No Statutory Authority, No Fee; Oral Sentencing Controls: State v. Nielsen (Mont. 2025, Noncitable)

Note on precedential value. This is a memorandum opinion decided under Section I, Paragraph 3(c) of the Montana Supreme Court’s Internal Operating Rules. It is noncitable and does not serve as precedent. The Court resolved the appeal by applying settled law. This commentary discusses the decision’s reasoning and practical implications without treating it as binding authority.

Introduction

State v. Z. Nielsen, 2025 MT 59N (DA 23-0101), arises from a Ravalli County prosecution for drug possession and paraphernalia following a traffic stop. After pleading guilty pursuant to a plea agreement, the defendant, Zachary M. Nielsen, was sentenced to a deferred felony sentence and a short jail term for the misdemeanor. The written judgment, however, included several financial exactions and a future court “Audit Hearing” that either had not been orally imposed or lacked statutory support.

On appeal, Nielsen challenged three categories of issues:

• Credit for time served on the felony count;
• The legality of certain fees and costs, including a $250 “contribution” to the Montana Highway Patrol Drug Fund and an $800 Public Defender fee; and
• The propriety of a mandatory, in-person “Audit Hearing” set more than two years after sentencing.

The State conceded the credit-for-time-served issue and the impropriety of the Audit Hearing, as well as the illegality of a $1,277 Jail Diversion/Pretrial Services fee added only in the written judgment. The Supreme Court affirmed the sentence but remanded for targeted modifications, most notably striking the Drug Fund “contribution” as illegal and striking the Public Defender recoupment because it was not orally imposed and lacked an ability-to-pay determination.

Summary of the Opinion

• Affirmed in part; remanded for modification. The Court affirmed the sentencing disposition but directed the District Court to:
  • Calculate and award credit for time served on Count I (felony), as conceded by the State.
  • Strike the $1,277 Jail Diversion/Pretrial Services fee (not orally imposed; State conceded).
  • Strike the $800 Public Defender fee (not orally imposed; no ability-to-pay analysis; written judgment cannot add new financial obligations).
  • Strike the $250 “contribution” to the Montana Highway Patrol Drug Fund (no statutory authority; thus illegal even if included in a plea agreement).
  • Strike the scheduled in-person Audit Hearing (improper; State conceded).
• Core legal determinations:
  • Courts cannot impose criminal financial obligations without specific statutory authority. A defendant cannot validly “agree” to an illegal fee in a plea agreement.
  • When a written judgment differs from the oral pronouncement, the oral sentence controls—particularly for financial obligations that increase the defendant’s “sacrifice of property.”
  • Before imposing costs, courts must consider ability to pay and make appropriate findings under § 46-18-232(2), MCA.

Detailed Analysis

Precedents Cited and Their Role

• State v. Reynolds, 2017 MT 317, ¶ 16, 390 Mont. 58, 408 P.3d 503.
  • Standard of review: Fines are reviewed as sentencing conditions. Courts first review legality de novo (is the condition within statutory parameters?). If legal, they review reasonableness for abuse of discretion.
  • Application here: The Court applied the legality-first framework to the Drug Fund “contribution” and the Public Defender fee.
• State v. Cleveland, 2014 MT 305, ¶ 29, 377 Mont. 97, 338 P.3d 606.
  • A defendant may not agree to an illegal sentence in a plea agreement.
  • Application: Even though Nielsen’s plea agreement listed a $250 Drug Fund contribution, it could not be imposed absent statutory authority.
• City of Missoula v. Franklin, 2018 MT 218, ¶ 10, 392 Mont. 440, 425 P.3d 1285.
  • Courts cannot impose sentences without specific statutory authority. Imposing surcharges beyond what statutes authorize is illegal.
  • Application: The Drug Fund contribution was stricken because no statute authorized it; the Court analogized to Franklin’s proscription on unauthorized surcharges.
• State v. Stephenson, 2008 MT 64, ¶¶ 29, 36, 342 Mont. 60, 179 P.3d 502.
  • An $85 “surcharge fee” for a community service program—recommended in the PSI and included in a plea agreement—was illegal because no statute authorized it; it was stricken.
  • Application: Directly analogous to the Drug Fund contribution. Inclusion in a plea agreement cannot save a fee the Legislature has not authorized.
• State v. Vanwinkle, 2008 MT 208, ¶¶ 11–12, 344 Mont. 175, 186 P.3d 1258; State v. Duong, 2015 MT 70, ¶¶ 19, 23, 378 Mont. 345, 343 P.3d 1218.
  • Various “costs” and administrative fees were stricken as illegal for lack of statutory authorization (interpreter costs; court administrative fee).
  • Application: Reinforces the throughline that local or programmatic charges cannot be imposed without a clear statutory basis.
• State v. Drube, 2003 MT 138, ¶ 19, 316 Mont. 156, 69 P.3d 1182; State v. Johnson, 2000 MT 290, ¶ 24, 302 Mont. 265, 14 P.3d 480.
  • Oral sentencing controls over discrepancies in the written judgment. Johnson’s test asks: (1) Was there sufficient notice and a chance to respond? and (2) Does the written judgment substantively increase the defendant’s loss of liberty or sacrifice of property?
  • Application: The $800 Public Defender fee first appeared only in the written judgment; it was not orally imposed with findings on ability to pay. It therefore increased Nielsen’s “sacrifice of property” and had to be stricken.

Legal Reasoning Applied

• Illegal Drug Fund “contribution.”
  • The State invoked § 44-12-207(2), MCA, arguing that property can be forfeited by plea agreement. The Court rejected the argument because the case involved a “contribution” to a fund, not the forfeiture of property used in criminal activity. The statute is limited to forfeitable property and does not authorize free-standing monetary contributions to a law-enforcement fund as part of a criminal sentence.
  • With no statute authorizing a Drug Fund fee, the assessment is illegal under Franklin, Stephenson, and related cases. A plea agreement cannot convert an unlawful condition into a lawful one (Cleveland). Result: The $250 contribution must be stricken.
• Public Defender fee added only in the written judgment.
  • Even though the State had filed “proposed conditions” including an $800 Public Defender fee, the District Court did not orally adopt the entire list. It struck one proposed condition and modified two others at the hearing; it did not orally impose the Public Defender fee.
  • Under Drube and Johnson, the oral pronouncement controls. The written judgment cannot introduce a new financial obligation that substantively increases the defendant’s sacrifice of property, especially where the defendant lacked notice and an opportunity to contest it.
  • Additionally, § 46-18-232(2), MCA, permits sentencing courts to impose “costs” only after considering the defendant’s present and future ability to pay and the burden on the defendant. The court made no ability-to-pay findings here. Result: The $800 fee must be stricken.
• Other corrections on remand.
  • Jail Diversion/Pretrial Services fee ($1,277): Stricken because it appeared only in the written judgment and was neither orally imposed nor included in the plea agreement; the State conceded error.
  • Audit Hearing: The judgment scheduled a mandatory in-person hearing nearly three years post-sentencing to review fees and conditions. The State conceded this was improper; the Supreme Court directed that it be stricken.
  • Credit for time served on Count I: The State conceded Nielsen was entitled to calculation of credit for time served on the felony count; the Court remanded for that calculation.

Impact and Practical Implications

Although nonprecedential, this memorandum opinion reinforces several settled but critical rules governing criminal financial obligations in Montana:

• Statutory authority is indispensable. Courts cannot create or enforce “contributions,” surcharges, or program fees that the Legislature has not expressly authorized. Local practices directing money to law-enforcement or county programs are vulnerable unless a statute clearly supports them.
• Plea agreements cannot rehabilitate unlawful terms. Prosecutors and defendants cannot bargain for illegal fees in plea deals. Courts retain an independent duty to ensure every financial condition is lawful.
• Oral pronouncement must match the written judgment. If a fee is not orally pronounced—or is only embedded in “proposed” conditions not expressly adopted—it cannot be added later in the written judgment. Defense counsel should listen for, and object to, any attempt to incorporate by reference a list of conditions not reviewed in open court.
• Ability-to-pay findings are mandatory for “costs.” Before imposing costs under § 46-18-232(2), MCA, courts must consider the defendant’s financial resources, future ability to pay, and the burden of payment. Boilerplate language or silent assumptions are insufficient.
• Post-sentencing “Audit Hearings.” Absent a statutory basis or clear oral imposition as a condition of a deferred or suspended sentence, mandatory in-person check-ins scheduled far in the future are susceptible to challenge. If used at all, they must be grounded in statutory authority and explicitly pronounced.

For trial courts and counsel, the case underscores the necessity of conducting a meticulous oral pronouncement that:

• Enumerates each financial obligation, with statutory citations;
• Distinguishes between fines, fees, surcharges, restitution, and costs;
• Includes an ability-to-pay inquiry and findings for costs under § 46-18-232(2), MCA; and
• Avoids incorporation-by-reference of lengthy condition lists without explicit adoption and discussion.

Complex Concepts Simplified

• Illegal sentence vs. unreasonable condition. A sentencing condition is “illegal” if no statute authorizes it. Courts review legality de novo. If legal, they then assess whether it is reasonable (an abuse-of-discretion inquiry). Here, the Drug Fund “contribution” was illegal, so reasonableness was irrelevant.
• Fines, fees, surcharges, and costs—what’s the difference?
  • Fines: Punitive monetary penalties authorized by statute.
  • Fees/surcharges: Statutorily defined charges that often fund specific programs. They must be expressly authorized and assessed as the statute directs.
  • Costs: Court-imposed amounts (e.g., prosecution costs) that generally require an ability-to-pay determination under § 46-18-232(2), MCA.
• Oral pronouncement controls. The sentence stated in open court is the operative sentence. If the later written judgment adds, changes, or expands financial obligations or custody terms, the discrepancy is unlawful unless the defendant had notice and it does not increase loss of liberty or property—standards seldom satisfied for new fees.
• Plea agreement limits. Parties cannot stipulate to a sentence the law does not authorize. Courts must reject unlawful terms, even if the defendant agreed to them for bargaining leverage.
• Forfeiture vs. “contributions.” Forfeiture statutes (like § 44-12-207(2), MCA) permit the disposition of property used in a crime, sometimes via plea agreement. They do not authorize generalized “donations” or contributions to funds absent separate statutory authority.
• Memorandum opinion (noncitable). Under Montana’s Internal Operating Rules, some cases are decided via short, noncitable opinions when controlled by settled law. They guide the parties and lower court in the specific case but are not binding precedent.

Conclusion

State v. Nielsen does not break new ground, but it crisply reaffirms three pillars of Montana sentencing law: courts cannot impose criminal financial obligations without statutory authority; defendants cannot cure illegality through plea agreements; and the oral pronouncement of sentence controls over the written judgment—especially for monetary exactions. The decision also reiterates that costs require an ability-to-pay analysis under § 46-18-232(2), MCA, and cautions against embedding unannounced fees or remote “Audit Hearings” in written judgments.

As a practical matter, courts should pronounce every fee, surcharge, or cost in open court with statutory citations and ability-to-pay findings where required. Prosecutors should confine plea proposals to statutorily supported financial terms. Defense counsel should insist on a clear record, object to any incorporation-by-reference of unannounced conditions, and seek correction where written judgments diverge from the oral sentence. Though nonprecedential, the opinion’s application of settled law offers a clear roadmap for lawful and transparent sentencing practices in Montana.

Key Citations

• § 46-12-211, MCA (plea agreements)
• § 46-18-232(2), MCA (imposition of costs; ability-to-pay)
• § 44-12-207(2), MCA (forfeiture via plea agreements—limited to forfeitable property)
• State v. Reynolds, 2017 MT 317, ¶ 16
• State v. Cleveland, 2014 MT 305, ¶ 29
• City of Missoula v. Franklin, 2018 MT 218, ¶¶ 10, 15
• State v. Stephenson, 2008 MT 64, ¶¶ 29, 36
• State v. Vanwinkle, 2008 MT 208, ¶¶ 11–12
• State v. Duong, 2015 MT 70, ¶¶ 19, 23
• State v. Drube, 2003 MT 138, ¶ 19
• State v. Johnson, 2000 MT 290, ¶ 24