State v. Richards: Prosecutor May Recommend PSI Financial Obligations Without Breaching a Sentence-Recommendation Plea; Unrebutted Victim Affidavit Supports Restitution for Court-Attendance Expenses

Introduction

In State v. Richards, 2026 MT 180N (DA 24-0247), the Montana Supreme Court reviewed a felony criminal endangerment sentence imposed after Harry William Richards entered a nolo contendere plea pursuant to an agreement under which the State would recommend a three-year deferred sentence. The case arose from an incident in which Richards fired three shots toward a vehicle driven by his neighbor, Alicia Dorman, who had two young children with her.

On appeal, Richards challenged (1) the State’s sentencing recommendation as an implied breach of the plea agreement because the prosecutor recommended financial obligations described in the PSI, and (2) the amount and components of restitution (travel, lost wages, and childcare) awarded to the victim. The Court affirmed. A separate opinion concurred as to the plea issue but dissented on restitution.

Procedural posture note: The Court issued a memorandum opinion under its Internal Operating Rules and stated it “shall not be cited and does not serve as precedent.” Even so, the decision is a useful synthesis of Montana’s existing plea-breach and restitution frameworks and illustrates how the Court applies them to common sentencing disputes.

Summary of the Opinion

  • No plain-error relief for alleged plea breach: Richards did not object at sentencing that the prosecutor breached the plea agreement. Reviewing for plain error in its discretion, the Court held the prosecutor’s recommendation of financial obligations (many statutorily mandated and PSI-driven) did not undermine the agreed recommendation of a three-year deferred sentence.
  • Restitution affirmed: The Court held substantial evidence supported the restitution award (minus a $38 item the District Court removed), relying on the victim’s sworn affidavit and the absence of contradictory evidence or meaningful rebuttal from the defense.
  • Waiver/adjustment not preserved: Richards’s general indigence argument did not satisfy the burden to request and factually demonstrate eligibility for waiver/adjustment of restitution under § 46-18-246, MCA.

Analysis

1) Precedents Cited

Plea agreements as contracts; breach and “undermining” at sentencing

  • State v. Rahn and State v. Bowley: The Court anchored its analysis in the settled principle that a plea agreement is a binding contract and the State must meet “strict and meticulous standards” of promise and performance. These cases supply the baseline rule that prosecutorial promises that induce a plea must be fulfilled.
  • State v. McDowell: This was the Court’s closest analogue. There, recommending PSI conditions not expressly listed in the plea agreement did not constitute breach where the prosecutor still recommended the bargained-for sentence and it was unreasonable to expect a conditions-free sentence. Richards is treated similarly: once the State recommended the agreed deferred sentence, recommending standard/mandatory financial obligations did not negate the bargain.
  • State v. Collins: Cited for the proposition that a prosecutor may provide sentencing information authorized by statute if not prohibited by the plea agreement, relevant to sentencing, and presented fairly so as not to undermine the deal. The Court used this framework to conclude the prosecutor’s conduct here stayed within permissible bounds.
  • State v. Rardon, 1999 MT 220 (Rardon I), State v. Rardon, 2002 MT 345 (Rardon II), and State v. Rardon, 2005 MT 129 (Rardon III): Richards argued these authorities supported finding a breach. The Court distinguished them—especially Rardon II, where the prosecutor’s inflammatory presentation rendered the recommendation “mere lip service.” Here, the prosecutor did not solicit inflammatory testimony, did not amplify negative PSI details, and did not waver from the deferred-sentence recommendation.
  • State v. Walton and State v. Stratton: These cases define the Court’s discretionary plain-error approach to unpreserved plea-breach claims and the high threshold (“obvious and substantial” breach affecting the fairness, integrity, or public reputation of proceedings). The Court applied that threshold and declined reversal.
  • City of Missoula v. Charlie: Cited for the appellant’s burden to “firmly convince” the Court in the applicable review framework; used to emphasize Richards’s failure to carry the burden for plain-error reversal.

Restitution proof, review standards, and evidentiary flexibility at sentencing

  • State v. Cole, State v. Johnson, and State v. Thorpe: These authorities provide the statutory-compliance requirement and standards of review—legal conclusions reviewed for correctness and factual findings reviewed for clear error.
  • State v. Simpson and State v. Breeding: Cited for the duty to impose full restitution for pecuniary loss caused by the defendant’s conduct, substantiated by record evidence.
  • State v. Aragon: Central to the Court’s evidentiary treatment. It stands for two propositions the Court applied directly: (1) rules of evidence do not apply at sentencing, and (2) a victim’s sworn affidavit is ordinarily sufficient to support restitution absent conflicting evidence, while still preserving the defendant’s due process right to explain, argue, and rebut.
  • State v. Weik and State v. Jent: Used to define “clearly erroneous” and “substantial evidence.” The Court treated the sworn affidavit and victim impact statement as “substantial evidence” supporting the District Court’s findings.
  • State v. Hicks: Invoked to reject underdeveloped appellate theories—if Richards sought a necessity-based limitation on restitution for attendance, he did not articulate a workable standard or supporting law.
  • State v. Barrick: Raised by Richards but deemed inapplicable because it turned on conversion damages under § 27-1-320(1), MCA, not the restitution provisions governing this case.
  • State v. Lodahl and State v. Bertsch: These cases shaped the Court’s “waiver/adjustment” holding. They place the burden on the defendant to request and factually demonstrate eligibility for relief under § 46-18-246, MCA; a generalized indigence objection is insufficient.
  • City of Whitefish v. Jentile: Quoted in the dissent (via Lodahl) for the conceptual point that restitution statutes “engraft a civil remedy onto a criminal statute,” a theme the dissent used to argue routine litigation attendance costs are not civilly recoverable.

2) Legal Reasoning

A. Alleged breach of plea agreement (unpreserved; plain error)

The Court began from contract principles: when the State promises to recommend a specific disposition, it must do so in good faith and not undermine the agreement. The decisive factual premise was that the prosecutor consistently recommended the bargained-for deferred sentence and did not sabotage that recommendation through inflammatory advocacy or adverse emphasis (as in Rardon II).

The Court then treated the disputed recommendations (fees/surcharges/restitution and standard probationary conditions in the PSI) as the sort of predictable, often mandatory sentencing components that do not rewrite or contradict a plea’s core sentencing recommendation. Echoing McDowell, it was “unreasonable” to expect that sentencing would omit mandated financial obligations merely because the plea agreement did not enumerate them. On this record, any claimed breach was not “obvious and substantial” under Walton/Stratton/Rardon II, and thus did not qualify for plain-error reversal.

B. Restitution for court attendance, wages, travel, and childcare

The restitution dispute turned on § 46-18-243(1), MCA, which defines “pecuniary loss” to include (among other things) “expenses reasonably incurred in attending court proceedings related to the commission of the offense” and “reasonable out-of-pocket expenses” incurred in cooperating in the prosecution. The victim submitted a sworn affidavit claiming mileage for five trips, lost wages, and childcare costs; the District Court removed only a $38 item and awarded the remainder plus an administrative fee.

Applying Aragon and Simpson, the Court emphasized that sentencing does not require formal evidentiary documentation and a sworn victim affidavit is ordinarily sufficient absent contradictory evidence. Richards challenged necessity and “excessiveness” but did not meaningfully test the affidavit: he did not question the victim during the hearings, did not present competing evidence, and ultimately asked the court to adjust the amount “as the court sees fit.” On appellate review, that left the District Court’s factual findings supported by “substantial evidence” under Jent and not clearly erroneous under Weik/Thorpe.

The Court also rejected an after-the-fact “unjust to require payment” theory under § 46-18-246, MCA. Under Lodahl and Bertsch, the defendant must request and factually demonstrate eligibility for relief; generalized indigence is not enough, and the District Court need not sua sponte build that argument for the defense.

C. The concurrence/dissent’s competing approach

Justice McKinnon agreed on declining plain-error review of the plea claim but dissented on restitution. The dissent advanced two principal critiques: (1) restitution’s “civil remedy” character (citing Lodahl / City of Whitefish v. Jentile) allegedly makes routine litigation attendance costs (mileage, missed work) non-recoverable in a comparable civil case; and (2) the statute’s “reasonable” limitation demanded closer judicial scrutiny of the number of trips and the $40/hour childcare rate even absent a robust evidentiary rebuttal by the defense.

The majority’s response was largely procedural and evidentiary: the statute does not require a finding of “necessity” for court-attendance expenses, and where the defendant offers no contradictory evidence and does not develop a coherent limiting standard, the District Court may rely on the sworn affidavit and victim impact statement.

3) Impact

Although noncitable, the decision illustrates several practical, recurring consequences in Montana sentencing litigation:

  • Plea-breach claims must be preserved: Failing to object at sentencing forces defendants into the narrow plain-error channel. Richards underscores how difficult it is to recast ordinary PSI recommendations—especially statutorily mandated fees—as a bad-faith “undermining” of a sentence-recommendation plea.
  • PSI-driven financial obligations are treated as expected incidents of sentencing: Consistent with McDowell, where the plea fixes the recommendation on incarceration/deferment but is silent on conditions and mandatory add-ons, courts are unlikely to infer an implied promise of “no fees/conditions.”
  • Restitution challenges require actual rebuttal: The Court’s reliance on Aragon/Simpson signals that if the defense believes claimed losses are inflated or unreasonable, it should develop the record—question the victim, offer competing estimates, or present documentation—rather than rely on argument alone.
  • § 46-18-246 relief must be squarely requested and supported: Under Bertsch, “I can’t pay” generally will not preserve “unjust to require payment as imposed” without a focused request and factual showing.
  • Open question in the background: The dissent’s civil-analogy critique highlights a doctrinal tension—how far “expenses reasonably incurred in attending court proceedings” extends, and whether “reasonableness” requires more active gatekeeping by sentencing courts when the claimed costs appear atypical. Richards resolves that tension on this record by deference to unrebutted proof rather than by adopting a categorical limitation.

Complex Concepts Simplified

Nolo contendere
A plea by which the defendant does not admit guilt but accepts conviction and sentencing as if pleading guilty.
Deferred sentence
A sentencing disposition that postpones entry of judgment and allows dismissal or reduced consequences if conditions are successfully completed.
Plea agreement as a contract / good faith
Courts treat plea agreements like contracts: if the State promises to recommend a specific sentence, it must do so honestly and not act in a way that effectively defeats the promised benefit.
Plain error review
A narrow appellate safety valve for unpreserved claims; relief is granted only for obvious, substantial errors affecting the fairness and integrity of proceedings.
Restitution / pecuniary loss
Restitution compensates victims for economic losses caused by the crime, as defined by statute (e.g., certain out-of-pocket costs, wages, and expenses related to proceedings).
Clearly erroneous / substantial evidence
Appellate courts defer to factual findings if supported by evidence a reasonable person could accept; they reverse only if the finding lacks support or reflects a mistake about the evidence.
Waiver/adjustment of restitution (§ 46-18-246, MCA)
A mechanism for relief in limited circumstances, but the defendant must request it and prove eligibility with facts; general indigence is not enough.

Statutory citation note: The majority opinion contains references to “§ 43-18-243” in places; the operative restitution statute discussed elsewhere (and in the dissent) is § 46-18-243, MCA.

Conclusion

State v. Richards affirms a deferred sentence and restitution award by applying established Montana principles: unpreserved plea-breach claims face demanding plain-error review; recommending statutory and standard PSI financial obligations generally does not undermine a prosecutor’s promised sentence recommendation; and restitution may be supported by a victim’s sworn affidavit when the defense offers no concrete rebuttal. The dissent highlights an alternative, more searching “reasonableness” inquiry—especially for atypical childcare rates and optional court attendance—but the majority resolves the case through deference to the District Court’s factfinding on an unrebutted record.