits could not appear to testify. Rather than seek continuance or to reconvene at a later date to obtain the missing witnesses' testimony, the State desired to "rely on the affidavits that were ...


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