10/18/2022
DA 22-0227
Case Number: DA 22-0227
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 209N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KRISTI DIFULVIO,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-19-187C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kevin S. Brown, Erin E. Harris, Paoli & Brown, P.C., Livingston,
Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Christine Hutchison,
Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Deputy
County Attorney, Bozeman, Montana
Submitted on Briefs: September 21, 2022
Decided: October 18, 2022
Filed:
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__________________________________________
Clerk
Justice James Jeremiah Shea 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, 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 Kristi DiFulvio appeals from the April 25, 2022 Order of the Eighteenth Judicial
District Court denying her motion to withdraw her guilty plea and dismiss her criminal
endangerment charge prior to the expiration of her deferred sentence. We reverse and
remand for further proceedings consistent with this Opinion.
¶3 DiFulvio pled guilty to one count of criminal endangerment for driving a motor
vehicle the wrong way on Interstate 90 while under the influence of alcohol. Pursuant to
DiFulvio’s plea agreement with the State, on August 5, 2020, the District Court sentenced
her to a three-year deferred sentence. On March 8, 2022, DiFulvio moved the District
Court to terminate the remainder of her deferred sentence pursuant to § 46-18-208, MCA.
In support of her motion, DiFulvio advised the District Court that she had met the
requirements of § 46-18-208(a), MCA, in that she had served one-half of her deferred
sentence and satisfied all other supervision requirements, including full payment of all
court fines and attorney fees. DiFulvio’s probation officer supported her motion for early
termination of her sentence. The State objected to DiFulvio’s motion. The State’s response
failed to substantively address, or for that matter even reference, the provisions of
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§ 46-18-208, MCA. The entire substance of the State’s objection to DiFulvio’s motion
was:
The State appreciates and respects the fact that the defendant has been
doing well and is taking advantage of the benefit she received from the plea
agreement and deferred imposition of sentence. The defendant agreed to be
on probation for three (3) years, and the court deferred sentencing for a period
of three (3) years. Supervision of the defendant appears to be working. The
defendant should fulfill the commitment she made to the people of Montana
to be on probation for three (3) years. Therefore, the State requests that the
defendant’s petition be denied.
The District Court denied DiFulvio’s motion “for the reasons set forth in the State’s
Response.”
¶4 “We review a district court’s decision to grant or deny a post-trial motion in a
criminal case for abuse of discretion.” State v. Passmore, 2014 MT 249, ¶ 12,
376 Mont.
334,
334 P.3d 378. “A court abuses its discretion if it acts arbitrarily without the
employment of conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice.” Passmore, ¶ 12 (internal quotations and citation omitted). We have
remanded cases when we are unable to determine a district court’s legal conclusions and
the facts on which it based those conclusions. See Wilkes v. State,
2015 MT 243, ¶ 12,
380
Mont. 388,
355 P.3d 755; Beach v. State,
2009 MT 398, ¶ 51,
353 Mont. 411,
220 P.3d
667.
¶5 A court considers three elements when deciding whether to terminate the remainder
of a deferred sentence: (1) whether termination of the remainder of the sentence is in the
best interests of the defendant and society; (2) whether termination of the remainder of the
sentence will not present an unreasonable risk of danger to the victim of the offense; and
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(3) whether the defendant has paid all restitution and court-ordered financial obligations in
full. Section 46-18-208(6)(a)-(c), MCA.
¶6 There is no dispute in this case that DiFulvio satisfied the requirements of
§ 46-18-208(a), MCA. DiFulvio served one-half of her deferred sentence and satisfied all
other supervision requirements, including full payment of all court fines and attorney fees.
The unresolved issue then is whether she is entitled to termination in consideration of the
provisions of § 46-18-208(6)(a)-(c), MCA. Because the State failed to substantively
address DiFulvio’s motion, and the District Court’s order summarily adopted the State’s
response, it is not clear whether the District Court considered these elements before
denying DiFulvio’s motion. Since we cannot determine the basis on which the District
Court denied DiFulvio’s motion, we reverse the District Court’s Order and remand this
matter for consideration of DiFulvio’s motion consistent with this Opinion. See Wilkes,
¶ 12.
¶7 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. We reverse and remand.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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