Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Henry v. State

Supreme Court of Montana

October 15, 2019

WILLIAM J. HENRY, Petitioner,
v.
STATE OF MONTANA, LYNN GUYER, Warden, MONTANA STATE PRISON, Respondents.

          ORDER

         Representing 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.

         On 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.

         In his 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.

         The 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 program phases.

         The 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 amount.

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.

         The 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.

         Judgment, 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[1] 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 $698.43.

         Turning 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."

         In 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.

         This 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 judgment.

         While 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.

         The 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.