NO. 89-291
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
plaintiff and Respondent,
-vs-
BRENT KLIPPENSTEIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth ~udicialDistrict,
In and for the County of Missoula,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Recht & Greef; Howard F. Recht, ~amilton,Montana
For Respondent:
Hon. Marc ~ a c i c o t ,Attorney General, Helena, Montana
Dorothy McCarter, Asst. Attorney General, Helena
Robert L. Deschamps, 111, County Attorney, iss sou la,
Montana
Submitted on ~riefs: Aug. 10, 1989
Decided: August 30, 1989
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Brent lipp pen stein, convicted upon his plea of guilty of
the offense of felony theft in the District Court, Fourth
Judicial District, Ravalli County, appeals from the judgment
and sentence imposed upon him. On consideration, we affirm
the sentence imposed with one modification.
The defendant was charged by information with one count
of felony theft. The investigation revealed that he had
embezzled approximately $396,000 from Washington Corporation
over a four-year period. He embezzled the money by
channeling false purchase orders through a nonexistent tire
company he had set up. Some of the stolen funds were used as
part of the start-up capital for an otherwise legitimate auto
parts store.
The defendant entered a plea of guilty to the charge of
theft on December 23, 1988, and sentencing occurred on March
2, 1989. After hearing the recommendations of the County
Attorney, the defense counsel, and the Department of
Institutions, the District Court sentenced the defendant, the
pertinent part of which sentence follows:
IT IS ADJUDGED AND DECREED that the Defendant is
guilty of the offense charged.
A Pre-sentence ~nvestigationReport was ordered and
being fully advised as to the facts of this case;
IT IS THE JUDGMENT OF THE COURT that BRENT
KLIPPENSTEIN be and BRENT KLIPPENSTEIN is hereby
sentenced to a term of ten (10) years in the
Montana State Prison.
It is the recommendation of the Court that when the
Defendant qualifies according to the Montana State
Prison then he shall be released to a Pre-Release
Center.
IT IS FURTHER ORDERED that upon release from
prison, to the best of his ability, the Defendant
shall make restitution to Chubb, 6500 ~ilshire, Los
Angeles, CA (Attention: Frank Arenson) in the
amount of Three Hundred Eighty-eight Thousand Eight
Hundred Forty-nine and 31/100 Dollars
($388,849.31) .
IT IS FURTHER ORDERED that that Defendant's
business, NAPA Auto Parts, Lolo, Montana, is to be
sold by the Defendant and the proceeds applied to
the restitution, unless the Internal Revenue
Service has not [sic] already seized it.
The maximum sentence permissible for the offense of
felony theft is a fine "not to exceed $50,000 or be
imprisoned in the state prison for any term not to exceed ten
years or both." Section 45-6-301(6), MCA. On appeal the
defendant contends that since he was given the maximum
sentence of imprisonment allowed by law for the offense, no
part of which was suspended or deferred, that the additional
requirement that he pay restitution and that his auto parts
business be sold exceeds the authority of the court. He
contends that the authority the District Court order
restitution extends only to cases where the court imposes
restitution as a condition of a suspended or deferred
sentence under 5 46-18-201, MCA. In State v. Shaver (Mont.
1988), 760 P.2d 1230, 1236, this Court said:
Under 5 46-18-201 (1)(a), MCA, the District Court
has authority to impose reasonable restrictions or
conditions including restitution (subsection (iv)
and "any other reasonable conditions considered
necessary for rehabilitation ... " (subsection
(x)) The statute further states " [t]he sentencing
judge may impose on the defendant any reasonable
restrictions or conditions during the period of
suspended sentence." Section 46-18-201(1) (b), MCA.
The defendant has misinterpreted the sentence imposed by
the District Court. The provision for restitution applies
only if under the rules of the Montana State Prison he
becomes eligible for parole and secures his release. If he
never receives a parole, and serves the full term of ten
years, then the condition of restitution does not apply, and
the maximum imprisonment authorized by statute for the
offense charged comes into play. In other words, the
sentence imposed on him can never exceed the maximum allowed
under the statutory authority of the court.
The defendant assumes that his sentence is imposed under
the provisions of s 46-18-201, MCA. That statute does refer
to imposing restitution as a condition for deferred
imposition of sentence or a suspended sentence. In this
case, however, the District Court did not utilize the
provisions of § 46-18-201, MCA, to impose either a deferred
imposition of sentence or a suspended sentence. Instead, the
court imposed a condition on parole of the defendant under
the general power granted to the court in 5 46-18-202, MCA.
The regulations of the Board of Pardons and Parole recognize
that the sentencing court "may require other and additional
special conditions to be placed upon the parolee." S
20.7.1101 (14), A.R.M.
The second issue raised by the defendant is his
contention that the ~istrictCourt sentenced him for crimes
which he did not commit and for which he has not been charged
and convicted.
In part, the sentencing court said:
Now, I think you've got a break because you were
only charged with one count. I think Gallatin
County would have charged with 20 or 30 counts.
Which could have consecutively been 200, 300, 400
years in the prison. I don't know how you got the
break and so forth, but you did get a break.
Therefore, based upon the fact that you have had
these breaks and you committed more felonies than I
have ever seen committed since I have been on the
bench, it is the sentencing judgment of this court
that [sentence follows].
Again, the defendant has misinterpreted what the
District Court did in imposing sentence. The information
charging the defendant in a single count specified "on or
between 1984 and 1988, the defendant purposely and knowingly
asserted unauthorized control over monies and properties
owned by Washington Incorporation etc." Because the
defendant was charged only with one count, a count which
embraced all of the embezzlements by the defendant as a
common scheme, the court was limited in imposing sentence to
the maximum imposed for one felony theft offense. The
comments of the District Court indicated only that the
defendant had been treated leniently insofar as the charges
were concerned.
In imposing sentence, the sentencing court may consider
any relevant evidence relating to the nature and
circumstances of the crime, the character of the defendant,
his background history, mental and physical condition, and
"any evidence the court considers to have probative
force. . . ." Section 46-18-302, MCA. The District Court is
given a wide scope of inquiry in sentencing. State v. D.B.S
(1985), 216 Mont. 234, 247-48, 700 P.2d 630, 639-40. The
information received by the sentencing court is not limited
by the Rules of Evidence. Section 46-18-302, MCA; State v.
Smith (Mont. 1988), 755 P.2d 569, 571-72.
The defendant also contends that the ~istrict Court
imposed the maximum sentence because of the ~istrictCourt's
belief that defendant's wife was also guilty by implication.
In referring to the wife ' s knowledge of the embezzlements,
the District Court referred only to the statement of the
defendant that the wife didn't know of the ongoing
embezzlements, and expressed a measure of disbelief in
defendant's statement. Nothing in the record indicates that
the ~istrict Court imposed its sentence upon the defendant
for the presumed misfeasance of the defendant's wife.
Referring again to the order of the District Court
relating to restitution, the court ordered that the
defendant's business, NAPA Auto Parts of Lolo, Montana, be
sold and the proceeds applied to the restitution. At this
juncture, the provision is not applicable, because as we
stated above, restitution does not apply unless the defendant
becomes eligible for parole. since the possibility of parole
may occur at some indeterminable time in the future, a
present order to sell the auto parts business is not
workable. We will therefore modify the sentencing judgment
to remove that paragraph. In so holding, it is not necessary
for us to consider the due process arguments raised by the
defendant as to this provision.
~ccordingly, the judgment and sentence is modified to
remove therefrom the provision that the defendant's business,
NAPA Auto Parts of Lolo, Montana, is to be sold. As so
modified, the sentence imposed by the District Court is
affirmed and will stand.
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