Full Opinion

11/04/2026 DA 24-0715 Case Number: DA 24-0715 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 265N STATE OF MONTANA, Plaintiff and Appellee, v. ROBERT ANTHONY TAYLOR, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC-24-011 Honorable Olivia Rieger, Presiding Judge COUNSEL OF RECORD: For Appellant: Joseph P. Howard, Joseph P. Howard, P.C., Helena, Montana For Appellee: Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana Brett J. Irigoin, Dawson County Attorney, Glendive, Montana Submitted on Briefs: October 7, 2026 Decided: November 4, 2026 Filed: __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Robert Anthony Taylor appeals the Seventh Judicial District Court’s restitution order following his no-contest pleas to felony theft and criminal mischief. As part of his plea, Taylor agreed to pay jointly and severally with his co-defendant, Trisha Lynn Peterson, all restitution for a dog-wash machine that the pair damaged during the course of the offenses. Taylor challenges the District Court’s award of the replacement value of a new dog-wash machine instead of the actual market value of the dog-wash machine he and Peterson damaged. We affirm. ¶3 The charges against Taylor arose from vandalism to a dog-wash machine at Get ’er Clean Car Wash in Glendive, Montana. The business’s owner, Jeffery Guetter, discovered the damage on January 22, 2024, and reported it to police. Investigation led to the charges against both Taylor and Peterson. Taylor signed a plea agreement in July 2024, agreeing to plead no contest to theft and criminal mischief in exchange for the State’s dismissal of a misdemeanor charge and recommendation of a suspended five-year sentence on each count.1 With respect to Count II, the plea agreement stated, “The Defendant shall pay all 1 Taylor’s theft charge is related to a stolen pickup truck, which is not at issue in this appeal. 2 restitution to Get ’er Clean Car Wash.” Taylor entered his changes of plea on July 16, 2024, at which time he acknowledged that the agreement called for the payment of restitution. ¶4 Following a pre-sentence investigation, both Taylor and his co-defendant Peterson—who by then had entered a guilty plea—contested the amount of restitution claimed in Guetter’s affidavit. With the State’s agreement, the District Court held a joint restitution and sentencing hearing, at the conclusion of which it determined the amount of restitution to be $21,050 and ordered the two “jointly and severally” responsible for its payment. Peterson also appealed the District Court’s restitution award. In a June 23, 2026 Opinion—a week after Taylor filed his opening brief in this appeal—we affirmed the court’s order. State v. Peterson, 2026 MT 129, 428 Mont. 361, 591 P.3d 569.2 ¶5 Guetter testified at the restitution hearing. He described the damage to the dog-wash station and explained his unsuccessful attempts to repair it. Guetter testified that the manufacturer, All Paws Pet Wash, advised him that it was unable to individually supply all the necessary replacement parts and that it would be cheaper to buy a new dog-wash machine. All Paws informed Guetter that it no longer made the damaged model, and a comparable 2024 model cost $21,050. Guetter testified that he had put approximately thirty to forty hours into repair efforts and the machine still was not working about 70% of the time. Both defendants’ counsel cross-examined Guetter about estimated costs to 2 Taylor filed notice that he did not intend to file a reply brief after the State discussed Peterson in its response. 3 replace certain parts and his failure to investigate the depreciation of the original dog-wash machine before it was damaged. ¶6 We review a sentencing court’s restitution order for compliance with §§ 46-18-241 through -249, MCA. Peterson, ¶ 8 (citation omitted). “We review the court’s conclusions and applications of law de novo and its findings of fact for clear error.” Peterson, ¶ 8 (citation omitted). On the same record presented in Peterson, we held that the District Court had substantial evidence from Guetter’s testimony and affidavit to support the imposed restitution and did not commit an error of law. Peterson, ¶¶ 24-31. ¶7 In its oral pronouncement of restitution, the court imposed $21,050. The written judgment, however, imposed $20,050 in restitution. On appeal, the State seeks remand to correct the written judgment to be consistent with the oral pronouncement. The State did not, however, request modification within 120 days of the written judgment as required by § 46-18-116(2), MCA, and it therefore waived its opportunity to seek such modification. Notwithstanding its discrepancy with the oral pronouncement, we conclude that the State failed to preserve this argument and decline to disturb the judgment.3 ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. The District Court conducted a joint restitution hearing for Taylor and Peterson. The record is the same, and the issues the same, as those we reviewed in Peterson. We reach the same disposition here. The judgment is affirmed. 3 We noted the same discrepancy in Peterson and observed that neither party raised it, “agreeing that the amount of restitution at issue on appeal [was] $21,050.” Peterson, ¶ 7 n.2. 4 /S/ BETH BAKER We Concur: /S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE Justice Katherine M. Bidegaray has recused herself and has not participated in this matter. Justice Ingrid Gustafson, dissenting. ¶9 The Court is upholding a restitution award in which the owner of an out-of-warranty 2017-model dog washing station, which had apparently been purchased new for approximately $17,000 in 2020 and used for 4 years before being damaged by Taylor and his co-defendant Peterson’s act of criminal mischief, is awarded $20,050 to buy a brand-new 2024 dog washing station under the theory that a new machine is the “replacement cost” of the damaged machine. I dissented in State v. Peterson, 2026 MT 129, 428 Mont. 361, 591 P.3d 569, as the Court misread the relevant restitution statutes. The Court continues to do so here. ¶10 Taylor, like Peterson, challenged the amount of restitution requested by Guetter and the District Court held a combined Restitution/Sentencing Hearing on October 1, 2024. At that hearing, Guetter testified regarding the damage to the dog washing station, his personal attempts to repair the damage and/or order replacement parts from All Paws, his decision to not submit a claim to his insurance, and his ultimate decision to “simply [get] the estimates for replacing another machine” because the machine was “bent up and damaged.” 5 Guetter testified that All Paws was unable to accommodate his attempts to find some replacement doors and parts and informed him that “it would be cheaper for a new machine.” Peterson and Taylor argued the amount of a full replacement of a machine that is over four years old with one four years newer, was completely unsubstantiated. The District Court rejected the co-defendants’ argument on this point, determined Guetter did attempt to mitigate his damages by attempting to repair the machine himself, and ordered joint and several liability of Peterson and Taylor for restitution for the base cost of a brand- new dog washing station. ¶11 Under Montana law, a sentencing court is required to order “full restitution” to a victim who has suffered a “pecuniary loss.” Section 46-18-201(5), MCA. “Restitution ‘engrafts a civil remedy onto a criminal statute, creating a procedural shortcut for crime victims who would be entitled to a civil recovery against the offender.’” State v. Aragon, 2014 MT 96, ¶ 19, 374 Mont. 391, 321 P.3d 841 (internal citation omitted); see also State v. Cole, 2020 MT 259, ¶ 11, 401 Mont. 502, 474 P.3d 323 (“Section 46-18-243, MCA, in essence, engrafts a civil remedy into a criminal case.”). “Restitution is not criminal punishment, but is a civil remedy administered by courts for the convenience of victims.” State v. McClelland, 2015 MT 281, ¶ 10, 381 Mont. 164, 357 P.3d 906 (internal citation omitted). This Court has expressly held, in a case challenging a “replacement cost” award, that the “amount of restitution is based upon the special damages that a crime victim could recover in a civil action against the defendant based upon the same facts.” State v. Hill, 2016 MT 219, ¶ 10, 384 Mont. 486, 380 P.3d 768. “The victim is entitled to restitution for ‘the full replacement cost of property taken, destroyed, harmed or otherwise devalued as a 6 result of the offender’s criminal conduct.’” Hill, ¶ 10 (quoting § 46-18-243(1)(b), MCA). Restitution amounts must be supported by a preponderance of the evidence. McClelland, ¶ 10. ¶12 “The rules of evidence do not apply to a determination of restitution, but the defendant has a due process right to explain, argue and dispute any information presented on the issue.” Hill, ¶ 10. In addition to the due process right to explain or rebut any information presented, “the defendant may assert any defense to a request for restitution ‘that the [defendant] could raise in a civil action for the loss for which the victim seeks compensation[.]’” Aragon, ¶ 16 (quoting § 46-18-244(2), MCA); State v. Fenner, 2014 MT 131, ¶ 8, 375 Mont. 131, 325 P.3d 691 (citing § 46-18-244(2), MCA) (“[A] defendant may assert the same defenses in opposition of restitution that the defendant could raise in a civil action for damages.”). “A district court may award restitution even though the actual loss may be uncertain as long as the loss was derived by use of reasonable methods and the best evidence available under the circumstances. The district court may rely upon the victim’s estimates of her loss to determine the level of restitution.” Hill, ¶ 11 (internal citation omitted). ¶13 In this case, the Court again effectively silos the phrase “full replacement cost” found in § 46-18-243(1)(b), MCA, from the language of § 46-18-243(1)(a), MCA, and § 46-18-244(2), MCA, which limit restitution recoveries to the amount which could be recovered in a civil action, and essentially determines that a crime victim is entitled to funds to purchase a brand-new version of any “property taken, destroyed, harmed or otherwise devalued” by an offender’s criminal conduct, regardless of whether the victim 7 could recover that amount in a civil action. This reading is not supported by the text and is contradicted by this Court’s precedents as explained in my dissent in Peterson which I adopt as if fully set forth herein. ¶14 The Court’s perpetuation of its error in Peterson is still contradicted by our precedent interpreting restitution awards made under § 46-18-243, MCA, as discussed in my dissent in Peterson. I would remand to the District Court for a proper determination of restitution in this case as the restitution award to purchase a brand-new dog washing station is not supported by substantial evidence and is improperly entered upon legal error. /S/ INGRID GUSTAFSON Justice Laurie McKinnon joins in the dissenting Opinion of Justice Ingrid Gustafson. /S/ LAURIE McKINNON 8