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State v. Johnson

Supreme Court of Montana

November 20, 2018

STATE OF MONTANA, Plaintiff and Appellee,
DAVID CORDELL JOHNSON, Defendant and Appellant.

          Submitted on Briefs: August 1, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-08-545 Honorable Karen Townsend, Presiding Judge

          For Appellant: Chad M. Wright, Appellate Defender, Office of the Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Barbara Harris, Special Deputy County Attorney, Missoula, Montana


          Mike McGrath Chief Justice

         ¶1 This is an appeal from a Fourth Judicial District Court judgment revoking a deferred sentence for failure to pay restitution. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether substantial evidence supports the District Court's finding that defendant did not make a good faith effort to pay his restitution.
2. Whether revocation of a deferred sentence for failure to pay restitution violates constitutional equal protection and due process if the probationer failed to make a good faith effort to pay.
3. Whether restitution is a fine within the purview of the Excessive Fines Clause of Article II, Section 22 of the Montana Constitution.


         ¶3 In 2008, the State charged David Cordell Johnson (Johnson) with five counts of felony theft, two counts of misdemeanor theft, three felony counts of exploiting an older person, and one misdemeanor count of exploiting an older person. The State alleged that Johnson defrauded elderly clients while selling insurance and annuities. According to the State, Johnson improperly accepted loans from elderly clients and transferred elderly clients' accounts to different annuities in return for substantial commissions without their full understanding of the penalties.

         ¶4 Johnson pleaded guilty to two counts of felony theft, whereby the State dismissed the remaining charges. On May 17, 2010, the District Court imposed deferred sentences for six years on each count, to run concurrently. The District Court ordered Johnson to pay $87, 339.50 in restitution plus interest and supervision fees. This Court affirmed. State v. Johnson, 2011 MT 116, 360 MT 443, 254 P.3d 578.

         ¶5 Over the next six years, Johnson worked sporadically. He worked full-time for fourteen to sixteen months total, spread across three different jobs. He quit at least one job and was fired from two. By the end of the deferral period, Johnson had paid off $3, 799 of his $87, 339 restitution obligation. On May 12, 2016, the State filed a petition to revoke Johnson's deferred sentence for failing to make a good faith effort to pay restitution and supervision fees. At that time, Johnson had not made a restitution payment in seven months.

         ¶6 At a hearing on August 25, 2016, Johnson's probation officers testified regarding Johnson's lack of effort to find work. Johnson held out for high-paying, managerial jobs instead of accepting steady full-time work, albeit for less pay. Johnson confirmed his preference not to "settle for something" on the stand. According to one probation officer's testimony, Johnson would tell her "about one position that would be in one state and then a couple weeks later it was a different job entirely, or he had to go to training for one and he would lose that one or quit because he was going to do this other one." She stated she felt like she tried "harder than he [did] to keep him on track." Johnson's work was "sporadic at best." Another officer testified that Johnson, despite ample opportunity over the six years, had not made a concerted effort to maintain employment. He recommended the sentence be suspended, rather than deferred.

         ¶7 Johnson does not deny his failure to make regular restitution payments. He testified that his criminal record deterred employers from hiring him, but his probation officers stated that most probationers maintained full-time employment despite their criminal records. Furthermore, Johnson had a college degree, which his probation officers testified gave him an advantage many probationers did not have. Johnson testified he completed 587 hours of community service, but did not receive credit because he failed to pay the required $1 per hour fee. He testified his income covered only living expenses. At one point, Johnson was living out of his car and showering at truck stops. He had a $58, 000 tax liability, which the IRS stopped pursuing due to his indigence.

         ¶8 During this period Johnson collected unemployment ($4, 433 in 2010) and received food stamps, but failed to inform the Department of Corrections of this income. From 2011 to 2015, Johnson received $500 per month following his mother's death. He also initially received commissions from his former work selling insurance and annuities worth $300 to $500 per month of taxable income. However, Johnson testified that by the end of his deferred sentence they were worth much less. Since 2010, Johnson made roughly fifty payments of an ...

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