06/30/2026
DA 23-0515
Case Number: DA 23-0515
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 135
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TERRY LEE HAGBERG,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Rosebud, Cause No. DC 2022-36
Honorable Nickolas C. Murnion, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Deborah S. Smith, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Cori Losing, Assistant
Attorney General, Helena, Montana
C. Kristine White, Rosebud County Attorney, Forsyth, Montana
Submitted on Briefs: April 15, 2026
Decided: June 30, 2026
Filed:
Clerk
Chief Justice Cory J. Swanson delivered the Opinion of the Court.
¶1 Terry Lee Hagberg (Hagberg) appeals the July 2023 judgment and sentence of the
Montana Sixteenth Judicial District Court for Driving a Motor Vehicle Under the Influence
of Alcohol or Drugs (DUI) (4th or subsequent), a felony in violation of § 61-8-1002(1)(b),
MCA (2021). Hagberg challenges only one aspect of the judgment: the imposition of a
$5,000 fine required by § 61-8-1008, MCA (2021). We affirm the imposition of the $5,000
fine and remand for a determination of Hagberg’s ability to pay.
¶2 We restate the issues on appeal as follows:
Issue One: Whether Hagberg waived his right to appellate review of a fine imposed
by the District Court when he agreed to the fine in his plea agreement and at
sentencing.
Issue Two: Whether the District Court erred by imposing a $5,000 mandatory
minimum fine pursuant to § 61-8-1008, MCA, and suspending $2,500 of the fine.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Hagberg, now seventy years old, began drinking alcohol when he was about
fourteen. By his early twenties, Hagberg had created a habit of drinking beer daily.
Hagberg eventually added whiskey to his daily regimen and has consumed approximately
one pint of whiskey per day for the past twenty years. In the early afternoon of July 24,
2022, Hagberg began drinking his usual whiskey and soda in a large travel mug before
driving from Ryegate to Forsyth to go fishing with a friend. Upon arrival in Forsyth and
after finding out his friend had moved to Miles City, Hagberg decided to drive to the
Howdy Hotel to stay for the night. By this time, Hagberg had consumed approximately
three of the travel mugs full of whiskey and soda and a few beers.
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¶4 At approximately 8:45 p.m. that same night, Rosebud County Deputy Sheriff’s
Dylan Plympton, observed Hagberg drive by the Town Pump in his pickup. Shortly after
Hagberg drove by, the driver of another vehicle notified Deputy Plympton that Hagberg
had driven off the road into the grass, returned to the roadway, and then drove through a
stop sign. While Deputy Plympton was driving to catch up to Hagberg, he observed
Hagberg turn down the wrong ramp on the interstate, stop his vehicle, reverse, and come
to a stop in the wrong lane.
¶5 Deputy Plympton stopped Hagberg as he attempted to turn onto the correct interstate
ramp and asked Hagberg why he had tried to enter the wrong side of the interstate. Hagberg
responded he was trying to find the Howdy Hotel, where he used to live. Deputy Plympton
observed Hagberg slurring his words with a dazed expression and flushed face. Deputy
Plympton had increased suspicion that Hagberg was driving under the influence because
Hagberg would have passed the Howdy Hotel’s giant sign on Front Street before reaching
the interstate. Deputy Plympton requested Hagberg step out of his vehicle and perform a
Horizontal Gaze Nystagmus test. Hagberg was unable to stand under his own power—in
part due to a broken foot—and demonstrated six out of six indications of impairment during
the test. Hagberg’s eyes were glossy, and he told Deputy Plympton he was seeing double.
Deputy Plympton placed Hagberg under arrest for DUI and transported him to the jail.
Hagberg refused both the breath test and the blood test, so Deputy Plympton obtained a
warrant for a blood draw. Hagberg’s toxicology report from the blood draw showed a BAC
of 0.272, over three times the legal limit.
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¶6 Upon further investigation, Deputy Plympton learned Hagberg was driving with a
suspended license and had three prior DUI convictions. On October 13, 2022, the State
charged Hagberg by Information with DUI (fourth or subsequent offense), a felony, in
violation of § 61-8-1002(1)(b), MCA (2021), and Driving a Motor Vehicle While Privilege
to do so is Suspended or Revoked. On March 14, 2023, Hagberg signed an
Acknowledgment and Waiver of Rights and Plea Agreement (Plea Agreement) pleading
guilty to DUI in exchange for dismissal of the Driving While Suspended charge.
¶7 Hagberg had been denied admission into the Courts Assisting Military Offenders
(CAMO) treatment court prior to the sentencing hearing, which was the only exception to
the mandatory minimum custodial sentence. Accordingly, the District Court sentenced
Hagberg to a thirteen-month Department of Corrections (DOC) commitment, with a
recommendation for placement at the Warmsprings Addictions Treatment and Change
program (WATCh), followed by a consecutive, suspended four-year DOC commitment.
The court specified, if Hagberg completed the treatment program, the remainder of the
thirteen-month commitment would be served on probation. The court also imposed the
statutory minimum fine of $5,000 and credited Hagberg $200 for time served. Hagberg
requested that the District Court suspend half of the fine because of his medical debt.
Accordingly, the court suspended $2,500 of the fine.
STANDARD OF REVIEW
¶8 We review criminal sentences for legality. State v. Spang 2026 MT 107, ¶¶ 7-9,
428 Mont. 150, 589 P.3d 630 (citing State v. Cole, 2026 MT 52, ¶ 5, 427 Mont. 64,
585 P.3d 955). To determine legality, we consider "whether the sentence falls within the
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statutory parameters, whether the district court had statutory authority to impose the
sentence, and whether the district court followed the affirmative mandates of the applicable
sentencing statutes.” State v. Yeaton, 2021 MT 312, ¶ 8, 406 Mont. 465, 500 P.3d 583
(quoting State v. Ingram, 2020 MT 327, ¶ 8, 402 Mont. 374, 478 P.3d 799). We review
whether a district court adheres to the applicable sentencing statute de novo. State v. Horn,
2026 MT 79, ¶ 6, 427 Mont. 402, 588 P.2d 102 (citing State v. Dowd, 2023 MT 170, ¶ 6,
413 Mont. 245, 535 P.3d 645). “We review a claim that a sentence violates a constitutional
provision de novo.” Spang, ¶ 5 (citing State v. Ber Lee Yang, 2019 MT 266, ¶ 8, 397 Mont.
486, 452 P.3d 897.
DISCUSSION
¶9 Issue One: Whether Hagberg waived his right to appellate review of a fine imposed
by the District Court when he agreed to the fine in his plea agreement and at
sentencing.
¶10 Hagberg asserts since the Plea Agreement and sentencing occurred under precedent
that was overruled while his appeal was pending, he did not waive appellate review of his
challenge to the fine. The State argues the imposition of the fine was legal, and Hagberg
waived his right to appeal when he acquiesced to the fine.
¶11 A defendant does not waive the right to appellate review by agreeing to a sentence
which was required by law at the time of sentencing. Spang ¶¶ 7-9 (finding Spang did not
waive his right to appeal when he agreed to a fine in his plea agreement—which was
supported by caselaw at the time of the agreement—when the constitutionality of the fine
was later called into question by subsequent cases). Since the law at the time of the Plea
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Agreement and sentencing was questioned by subsequent rulings during Hagberg’s
pending appeal, he did not waive appellate review.
¶12 Issue Two: Whether the District Court erred by imposing a $5,000 mandatory
minimum fine pursuant to § 61-8-1008, MCA, and suspending $2,500 of the fine.
¶13 Hagberg asserts the District Court erred when it imposed a $5,000 fine under
§ 61-8-1008, MCA (2021)—which sets a mandatory minimum fine for felony DUIs—
when this Court determined the “nearly identical” statute, § 61-8-731(3), MCA (2019), to
be facially unconstitutional in State v. Gibbons. See generally State v. Gibbons, 2024 MT
63, ¶ 66, 416 Mont. 1, 545 P.3d 686, overruled in part by Cole (holding a mandatory fine
unconstitutionally removes the sentencing court’s discretion to relinquish the fine after
conducting an ability to pay analysis pursuant to § 46-18-231(3), MCA). The State first
responds that Hagberg erroneously conflates § 61-8-731(3), MCA (2019)—the statute at
issue in Gibbons—with § 61-8-1008(1)(a)(i), MCA (2021)—the statute at issue here—and
contends the latter statute is instead successor to § 61-8-731(1)(a), MCA (2019).
Additionally, the State asserts since this is Hagberg’s fourth offense DUI, he would not
meet the threshold requirement to be sentenced pursuant to § 61-8-1008(2), MCA (2021)—
successor to § 61-8-731(3), MCA (2019)—and was instead sentenced pursuant to
§ 61-8-1008(1)(a), MCA (2021)—successor to § 61-8-731(1)(a), MCA (2019).
¶14 The State makes this distinction to argue § 61-8-731(1)(a), MCA (2019), was not
declared unconstitutional in Gibbons, and therefore its successor statute,
§ 61-8-1008(1)(a)(i), MCA (2021), has not yet been declared unconstitutional. Hagberg
concedes he was sentenced for his fourth DUI pursuant to § 61-8-1008(1)(a)(i), MCA
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(2021), but argues the fine imposed on him was nonetheless the same as the fine held to be
facially unconstitutional in Gibbons.
¶15 These arguments are resolved by our recent decision in Cole—which overruled
Gibbons to the extent it held § 61-8-731(3), MCA (2019), was facially unconstitutional—
and our recent decisions clarifying the subsections of § 61-8-731, MCA (2019), are
indistinguishable for purposes of analysis under Cole. Cole, ¶¶ 22-29; Spang, ¶ 15 (citing
State v. Horn, 2026 MT 79, ¶ 11, 427 Mont. 402, 588 P.3d 102). In Spang, we noted that
an important distinction between § 61-8-731(3), MCA (2019) and § 61-8-731(1)(a)(iii),
MCA (2019), is their use of the conjunctions “and” and “or.” Spang, ¶ 15 (stating the
district court only had discretion under § 61-8-731(3), MCA (2019), to relinquish the fine
entirely due to that subsection’s use of the conjunction “or”). This distinction is no longer
relevant under the successor statutes. Unlike § 61-8-731(3), MCA (2019), its successor
statute, § 61-8-1008(2), MCA (2021), requires the district court to impose a custodial
sentence and a fine. Regardless of the differences between the subsections of the statute,
the analysis under Cole is the same.
¶16 In Cole, we determined § 46-18-231(3), MCA, may be harmonized with mandatory
fine provisions by means of the express authority granted to sentencing judges to suspend
sentences under § 46-18-201(2), MCA. Cole, ¶ 11. Under Cole, the sentencing court must
impose the mandatory fine under the appropriate sentencing statute, determine the
defendant’s ability to pay the fine pursuant to § 46-18-231(3), MCA, and then suspend the
fine to the extent the defendant lacks the ability to pay. Cole, ¶ 14.
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¶17 Here, the record shows the District Court sentenced Hagberg to the DOC for 13
months followed by four years suspended, recommended he be screened for placement at
a residential alcohol treatment program, conditioned probation on completion of the
program, and suspended half of the minimum $5,000 fine. This sentence supports that
Hagberg was sentenced pursuant to § 61-8-1008(1)(a), MCA (2021), which is the
appropriate sentencing statute. The record supports the District Court conducted an
analysis of Hagberg’s ability to pay and suspended a portion of the fine accordingly.
However, the District Court did so prior to Cole. We therefore do not inquire into the
adequacy of the District Court’s analysis of Hagberg’s ability to pay, since the arguments
of the parties and the court’s findings may differ per our holding in Cole. We therefore
vacate the portion of the Judgment dealing with the fine and remand to the District Court
to make appropriate findings of Hagberg’s ability to pay before determining the appropriate
amount of the mandatory fine which may be suspended.
CONCLUSION
¶18 The District Court’s judgment imposing a $5,000 fine is affirmed and we remand
for a determination of Hagberg’s ability to pay.
/S/ CORY J. SWANSON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
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Justices Katherine M. Bidegaray, Ingrid Gustafson, and Laurie McKinnon, dissenting.
¶19 We agree with the Court that Hagberg did not waive appellate review of his
challenge to the fine. We dissent, however, from the majority’s decision to affirm the
mandatory imposition of a $5,000 fine under § 61-8-1008(1)(a)(i), MCA, and to remand
only for post-imposition ability-to-pay findings under Cole.
¶20 For the reasons stated in our dissent in State v. Cole, 2026 MT 52, 427 Mont. 64,
585 P.3d 955, we continue to believe State v. Gibbons, 2024 MT 63, 416 Mont. 1, 545 P.3d
686, correctly held that a sentencing statute requiring a mandatory minimum fine violates
the Excessive Fines Clauses of the United States and Montana Constitutions when it
prevents the sentencing court from considering the defendant’s ability to pay and other
proportionality factors before imposing the fine. The constitutional defect lies in
mandatory imposition, not merely later collection or enforcement.
¶21 This record illustrates the problem. The District Court recognized that its “hands
are pretty tied on these cases,” imposed the statutory $5,000 fine, and then suspended
$2,500 based on Hagberg’s financial condition. Although that approach may satisfy the
procedural mechanics of Cole, it does not cure the foundational constitutional defect
identified in Gibbons. A court that must first impose a $5,000 fine before considering
whether that floor is inherently disproportionate has not exercised the sentencing discretion
the Excessive Fines Clauses require. The majority’s remand does not cure that problem; it
merely permits the District Court to repeat the same mandatory-imposition sequence with
more explicit findings. Under Gibbons, once the District Court determined Hagberg could
not pay the only fine the statute allowed—a $5,000 mandatory minimum—the proper result
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was to impose no fine. Remanding for further proceedings under Cole merely forces the
District Court to participate in a procedural workaround that circumvents Hagberg’s
fundamental constitutional rights.
¶22 Furthermore, the majority’s remand confirms the difficulty with Cole’s framework.
Cole treats ability to pay as a post-imposition suspension question. The Excessive Fines
Clauses require more. A sentencing court must exercise its discretion to decide, before
imposing a fine, whether the fine is proportionate in light of the offense and the offender’s
ability to pay. A mandatory minimum that requires imposition first and discretion later
does not satisfy that constitutional requirement.
¶23 Hagberg is a seventy-year-old individual in poor health, unemployed, and burdened
by medical and credit card debt up to $45,000 while supporting both himself and his partner
on a fixed retirement income. The court reduced some financial obligations because of his
financial condition, noted he had not paid the PSI fee, suspended half of the mandatory
fine, and credited Hagberg $100 for time served. Remanding this matter to require the
District Court to perform a Cole analysis is an exercise in futility that ignores the
unconstitutional nature of the initial $5,000 mandatory imposition. A suspended fine
remains a legal obligation and a judgment against the Defendant. Those facts show why
the Constitution requires individualized sentencing discretion before imposition of a fine,
not merely a later decision about how much of a mandatory fine to suspend.
¶24 We would reverse the portion of the judgment imposing the $5,000 fine and remand
for the District Court to strike the fine in its entirety.
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/S/ KATHERINE M. BIDEGARAY
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
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