Resentencing Required When a District Court Exceeds the Statutory Maximum—Even with a Fully Suspended Term (State v. S. Foster, 2025 MT 255N)

Court: Supreme Court of Montana

Date: November 4, 2025

Disposition: Reversed and remanded for resentencing within statutory limits

Note on Precedential Value: This is a memorandum opinion under Section I, Paragraph 3(c) of the Montana Supreme Court’s Internal Operating Rules. It is noncitable and does not serve as precedent. It is included on the Court’s quarterly list of noncitable cases.

Introduction

This memorandum opinion in State v. S. Foster addresses a straightforward but important proposition: a sentence that exceeds the statutory maximum is unlawful, even if the term is fully suspended, and the proper remedy is to reverse and remand for resentencing within the governing statute. The case arises from an Alford plea to theft by deception concerning the sale of a stolen cargo trailer for $2,500. The sentencing court imposed a five-year, fully suspended Department of Corrections (DOC) commitment. Because the applicable statute (2019 version) capped the penalty at three years for the offense of conviction and the defendant’s status, the Montana Supreme Court held the five-year sentence illegal.

On appeal, both parties agreed that the sentence exceeded statutory authority. They disagreed, however, about the remedy: the State urged remand for resentencing; the defendant asked the Supreme Court to simply reduce the sentence to a three-year fully suspended term consistent with the plea recommendation. The Court reversed and remanded, emphasizing that it does not sit as a sentencing court and that the district court retains discretion to select a lawful sentence within the statutory parameters.

Summary of the Opinion

Charge and Plea: Foster was originally charged with felony theft for selling an “enclosed cargo trailer containing multiple ATVs,” part of a larger theft from the Hahn family. He entered an Alford plea to an amended count of theft by deception under §§ 45-6-301(2)(a) and -301(7)(b)(i), MCA (2019), tied specifically to the $2,500 trailer sale.
Sentencing: The district court sentenced Foster to five years with the DOC, fully suspended, and ordered $2,500 restitution related to the sale. The court declined to credit a claimed repayment to the purchaser.
Appeal: Foster challenged the legality of the five-year term; the State conceded the illegality but sought remand for resentencing. Foster asked the Court to modify the sentence to a three-year fully suspended DOC term.
Holding: The five-year sentence exceeded the three-year maximum permitted by § 45-6-301(7)(b)(i), MCA (2019), for theft of property valued between $1,500 and $5,000 by a defendant without a prior felony theft. The sentence was therefore illegal. The Court reversed and remanded for resentencing within the statutory parameters rather than directly modifying the sentence to three years.
Precedential Status: The decision is a nonprecedential memorandum opinion applying settled law.

Factual and Procedural Background

In December 2020, the Hahn family reported the theft of two trailers and multiple recreational vehicles. One of the trailers, with ATVs inside, was later sold by Foster to Gary Berg for $2,500. Foster admitted the sale but denied involvement in the original thefts. Law enforcement located one of the ATVs at Foster’s residence. Under a nonbinding plea agreement, Foster entered an Alford plea to theft by deception connected to the $2,500 transaction. The State agreed to recommend a three-year, fully suspended DOC commitment, and Foster reserved the right to request any lawful sentence.

At sentencing, the district court focused primarily on restitution. Juliet Hahn testified to overall pecuniary losses exceeding $11,500 from the broader incident, including unrecovered snowmobiles and an ATV. The court ultimately limited restitution to $2,500, consistent with the narrower offense of conviction. The court imposed a five-year DOC commitment, fully suspended—exceeding the three-year statutory maximum applicable to Foster’s offense.

Analysis

Precedents and Authorities Cited

State v. Day, 2018 MT 51, ¶ 6, 390 Mont. 388, 414 P.3d 267 (citing State v. Burch, 2008 MT 118, 342 Mont. 499, 182 P.3d 66): Establishes that sentencing authority is defined by statute and that a sentence outside statutory parameters is illegal.
State v. Rambold, 2014 MT 116, ¶ 14, 375 Mont. 30, 325 P.3d 686: Confirms that a legal sentence must fall within statutory parameters; also discusses the remedy when a sentence is unlawful—vacatur and remand for resentencing.
State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087: Articulates that, when a portion of a sentence is illegal, the preferable remedy is remand to correct the illegal provision unless it cannot be corrected, in which case the illegal component should be stricken—framing the Court’s remedial choices.
State v. Petersen, 2011 MT 22, ¶¶ 15-16, 359 Mont. 200, 247 P.3d 731: Supports the approach of vacating an unlawful sentence and remanding for resentencing.
State v. Peterson, 2013 MT 329, ¶ 8, 372 Mont. 382, 314 P.3d 227 (citing State v. Locke, 2008 MT 423, ¶ 18, 347 Mont. 387, 198 P.3d 316): Cited to explain the nature of an Alford plea. These cases are relevant to the plea posture but not outcome-determinative on the sentencing legality issue.

Together, these authorities frame a clear rule: Montana district courts must sentence within the legislature’s prescribed range for the offense of conviction; when they do not, the sentence is illegal and must be corrected on remand.

Legal Reasoning

The governing sentencing provision is § 45-6-301(7)(b)(i), MCA (2019), which applied to Foster’s offense of conviction—felony theft of property with a value exceeding $1,500 but less than $5,000—where the defendant had no prior felony theft conviction. Under the 2019 statute, the maximum penalty is a fine not to exceed $1,500, imprisonment in the state prison for a term not to exceed three years, or both. Because Foster did not have a prior felony theft, the three-year cap controlled.

The district court imposed a five-year DOC commitment, fully suspended. The Supreme Court held this exceeded statutory authority. Critically, a suspended sentence remains a “term” for purposes of the statutory maximum; the fact that the entire term is suspended does not expand the length of sentence the court is authorized to impose. In Montana, a sentence’s legality turns on whether it “falls within the statutory parameters”—regardless of whether it is suspended, deferred, or to be served. A five-year suspended term for an offense capped at three years is thus illegal.

On the remedy, the Court relied on its settled approach:

Where a discrete illegal condition can be severed, the Court may direct the district court to strike that condition (Heafner).
Where the sentence is unlawful under the controlling statute, the appropriate remedy is to vacate and remand for resentencing (Rambold; Petersen).

Foster invited the Court to effectively resentence him by modifying the five-year term to three years fully suspended—a remedy he argued would align with the plea recommendation and the district court’s apparent intent. The Supreme Court declined, emphasizing two principles: (1) it does not sit as a sentencing court, and (2) it is not necessarily clear what sentence the district court would have selected had it properly understood and applied the statute. Accordingly, the Court reversed and remanded with instructions to resentence within the three-year statutory cap.

The Court also acknowledged the 2025 legislative amendments to § 45-6-301 (raising penalties for theft of property exceeding $1,500 to a maximum of ten years’ imprisonment and a $50,000 fine). Those changes do not govern Foster’s 2020 conduct and 2019 statute of conviction. This is consistent with the general rule against applying later-enacted, harsher penalties to earlier conduct.

Impact and Practical Implications

While nonprecedential, this decision underscores key, settled constraints that will continue to guide Montana’s trial courts and practitioners:

Suspended terms must respect statutory caps. A fully suspended commitment cannot exceed the maximum term authorized by the legislature for the offense of conviction. The length of the “term”—not whether it is suspended—controls legality.
Appellate courts will not impose a sentence in the first instance. Even where illegality is conceded, the Montana Supreme Court ordinarily reverses and remands for the district court to exercise its sentencing discretion within the lawful range, rather than modifying the sentence itself.
Plea recommendations are nonbinding on the court. As reflected here, a district court is not bound by the State’s recommendation, although it must remain within statutory limits. Defense counsel should ensure the record reflects the correct statutory cap and should object if any proposed or imposed sentence exceeds it.
Offense-of-conviction controls the sentencing range. Although the broader factual episode may involve additional losses or uncharged conduct, the statutory maximum is keyed to the offense to which the defendant pled or was found guilty. Here, the plea to theft by deception for the $2,500 transaction narrowed both restitution and the penalty range.
Temporal application of statutes. For conduct occurring after the 2025 amendments to § 45-6-301, a significantly higher penalty range applies. But for earlier conduct, the 2019 version (and its three-year cap for the relevant value range and first-time status) governs.
Remand scope. The Court remanded for resentencing “within the penalty parameters” of § 45-6-301(7)(b)(i), MCA (2019). That instruction allows the district court to select any lawful sentence within the statutory range, including conditions and the choice between incarceration, a suspended term, or a combination consistent with applicable sentencing statutes. The opinion did not disturb the $2,500 restitution determination, which aligned with the offense of conviction.

Complex Concepts Simplified

Illegal Sentence: A sentence is “illegal” when it exceeds the statutory authority granted to the court—here, by imposing a term longer than the statute allows. Illegality is not cured by suspending all or part of the term.
Suspended Sentence: The court imposes a sentence but suspends its execution, placing the defendant under supervision and conditions. Violation can result in revocation and imposition of the suspended term. The length of the suspended term still must fall within the statutory maximum for the offense.
DOC Commitment vs. State Prison: Montana courts may sentence a defendant to the Department of Corrections, which has placement authority (including prison, community-based facilities, or programs). Regardless of the placement label, the length of the term cannot exceed what the statute authorizes (e.g., the three-year cap here).
Alford Plea: Under North Carolina v. Alford, a defendant may plead guilty while maintaining innocence, acknowledging that the State’s evidence would likely convince a jury of guilt. Montana recognizes Alford pleas (see State v. Peterson; State v. Locke).
Memorandum Opinion (Noncitable): Under the Montana Supreme Court’s Internal Operating Rules, some cases are resolved by memorandum opinion when controlled by settled law. These decisions resolve the parties’ dispute but are not citable precedent.
Remedial Choices on Appeal: When a sentence includes an unlawful element, the Supreme Court may:
- Direct the district court to strike a discrete illegal condition if severable (Heafner), or
- Vacate and remand for resentencing when the sentence is unlawful under governing statutes (Rambold; Petersen).

Conclusion

State v. S. Foster reaffirms a bedrock principle of Montana sentencing law: a district court may not impose a sentence that exceeds the statutory maximum for the offense of conviction. This is true even when the sentence is fully suspended. Applying settled precedents, the Montana Supreme Court reversed a five-year suspended DOC commitment that exceeded the applicable three-year cap under § 45-6-301(7)(b)(i), MCA (2019), and remanded for resentencing within the lawful range.

Although nonprecedential, the opinion offers clear guidance for practitioners and trial courts. It underscores careful attention to the statute in effect at the time of the offense, the controlling value thresholds and prior-conviction qualifiers, and the structural limits on suspended terms. It also clarifies the Supreme Court’s remedial posture: where a sentence is unlawful, the appropriate course is remand for the district court to exercise sentencing discretion within statutory confines, rather than appellate modification. As Montana’s theft statute now carries higher penalties for post-2025 conduct, the decision simultaneously serves as a reminder of both the temporal application of penal statutes and the continuing imperative that all sentencing remain tethered to legislative authorization.

Key Citations and Statutes

§ 45-6-301(7)(b)(i), MCA (2019) (three-year maximum where value > $1,500 and < $5,000; no prior felony theft)
§§ 45-6-301(1)(b), (2)(a), (7)(b)(i)-(ii), MCA (2019) (theft definitions and penalty tiers)
State v. Day, 2018 MT 51, 390 Mont. 388, 414 P.3d 267
State v. Burch, 2008 MT 118, 342 Mont. 499, 182 P.3d 66
State v. Rambold, 2014 MT 116, 375 Mont. 30, 325 P.3d 686
State v. Heafner, 2010 MT 87, 356 Mont. 128, 231 P.3d 1087
State v. Petersen, 2011 MT 22, 359 Mont. 200, 247 P.3d 731
State v. Peterson, 2013 MT 329, 372 Mont. 382, 314 P.3d 227
State v. Locke, 2008 MT 423, 347 Mont. 387, 198 P.3d 316
2025 Amendments: § 45-6-301(7)(b)(i), MCA (2025 Mont. Laws ch. 583, § 2) (raising maximum penalty to ten years and $50,000 for qualifying thefts occurring after the effective date)