STATE OF MONTANA v. COLBY SCOTT DEVLIN (2024)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Colby Scott Devlin appeals from restitution in the amount of $8,640 ordered in his October 19, 2022 judgment, sentencing him after a plea of no contest to misdemeanor stalking in violation of § 45-5-220, MCA. We reverse and remand for calculation of lost wages.

¶3 The State concedes that although it presented some evidence to support restitution for the victim's (P.N.) lost wages, it did not present substantial evidence entitling P.N. to the amount ordered. The State asks us to remand for the District Court to determine the correct amount of restitution, which may require another hearing, while Devlin asks us to strike the restitution.

¶4 Prior to sentencing, P.N. submitted an Affidavit of Victim's Pecuniary Loss, seeking $9,136.26 in restitution, which the District Court granted in full. Devlin only appeals the imposition of $8,640 of the restitution, which P.N. sought for “Lost Wages—Terminated Employment Due to PTSD.” P.N. submitted a victim impact statement explaining the necessity of quitting her job out of fear that Devlin would come back after he had shown up at her work screaming at her. However, she did not submit documentation, evidence, or testimony explaining how the $8,640 loss was calculated. Devlin objected at sentencing to this part of the restitution, indicating that there should be some sort of documentation or substantiation of the amount sought and a causal connection. The court looked to P.N.’s affidavit and sworn victim impact statement and found a sufficient nexus between Devlin's crime and P.N.’s lost wages because her mental health was so affected that she was unable to work.

¶5 Generally, when the State has failed to prove a causal connection between the crime and the claimed restitution, the remedy is to strike the restitution award imposed on the defendant. See, e.g., State v. Cole, 2020 MT 259, ¶¶ 16, 18, 401 Mont. 502, 474 P.3d 323; State v. Breeding, 2008 MT 162, ¶ 20, 343 Mont. 323, 184 P.3d 313. This is because “direct or indirect ‘causal relation between the offender's criminal conduct and [asserted] pecuniary loss is the touchstone for determining’ entitlement to restitution.” Cole, ¶ 11 (quoting State v. Brownback, 2010 MT 96, ¶ 20, 356 Mont. 190, 232 P.3d 385). However, when a causal connection is shown, but the record is insufficient to determine the proper amount of restitution, we generally remand for further fact finding to determine the proper amount of restitution. See, e.g., State v. Simpson, 2014 MT 175, ¶¶ 26–28, 375 Mont. 393, 328 P.3d 1144; State v. Heafner, 2010 MT 87, ¶ 13, 356 Mont. 128, 231 P.3d 1087. “Remand to give the district court the opportunity to correct the illegal provision should be ordered unless, under the particular circumstances of the case, the illegal portion of the sentence cannot be corrected.” Heafner, ¶ 11.

¶6 Here, we agree with the District Court that there is a sufficient causal connection between P.N.’s lost wages and Devlin's criminal conduct. The court may find the requisite causal nexus for restitution “ ‘upon an admission, by implication from proof of the elements of the charged offense, upon victim affidavits included with a PSI, or upon other evidence presented at or incident to sentencing.’ ” Cole, ¶ 11 (quoting State v. Pierre, 2020 MT 160, ¶ 13, 400 Mont. 283, 466 P.3d 494). Devlin pled guilty to stalking. P.N. submitted an affidavit and documentation, including a victim impact statement, which she verified as correct in her affidavit, that explained the circumstances surrounding Devlin's conviction. In it, P.N. discussed Devlin's consistent stalking behavior—including following her around to her home and place of employment for months; trying to talk to her and family members despite her telling him that she had contacted police; and eventually showing up at her work, slamming the door and screaming at her. She discussed that after these events, she was afraid to leave her house, was constantly looking over her shoulder, and had consistent anxiety attacks. She quit her job for fear that he would come back. She now must go to therapy multiple times a week and has PTSD and depression stemming from Devlin's crime. It is clear that the anxiety P.N. now feels and her inability to continue work at her former place of employment stems from Devlin's crime and is sufficiently causally related to entitle P.N. to restitution for lost wages.

¶7 What is unclear in the record is how P.N. calculated her lost wages and whether those calculations have sufficient evidentiary support such that a reasonable mind could accept that number as adequate to support P.N.’s claimed restitution. See State v. McMaster, 2008 MT 268, ¶¶ 28–29, 345 Mont. 172, 190 P.3d 302 (allowing a valuation with “some guess work” when “calculated by use of reasonable methods based on the best evidence available under the circumstances”); State v. Passwater, 2015 MT 159, ¶ 21, 379 Mont. 372, 350 P.3d 382. Therefore, like in Simpson and Heafner, we find it appropriate to remand to the District Court to, after such further proceedings as it deems appropriate and consideration of the relevant facts, order restitution in the appropriate amount.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

¶9 Reversed and remanded.

MIKE McGRATH

We Concur: JAMES JEREMIAH SHEA LAURIE McKINNON BETH BAKER INGRID GUSTAFSON