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State v. Flanagan4/29/2003
Submitted on Briefs: February 27, 2003
Jack Wayne Flanagan pled guilty to felony sexual assault. The Fourteenth Judicial District Court, Musselshell County, imposed a 10- year prison sentence, suspended on conditions. Flanagan appeals. We affirm in part, reverse in part and remand.
We address the following issues:
1. Did the District Court err in making findings based on a presentence investigation report not offered or admitted as an exhibit?
2. Did the District Court err by giving inadequate reasons for imposing the 10-year suspended sentence?
3. Did the District Court err in imposing probation conditions with no nexus to the offense committed?
4. Did the District Court err in imposing restitution as a condition of Flanagan's suspended sentence?
5. Does the presentence investigation report provide an adequate basis for the determination of--and did the District Court err in imposing restitution without specifying-- the timing of Flanagan's restitution payments?
6. Did the District Court err in ordering that all of Flanagan's assets in the marital estate and probate estate after his death be used to pay restitution?
BACKGROUND
In 2001, Flanagan pled guilty to sexually assaulting a 15-year-old girl in his home in 1998. The District Court accepted his plea and ordered a presentence investigation. Sally McRae, the probation and parole officer who performed the presentence investigation and prepared the associated report, testified at the sentencing hearing in January of 2002. She did not recommend sending Flanagan, a 75-year-old married man, to prison because he appears amenable to outpatient treatment. Instead, McRae recommended a suspended sentence of at least five years, sex offender treatment, and restitution to the victim of $4,945.31 for medical and counseling costs not covered by insurance. Flanagan also testified.
Much of the testimony at the sentencing hearing related to Flanagan's ability to pay restitution as reflected in the income and expense figures in the presentence investigation report. Flanagan testified his monthly income was $624 in social security benefits and listed monthly expenses of $150 for supplemental health insurance, $200 for prescription drugs, and $210 for sex offender treatment. In describing his assets, Flanagan testified he and his wife each had paid half of the $47,000 down payment on their home and she had made all of the subsequent mortgage payments from her wages. The couple owned three vehicles with a total value of $6,000, and otherwise kept their finances separate.
Reports on a psychological evaluation of Flanagan by Dr. Donna Veraldi and a psychosexual evaluation of him by Marla North, a sex offender therapist, also were before the court for sentencing purposes. North deemed Flanagan amenable for specialized outpatient sex offender treatment and recommended that he enter and complete such treatment for a minimum of two years. She also recommended that he be prohibited from consuming alcohol or illegal drugs or misusing prescription drugs; restricted from pornography in any form, from time alone with minors and from any contact with the victim and her family unless pre-approved by the victim's therapist and his treatment team; and financially responsible for any counseling or treatment costs needed by the victim regarding this incident.
The District Court sentenced Flanagan to 10 years in prison, suspended on numerous conditions including sex offender treatment. It also ordered Flanagan to pay $4,945.31 to the victim for treatment costs not covered by insurance and "all fu
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