State v. MacDonald, 2013 MT 105 (April 23, 2013) (7-0) (Baker, J.)
Issue: (1) Whether the district court erred by ordering a change in parenting arrangements for John Doe as part of the criminal sentence, despite pending dependency and neglect proceedings, and (2) whether the district court exceeded statutory mandates by ordering MacDonald to pay fees, costs, and surcharges without inquiring into her ability to pay.
Short Answer: (1) No, but the court should not have included a statement in the written judgment that John Doe’s father should be presumed to have custody; and (2) no.
Affirmed and remanded to strike part of written judgment
Facts: In March 2011, Ashli MacDonald and her boyfriend, Pete Lapham, brought Ashli’s seven-week-old son, John Doe, to the hospital due to swelling and bruising of his upper right leg. After determining that the baby had a fracture in his upper right femur and suspecting non-accidental trauma, the doctor conducted a routine skeletal survey and found an older, already healing fracture in his right humerus. MacDonald and Lapham were interviewed separately by the police. MacDonald initially denied knowing what had happened to her son, but then said she had become frustrated by his crying, grabbed him by the leg and flipped him over. She described another time when she jerked his right arm. At trial, she said these were lies she told so she could get out of there more quickly, and testified that Lapham, not she, had injured the baby.
Procedural Posture & Holding: A jury convicted MacDonald of assault on a minor and aggravated assault, both felonies. The district court held a sentencing hearing, and the baby’s father, Andrew Cox, attended. When asked by the court about his preferred residential agreement, Cox said he thought John Doe should live with him, and MacDonald should be allowed supervised visitation. MacDonald’s counsel noted that the parenting arrangements were being considered in MacDonald’s dependency and neglect proceeding, and suggested the court await the outcome of that case. The court said it would defer to the dependency and neglect matter, but in the interim, placed the baby with the father, allowing MacDonald three supervised visits a week.
The district court sentenced MacDonald to five years in prison for assault on a minor and 15 years for aggravated assault, to be served concurrently, with both sentences suspended. It ordered MacDonald to pay fines, fees, and surcharges, including prosecution and defense costs, totaling $1,060. The court made no findings regarding MacDonald’s financial situation. MacDonald appeals, and the Supreme Court affirms but remands for removal from the written judgment of the statement regarding John Doe’s custody.