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.
Appellant: Chad Wright, Appellate Defender, Lisa S.
Korchinski, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana
R. Nixon, Carbon County Attorney, Red Lodge, Montana
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.
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
3. Did the Judgment contain an error when it imposed a
per count technology fee, rather than the statutorily
required per case technology fee?
AND PROCEDURAL BACKGROUND
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
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 ...