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State v. Thaut12/20/2004
ring his 30 year sentence. Section 46-18-242, MCA (1997), provided:
(1) Whenever the court believes that a victim of the offense may have sustained a pecuniary loss as a result of the offense . . . the court shall order the probation officer . . . to include in the presentence investigation and report:
(a) documentation of the offender's financial resources and future ability to pay restitution; and
(b) documentation of the victim's pecuniary loss . . . . Section 46-18-242(1)(a)-(b), MCA (1997).
In Pritchett , 5, this Court held the District Court had no authority to impose a sentence of restitution absent the documentation required under § 46-18-242(1), MCA. In State v. Brown (1994), 263 Mont. 223, 226, 867 P.2d 1100, 1100-01, superseded on other grounds by § 46-18-241, MCA, this Court held documentation of the defendant's financial resources was insufficient to support the court's restitution order where the PSI listed defendant's current assets, but failed to assign a monetary value to assets other than the defendant's retirement account, and the PSI provided no documentation regarding the defendant's future ability to pay restitution after his release from prison. However, in Thaut's case the PSI and Supplemental PSI provided adequate documentation both as to Thaut's assets and his ability to pay restitution in the future. The Supplemental PSI prepared of May 1, 2001, incorporated the extensive employment history contained in the original PSI dated August 1, 2000. The employment history contained Thaut's own statements that he only had a high school education, but he was a "hard worker" and was "willing to do the tough jobs" to earn a living. Thaut recounted his past employment as an outside worker with Wal-Mart, his work as a lot attendant for a Bozeman car dealer, and his ability to earn extra money as a participant in medical research.
In addition to his employment information, the Supplemental PSI advised the District Court that while Thaut believed he was in poor health due to a head injury he allegedly received in a 1973 car accident, he had no "documented" physical limitations or disabilities, and he was currently unemployed only due to his incarceration. It also noted that he said he had no assets, and allegedly was $50,000 in debt.
The Supplemental PSI included a sentencing recommendation from the Probation Officer who prepared the report. Among other things, he recommended Thaut be required to pay restitution in the amount of $427,000 in accordance with the civil judgment ordered against him.
Also, at the time of making its determination, the District Court had at its disposal a copy of the Department of Health and Human Services psychiatric evaluation prepared at the request of Thaut's counsel, which refuted Thaut's claims that he suffered from a mental disease or defect, or that he suffered brain damage as a result of a 1973 car accident. The report concluded, Thaut is an "angry, manipulative man," who appeared to be "malingering symptoms of mental illness" to prove himself unfit to proceed with his legal defense in this case.
After considering the substantial information presented, the District Court concluded that Thaut was able to pay restitution based on his abilities, that he was not unable to hold a job because of a mental disability, and that he did not have to pay his mother $50,000.
We conclude that the PSI and the Supplemental PSI contained sufficient information to satisfy the requirements of § 46-18-242, MCA (1997). We also conclude the District Court had sufficient information on which to base its ultimate conclusion Thaut was able to pay restitution.
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