State v. Post: Montana Supreme Court Requires On-the-Record Ability-to-Pay Findings for Criminal Fines and Surcharges; Oral Pronouncement Controls Over Written Judgment

State v. Post: Mandatory Ability-to-Pay Findings for Fines, Fees, and Surcharges; Oral Sentence Controls

Introduction

In State v. Post, 2025 MT 215 (Mont. Sept. 23, 2025), the Montana Supreme Court reversed a Ravalli County District Court sentence that imposed a DUI (third offense) fine, misdemeanor surcharges, and a public defender recoupment fee without first inquiring into the defendant’s ability to pay, and that included certain costs in the written judgment that were not pronounced orally at sentencing. The Court reaffirmed two critical sentencing rules under Montana law:

  • The sentence orally pronounced in the defendant’s presence controls over any conflicting written judgment.
  • Before imposing fines and certain surcharges—and before ordering reimbursement of public defender costs—trial courts must conduct an on-the-record ability-to-pay inquiry and make the statutorily required determinations.

The case arises from Charles Post’s convictions for DUI (third offense) and driving with a suspended license, following a de novo jury trial in District Court. Defense counsel specifically asked the court to consider Post’s limited income (disability and Social Security) and to waive public defender fees. The court expressed concern about defendants “forum shopping” via de novo appeals, then imposed a $3,000 DUI fine “with the statutory surcharges” and assessed a $250 public defender fee—without asking any follow-up questions about Post’s financial capacity. The written judgment later added a $10 technology fee and $50 in prosecution costs that had not been pronounced orally. Post appealed.

Summary of the Opinion

Justice Rice, writing for a unanimous Court, held:

  • Oral pronouncement controls. Because the $10 technology fee and $50 in prosecution costs were not part of the sentencing court’s oral pronouncement, they could not be included in the written judgment. The State conceded this error (citing State v. Calahan, 2023 MT 219; State v. Lane, 1998 MT 76).
  • Public defender fee requires a specific inquiry. The court failed to conduct the mandatory ability-to-pay inquiry before imposing the $250 public defender recoupment fee (Sections 46-8-113(1), (4), MCA; State v. Moore, 2012 MT 95; State v. McLeod, 2002 MT 348). The State conceded this too.
  • Fines and surcharges also require an ability-to-pay analysis. Even though a $3,000 fine falls within the statutory range for a DUI third offense (Section 61-8-1007(a)(iii), MCA), the trial court could not impose it without first evaluating the defendant’s current or future ability to pay and the burden payment would impose (Section 46-18-231(3), MCA). Likewise, while misdemeanor surcharges (Section 46-18-236(1), MCA) are generally imposed, they must be waived if the court determines under Section 46-18-231 that the defendant cannot pay (Section 46-18-236(2), MCA). The District Court conducted no such inquiry.
  • Remedy. The case is reversed and remanded for a new sentencing hearing consistent with the opinion.

Analysis

Precedents and Statutes Driving the Decision

  • Oral pronouncement controls: The Court relies on State v. Calahan, 2023 MT 219, and State v. Lane, 1998 MT 76, for the settled proposition that the sentence “orally pronounced from the bench in the presence of the defendant” is the legally effective sentence. When a written judgment conflicts, the oral sentence governs. This invalidates after-the-fact additions such as the $10 technology fee and $50 prosecution costs inserted only in the written judgment.
  • Standard of review: Sentences are reviewed for legality (whether they fall within statutory parameters). Questions of compliance with sentencing statutes are reviewed de novo (State v. Kalina, 2025 MT 70; State v. English, 2006 MT 177; State v. Dowd, 2023 MT 170).
  • “Shall” is mandatory: The Court reiterates that statutory “shall” and “must” are mandatory, not permissive (State v. Knowles, 2025 MT 107; State v. Kortan, 2022 MT 204; Montco v. Simonich, 285 Mont. 280 (1997)). This informs three separate determinations:
    • Public defender recoupment requires a determination whether the defendant should pay (Section 46-8-113(1), MCA) and may not be ordered unless the defendant is or will be able to pay (Section 46-8-113(4), MCA; Moore; McLeod).
    • Fines may not be imposed unless the court determines the defendant is or will be able to pay, considering enumerated factors (Section 46-18-231(3), MCA).
    • Misdemeanor surcharges “must” be imposed (Section 46-18-236(1), MCA), but the court “must” waive them if the defendant cannot pay under Section 46-18-231 (Section 46-18-236(2), MCA).
  • DUI sentencing framework: A third-offense DUI is “punishable by a fine of not less than $2,500 or more than $5,000” (Section 61-8-1007(a)(iii), MCA). The State emphasized the fine’s legality within this range. The Court clarified that compliance with the range does not excuse the independent, mandatory inquiry into ability to pay under Section 46-18-231.
  • Relationship to State v. Gibbons, 2024 MT 63: The State briefed the constitutionality of DUI fines and invited reconsideration of Gibbons. The Court noted Post raised no facial constitutional challenge and resolved the case by applying the statutes. Justice McKinnon’s concurrence observes that Gibbons requires an ability-to-pay analysis even when a fine is otherwise “mandatory,” thereby correcting State v. Ingram, 2020 MT 327, which had tolerated a workaround for Social Security benefits. The majority here grounds its holding squarely in statute and does not revisit Gibbons.

Legal Reasoning

The Court’s analysis proceeds in three steps.

  1. Written judgment cannot expand oral sentence. Because the technology fee and prosecution costs were not orally pronounced, they cannot be added later. This adheres to the due process principle that the defendant is entitled to hear and understand the sentence in open court and that the oral pronouncement controls.
  2. Public defender fee requires a “serious inquiry.” Section 46-8-113 imposes a twofold duty: the court “shall determine whether” to impose recoupment (subsection (1)), and it “may not” impose unless the defendant “is or will be able to pay” (subsection (4)). Montana cases require a “serious inquiry or separate determination” on ability to pay before ordering reimbursement (Moore; McLeod). Here, defense counsel flagged Post’s limited income, yet the court asked no follow-up questions and immediately imposed the $250 fee. That failure to inquire violates the statute.
  3. Fines and surcharges hinge on ability-to-pay findings. Section 46-18-231(3) is an explicit gatekeeper: “The sentencing judge may not sentence an offender to pay a fine unless the offender is or will be able to pay,” and the judge must consider the crime’s nature, the offender’s financial resources, and the burden of payment. For surcharges, Section 46-18-236(1) uses mandatory language, but subsection (2) creates an equally mandatory waiver whenever the court determines under Section 46-18-231 that the defendant cannot pay now or within a reasonable time. The District Court’s record is devoid of the required inquiry; indeed, the sentencing remarks suggest the court’s focus was on deterring “forum shopping,” rather than individualized financial capacity. That is impermissible. Even a fine within the statutory range is unlawful if imposed without the preliminary ability-to-pay analysis.

What This Decision Means Going Forward

  • On-the-record ability-to-pay is no longer optional—and never was. Post cements that sentencing courts must create a record demonstrating compliance with Sections 46-8-113 (public defender recoupment), 46-18-231 (fines), and 46-18-236(2) (surcharge waivers for inability to pay). Silence or boilerplate is not enough.
  • DUI fines are subject to the same analysis. Even where a statute sets a fine range or minimum, Section 46-18-231(3) still requires an upfront ability-to-pay determination. Post does not decide what a court must do if it ultimately finds a defendant cannot pay; it holds only that courts cannot skip the analysis. Justice McKinnon notes Gibbons supplies further guidance where nominally “mandatory” fines collide with the ability-to-pay statute.
  • Surcharges are conditionally mandatory. Courts must impose them unless an inability-to-pay finding under Section 46-18-231 compels waiver under Section 46-18-236(2). A record explaining the determination is essential.
  • Oral pronouncement discipline. If the judge intends to impose any costs, fees, or surcharges, they must be pronounced orally, with the underlying statutory authority and ability-to-pay findings where required. Clerks and prosecutors should not “fill in” line items later.
  • De novo appeals cannot drive sentencing outcomes. The Court signals that generalized concerns about “forum shopping” during de novo appeals cannot substitute for individualized, statutorily mandated sentencing inquiries, including financial capacity.

Concurrences and Their Practical Import

Justice McKinnon (joined by Justice Gustafson)

Justice McKinnon would permit trial courts to rely on the Office of the State Public Defender’s (OPD) indigency determination as a significant factor when assessing ability to pay, absent contrary evidence. Because OPD conducts a thorough, document-driven assessment under Section 47-1-111, MCA, and related OPD policy (income, assets, benefits, household resources, necessary expenses), it often assembles more complete financial data than would be practical—or appropriate—to probe in a public sentencing hearing. She emphasizes:

  • OPD’s indigency determination is not binding on courts (State v. Gable, 2015 MT 200), but it can be relied on when no party provides contrary information.
  • Courts should make a clear record if they are relying on OPD’s indigency determination to conclude a defendant lacks the ability to pay; conversely, if imposing costs on an OPD-represented or public-benefits recipient defendant, the court should identify specific assets supporting that determination.
  • She flags the potential chilling effect of public defender recoupment on fundamental rights (to counsel and to trial), cautioning courts to “scrupulously” ensure ability-to-pay determinations are correct. She notes that Gibbons corrected the Ingram approach regarding Social Security benefits and ability-to-pay.

Chief Justice Swanson (joined by Justice Rice)

Chief Justice Swanson concurs in the judgment but cautions against treating OPD’s indigency finding as a presumption of inability to pay or shifting the burden to courts to “overcome” such a presumption. He underscores:

  • OPD indigency is one factor, potentially significant, but not dispositive of fines, surcharges, or recoupment questions.
  • Public defender recoupment caps ($250 for misdemeanors, $800 for felonies) are small fractions of actual defense costs. Differentiating fees when a case proceeds to trial is commonplace and not unconstitutional on this record (citing Brady v. United States, 397 U.S. 742 (1970)).
  • He cautions against sua sponte commentary beyond the issues presented, warning against perceived “anticipatory activism.”

Bottom line: The majority does not adopt either concurrence’s proposed framework. The binding rule remains that courts must conduct and record the statutorily required ability-to-pay determinations. OPD indigency status may be considered as part of that analysis, but it is neither a substitute for, nor a presumption within, the court’s own independent determination.

Complex Concepts Simplified

  • Oral sentence vs. written judgment: What the judge says in open court in the defendant’s presence is the legal sentence. A later written judgment cannot add, subtract, or alter terms not announced orally.
  • Fine vs. fee vs. surcharge vs. cost:
    • Fine: Punitive monetary sanction for the offense (e.g., DUI fine under Section 61-8-1007).
    • Fee/Cost: Administrative or recoupment amounts (e.g., public defender fee under Section 46-8-113; prosecution costs). Many require express statutory authorization and, often, an ability-to-pay finding.
    • Surcharge: Statutorily prescribed add-on per conviction (e.g., $15 per misdemeanor under Section 46-18-236(1)). Courts must waive surcharges if a defendant cannot pay (Section 46-18-236(2)).
  • Ability-to-pay inquiry: Montana law requires courts to determine whether a defendant is or will be able to pay before imposing fines and certain costs/fees. Judges must consider the nature of the crime, the defendant’s financial resources, and the burden payment will impose. The record must reflect this analysis.
  • Discretionary vs. “mandatory” fines: Even when a statute prescribes a fine range or minimum, Section 46-18-231(3) still requires an ability-to-pay assessment. Post does not resolve how a court must proceed if the defendant cannot pay; it holds only that imposing a fine without the analysis is unlawful. Gibbons suggests ability-to-pay governs even where fines are structured as mandatory.
  • De novo appeals and “forum shopping”: A defendant’s choice to seek a de novo trial is a lawful exercise of a statutory right. Courts cannot sidestep individualized sentencing duties, including ability-to-pay, by invoking generalized concerns about “forum shopping.”

Practical Guidance for the Bench and Bar

For Trial Judges

  • Say every monetary obligation aloud. If you intend to impose it, pronounce it orally, with statutory citations as appropriate. Do not permit post hoc additions in the written judgment.
  • Make the ability-to-pay record. Before imposing fines (Section 46-18-231), public defender recoupment (Section 46-8-113), and surcharges (Section 46-18-236):
    • Ask targeted questions about income sources, benefits, assets, debts, ongoing obligations, and likely future ability to pay.
    • Consider the burden of payment and method of payment (installments, timing) consistent with Section 46-18-231(3).
    • If the defendant is OPD-represented, you may consider OPD’s indigency determination as a factor; if you rely on it, say so on the record and note the absence of contrary evidence (per Justice McKinnon’s concurrence). This is not a binding presumption (per Chief Justice Swanson’s concurrence).
    • For surcharges, explicitly consider whether the Section 46-18-231 analysis triggers a mandatory waiver under Section 46-18-236(2).
  • Individualize sentencing. Avoid generalized rationales (e.g., deterring “forum shopping”) as substitutes for the required statutory determinations.

For Prosecutors

  • Ensure the oral pronouncement includes each intended cost, fee, surcharge, and its statutory basis. Do not rely on the written judgment to add them later.
  • Be prepared to present evidence or make a record supporting ability to pay if you seek fines, surcharges, or recoupment over defense claims of indigency.

For Defense Counsel

  • Flag indigency and ability-to-pay at sentencing, and request explicit findings. Offer documentation or proffers (income, benefits, expenses, debts) sufficient to support a waiver or reduction and to create a reviewable record.
  • Where OPD represents the defendant, invite the court to consider OPD’s indigency determination as a factor and request that reliance be stated on the record in the absence of contrary evidence.

For Court Clerks

  • Verify that every financial obligation in the written judgment matches the oral pronouncement. If a cost or fee was not pronounced, do not include it.

Key Takeaways

  • Oral sentencing controls. Written judgments cannot add financial obligations that were not stated in open court.
  • Ability-to-pay is a statutory prerequisite for fines, public defender recoupment, and (when inability is found) surcharge waivers. A silent record equals reversible error.
  • DUI third-offense fines—even within the statutory range—cannot be imposed without the Section 46-18-231 analysis.
  • Public defender recoupment requires a “serious inquiry or separate determination” of ability to pay.
  • OPD indigency determinations can inform the analysis but are neither binding nor presumptive. Make a clear, individualized record either way.
  • Generalized concerns (like “forum shopping”) cannot displace individualized statutory sentencing duties.

Conclusion

State v. Post strengthens and clarifies Montana’s statutory framework for sentencing financial obligations. The Court reconfirms that oral pronouncements control and that trial courts must conduct and record ability-to-pay determinations before imposing fines, surcharges, and public defender recoupment. The concurring opinions offer complementary perspectives on using OPD indigency determinations in practice, while the majority’s rule remains straightforward: courts must do the statutory work, on the record, before they order defendants to pay. In the wake of Post, judges, prosecutors, and defense counsel should treat the ability-to-pay inquiry as a routine and indispensable component of sentencing, ensuring both the legality of judgments and the fairness owed to defendants under Montana law.

Case Details

Year: 2025
Court: Supreme Court of Montana

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