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State v. Johns

Supreme Court of Montana

December 17, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
LAUREN MARIE JOHNS, Defendant and Appellant.

          Submitted on Briefs: August 21, 2019

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2013-521 Honorable John W. Larson, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Kirsten K. Madsen, Assistant Attorney General, Agency Legal Services Bureau, Helena, Montana

          Kirsten H. Pabst, Missoula County Attorney, Mac W. Bloom, Deputy County Attorney, Missoula, Montana

          OPINION

          BETH BAKER JUSTICE.

         ¶1 Lauren Marie Johns was convicted in Missoula County of embezzling money from her employer, Community Bank. The State sought restitution for the amount Johns stole and for expenses the Bank incurred investigating and assisting in the prosecution. At the initial sentencing hearing, Johns objected to the restitution claim. After considering briefs from both parties, the Fourth Judicial District Court ordered restitution. It imposed the State's requested amount at the final sentencing hearing. On appeal, Johns contends that the District Court violated her due process rights when it did not hold an evidentiary hearing before ordering her to pay restitution. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 The State charged Johns in 2013 with felony Theft of Property by Embezzlement, in violation of § 45-6-301(7), MCA. The State alleged that Johns stole $7, 103.00 from the Bank.[1] After a two-day trial, a jury found Johns guilty on August 24, 2016.

         ¶3 The District Court ordered a presentence investigation ("PSI"), in part to determine the appropriate amount of restitution. The PSI report included restitution calculations supported by an Affidavit of Victim's Pecuniary Loss prepared by Bank representative Mary Strozzi. The State requested $19, 406.80 in restitution, including over $12, 000 for expenses the Bank incurred investigating and assisting in the prosecution.

         ¶4 At the first sentencing hearing on October 20, 2016, Johns objected to the restitution and requested a hearing on the amount and the legal authority for the restitution. The court instructed the parties to file briefs addressing the legal basis for the claimed restitution. The court advised the parties: "And then we'll have to have the hearing if there's a factual dispute about the underlying amount [after briefing]."

         ¶5 Johns's brief opposing restitution challenged the basis for the Bank's claimed administrative costs. She argued that "most if not all of the claimed expenses" were not compensable because they reflected time spent in furtherance of the litigation rather than in "actually trying to recover the money." She reserved for appeal any objections to the amount of actual loss resulting from the theft.

         ¶6 The State asserted all the costs legally were recoverable as restitution under the authority of §§ 46-18-201, -241(a), and -241(d), MCA, because they were compensable expenses incurred in pursuit of converted property and out-of-pocket expenses incurred in the investigation and prosecution of the offense. It noted that the Bank had miscalculated the restitution amount in its Affidavit but was working to provide an updated figure to the court. The State also requested a hearing "regarding the factual issues underlying the State's restitution request."

         ¶7 The District Court entered an order on restitution on January 11, 2017, concluding that the Bank was entitled, as a matter of law, to recover the claimed expenses it incurred investigating the theft and assisting in the prosecution. The order listed each claimed expense and noted the corresponding statutory authority. The court rejected Johns's interpretation of relevant case law, finding the expenses were compensable as expenses incurred in the pursuit of converted property and incurred in the investigation and prosecution. The court ordered restitution for the full amount the State requested in its brief, subject to the forthcoming recalculation. At the conclusion of the order, the court set a second sentencing hearing date and stated: "Defendant may file any additional exceptions or objections to the amount of restitution ordered above by January 20, 2017." (Emphasis in original.)

         ¶8 Johns filed three motions to continue the sentencing hearing, but none of them raised exceptions or objections further challenging the "amount of restitution" as ordered by the District Court. The court rescheduled the final sentencing hearing and extended the date by which Johns could file any "additional exceptions or objections to the amount of restitution." Johns did not file any.

         ¶9 At the final sentencing hearing on March 9, 2017, the Bank provided the promised updated restitution figures. Bank representative Strozzi explained the impact of Johns's actions on the Bank's staff, who had worked to uncover the theft and to determine the amount taken. Johns's counsel confirmed receipt of the restitution order, acknowledged the Bank's revised claim, and reiterated the Defendant's restitution objection: "And for the record, we still oppose and object to the restitution even in the new amount. We still stand by our original position in our brief." The District Court asked Johns's counsel if there were any issues in the PSI report. Counsel advised that the Defendant had no issues, and they were "prepared to move forward" to sentencing. The District Court pronounced Johns's sentence and ordered restitution to the Bank in the updated amount.

         STANDARDS ...


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