STATE OF MONTANA v. DERRELL RUSSELL DOWD

Description: Derrell Russell Dowd appeals financial conditions of his sentence from the
Nineteenth Judicial District Court. Dowd pleaded guilty to felony driving under the
influence pursuant to § 61-8-401, MCA. Despite Dowd’s objections that he could not
afford to pay, the District Court imposed a $5,000 fine and several costs, surcharges, and
fees as recommended by Dowd’s Presentence Investigation Report (PSI). Dowd appeals
the imposition of the additional charges; he does not appeal the fine.
¶2 We reverse the District Court’s imposition of costs, surcharges, and fees. The court
misapprehended the effect of the evidence at Dowd’s sentencing hearing when it concluded
that Dowd had the ability to pay because his “assets outweigh his liabilities.” We remand
for the court to strike the costs, surcharges, and fees from the Judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The State charged Dowd with DUI (fourth offense felony), operating a motor
vehicle without liability insurance, and criminal possession of drug paraphernalia based on
an incident that occurred in early March 2021. In exchange for dismissing the two
misdemeanor charges, Dowd pleaded guilty to the felony DUI. The parties jointly
recommended a thirteen-month commitment to the Department of Corrections (DOC) for
Dowd’s placement in a treatment facility, with a three-year suspended sentence to follow
the treatment program. The parties also agreed to a $5,000 fine. At sentencing, Dowd
argued that, though in the plea agreement, the fine could not be imposed because it was
subject to an ability-to-pay analysis, and he could not afford it. Dowd further requested
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that the court suspend the additional financial conditions suggested in the PSI due to his
inability to pay.
¶4 At the time of sentencing, Dowd was sixty-one years old and living with severe
chronic pain. The PSI corroborated Dowd’s testimony at sentencing that his only source
of income was $940 in Social Security Disability Insurance (SSDI). Dowd further testified
that he owned the mobile home in which he lived, and that it was valued at about $8,000.
According to the PSI, Dowd’s only asset was a vehicle valued at $1,000. Dowd testified
that he paid $300 for the vehicle. The State asked Dowd whether he could use the money
that he had been paying toward a pretrial alcohol monitoring device and “put [it] towards
[his] fines and fees[.]” Dowd answered that he could, but then told the court that his wife
had worked weekends to help him pay for the monitoring device. She had since lost her
job after getting sick from COVID-19. Dowd testified that he had no disposable income
after he paid his expenses, he had no money in an investment account, and his checking
account would have $21 after he paid his lot rent that month.
¶5 After reviewing the PSI and hearing Dowd’s testimony, the District Court found
that Dowd’s “assets outweigh his liabilities . . . and that []he has the ability to pay.” The
court ordered that, in addition to the $5,000 fine, Dowd pay between $360 and $1,080 in
supervision fees, under § 46-23-1031(1)(a)(i), MCA;
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a $20 felony surcharge, under
1 Pursuant to § 46-23-1031(1)(a)(i), MCA, the probation and parole officer determines the amount
of supervision fees once ordered by the sentencing court. If financially able, a probationer must
pay an annual supervisory fee of no less than $120 and no more than $360. Section
46-23-1031(1)(a)(i), MCA. Dowd was sentenced to three years suspended. Ordering his probation
and parole officer to determine the amount will result in a fee between $360 and $1,080 over three
years.
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§ 46-18-236(1)(b), MCA; a $50 surcharge for victim and witness advocacy programs,
under § 46-18-326(1)(c), MCA; a $10 court information technology fee, under
§ 3-1-317(1)(a), MCA; a $50 PSI fee, under § 46-18-111(3), MCA; and a $100 prosecution
fee, under § 46-18-232(1), MCA. It waived the cost of assigned counsel.
STANDARD OF REVIEW
¶6 We review criminal sentences for legality, “review[ing] de novo whether the court
adhered to the applicable sentencing statute.” State v. Fisher, 2021 MT 255, ¶ 25,
405 Mont. 498, 496 P.3d 561 (citation omitted); State v. Moore, 2012 MT 95, ¶ 10,
365 Mont. 13, 277 P.3d 1212 (citation omitted). If a sentencing condition is legal, “we
then review its reasonableness to determine whether the district court abused its
discretion.” State v. Reynolds, 2017 MT 317, ¶ 15, 390 Mont. 58, 408 P.3d 503 (citation
omitted).
¶7 “A district court’s determination of a defendant’s ability to pay an imposed fine,
fee, cost, or other charge is essentially a finding of fact that this Court will reverse only if
it is clearly erroneous.” Fisher, ¶ 25 (quoting State v. Hotchkiss, 2020 MT 269, ¶ 13,
402 Mont. 1, 474 P.3d 1273 (internal quotations omitted)). “A court’s findings of fact are
clearly erroneous if they are not supported by substantial credible evidence, if the court
misapprehended the effect of the evidence, or if a review of the record leaves this Court
with the definite and firm conviction that a mistake has been made.” Reynolds, ¶ 16
(citation omitted).
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DISCUSSION
¶8 Dowd maintains he demonstrated in the District Court that he cannot afford to pay
the costs, surcharges, and fees, and argues that the imposition of these obligations,
therefore, is illegal. He contends that a sentencing court may order these charges in
addition to a fine only when the evidence establishes that the defendant has the ability to
pay them. He argues that no evidence supported the District Court’s finding because he
gave unrefuted testimony that his only source of income is SSDI and his only assets are
“an old vehicle and a mobile home in which he lives.”
¶9 The State counters that the District Court imposed not only a legal sentence but a
mandated sentence when it ordered the specific monetary conditions. It cites to
§ 61-8-731(4)(b), MCA, arguing that “a person who is financially able to pay the costs of
imprisonment, probation, and alcohol treatment” must do so as a condition of probation.
The State maintains that the District Court “properly considered Dowd’s ability to pay
before requiring Dowd to pay fees and surcharges” and it “properly deferred the ability to
pay analysis for supervision fees to the DOC.” Finally, the State argues that the District
Court imposed a legal sentence because it did not “target” Dowd’s SSDI, citing Dowd’s
testimony that “he could pay fines and fees with the monies he had previously used to pay
for a pretrial alcohol monitoring device.”
¶10 Each of the costs, surcharges, and fees imposed by the District Court at Dowd’s
sentencing includes a caveat that makes waiver of the charges either mandatory or
discretionary upon a finding that the defendant does not have the ability to pay. The
statutory surcharges associated with felonies and the legal expenses of prosecuting a
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defendant must be waived if the court finds that the defendant cannot afford to pay.
Sections 46-18-232(2), -236(2), MCA. The defendant must pay the $50 PSI fee only if the
court determines that the defendant is able to do so. Section 46-18-111(3), MCA. The
sentencing court has the discretion to “reduce or waive a fee . . . or suspend the monthly
payment of the supervisory fee if it determines that the payment would cause the person a
significant financial hardship.” Section 46-23-1031(1)(c), MCA. The sentencing court
also has discretion to waive the information technology fee if the defendant is unable to
pay. Section 3-1-317(2), MCA.
¶11 We have affirmed the imposition of costs, surcharges, and fees when the sentencing
court demonstrated a “serious inquiry and separate determination” of the defendant’s
ability to pay. See e.g., Reynolds, ¶ 29; State v. Gable, 2015 MT 200, ¶ 10, 380 Mont. 101,
354 P.3d 566. We have reversed when the sentencing court failed to discuss on the record
the ability to pay or to consider the financial hardship that charges would impose. See e.g.,
Moore, ¶¶ 14, 21; State v. McLeod, 2002 MT 348, ¶ 34, 313 Mont. 358, 61 P.3d 126.
¶12 Review of the record indicates that the District Court conducted an ability-to-pay
analysis regarding Dowd’s $5,000 fine. The court addressed the PSI, and it heard
testimony about Dowd’s ability to work and financial circumstances. It also listened to
Dowd’s testimony about the financial hardship he would experience if ordered to pay. At
the conclusion of Dowd’s testimony, the District Court found that his “assets outweigh his
liabilities,” and Dowd therefore had the ability to pay. Dowd does not appeal the
imposition of the fine, noting its mandatory nature under § 61-8-731(1)(a)(iii), MCA
(2019). See State v. Mingus, 2004 MT 24, ¶ 15, 319 Mont. 349, 84 P.3d 658.
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¶13 “A court must examine the fees considering a defendant’s other financial
obligations, employment opportunities, available assets, and any present or future hardship
imposing the fee may have.” State v. Hardin, 2023 MT 132, ¶ 32, 413 Mont. 26, 532 P.3d
466. Dowd presented his sole assets to the court in the form of the $8,000 mobile home in
which his family lives and a vehicle that he acquired for $300. Both the PSI and Dowd’s
testimony reflected that his only income was $940 per month in SSDI. Dowd testified that
he was unable to pay for his pretrial monitoring device by himself, explaining that his wife
worked weekends to help him with this expense. She no longer could assist Dowd with
his court obligations because she lost her job due to illness. On this evidence, the District
Court found Dowd able to pay between $590 and $1,310 (depending on the supervision
fees as determined by his probation and parole officer) in addition to his $5,000 fine, noting
that his “assets outweigh his liabilities.”
¶14 The record evidence does not support the court’s conclusion. After paying $600 to
rent the lot for his mobile home, Dowd has $340 remaining from his SSDI each month.
When concluding that he had the ability to pay the fine plus the additional charges, the
court relied exclusively on the value of Dowd’s assets and lack of debt, despite the
uncontroverted evidence reflecting Dowd’s impoverished financial situation. Perhaps if
Dowd sold his $8,000 mobile home and his vehicle, he could pay the imposed monetary
obligations associated with his sentence. Dowd’s home and means of transportation,
however, are basic needs. Sentencing courts must consider the effect of costs, surcharges,
and fees on the basic needs of defendants when conducting an ability-to-pay analysis to
assess “the nature of the burden” imposed by these charges. See § 46-18-232(2), MCA;
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State v. Lodahl, 2021 MT 156, ¶ 27, 404 Mont. 362, 491 P.3d 661 (holding that forcing a
person to pay restitution at the expense of affording minimal living requirements and
essential services was “unjust”). There was no evidence that Dowd conceivably could
acquire housing or meet his transportation needs for an amount less than the modest value
of his current home and vehicle.
¶15 The State argues that Dowd could afford to pay and his SSDI was not targeted. See
State v. Yeaton, 2021 MT 312, ¶¶ 11-12, 406 Mont. 465, 500 P.3d 583. The State cites
Dowd’s testimony that he could shift the monies he used to pay for his pretrial monitoring
device to afford the costs, surcharges, and fees to argue that Dowd had the ability to pay
without using his SSDI. It was undisputed, though, that Dowd received assistance from
his wife to pay for the monitoring device and that she could no longer provide that
assistance. What is more, Dowd’s wife was not the one being sentenced. The State
maintains, however, that Dowd was “requir[ed] . . . to obtain employment,” providing him
with additional income that he could use toward the fine and charges. The State’s
contention is not supported by the record; Dowd receives SSDI because his physical
disability prevents him from maintaining employment for which he is qualified. More
importantly, the District Court made no finding that Dowd had the ability to earn additional
income with which to pay the assessed financial obligations; it relied only on its assessment
of Dowd’s assets and liabilities.
¶16 Review of the record reflects that the court misapprehended the effect of the
evidence when conducting its ability-to-pay analysis; its finding that Dowd had the ability
to pay the financial obligations assessed on top of the $5,000 mandatory fine was clearly
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erroneous. See Reynolds, ¶ 16. Because the undisputed evidence supports a finding that
Dowd could not pay, the District Court imposed illegal sentencing conditions when it
ordered the $20 statutory felony charge (§ 46-18-236(2), MCA), the $50 statutory victim
and witness advocacy charge (§ 46-18-236(2), MCA), the $100 prosecution fee
(§ 46-18-232(2), MCA), and the $50 PSI fee (§ 46-18-111(3), MCA). Supervisory fees
and informational technology fees remain in a sentencing court’s discretion even if it finds
that a defendant does not have the ability to pay. See §§ 46-23-1031(1)(c); 3-1-317(2),
MCA. Nonetheless, we consider whether such conditions were reasonable. Reynolds,
¶ 15. Considering Dowd’s circumstances, it was not reasonable for the court to impose
any discretionary fees.

Outcome: We reverse and remand for the District Court to strike the costs, surcharges, and
fees detailed in the Judgment.

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Defendant's Experts:

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