State v. Brown

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<J