TN 8 (10-06)
PR 02905.029 Montana
A. PR 03-021 Does Dismissal of Charges After Deferred Imposition of Sentence Under Montana Law Constitute Conviction for Purposes of 20 C.F.R. § 404.305(b); (Your Reference Number S2D8b52ks)
DATE: October 29, 2002
Once found guilty, either by a plea or a verdict, an individual is "convicted" for purposes of federal law. If someone in Montana is convicted of "negligent homicide" a lack of intent may be presumed, although the presumption may be rebutted. Therefore an individual with such a conviction may be paid benefits on the record of the deceased wage earner in accordance with the regulation at 20 C.F.R. § 404.305(b).
You have asked two questions regarding the effect of the dismissal of charges against Barbara J~ to the charge of negligent homicide of her husband, James J~. First, you asked whether Ms. J~ was convicted of a felony for purposes of 20 C.F.R. § 404.305(b). Second, you asked if Ms. J~ was precluded from obtaining widow's benefits based on the earnings of her deceased husband.
For the reasons discussed below, we believe that Ms. J~ was convicted of a felony for the purposes of 20 C.F.R. § 404.305(b), but that her conviction does not preclude her from receiving widow's benefits.
In March 1979, Ms. J~ pleaded guilty to the felony of negligent homicide in the March 1978 shooting death of her husband, James J~. Pursuant to state law, she was granted a deferral of sentence for a term of three years. In March 1982, upon motion to the court, Ms. J~ withdrew her guilty plea and entered a not guilty plea. Upon entry of the not guilty plea, the court dismissed the charge. See MONT. CODE ANN. § 46-18-204 (1999).
An individual who is "convicted of a felony or an act in the nature of a felony of intentionally causing [a] person's death" is not entitled to receive benefits on that person's earnings record. 20 C.F.R. § 404.305(b). A line of federal cases has held that a determination of whether an individual has been convicted within the purview of a particular federal statute is necessarily a question of federal, not state, law despite the fact that the predicate offense and its punishment are defined by state law. "This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of conviction." Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111 (1983). The decision in the Dickerson case approved of circuit court decisions, which held state expunction statutes (such as the Montana statute) were not controlling where a function of federal law is concerned. United States v. Woods, 695 F.2d 566 (8th Cir. 1982); United States v. Potts, 528 F.2d 883 (9th Cir. 1975); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978); United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979); United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980). Accordingly, once found guilty, either by a plea or a verdict, an individual is "convicted" for purposes of federal law.
The rationale in these federal cases is persuasive with regard to the Social Security regulation (20 C.F.R. § 404.305(b)) at issue here. As such, we believe that Ms. J~ has been convicted of a felony for purposes of 20 C.F.R. § 404.305(b).
Because we believe Ms. J~ was convicted of a felony, the next question to be resolved is whether she "intentionally" caused her husband's death. Under SSA's guidelines, "intent" is not simply the equivalent of "knowingly and purposely" which are elements of "deliberate homicide" under Montana law. See MONT. CODE ANN. § 45-5-102 (1999). Rather, under the Program Operations Manual (POMS), "intent" is: (a) a wish or expectancy that an act will have a certain result (regardless of the actual likelihood of such a result); (b) [t]he presence of will in the commission of a criminal act where the individual is fully aware of the nature and probable consequences of the act which is to be done. This applies whether the individual desires that such consequences occur or is indifferent as to their occurrence." POMS § GN 00304.060B.
Under Montana law, a person who commits negligent homicide is one "who negligently causes the death of another human being." MONT. CODE ANN. § 45-5-104 (1999). A person acts with criminal negligence when "the homicidal risk is of such a nature and degree that to disregard it involves a "gross deviation" from the standard of conduct that a reasonable person would observe in the actor's situation." MONT. CODE ANN. § 45-2-101 (1999).
Based on this statutory law, we conclude that the Montana crime of "negligent homicide" is analogous to the offense of "involuntary manslaughter." Indeed, the "negligent homicide" statute replaced the "involuntary manslaughter" statute in Title 45, Chapter 5 of the Montana Code Annotated. "Involuntary manslaughter" is generally regarded as an unintentional slaying and thus does not bar entitlement to benefits. POMS § GN 00304.065. Thus, if someone in Montana is convicted of "negligent homicide" we believe a "lack of intent [may be] presumed," although the presumption may be rebutted. Id. On the information presented to us, there appears to be no basis for rebutting the presumption in this case.
In sum, based on the facts presented to us, we believe SSA would be justified in finding Ms. J~ is entitled to Social Security benefits notwithstanding her conviction for "negligent homicide."
Mary A. S~
Acting Chief Counsel, Region VIII
Robert L. V~
Assistant Regional Counsel