NO. 92-494
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DARREN JAMES BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Attorney at Law, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal
Wellenstein, Assistant Attorney General, Helena,
Montana
Richard J. Llewellyn, Jefferson County Attorney,
Boulder, Montana
Submitted on Briefs: October 28, 1993
Justice Karla M. Gray delivered the Opinion of the Court.
On January 29, 1992, Darren J. Brown (Brown) pled guilty to
one count each of felony criminal endangerment, negligent homicide
and obstructing justice. The charges stemmed from Brown's
participation in an incident in Whitehall, Montana, during which he
lost control of his vehicle and struck two pedestrians. Mona Ness
was killed instantly and Theresa Wilkinson was injured severely.
The District Court sentenced Brown to terms of imprisonment,
partially suspended, and conditioned the suspended portion of his
sentence on payment of restitution to the victims and/or their
families. Because we identify a number of errors in the
restitution condition, we reverse that portion of the sentence, and
remand for further proceedings.
In sentencing Brown, the District Court found that, although
the husbands and families nf Mona Ness a>d Theresa Wilkir,s~nhad
all incurred staggering financial losses, the exact dollar amount
of those damages was unclear. It also found that Brown had been
employed as a prison guard, had marketable skills and owned a car,
a number of guns and $2,580 in a Public Employees' Retirement
System (PERS) account. Based on these findings, the District Court
subjected Brown's suspended sentence to the following condition:
7 . The Defendant shall pay restitution to the victims of
his said offenses. However, the determination of the
exact amount of such restitution, due each victim and/or
victim's family (comprising the estate of Mona Ness
and/or her husband and family, and Theresa Wilkinson
and/or her husband and family) shall not be made by the
Court until civil remedies have been exhausted and the
Court retains jurisdiction over the restitution issues
and any all [sic] issues pertinent thereto. Further,
pending an ultimate determination of such restitution
issues by the Court, the Adult Probation and Parole
Bureau is authorized and directed to withdraw the
proceeds of the Defendant's account with the Public
Employees1 Retirement System, to sell the Defendant's
1979 Trans Am, to sell all of the Defendant's firearms
. .
and to equally divide the proceeds of all such
.
withdrawals and sales between (the estate of) Mona Ness
and Theresa Wilkinson. ..
All such distributions to
victims shall be applied to the total restitution amount
which is ultimately determined. ...
Section 46-18-201(1)(b), MCA, expressly authorizes a district
court to condition a suspended sentence on payment of restitution
to the victim. Other statutes provide detailed procedures and
requirements for imposing restitution as a condition of a sentence
under !j 46-18-201, MCA. See §§ 46-18-241 through 250, MCA. We
agree with the parties that, in large part, these procedures and
requirements were not met here when the District Court imposed
restitution as a condition of Brown's suspended sentence.
When a court believes restitution may be a proper condition of
a sentence, the presentence investigation report must include:
(a) documentation of the offender's financial resources
and future ability to pay restitution; and
(b) documentation of the victim's pecuniary loss. ...
Section 46-18-242, MCA.
The presentence investigation report prepared in this case
contains no documentation of the pecuniary loss of either victim as
required by 5 46-18-242(2), MCA. Section 46-18-243(1), MCA,
defines pecuniary loss as:
(a) all special damages, but not general damages,
substantiated by evidence in the record, that a person
could recover against the offender in a civil action
arising out of the facts or events constituting the
offender's criminal activities, including without
limitation the money equivalent of loss resulting from
property taken, destroyed, broken, or otherwise harmed
and out-of-pocket losses, such as medical expenses: and
(b) reasonable out-of-pocket expenses incurred by the
victim in filing charges or in cooperating in the
investigation and prosecution of the offense.
The report states only that Mr. Wilkinson estimated Theresa's
medical expenses in excess of $150,000 and further notes that Mona
Ness was earning $10 per hour at the time of her death. As the
statute indicates, pecuniary loss must be documented by evidence in
the record. Clearly, these minimal assertions do not comply with
the statutory requirements.
Additionally, the presentence investigation report contains
inadequate documentation of Brownrs financial resources. While it
listed Brown's current assets, it only assfgned a monetary value to
his PERS retirement account. Further, although the report noted
that Brown was suspended without pay from his job as a prison
guard, it provided no documentation regarding Brown's future
ability to pay restitution after his release from prison.
We conclude that the presentence investigation and report in
the case before us did not comply with 5 46-18-242, MCA. Without
the documentation required by the statute, a district court is
unable to make a meaningful determination of the propriety or
amount of a restitution provision in a sentence.
As a probable consequence of the lack of information in the
presentence investigation report, the District Courtrsactual order
of restitution also is deficient. Section 46-18-244(1), MCA,
requires the court to specify the amount, method and time of
payment of restitution to the victia. None of these requirements
was met in this case. Furthermore, 5 46-18-244(2), MCA, requires
the court to consider the defendant's financial resources and
future ability to pay restitution when determining the amount,
method and time of payment. Under i l n a a s
rotn' statutory scheme,
district courts are not authorized to order restitution until all
such statutory requirements are satisfied.
Additionally, the parties agree that the District Court
improperly contemplated restitution to the victimsr families.
Restitution is statutorily limited to the WictimW of the crime,
who is defined as "a person who suffers a loss of property, bodily
injury, or death as a result of criminally injurious conduct."
Section 46-18-244(2)(a), HCA. As conceded by the State, the
individual family members cannot be considered victims because they
have not suffered a "loss of property, bodily injury, or deathm as
a result of Brown's conduct.
We hold that the District Court did not comply with 5 5 46-18-
242 through 244, MCA, in conditioning Brown's suspended sentence on
restitution to the victims and their families. As detailed above,
the presentence investigation report and the District Court's order
of restitution did not meet the statutory requirements for the
imposition of restitution on a suspended sentence.
Brown asserts additional error in the asset forfeiture portion
of the District Court's restitution condition, arguing that the
court was without any statutory authority to order the sale of his
assets. The State argues, on the other hand, that the asset
forfeiture is authorized as a I* limitation reasonably related to the
objectives of rehabilitation and the protection of societyw
pursuant to 5 46-18-202(1) (e), MCA. We conclude that Brown is
partially correct in his assertion.
section 46-18-201(1) (b), M a , allows a sentencing court to
impose reasonable restrictions or conditions such as restitution
only durina the Deriod of the sus~endedsentence. In Brown's case,
only ten years of his thirty-year sentence were suspended. Thus,
no condition, including the asset forfeiture portion of the
restitution provision, can commence until the suspended portion of
Brown's sentence begins--after he has served his time in the state
prison. In an analogous situation in State v. Klippenstein (1989),
239 Mont. 42, 46, 778 P.2d 892, 895, even though we interpreted a
different time-related limitation on the sentencing court's
authority, we concluded that a present order to sell the
defendant's assets was improper. Here, § 46-18-201(1)(b), MCA, is
clear--conditions, including restitution in general and the asset
forfeiture portion in particular, may only be imposed on Brown
during the period of his suspended sentence.
The State argues that 5 46-18-202(1)(e), MCA, authorizes the
asset forfeiture provision. We conclude that 5 46-18-202 (1)(e),
MCA, is inapplicable here; therefore, we do not address whether an
asset forfeiture could come within the parameters of the catch-all
provision in 5 46-18-202, MCA, under other circumstances.
Here, the District Court unambiguously imposed the asset
forfeiture provisions as part of the restitution condition of
Brown's suspended sentence pursuant to § 46-18-201(1)(b), MCA.
Section 46-18-201(1) (b), MCA, allows the court to impose, as a
condition of a suspended sentence, any condition listed in § 46-18-
201(l)(a), MCA, including the catch-all "any other reasonable
conditions considered necessary for rehabilitation or for the
protection of society" contained in § 46-18-201(1) (a)(xii), McA.
The language of the catch-all provisions of 5 5 46-18-201(1) (a) and
46-18-202 (1)(e), MCA, is nearly identical. Had the court actually
relied on § 46-18-2Ol(l) (a)(xii), MCA, in imposing an asset
forfeiture separate from the restitution requirement, it would have
been bound by the "during the period of suspended sentence1'
limitation in 46-18-201(1)(b), MCA. Therefore, 5 46-18-
202(lj je), MCA, cannot be utilized to avoid the terms of the
specific statutory limitations relating to suspended sentences in
§ 46-18-201(1)(b), MCA; namely, the District Court may impose
conditions on Brown as part of his suspended sentence only during
the period of the suspended sentence.
We conclude that the District Court erred in ordering the
present sale of Brown's assets because of the specific limitations
in § 46-18-201(1) (b), MCA, and the inapplicability of 3 46-18-
202(1) (e), MCA, to the suspended sentence before us. At this
juncture, it would be premature to assume that restitution will be
ordered again and that an order to sell Brown's assets will be
included in any future order. As such, we decline to rule on the
actual merits of whether an asset forfeiture provision can be part
of an otherwise appropriate restitution order.
As a final matter, Brown urges this Court to simply vacate the
restitution portion of his sentence rather than remanding for
further proceedings, arguing that a further hearing will not
establish his future ability to pay. We decline to do so. As
explained earlier, the presentence investigation and report are
devoid of evidence of Brown's future financial ability to make
restitution payments. On the basis of the existing record, this
Court is in no better position to conclude that Brown is or is not
able to make future restitution payments than was the District
Court. Therefore, we remand this case for further proceedings with
regard to the restitution portion of Brown's sentence and, in the
event restitution is again ordered, for entry of appropriate
findings.
-
Reversed and remanded for further proceedings consistent with
this opinion.
We concur:
Chief Justice
b" Justices
8
Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion, but not all
that is said therein.
I would hold, as a matter of law, that there is no statutory
basis for ordering forfeiture of the defendant's property in order
to satisfy a restitution order. Section 46-18-202(1)(e), MCA,
allows for the imposition of conditions cn a sentence when it is
a
"related to the objectives of rehabilitation and the protection of
society." For the same reasons that I dissented in State v. Bourne
(Mont. 1993), 856 P.2d 222, 50 St. Rep. 791, I conclude that taking
property from a person who has already been imprisoned for his
conduct is the antithesis of rehabilitation. To suggest that
people coming out of prison are more likely to obey the law because
their means of transportation and retirement income has been taken
from them is absurd. Just the opposite is true. A person who has
been stripped of his only means of transportation and all other
worldly possessions is more likely to break the law again in order
to catch up for lost time.
Therefore, I disagree with the majority's reluctance to
address the State's unfounded contention head-on. I conclude that
there is no statutory basis for the District Court's forfeiture
Justice Hunt joins in the foregoing special concurrence.
Chief Justice J. A. Turnage dissenting:
I respectfully dissent from the majority opinion.
During the day of July 25, 1991, appellant Darren James Brown,
his brother Jeff Wayne Brown, and Gerald Mullaney traveled in a
1989 Jeep pickup from Butte, Silver Bow county, Montana, into
Jefferson County, apparently to go fishing. During the day they
all did some serious drinking.
During the early evening hours of that day, this trio stopped
at the Two Bit Saloon in Whitehall, Montana, owned and operated by
J. R. Stanley, who was then tending bar. The bar was occupied by
at least three other patrons. The trio soon started a disturbance
resulting in Stanley ordering them to leave.
Upon leaving, appellant Darren James Brown got behind the
driver's wheel cf t k e Jeep pichp, Xullzney wzs sezted ir? the
middle, and Jeff Wayne Brown was seated on the right passenger
side. Appellant backed the pickup away from the parking position,
rapidly accelerating backwards. He then drove the pickup slowly
forward past the side door of the Two Bit Saloon, during which time
his brother Jeff Wayne Brown leaned out of the passenger door
window, holding a .357 magnum pistol in two hands, and fired
approximately five rounds at and into the open door of the saloon.
At this point, appellant Darren James Brown accelerated and
drove the pickup truck at an excessive rate of speed, estimated by
a highway patrol officer at 62.5 miles per hour, and by other
witnesses at 70 to 80 miles per hour, to a point approximately
four-tenths of a mile from the Two Bit Saloon. There, he crossed
over the centerline of the road into the lane of on-coming traffic
and beyond that to the pedestrian walkway, where he struck Mona
Ness and Theresa Wilkinson, who were walking along the west side of
Whitehall Street. Mona Ness was killed, and Theresa Wilkinson was
seriously injured.
At the point where the victims were struck by the pickup,
which was within the city limits of Whitehall, the speed limit was
25 miles per hour.
Appellant, without stopping, continued on at a high rate of
speed for about another seven-tenths of a mile, until he ran into
a ditch and stalled.
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I.UULD after the victims were strack, a bl=&
sample was taken from appellant Darren James Brown. Upon laborato-
ry analysis it was established that he had a blood alcohol content
of .17 (nearly twice the amount required for presumptive driving
under the influence of intoxicants) and also that he was confirmed
as having ingested THC Cannabinoid (marijuana).
Darren James Brown was charged with and pled guilty to the
felony offenses of obstructing justice, negligent homicide and
criminal endangerment.
The District Court sentenced appellant to imprisonment in the
Montana State Prison for ten years on each of the offenses, the
terms to run consecutively. The last ten years of the total of
thirty years was suspended upon conditions.
One of the conditions imposed by the District Court and the
sentencing document provided:
7. The Defendant shall pay restitution to the victims
of his said offenses. However, the determination of the
exact amount of such restitution, due to each victim
and/or victim's family (comprising the estate of Mona
Ness and/or her husband and family, and Theresa Wilkinson
and/or her husband and family) shall not be made by the
Court until civil remedies have been exhausted, and the
Court retains jurisdiction over the restitution issues
and any [and] all issues pertinent thereto. Further,
pending an ultimate determination of such restitution
issues by the Court, the Adult Probation and Parole
Bureau is authorized and directed to withdraw the
proceeds of the Defendant's account with the Public
Employees' Retirement System, to sell the Defendant's
1979 Trans Am, to sell all of the Defendant's firearms
(the Jennings .22 caliber weapon, the 9 mm Black semi-
auto weapon, the .44 magnum Ruger revolver, the .45
caliber Smith & Wesson revolver, and the .357 magnum
Rxjer G.P. weapon), a i to eqiially divida the proceeds of
id
all such withdrawals and sales between (the estate of)
Mona Ness and Theresa Wilkinson. Further, if the
Defendant is a co-owner of the Jeep Cherokee vehicle
utilized in the commission of his offenses, said vehicle
shall also be sold and the Defendant's equity interest in
the proceeds, and/or in the proceeds from any applicable
collision or other damage insurance policy, shall be
equally divided between the said victims in the foregoing
manner. All such distributions to victims shall be
applied to the total restitution amount which is ulti-
mately determined. The Defendant shall fully cooperate
in all efforts of the Parole and Probation Bureau in
regard to such sales, recoveries and distribution.
Although the apparent meager assets of appellant Darren James
Brown will not in any manner presently make restitution to the
family of Mona Ness and to Theresa Wilkinson, nevertheless this
should not be any reason why restitution should not be required
insofar as possible at the present time and not twenty years from
now.
I do not believe the interpretation placed upon the statutes
by the majority is either necessary or practical. Certainly after
the years of incarceration that the appellant is facing until he
reaches the time when his ten-year period of suspension arrives,
there will not be any assets then available for any payment of
restitution. These assets will disappear just as surely as quick-
silver will slip through the tines of a dinner fork.
I also disagree with the Court's interpretation of F, 46-18-
243, MCA, where the Court concludes that restitution is statutorily
limited to the *victimss the crime and thereby limiting in this
of
Section 46-18-241(1), MCA, provides:
Condition of restitution. (1) As provided in 46-18-201,
a sentencing court may require an offender to make
restitution to anv victim of the offense. [Emphasis
supplied.]
The record in this case discloses that one of the victims in
this crime is a family member of Mona Ness who has incurred a loss
by being required to pay for counseling as a result of the death of
her mother. She also is a victim.
Section 46-18-201, MCA, authorizes the District Court to
include reasonable restrictions or conditions upon the defendant
in passing sentence, which includes restitution.
The majority of this Court is reversing, in part, the order of
restitution imposed by the District Court for the reason that 5 46-
18-201, MCA, contains language that provides I1[t]he sentencing
judge may impose on the defendant any reasonable restrictions or
conditions during the period of suspended sentence." I do not
agree that this language must be interpreted to require that the
appellant must serve his twenty years of iztprisonment before any
consideration can be given to restitution. Such interpretation is
not practical or reasonable.
It must further be noted that 5 46-18-202, MCA, authorizes a
district iii &ditirjii 2. the rertrietioiir prrj-"-i&d for fii
5 46-18-201, MCA, to require that a defendant be subjected to "(e)
any other limitation reasonably related to the objectives of
rehabilitation and the protection of society."
I submit that it must be presumed that the appellant herein
can be rehabilitated, and one of the most compelling and attention-
obtaining means of rehabilitation is to take his wheels away from
him and require him to subject the small amount of assets that he
has accumulated to payment of restitution to the family of Mona
Ness and to Theresa Wilkinson.
I would affirm the District Court but would require that the
question of restitution be remanded for an adequate evidentiary
hearing establishing the amounts of claimed damages and the assets
available for payment thereof together with the future prospects of
payment by the appellant.
I invite the Montana legislature to revisit these statutes for
the purpose of providing practical and meaningful provisions for
restitution.
January 27, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark P. Yeshe
Attorney at Law
P.O. Box 483
Helena, MT 59624
Hon. Joseph P. Mnnxek
Attorney General
Justice Bldg.
Helena, MT 59620
Richard I. Llewellyn
County Attorney
Jefferson County Courthouse
Boulder. MT 59632
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: , .
Deputy t