State v. Lintz

No. 12335

I N THE SUPREME COURT OF THE STATE OF E O T N
4 NA A

1973

THE STATE OF MONTANA,

P l a i n t i f f and Respondent,

-vs -
CHING WEME LINTZ,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court o f t h e E l e v e n t h J u d i c i a l ,
Honorable Robert S. Keller, Judge p r e s i d i n g .

Counsel o f Record :

For Appellant :

P a t r i c k S p r i n g e r and David L. A s t l e , K a l i s p e l l , Montana.
David L. A s t l e a r g u e d , K a l i s p e l l , Montana.

F o r Respondent :

Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana.
J . C. W e i n g a r t n e r , A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana.
H. James Oleson, County A t t o r n e y , a r g u e d , K a l i s p e l l ,
Montana.

Submitted: March 29, 1973

Decided : ~ F 17 1973
R
Honorable J a c k Shanstrom, D i s t r i c t J u d g e , s i t t i n g i n p l a c e o f
M r . Chief J u s t i c e James T . H a r r i s o n , d e l i v e r e d t h e Opinion of
t h e Court.

T h i s a p p e a l i s t a k e n from a judgment i n t h e d i s t r i c t

c o u r t f o r F l a t h e a d County r e v o k i n g a t h r e e y e a r d e f e r r e d i m -

p o s i t i o n of s e n t e n c e of t h e a p p e l l a n t , and s e n t e n c i n g him t o
1 5 y e a r s i n t h e Montana S t a t e P r i s o n .

The a p p e a l was b r o u g h t t o t h i s c o u r t on a t r a n s c r i p t
p r e p a r e d from v a r i o u s Court h e a r i n g s . The h e a r i n g s which a r e

p e r t i n e n t t o t h i s a p p e a l a r e as f o l l o w s : A p r i l 1 9 , 1972, a t
which t i m e t h e a p p e l l a n t changed h i s p l e a from n o t g u i l t y t o

g u i l t y on t h e s a l e of d a n g e r o u s d r u g s ; May 1 7 , 1972, p r e s e n t e n c e
h e a r i n g p u r s u a n t t o a p l e a of g u i l t y by t h e a p p e l l a n t t o t h e
c h a r g e of c r i m i n a l s a l e of dangerous d r u g s ; May 30, 1972, t h e

j u r y t r i a l of John B r i s t o w ; June 2 , 1972, t h e h e a r i n g on t h e
p e t i t i o n f o r r e v o c a t i o n of t h e d e f e r r e d i m p o s i t i o n of s e n t e n c e .
The a p p e l l a n t was charged w i t h t h e c r i m i n a l s a l e of

dangerous drugs, to-wit, marihuana, a f e l o n y . H i s a r r e s t came

a s a r e s u l t of e f f o r t s by a n undercover n a r c o t i c s team working

i n the Kalispell area. A t t h e t i m e of a r r a i g n m e n t a p p e l l a n t

e n t e r e d a p l e a of n o t g u i l t y , b u t s u b s e q u e n t l y changed h i s p l e a

t o g u i l t y on A p r i l 1 9 , 1972. Whereupon t h e c o u r t set t h e t i m e
f o r h e a r i n g i n a g g r a v a t i o n and m i t i g a t i o n of s e n t e n c e , and

heard t h e same on May 1 7 , 1972. A t t h e t i m e of t h e h e a r i n g t h e

a p p e l l a n t t e s t i f i e d a s t o h i s involvement, t h e s o u r c e of h i s

s u p p l y , and t h e involvement of a n o t h e r i n v i d i v u a l , namely, John
B r i s t o w , who l i k e w i s e f a c e d c r i m i n a l c h a r g e s i n F l a t h e a d County.
A t t h e c l o s e of t h e p r e s e n t e n c e h e a r i n g t h e c o u r t made t h e f o l -

lowing s t a t e m e n t from t h e bench:

" * * * Now t h a t you no l o n g e r have t h e p r e -
sumption and you c a n now be s e n t e n c e d t o t h e
S t a t e P r i s o n a t Deer Lodge, I want you t o
know t h a t I i n t e n d t o d e f e r i m p o s i t i o n of
s e n t e n c e , n o t w i t h s t a n d i n g t h a t , and I want
 you to know why I intend to do it. Because
you have testified with reluctance, but candid-
ly, with respect to the involvement and impli-
cation of John Bristow, and I expect to see
your testimony at the trial of Joun (sic) Bristow,
or at his pre-sentence hearing, and if it is not
there, your imposition is going to be revoked on
the basis of perjury or lack of cooperation, one
of the two. Do you understand that?
"THE DEFENDANT: Yes."
However, this language was not contained in the written
judgment deferring the imposition sentence for three years,
dated May 17, 1972.
The appellant was called by the state to testify at
the subsequent trial of John Bristow on May 30, 1972. During
the time that he was testifying he seemed to suffer from a lack
of memory and at other times took the Fifth Amendment and gen-
erally refused to testify the same as he did on his presentence
hearing on May 17, 1972.
Immediately after the testimony of the appellant at
John Bristow's trial a petition to revoke the appellant's deferred
sentence was filed, and the court set a hearing for June 2, 1972.
The court took judicial notice of the prior hearings and heard
additional testimony and evidence presented at the hearing for
the revocation of the deferred imposition of sentence. The court
revoked the deferred sentence and sentenced the appellant to 15
years in the State Prison. It is from this action that the appel-
lant now appeals.
The issue presented in this case is whether the district
judge could properly revoke the deferred sentence of the appel-
lant for his refusal to cooperate at the trial of John Bristow,
even though this condition was not specifically set out in the
court judgment .
During the sentencing proceeding on May 17, 1972, the
district court did verbally set out the condition that the
appellant would be expected to cooperate at the trial of John
Bristow. The court's attention is directed to page 44 of the
transcript. It is clear from the transcript that the appellant
at John Bristow's trial on May 30, 1972, just 13 days after
appellant's sentencing, was not cooperative. He refused to
testify on grounds of further incrimination, was evasive, forget-
ful and uncooperative to the State of Montana in the prosecution
of John Bristow, and in general did not comply with the conditions
set down by the district court on May 17, 1972.
In Kaplan v. United States, 234 F.2d 345 (8th Cir. 1956),
the defendant was convicted of narcotics sales and was placed
on probation. The court ordered the defendant to appear before
a grand jury and disclose the source of his narcotics purchases,
to which the defendant refused to do. His probation was revoked.
The court said:
"We have here, then, the situation of a de-
fendant who, while on probation, was specifi-
cally ordered by the court to appear before
the grand jury and disclose the source of his
heroin purchases and who refused in the presence
of the court to follow such orders. Completely
regardless of the subsequent contempt proceed-
ings, this was of itself sufficient justifi-
cation for revoking probation. Here was a speci-
fic order of the court to do a certain thing--
disclose information needed in a grand jury's
investigation of illegal traffic in narcotics.
In effect, it could be considered as an addition-
al condition of probation, even though it was not
included in the original written conditions. * * *
No claim of constitutional privilege was or could
have been maintained. To hold that such a specific
refusal to follow the court's order was not a
violation of probation could lead to rather
bizarre results in that every contingency would
need be anticipated and might have the effect of
limiting the use of probation. Campbell v.
Aderhold, D.C.N.D.Ga., 1929, 36 F.2d 366, 367."
(Emphasis supplied)
The transcript of the presentence hearing is replete
with statements of the appellant that he understood his testi-
mony would be expected to be given at the trial of John Bristow,
and undoubtedly this was one of the reasons the court gave him
the deferred sentence. By refusing to cooperate at the time
of trial it appears that the appellant was deliberately mis-
leading or deceiving the court at the time of the sentencing,
and deceit, untruthfulness and deception are always grounds for
revoking the deferred sentence. Also, it is not necessary
that all conditions of probation be in writing, nor need they
specifically be "conditions of probation". All that is required
is that the appellant must understand the conditions.
At the time of oral argument in this case, it was
revealed that the appellant, through counsel, had applied to the
Sentence Review Division of this Court for a reduction in sen-
tence under section 95-2503, R.C.M. 1947; and the Sentence Review
Division has, in fact, ordered the sentence reduced to 7-1/2
years. We do not here hold that such an application during the
time of appeal amounts to a waiver or raises an estoppel to a
challenge against the legality of the sentence, but suggest to
counsel that such might properly be ruled upon.
The district court did not abuse its discretion and
the order revoking the deferred imposition of sentence is hereby
affirmed .
/*' ,
---rrr*-c%--------d-----------

Hon. Jack Shanstrom, district
judge, sitting in place of Mr.
Chief Justice James T. Harrison.
We concur: