No. 12335 INTHE SUPREME COURT OF THE STATE OF E4ONTANA 1973

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - CHINGWEME LINTZ, Defendant and Appellant.

Appeal from: DistrictCourt of the Eleventh Judicial, Honorable Robert S. Keller, Judge presiding. Counsel of Record: ForAppellant: Patrick Springer and David L. Astle, Kalispell, Montana. David 

### L. Astleargued, Kalispell, Montana. For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana. J. C. Weingartner, Assistant Attorney General, argued,

Helena, Montana. H. James Oleson, CountyAttorney, argued, Kalispell,

Montana.

Submitted: March 

### 29, 1973 Decided:

## ~FR 1



## 71973Honorable Jack Shanstrom, DistrictJudge, sitting inplace of Mr. Chief Justice James T. Harrison, delivered the Opinion of the Court. This appeal is taken from a judgment inthe district court forFlathead County revoking a three year deferred imposition of sentence of the appellant, and sentencinghim to 15years inthe Montana StatePrison. The appeal was brought tothis court on a transcript prepared from various Court hearings. The hearings which are pertinent tothisappeal are as follows: April 19, 1972, at which time the appellant changed his plea from not guilty to guiltyon the saleof dangerous drugs; May 17, 1972, presentence hearing pursuant toa plea of guiltyby the appellant tothe charge of criminal saleof dangerous drugs; May 30, 1972, the jury trialof John Bristow; June 2, 1972, the hearing on the petition for revocation of thedeferred imposition of sentence. The appellant was charged with the criminal saleof dangerous drugs, to-wit, marihuana, a felony. Hisarrest came

asa result of effortsby an undercover narcotics team working inthe Kalispell area. Atthe timeof arraignment appellant entered a plea of not guilty, but subsequently changed hisplea toguilty on April 19, 1972. Whereupon the court set the time forhearing inaggravation and mitigation of sentence, and heard the same on May 17, 1972. Atthe time of the hearing the appellant testified astohis involvement, the source of his supply, and the involvement of another invidivual, namely, John Bristow, who likewise faced criminal charges inFlathead County. Atthe closeof the presentence hearing the court made the following statement from thebench: 

### " 

### * * * Now thatyou no longer have the presumption and you can now be sentenced tothe StatePrison atDeer Lodge, I want you to know that I intend todefer imposition of sentence, notwithstanding that, and I wantjudgmentyou to knowwhy I intend to do it. Because you have testified with reluctance,but candidly,with respect to the involvement and implication 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? "THEDEFENDANT: Yes." However, this language was not contained in the written deferring the imposition sentence for threeyears, dated May 17, 1972. The appellantwas called by the state to testify at the subsequent trial of John Bristow onMay 30, 1972. During the time that he was testifying he seemed to suffer from a lack of memory and at other times took the FifthAmendment and generally 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'sdeferred sentencewas 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 appellant now appeals. The issuepresented in this case iswhether the district judge could properly revoke the deferred sentence of the appellant for his refusal to cooperate at the trial of John Bristow,

even though this conditionwas not specifically set out in the court judgment

# . During the sentencing proceeding onMay 17, 1972, the district courtdid verbally set out the condition that theappellant would be expected to cooperateat 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 onMay 30, 1972, just 13 days after appellant's sentencing, was not cooperative. He refused to testify on grounds of further incrimination,was evasive, forgetful 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 onMay 17, 1972. InKaplan 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 defendant who,while on probation, was specifically 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 proceedings, this was of itself sufficient justification for revoking probation. Here was a specific 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 additional condition of probation, even though it was not included in the original written conditions. 

## * * 

## * No claim of constitutionalprivilege 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 contingencywould need be anticipated and might have the effect of limiting the use of probation. Campbellv. Aderhold, D.C.N.D.Ga., 1929, 36 F.2d 366, 367."

(Emphasis supplied) The transcript of thepresentence hearing is replete with statements of the appellant that he understood his testimony 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 misleading 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 conditionsof probation be in writing, nor need they specificallybe "conditionsof probation". All that is required is that the appellantmust understand the conditions. At the time of oral argument in this case, it was revealed that the appellant, through counsel,had applied to the SentenceReview Division of this Court for a reduction in sentence 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 suchmight properly be ruled upon. The district court did not abuse itsdiscretion and the order revoking the deferred imposition of sentence is hereby af f irmed

# . /*' , ---rrr*-c%--------d----------- Hon. Jack Shanstrom, district judge, sitting in place of Mr. Chief Justice James T. Harrison. We concur: