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. A Life Care Plan was submitted with the PSI, and proposed $1,278,256 as the cost of Lynn’s future care.

Passwater objected to the PSI in March 2014, disputing many expenses in the Life Care Plan and proposing restitution in the amount of $257,200.23.

The court held a sentencing hearing on March 19, 2014, at which the Boots testified in support of the restitution amount. Passwater called a longtime amputee who testified about the cost of prosthetics. No other witnesses testified regarding restitution.

Procedural Posture & Holding: The district court issued a judgment and sentence ordering Passwater to pay restitution of $593,828.01 to the Boots and $24,988.40 to the Crime Victim Compensation Program. Passwater appeals, and the Supreme Court affirms.

Reasoning: Passwater argues the cost calculations in the Plan were speculative, and that his right to due process was violated by the court’s reliance on uncorroborated hearsay in the Plan. But the district court had substantial evidence on which to base its restitution award. The court went item by time through the Plan in its order, awarding some expenses and reducing or eliminating others. Based on the Court’s review of the record, it cannot conclude that the district court’s findings were clearly erroneous.

Passwater also argues that the Plan contained hearsay upon hearsay; however, the Rules of Evidence do not apply to sentencing hearings. Passwater had ample time to prepare a defense to the Plan, including subpoenaing the author of the Plan. He did not do so.