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State v. Thaut12/20/2004
anted to avoid incarceration he had grand employment opportunities; however, when he was attempting to avoid paying restitution, he had no ability to earn an income. The District Court further noted Thaut would have a period of 20 years to repay his victim after being paroled, resulting in a payment of less than $4,000 a year, which it found was a reasonable obligation to impose on him.
On April 22, 2003, this Court issued an order which granted counsel's motion to withdraw and concluded Thaut had a legitimate issue on appeal as to whether the District Court erred in determining his ability to pay restitution. This Court ordered new counsel be appointed to handle Thaut's appeal. In the mean time, House Bill 220 was enacted amending the restitution statutes. House Bill 220 retroactively applied to offenders who had an unpaid restitution obligation as of October 1, 2003, the effective date of the Act. This appeal ensued. Additional facts are included below as necessary.
II. STANDARD OF REVIEW
Our review of questions of constitutional law is plenary. State v. Kennedy , 2004 MT 53, 13, 320 Mont. 161, 13, 85 P.3d 1279, 13. When reviewing questions pertaining to a criminal sentence for legality, this Court's review is confined to whether the sentence is within the parameters provided by the statute. Pritchett , 6. However, a district court's determination regarding a defendant's future ability to pay restitution is essentially a finding of fact that should be affirmed unless it is "clearly erroneous," with appropriate deference given to the court's views on the credibility of the witnesses and the weight of the evidence.
See, e.g., Moore v. State , 2002 MT 315, 13, 313 Mont. 126, 13, 61 P.3d 746, 13.
III. DISCUSSION
ISSUE ONE
Are the restitution statutes, as amended by the 2003 Legislature, House Bill 220, unconstitutional?
Thaut raises numerous reasons why this Court should find HB 220 is unconstitutional. These include: HB 220 is unconstitutional because it eliminated the requirement of determining whether a person has the ability to pay restitution; HB 220 effectively created a debtors' prison by sentencing a person who cannot afford to pay restitution to a death sentence of parole and probation; HB 220 is a denial of due process because it requires offenders pay restitution based on the full replacement cost of property rather than fair market value; under the United States Supreme Court's holding in Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, Montana is prohibited from enacting a law that requires a person to remain on probation or parole until they have completed restitution payments where the person does not have the ability to pay before their sentence ends; HB 220 is unconstitutional because it is an ex post facto law as it applies retroactively "to offenders who have an unpaid restitution obligation on [October 1, 2003];" and finally, HB 220 is fatally flawed because it lacks a severability clause. Therefore, Thaut demands that HB 220 be nullified in its entirety.
We conclude Thaut lacks proper standing to raise these constitutional issues. Therefore, we decline to fully address the issue of whether the restitution statutes, as amended by the 2003 Legislature, are unconstitutional.
We have stated the following criteria must be satisfied to establish standing:
(1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and (2) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complain
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