11/04/2025
DA 24-0570
Case Number: DA 24-0570
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 255N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SHAWN LEE FOSTER,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDC 2021-233
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Dimitrios Tsolakidis, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Selene Koepke,
Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Mary Barry,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: September 24, 2025
Decided: November 4, 2025
Filed:
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and 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 Defendant and Appellant Shawn Lee Foster (Foster) appeals from the July 30, 2024
Judgment issued by the First Judicial District Court, Lewis and Clark County. We reverse
and remand.
¶3 On May 28, 2021, Foster was charged by Information with felony theft, in violation
of §§ 45-6-301(1)(b) and -301(7)(b)(ii), MCA (2019), for selling a stolen “enclosed cargo
trailer containing multiple ATV’s” valued in an amount over $5,000. The trailer was one
of two that had been reported stolen from the Lowell and Juliet Hahn family on or about
December 22, 2020. Foster sold the trailer to a man named Gary Berg for $2,500. Berg
contacted the Hahns via social media after Juliet posted about the theft on Facebook. Law
enforcement discovered one of the ATVs at Foster’s residence. Foster admitted to selling
the trailer, but denied that he was responsible for the original theft. Pursuant to a plea
agreement, Foster pled guilty via Alford to an amended charge of theft by deception in
violation of §§ 45-6-301(2)(a) and -301(7)(b)(i), MCA (2019), for the $2,500 sale of the
stolen trailer.1 As part of the plea agreement, which was not binding upon the District
1
An Alford plea arises from the United States Supreme Court’s decision in North Carolina v.
Alford, 400 U.S. 25,
91 S. Ct. 160 (1970) and allows a defendant to plead guilty to an offense
2
Court, the State agreed to recommend a three-year commitment to the Montana Department
of Corrections (DOC), all suspended, with Foster free to argue for any legal sentence. At
the April 22, 2024 change of plea hearing, the District Court reminded Foster the plea
agreement’s recommended sentence was not binding upon the court: “I could say three
years Montana State Prison and you are not going to be able to withdraw this Alford plea.”
¶4 The District Court held a sentencing hearing on July 11, 2024. This hearing largely
focused on the restitution amount, with Juliet testifying to the Hahns’ pecuniary loss of
$11,574.25 stemming from the December 22, 2020 theft—including two snowmobiles and
an ATV which were never recovered. Foster testified the Hahns’ trailer was left on his
property by Kyle Verley, who had since passed away, and that he paid Verley the $2,500
he got from Berg for the trailer sale. Foster testified this transaction was witnessed by his
father, who had also since passed away. Foster also testified that he repaid Berg, who lives
in North Dakota, the $2,500 from the trailer sale “like three days” before the restitution
hearing after bumping into him at a friend’s house. The District Court ordered Foster to
pay $2,500 in restitution because he had pled guilty via Alford to the trailer sale, not the
thefts from the Hahns, and the court noted it “[didn’t] believe that he’s paid anybody” and
was “not going to give him credit for a dime.” The court orally ordered Foster committed
to the DOC for five years, with five years suspended. The District Court’s written
Judgment reflecting the five-year suspended DOC commitment followed on July 30, 2024.
without acknowledging his guilt. 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).
3
¶5 Foster appeals. The State concedes the District Court’s five-year sentence was
illegal and asserts the matter should be remanded to the District Court for resentencing.
Foster contends this Court should simply remand to the District Court with instructions to
amend the judgment to a three-year suspended DOC commitment and that resentencing is
unnecessary.
¶6 We review a sentence in a criminal case for legality, to determine if the sentence is
within statutory parameters. State v. Day, 2018 MT 51, ¶ 6,
390 Mont. 388,
414 P.3d 267
(citing State v. Burch,
2008 MT 118, ¶ 12,
342 Mont. 499,
182 P.3d 66). “Because a district
court’s sentencing authority is defined by statute, a sentence that strays beyond the bounds
of statutory authority is illegal.” Day, ¶ 6.
¶7 Foster pled guilty via Alford to, and was sentenced for, felony theft of property with
a value that exceeded $1,500 but was less than $5,000. Pursuant to § 45-6-301(7)(b)(i),
MCA (2019), a person convicted of that offense who had not previously been convicted of
felony theft, such as Foster, “shall be fined an amount not to exceed $1,500 or be
imprisoned in the state prison for a term not to exceed 3 years, or both.”2 The District
Court’s five-year sentence in this case, where the maximum sentence was three years, was
therefore an illegal sentence. See State v. Rambold,
2014 MT 116, ¶ 14,
375 Mont. 30,
2
The penalty provisions of the felony theft statute were substantially revised by the Legislature in
2025 and now provide that any person convicted for the offense of theft of property exceeding
$1,500 in value “shall be fined an amount not to exceed $50,000 or be imprisoned in a state prison
for a term not to exceed 10 years, or both.” Section 45-6-301(7)(b)(i), MCA (2025 Mont. Laws
ch. 583, § 2).
4
325 P.3d 686 (“A sentence is legal when it falls within the statutory parameters for that
sentence, and is illegal when the court acts without statutory authority for a sentence.”).
¶8 “[W]hen a portion of a sentence is illegal, the better result is to remand to the district
court to correct the illegal provision. Remand to give the district court the opportunity to
correct the illegal provision should be ordered unless, under the particular circumstances
of the case, the illegal portion of the sentence cannot be corrected. If so, the case should
be remanded to the district court with instructions to strike the illegal conditions.” State v.
Heafner,
2010 MT 87, ¶ 11,
356 Mont. 128,
231 P.3d 1087. “[W]hen a sentence is
determined to be unlawful under governing statutes, that portion of the sentence cannot be
corrected, and we will not remand to the district court to give it the opportunity to correct
the illegal provision. In those circumstances, it is appropriate to vacate the sentence and
remand to the District Court for resentencing.” Rambold, ¶ 20 (citing State v. Petersen,
2011 MT 22, ¶¶ 15-16,
359 Mont. 200,
247 P.3d 731) (internal citation omitted).
¶9 Foster asks this Court to simply strike two years from his five-year fully suspended
sentence, because “it is clear that [the District Court] would have imposed the maximum
three-year sentence had it understood and correctly applied the sentencing statute” and such
a judgment would have been “consistent with the joint recommendation” of both Foster
and the State.3 We disagree that it is necessarily clear what sentence the District Court
would have issued had it understood and correctly applied the sentencing statute in this
3
As previously noted, this was not technically a “joint” recommendation, as the plea agreement
called for the State to recommend a three-year suspended sentence but left Foster free to argue for
any legal sentence.
5
case. This Court does not sit as a sentencing court. The original sentence imposed was
illegal as conceded by the State. Accordingly, we reverse the District Court’s five-year
suspended DOC commitment and remand with instructions for the District Court to
resentence Foster within the penalty parameters of § 45-6-301(7)(b)(i), MCA (2019).
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶11 Reversed and remanded.
/S/ INGRID GUSTAFSON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ KATHERINE M. BIDEGARAY
/S/ BETH BAKER
/S/ JIM RICE
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