WILLIAM J. HENRY, Petitioner,
STATE OF MONTANA, LYNN GUYER, Warden, MONTANA STATE PRISON, Respondents.
himself, Petitioner William J. Henry has filed a petition for
a writ of habeas corpus, contending that his sentence is
illegal because of the restitution imposed. In compliance
with this Court's Order, counsel for the State of Montana
Attorney General's Office responds that this matter
should be remanded to the Third Judicial District Court,
Powell County, to conduct a restitution hearing and to issue
an amended judgment, setting forth the total amount of
Henry's restitution obligation.
September 16, 2005, the Powell County District Court
sentenced Henry for four counts of felony sexual intercourse
without consent. He received four, concurrent fifty-year
sentences to the Montana State Prison.
petition, Henry claims this restitution is
"unconstitutional extortion" He points to the
restitution statutes, § 46-18-242, and § 46-18-244,
MCA, and argues that his restitution obligations do not
comply with these statutes. He provides that along with being
ordered to pay any medical expense, he was ordered to pay $5,
000 to the victims. He states that the court imposed an
additional $6, 000 upon him after sentencing and without
notice. Henry is uncertain whether the presentence
investigation (PSI) report contains any information about his
assets or his ability to pay.
State points out that Henry refers to the wrong version of
Montana statutes in his arguments. The State explains that
while the Amended Information had that Count I, sexual
intercourse without consent, as occurring between January 1,
2001 and December 26, 2004, Henry's plea of guilty to
Count I acknowledged that the offense occurred on December
26, 2004. Therefore, the State adds that the 2003 version of
Montana statutes apply. The State further explains that at
Henry's September 16, 2005 sentencing hearing, the
District Court imposed a parole ineligibility restriction of
fifteen years and completion of all sexual offender treatment
States puts forth what the District Court stated about
Henry's restitution obligation to his victims as
evidenced in an attached copy of a sentencing transcript. The
State notes that the court did not specify a total dollar
You'll have to pay all medical, mental health costs of
the primary victims and secondary victims as you are able to.
And you'll pay all future expenses related to that,
including the cost of psychological counseling, therapy, and
treatment, as you're economically able to do that. The
payments will be directed to the Department of Corrections.
And you'll be - if you are incarcerated in a State
institution, you'll have to pay towards the restitution.
It appears that, however, you're able, but up to
one-third of your earnings may be applied to the restitution
that you owe these victims.
State adds that the court ordered in the written judgment:
3. The defendant will pay all medical and mental health costs
of the primary victims and the secondary victims to date, and
per 46-18-243, will pay all future medical expenses that the
victims can reasonably be expected to incur as a result of
the offender's criminal conduct, including the cost of
psychological counseling, therapy, and treatment. Payments
are to be made to the Department of Corrections Restitution,
P.O. Box 201350, Helena, MT 59620.
at 3 (Mont. Third Judicial Dist. Ct. Sept. 16, 2005). While
the District Court never specified a dollar amount at the
oral pronouncement of sentence or in the written judgment,
the State points out that Henry never objected to his
restitution obligation in court. The State notes that Henry
appealed, and this Court later dismissed his appeal on his
counsel's Anders motion. State v. Henry,
No. DA 06-0031, Order (Mont. May 9, 2006). The State
acknowledges that Henry has paid his victims, via the Crime
Victim Compensation Program, a total of $10, 354.66 while
incarcerated as detailed in the attached exhibit. The State
points out that Henry must pay a 10% supervisory fee, or $1,
035.47, to Department of Corrections and that he still owes
to his petition, the State argues that § 46-18-242, and
§ 46-18-244, MCA (2003), apply here. Consequently,
pursuant to § 46-18-242(1)(a), MCA, Henry's PSI
report, the State notes, does not need to document his
financial resources and future ability to pay restitution.
Moreover, the State points out that § 46-18-244, MCA,
did not require the District Court to consider his financial
resources and future ability to pay. The State continues and
contends that Henry has not shown any support for his claim
that the court only ordered him to pay $5, 000 in
restitution. The State cites to the plea agreement and that
Henry agreed to pay "whatever restitution may be
determined by the [c]ourt."
requesting remand, the State concedes these two errors by the
District Court. The State points to the PSI and acknowledges
that it failed to include affidavits describing the
victims' pecuniary loss. See §
46-18-242(1)(b), MCA (2003). The State further acknowledges
that the District Court failed to specify the total amount of
Henry's restitution obligation under § 46-18-244(1),
MCA (2003). The State concludes that while Henry's
request for terminating his restitution obligation and for
reimbursement is not the proper remedy, remanding this case
to conduct a restitution hearing is the proper outcome.
State v. Heafner, 2010 MT 87, ¶11, 356 Mont.
128, 231 P.3d 1087.
Court has addressed the issue of restitution and conformance
to Montana's statutes. "Failure of a PSI Report to
contain documentation of a victim's pecuniary loss . . .
renders a district court's sentencing of restitution
illegal." State v. Dunkerson, 2003 MT 234,
¶ 18, 317 Mont. 228, 76 P.3d 1085 (citing State v.
Muhammed, 2002 MT 47, ¶ 47, 309 Mont. 1, 43 P.3d
318). "However, a full evidentiary hearing can vitiate
the need for pecuniary loss documentation in a PSI
report." Dunkerson, ¶ 18 (citing State
v. Hilgers, 1999 MT 284, ¶ 9, 297 Mont- 23> 989
p-2d 866)- The Powell County District Court should conduct a
restitution hearing, in which: (1) the Crime Victims
Compensation Program may submit affidavits, showing the
compensation paid to Henry's victims; (2) the amount of
restitution Henry still owes the Crime Victims Compensation
Program is documented; and (3) the amount that Henry has paid
toward restitution while in prison is put forth. Following
the hearing, the District Court may set forth the total
amount of Henry's restitution obligation in an amended
Henry is correct that pursuant to § 46-18-242(1)(a), MCA
(2003), a PSI must contain a list of his assets, Henry's
PSI report listed that he had no assets. Henry must still
fulfill his restitution obligations. In light of the
foregoing, when one portion of the sentence is illegal, it is
better to remand the matter. Heafner, ¶ 11. The
District Court will enter an amended judgment, and Henry will
be apprised of what his restitution obligation is. Therefore,
IT IS ORDERED that Henry's Petition for a Writ of Habeas
Corpus is GRANTED in part and his criminal case is REMANDED
to the Third Judicial District Court, Powell County, to
conduct a restitution hearing, as delineated above.
Clerk of the Supreme Court is directed to provide a copy of
this Order to the Honorable Ray Dayton, Third Judicial
District Court, Powell County; to Jill Paull, Clerk of Court,
Powell County, under Cause No. ...