State v. Strike

Does Restitution in Montana Have to Be Supported by Evidence? State v. Strike, 2023 MT 37N

Boland Aarab PLLP

Yes. In State v. Strike, 2023 MT 37N, the Montana Supreme Court vacated an $8,518.79 restitution award on the State’s concession and remanded for resentencing on restitution. The award had been imposed without testimony supporting the amounts, and part of it was a medical claim dated months after the incident. The Court affirmed the convictions, rejecting an ineffective-assistance claim about the proof of bodily injury. Strike is a noncitable memorandum opinion, so it is not precedent.

Key Takeaways

  • Strike was decided by memorandum opinion. It “shall not be cited and does not serve as precedent” (Strike ¶ 1).
  • The district court ordered $8,518.79 in restitution: two claimed amounts plus a 10% administration fee. One claim, for Medicaid payments, listed an incident date nearly six months after the offense (¶ 13).
  • The State conceded that the restitution should be vacated, and the Court agreed and remanded for resentencing on restitution (¶ 14).
  • Conflicting testimony about pain was enough to send the bodily-injury element to the jury, so failing to move to dismiss was not ineffective assistance (¶¶ 10–12).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

CitationState v. Strike, 2023 MT 37N (noncitable memorandum opinion)
CourtMontana Supreme Court (opinion by Justice Ingrid Gustafson, joined by Chief Justice McGrath and Justices McKinnon, Shea and Sandefur)
DecidedFebruary 28, 2023 (submitted on briefs January 18, 2023)
DocketDA 20-0471, on appeal from the Twelfth Judicial District, Hill County
ResultConvictions affirmed; $8,518.79 restitution vacated and remanded for resentencing on restitution
Appellate counsel for Mr. StrikeCaitlin Boland Aarab, Boland Aarab PLLP (the firm did not try the case)
Read the opinionOfficial opinion (Montana Judicial Branch, PDF)

Case documents

Read the full opinion (PDF) →

What did the Montana Supreme Court hold in State v. Strike?

In June 2019, a Hill County court issued a no-contact order protecting Mr. Strike’s former partner. After an altercation at her home later that month, he was charged. The State amended the charges twice, the second time eight days before trial. He was convicted by a jury of aggravated burglary, partner or family member assault, and violating a no-contact order (¶ 3).

On appeal, he argued that his trial lawyer was ineffective in two ways (¶ 4):

  • by not moving to dismiss the burglary and assault counts for insufficient evidence of bodily injury;
  • by not objecting to restitution amounts that the record did not support.

The Court decided the two issues differently:

  1. Bodily injury: affirmed. The complaining witness told officers she felt no pain and gave conflicting answers at trial. On redirect, though, she testified that she was in fact in pain. A neighbor described seeing her dragged back inside and hit, and later saw lumps on her head and neck (¶ 10). The jury could believe that testimony. So a motion to dismiss would not have succeeded, and counsel’s performance was neither deficient nor prejudicial (¶¶ 10–12).
  2. Restitution: vacated. The court ordered $8,518.79 (¶ 13). That was the total of $895 claimed for property damage and $6,849.35 claimed by the state health department for Medicaid payments, plus a 10% administration fee. The Medicaid affidavit listed an incident date of December 10, 2019, but the assault happened on June 29, 2019 (¶ 13). The State conceded that there was “no plausible justification” for failing to object to at least some of the amounts, and the Court vacated the restitution and remanded (¶ 14).

What did we argue, and how did the Court differ?

Counsel then filed a merits brief.

Our position on appeal. We argued that trial counsel was ineffective in the two ways described above. On bodily injury, we relied on City of Helena v. Strobel, 2017 MT 55, where a recanting witness’s prior statement alone could not prove an element (¶ 11). On restitution, we argued that no testimony supported the amounts claimed and that counsel should have tested their connection to the offense (¶ 13).

Where the Court agreed. On restitution, the State conceded and the Court vacated the award (¶ 14).

Where the Court differed. On bodily injury, the Court held that Strobel did not apply because no witness recanted. The conflicting testimony only showed that the element was properly left to the jury (¶¶ 11–12).

What did Strike change in Montana law?

Nothing. Strike is a noncitable memorandum opinion. The Court used that form because the case “presents a question controlled by settled law or by the clear application of applicable standards of review” (¶ 15). It is a practical example of two settled points:

  • Restitution must match losses caused by the offense and be supported by the record.
  • A victim’s inconsistent testimony about pain can still send the question of bodily injury to the jury.

Which Montana laws and rules apply?

When might Strike apply to you?

  • A restitution figure appears without testimony. The amounts in Strike came from affidavits that no one tested at sentencing (¶ 13).
  • A claimed loss doesn’t line up with the event. A medical claim dated months after the incident is a signal that the connection to the offense has not been shown (¶ 13).
  • You are a victim seeking restitution. Documenting losses and tying them clearly to the offense date helps an award hold up on appeal.

Because Strike is not precedent, any argument in a new case should rest on the published restitution decisions and statutes.

How hard is it to win an ineffective-assistance or restitution appeal in Montana?

  • Ineffective assistance. The defendant must prove both deficient performance and prejudice under Strickland (¶ 5). Only claims based on the record can be raised on direct appeal (¶ 6).
  • Sufficiency of the evidence. The Court views the evidence “in the light most favorable to the prosecution” and asks whether “any rational trier of fact” could find each element beyond a reasonable doubt (¶ 7).
  • Restitution. The proper measure of restitution is a legal question reviewed for correctness. The amount the district court found is reviewed for clear error, meaning a finding “not supported by substantial evidence” or the product of a misapprehension or mistake (¶ 8).

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Strike on appeal. The appeal ended with the restitution award vacated and the convictions affirmed. The same attention to numbers that must be proven, not assumed, goes into our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work directly with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

What counts as “bodily injury” for partner or family member assault in Montana? “Physical pain, illness, or an impairment of physical condition,” including mental illness or impairment (§ 45-2-101(5), MCA, quoted in Strike ¶ 9).

How does the Montana Supreme Court review a restitution amount? The measure of restitution is reviewed for correctness. The amount is reviewed for clear error, including whether it is supported by substantial evidence (Strike ¶ 8).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.