Background
Harry William Richards pleaded nolo contendere to felony criminal endangerment after firing three shots toward a vehicle carrying his neighbor, Alicia Dorman, and her two young children. Under the plea agreement, the prosecution agreed to recommend a three-year deferred sentence if Richards was eligible; otherwise, it would recommend a three-year Department of Corrections sentence, all suspended.
The prosecution recommended the agreed three-year deferred sentence and most conditions proposed in the presentence investigation report, including statutory financial obligations and restitution. The District Court imposed the deferred sentence, $2,475.35 in restitution for Dorman’s travel expenses, lost wages, and childcare costs, and a related administrative fee. On appeal, Richards argued for the first time that the prosecutor breached the plea agreement by recommending financial obligations. He also challenged the amount of restitution and argued that his indigence warranted relief from payment.
The Court’s Holding
The Montana Supreme Court affirmed. It declined to reverse for plain error on the alleged plea-agreement breach because the prosecutor expressly recommended the promised three-year deferred sentence and did not undermine that recommendation. The Court reasoned that the agreement did not preclude ordinary conditions or financial obligations, most of which were mandated by statute, and that Richards received the benefit of his bargain by avoiding the substantially greater potential penalty for felony criminal endangerment.
The Court also upheld the restitution award. It held that Montana law did not require a finding that Dorman’s attendance at the proceedings was necessary and that she was entitled to recover reasonable expenses associated with attending them. Her sworn affidavit and victim-impact statement constituted substantial evidence supporting the travel, wage, and childcare expenses, particularly because Richards offered no conflicting evidence or meaningful factual challenge to the calculations. His general claim of indigence also did not preserve or establish entitlement to waiver or adjustment under the restitution statute.
Key Takeaways
- A prosecutor does not breach a plea agreement by recommending standard or statutorily mandated financial conditions when the prosecutor makes and does not undermine the promised sentencing recommendation.
- An unrebutted victim affidavit may provide substantial evidence of restitution losses, including travel, lost wages, and childcare expenses incurred in attending court proceedings.
- A general assertion of indigence does not satisfy a defendant’s burden to request and factually demonstrate eligibility for waiver or adjustment of restitution.
Why It Matters
The decision illustrates the demanding standard for obtaining plain-error relief on an unpreserved claim that the prosecution breached a plea agreement. It also emphasizes the importance of developing a factual record when disputing a victim’s restitution affidavit or seeking relief from restitution based on inability to pay.
The Court designated the decision a memorandum opinion under its internal rules. It is noncitable, does not serve as precedent, and drew a partial dissent from Justice Laurie McKinnon, who would have remanded for further consideration of whether Dorman’s court trips and $40-per-hour childcare expenses were reasonable.