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State v. Thaut12/20/2004
Submitted on Briefs: December 15, 2004
Gary James Thaut ("Thaut") appeals from a supplemental order entered May 3, 2001, in the District Court for the Eleventh Judicial District, Flathead County. Thaut was originally ordered to pay $440,107 in restitution. This amount was reduced to $69,457 by a supplemental order from which he appeals. We affirm.
We address the following issues raised by Thaut on appeal:
1. Are the restitution statutes, as amended by the 2003 Legislature, House Bill 220, unconstitutional?
2. Did the District Court err in fixing the amount of Thaut's restitution?
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 1998, Robert Meyers ("Meyers") was sitting in his car when Thaut walked up and fired a shotgun through the window, striking Meyers in the face. Although Meyers survived the blast, he suffered serious injury and his vehicle was damaged.
On December 17, 1998, the Flathead County Attorney filed an Information charging Thaut with attempted deliberate homicide. On April 10, 2000, the County Attorney filed a plea agreement in which Thaut agreed to plead guilty to reduced charges of felony aggravated assault and felony criminal mischief. On June 8, 2000, Thaut appeared before the District Court and entered guilty pleas to these two charges.
Thaut's probation officer prepared a presentence investigation and report ("PSI"). On August 3, 2000, the District Court conducted a sentencing hearing. During the hearing, Thaut pleaded with the court not to incarcerate him. Thaut argued that he had learned his lesson, and given the opportunity, he would return to society, work hard and be a productive taxpayer. Thaut argued he had always been a hard worker, and that he had the ability to earn a decent income, to pay restitution and to give back to the community through volunteer work.
In spite of Thaut's pleas, the court sentenced him to 30 years at Montana State Prison and ordered he would not be eligible for parole for 10 years. The District Court's Order imposed 10 conditions upon Thaut in the event he should be released on parole, including a requirement that he pay the victim $440,107 in restitution, the amount previously awarded Meyers in a civil judgment against Thaut.
Thaut filed a notice of appeal on September 29, 2000. On November 1, 2000, he filed a consolidated motion for re-sentencing and motion for stay of appeal, requesting a redetermination of restitution under this Court's decision in State v. Pritchett , 2000 MT 261, 302 Mont. 1, 11 P.3d 539. On May 3, 2001, the District Court held a re-sentencing hearing. At the hearing, Thaut stated he could not pay restitution because he had no work skills, no assets, he was in debt to his mother for $50,000, and he had no prospect of earning or acquiring money in the future. Thaut also asserted he suffered from a mental illness which prevented him from earning more than minimum wage.
After the re-sentencing hearing, the District Court issued a supplemental order on September 12, 2001, reducing Thaut's restitution obligation to $69,457, plus $650 in extradition costs and $1000 in public defender fees. In the order, the District Court found Thaut had the ability to pay the ordered amount of restitution based on his previous testimony that he has always had the ability to work hard and earn a decent living. Further, in considering Thaut's ability to pay, the court discounted his claim that he was indebted to his mother because Thaut failed to provide any proof of the $50,000 loan, and because he had not made any attempt to pay his mother back. The District Court reasoned when Thaut w
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