State v. Wilkes

How Is a Montana Drug Fine Calculated When the Jury Doesn’t Say Which Drugs? State v. Wilkes, 2021 MT 27

Boland Aarab PLLP

In State v. Wilkes, 2021 MT 27, the Montana Supreme Court unanimously reversed a $10,000 fine set at 35% of the market value of methamphetamine. The jury had returned a general verdict that did not say which of several quantities of drugs it relied on. The Court held that due process then requires the fine to be based on the lowest quantity inherent in the verdict, which here was trace residue. The Court affirmed the rest of the sentence, holding that the judge permissibly departed from Montana’s presumption of a deferred sentence for a first possession offense.

Key Takeaways

  • Without a special verdict specifying the drugs and quantities, “due process required that the sentencing court calculate the base fine under § 45-9-130, MCA, based on the lowest particular quantum of drugs inherent in the verdict” (Wilkes ¶ 28).
  • Courts must read the mandatory 35% market-value fine together with § 46-18-231(3), MCA, and consider the offender’s ability to pay and the gravity of the offense (¶¶ 26–27).
  • The first-offense presumption of a deferred sentence “is not conclusive.” It can be overcome by substantial aggravating circumstances on the trial or sentencing record (¶ 18).
  • A sentencing judge may consider aggravating facts even when the jury acquitted on the greater charge (¶ 21).

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. Wilkes, 2021 MT 27, 403 Mont. 180, 480 P.3d 823
CourtMontana Supreme Court (unanimous; opinion by Justice Dirk Sandefur, joined by Chief Justice McGrath and Justices Baker, Gustafson and Rice)
DecidedFebruary 9, 2021 (submitted on briefs June 17, 2020)
DocketDA 19-0367, on appeal from the Third Judicial District, Anaconda-Deer Lodge County
ResultAffirmed in part and reversed in part: the $10,000 market-value fine was reversed and the case remanded for an amended judgment without it
Counsel for Ms. WilkesCaitlin Boland Aarab, Boland Aarab PLLP
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. Wilkes?

In November 2017, officers in Anaconda stopped a car Ms. Wilkes was driving for expired registration. Her passenger was arrested on a warrant (¶¶ 2–3). A later warrant search of the car turned up several separate quantities of methamphetamine (¶¶ 6, 25):

  • a FedEx box holding 220.99 grams;
  • about 30 grams in a duffel bag of men’s clothing;
  • a small amount in a glass vial behind the driver’s seat;
  • trace residue on a pipe and other paraphernalia.

She was charged with possession with intent to distribute. The jury convicted her only of the lesser offense of possession, plus misdemeanor paraphernalia. The general verdict form did not say which quantity the conviction rested on (¶¶ 11–12).

At sentencing, the judge imposed a suspended five-year commitment rather than a deferred sentence. The judge also imposed the maximum $5,000 fine and an additional $10,000 as the 35% market-value fine under § 45-9-130, MCA (¶ 15).

The Supreme Court decided two issues:

  1. Deferred sentence: affirmed. The judge found aggravating circumstances in the record:
  2. the large quantity of drugs;
  3. a co-defendant’s statements about her involvement;
  4. methamphetamine’s link to other crime.

Substantial evidence supported those findings (¶ 19). The Court also noted that the judge had rejected the State’s request for an unsuspended five-year prison term (¶ 21). There was no abuse of discretion (¶ 21).

  1. Market-value fine: reversed. Nobody could know which drugs the jury relied on (¶¶ 24–25). The fine therefore had to be based on the lowest quantity inherent in the verdict: trace residue. That de minimis amount gave “no qualifying basis” for the fine, “a deficiency not curable on remand” (¶ 28). The district court had also imposed the fine without considering the § 46-18-231(3) factors, including ability to pay (¶¶ 26, 28). The $10,000 fine was reversed outright (¶ 29).

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

Our position on appeal. We argued two things:

  • The district court should have followed the statutory presumption of a deferred sentence for a first-offense possession conviction (¶ 1).
  • The market-value fine was wrong because the court never weighed her limited role or her ability to pay. Because the jury rejected intent to distribute, it necessarily convicted her only of the small vial behind her seat, not the FedEx box or the duffel bag (¶ 23).

Where the Court agreed. The Court agreed the fine could not stand. It also agreed the district court never considered the § 46-18-231(3) proportionality and ability-to-pay factors (¶ 28).

Where the Court differed.

  • It called our reading of the verdict “a reasonable, albeit speculative, inference,” just one of several equally speculative possibilities (¶ 24).
  • Instead of adopting our reading, it held that the fine had to rest on the lowest quantity inherent in the verdict. That produced an even better result: no fine at all, rather than a smaller one (¶ 28).
  • On the deferred sentence, the Court held that the judge could consider aggravating facts from the trial and sentencing record, even though the jury had not convicted on the greater charge (¶ 21).

What did Wilkes change in Montana law?

Wilkes is a published decision that settled two sentencing questions:

  1. The lowest-quantity rule for market-value drug fines. When a case involves several distinct quantities of drugs, the base fine under § 45-9-130 requires one of three things (¶ 28):
  2. a conviction on a single quantity proven or stipulated at trial;
  3. a plea to a particular quantity;
  4. a special verdict naming the drugs and quantities.

Without one, the fine must rest on the lowest quantity inherent in the verdict.

  1. When the first-offense deferred-sentence presumption can be overcome. The presumption in § 45-9-102(3) yields to substantial aggravating circumstances. Examples are evidence that “elevates the circumstances of the offense itself beyond a typical prima facie case,” or later conduct showing continued criminal propensity (¶ 18).

Later Montana Supreme Court decisions cite Wilkes, including State v. Doubek (2021 MT 76) and State v. Thibeault (2021 MT 162) on the deferred-sentence presumption, State v. Gibbons (2024 MT 63) on excessive fines, and State v. Wood (2024 MT 318) on the standard of review.

Which Montana laws and rules apply?

When might Wilkes apply to you?

  • Several items, one general verdict. Where the evidence includes several separate quantities and the jury does not say which one it relied on, a sentence that depends on quantity may be limited to the smallest one (¶ 28).
  • A mandatory fine that ignores ability to pay. Even “mandatory” fines must be weighed against the offender’s resources and the gravity of the offense (¶ 27).
  • Acquitted of the greater charge but sentenced harshly. A judge may still weigh aggravating facts in the record when choosing among lawful sentences (¶ 21).

The lesson reaches beyond criminal cases: a verdict form decides what a court can later say the jury found.

How hard is it to win a sentencing appeal in Montana?

These appeals are narrow:

  • The Supreme Court reviews most criminal sentences only for legality, meaning whether the sentence is within the governing statutes (¶ 16).
  • Sentences not subject to sentence review are checked for legality and then, where it applies, for abuse of discretion. That means a clearly erroneous finding, an error of law, or arbitrary reasoning “resulting in substantial injustice” (¶ 16).
  • The sentencing judge has “broad discretion” to find aggravating factors in the record (¶ 18). That is why the deferred-sentence argument failed.

What made the fine issue winnable was the trial record itself. The only weighed quantity actually admitted at trial was the 220.99 grams in the FedEx box. The court’s 269.88-gram figure included drugs seized from a house, which were redacted from the exhibit the jury saw (¶ 25 n.6). Careful reading of the exhibits showed the sentence rested on something the jury never found.

The Boland Aarab Way

Boland Aarab PLLP represented Ms. Wilkes on appeal. We won reversal of the fine and lost the deferred-sentence issue. We publish mixed results because they show exactly what the record did and did not support. That habit, reading every exhibit against what the judge relied on, is the same one we bring to 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 is the 35% market-value drug fine in Montana? Section 45-9-130, MCA, requires a fine of 35% of the market value of the drugs a person is found to have possessed. Courts must apply it together with the ability-to-pay and proportionality factors of § 46-18-231(3), MCA (Wilkes ¶¶ 26–27).

Is a first-time drug possession offender in Montana guaranteed a deferred sentence? No. The law presumes a deferred sentence, but the presumption “is not conclusive” and can be overcome by substantial aggravating circumstances in the record (Wilkes ¶ 18; § 45-9-102(3), MCA).

Can a Montana fine violate the Constitution? Yes. Both constitutions bar excessive fines, and a fine’s proportionality to the gravity of the offense is the “touchstone” (Wilkes ¶ 26; Mont. Const. art. II, § 22).

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.

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