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State v. Ailer

State v. Ailer, 2018 MT 18 (Feb. 6, 2018) (McGrath, C.J.) (5-0, aff’d)

Issue: (1) Whether the district court erred in denying Ailer’s ineffective assistance of counsel claim; (2) whether evidence of Ailer’s wages being garnished is a “bad act” and inadmissible character evidence; and (3) whether substantial evidence supported the district court’s restitution order.

Short Answer: (1) No; (2) no; and (3) yes.


Facts: A few weeks after being released to full-duty employment after a car accident, Matthew Ailer filed a work comp claim, reporting that a heavy floor burnisher fell on him as he was lifting it into his work truck. A coworker, Russell, and Ailer’s fiancée were with Ailer when the accident occurred, and took him to the hospital.…

State v. Erickson

State v. Erickson, 2018 MT 9 (Jan. 16, 2018) (Rice. J.) (5-0, aff’d, rev’d, & remanded)

Issue: Whether the district court erred in denying Erickson’s motion to modify his criminal judgment.

Short Answer: No; however, Erickson can seek relief under § 46-18-246 and is permitted to do so on remand.

Affirmed, reversed, and remanded

Facts: Erickson and Johnson were involved in a fight in 2011, which resulted in Johnson falling, hitting his head, and sustaining a serious injury. In February 2013, a jury found Erickson guilty of criminal endangerment, and this Court affirmed in 2014.

At sentencing in 2013, the state sought restitution for Johnson’s medical care and lost wages. Erickson argued that those issues were more appropriately addressed in a civil case, which Johnson had already filed.…

State v. Brave

State v. Brave, 2016 MT 178 (July 26, 2016) (Shea, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in ordering Brave to pay $25,000 in restitution, and (2) whether the district court erred in imposing several probation conditions.

Short Answer: (1) No, and (2) yes.

Affirmed (1) and reversed (2)

Facts: The state charged Brave with sexual intercourse without consent on the basis of his having committed the offense with AC, who then became pregnant and gave birth to twins. At the time of the offense, Brave was 18 and AC was 14. In May 2014, Brave pled guilty to an amended charge of criminal endangerment, a felony.

Procedural Posture & Holding: The district court held a restitution hearing in September 2014, and a sentencing hearing in November 2014, after which it issued a restitution order ordering Brave to pay $35,667.36 to AC’s mother, DC, which included $25,000 for DC’s lost wages during a 10-week FLA leave of absence that she took after the twins were born.…

State v. Passwater

State v. Passwater, 2015 MT 159 (June 11, 2015) (Wheat, J.) (5-0, aff’d)

Issue: Whether the district court properly ordered Passwater to pay restitution based on the Life Care Plan.

Short Answer: Yes.


Facts: In July 2012, Passwater failed to yield while making a left turn off of highway 83 and collided with a motorcycle. Bryce Boots was driving the motorcycle and his wife Lynn was a passenger. Both were hospitalized. Bryce suffered a broken left foot and Lynn’s left leg was amputated below the knee. Passwater was intoxicated at the time of the accident.

Passwater pled guilty to negligent vehicular assault. The state prepared a presentence investigation (PSI), which was delivered to Passwater in December 2013. The PSI included a victim impact letter and an affidavit fro the Boots claiming a pecuniary loss of $1,427,318.01.…

State v. Barrick

State v. Barrick, 2015 MT 94 (March 31, 2015) (Rice, J.; Cotter, J., concurring & dissenting) (4-1, aff’d & rev’d)

Issue: (1) Whether district court properly ordered restitution for lost income; (2) whether evidence supported restitution for victim’ medical bills incurred as a result of defendant shooting victim’s family dog; and (3) whether the district court abused its discretion in denying defendant’s request for victim’s financial and medical records.

Short Answer: (1) No; (2) yes, and (3) no.

Affirmed (2 & 3) and reversed (1) and remanded to amend the judgment

Facts: In September 2013, a jury convicted Barrick of criminal mischief and cruelty to animals for fatally shooting the Tuss family’s dog. During sentencing, the Tuss family asked for restitution of $9,357.14 to pay for the replacement cost of the dog, medical bills for Brett Tuss, lost wages for family members spent cooperating with the prosecution, and travel expenses associated with the prosecution of the offenses.…

State v. Henderson

State v. Henderson, 2015 MT 56 (Feb. 24, 2015) (Cotter, J.) (5-0, aff’d)

Issue: Whether defendant who pled guilty to felony insurance fraud and theft was properly ordered to pay restitution.

Short Answer: Yes.


Facts: Fire Insurance Exchange insured Henderson’s home from 2000-2008. Henderson moved out of state in 2005, leaving behind many personal items in the house. She made a claim in 2007 that her home had been broken into and robbed on two separate occasions. First robbery was reported to and investigated by sheriff; second robbery not reported.

FIE paid Henderson $22,602 in 2008. She submitted supplemental claim in 2009 for $23,103 for replacement cost of items. FIE denied claim and referred for criminal charges.

Henderson was charged in 2012 with felony insurance fraud and theft.…

State v. Thorpe

State v. Thorpe, 2015 MT 14 (Jan. 20, 2015) (Baker. J.) (5-0, rev’d)

Issue: Whether the district court’s restitution order was proper.

Short Answer: No. The Court remands for a determination of a causal relation between the criminal conduct and the counseling.

Vacated and remanded

Facts: Erika, mother of then-four-year-old AL, sought an order of protection in 2009 to restrain Thorpe from being near AL based on AL’s statements suggesting Thorpe sexually abused her. A temporary order issued, and was made permanent in March 2012. From December 2009-December 2012, AL received counseling for the alleged abuse.

Several times in the spring of 2012, Erika saw Thorpe’s car parked outside a house near AL’s school, and called 9-1-1.…

State v. Champagne

State v. Champagne, 2013 MT 190 (July 16, 2013) (5-0) (Morris, J.)

Issue: (1) Whether the district court properly denied Champagne’s for-cause challenge of a prospective juror; (2) whether Champagne’s counsel provided ineffective assistance; (3) whether the district court properly admitted the forensic interviewer’s testimony; (4) whether the district court properly admitted JB’s prior consistent statements; and (5) whether the district court imposed an illegal sentence.

Short Answer: (1) Yes; (2) the record does not support this claim on direct appeal; it should be brought in a post-conviction proceeding; (3) yes; (4) yes; and (5) no, but future restitution has to be in a specific amount, and is remanded for correction of this issue.

Affirmed in part, reversed in part, and remanded