No. 12335 

IN THE SUPREME COURT OF THE STATE OF E4ONTANA 

1973 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

CHING WEME LINTZ, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial, 

Honorable Robert S. Keller, Judge presiding. 

Counsel of Record : 

For Appellant : 

Patrick Springer and David L. Astle, Kalispell, Montana. 

David L. Astle argued, Kalispell, Montana. 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, Montana. 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana. 

H. James Oleson, County Attorney, argued, Kalispell, 

Montana. 

Submitted: March 29, 1973 

Decided : ~FR 1 7 1973 
Honorable Jack Shanstrom, District Judge, sitting in place of 

Mr. Chief Justice James T. Harrison, delivered the Opinion of 

the Court. 

This appeal is taken from a judgment in the district 

court for Flathead County revoking a three year deferred imposition of sentence of the appellant, and sentencing him to 

15 years in the Montana State Prison. 

The appeal was brought to this court on a transcript 

prepared from various Court hearings. The hearings which are 

pertinent to this appeal are as follows: April 19, 1972, at 

which time the appellant changed his plea from not guilty to 

guilty on the sale of dangerous drugs; May 17, 1972, presentence 

hearing pursuant to a plea of guilty by the appellant to the 

charge of criminal sale of dangerous drugs; May 30, 1972, the 

jury trial of John Bristow; June 2, 1972, the hearing on the 

petition for revocation of the deferred imposition of sentence. 

The appellant was charged with the criminal sale of 

dangerous drugs, to-wit, marihuana, a felony. His arrest came 

as a result of efforts by an undercover narcotics team working 

in the Kalispell area. At the time of arraignment appellant 

entered a plea of not guilty, but subsequently changed his plea 

to guilty on April 19, 1972. Whereupon the court set the time 

for hearing in aggravation and mitigation of sentence, and 

heard the same on May 17, 1972. At the time of the hearing the 

appellant testified as to his involvement, the source of his 

supply, and the involvement of another invidivual, namely, John 

Bristow, who likewise faced criminal charges in Flathead County. 

At the close of the presentence hearing the court made the following statement from the bench: 

" * * * Now that you no longer have the presumption and you can now be sentenced to the 

State Prison at Deer Lodge, I want you to 

know that I intend to defer imposition of 

sentence, notwithstanding that, and I want 
judgment 

you to know why 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? 

"THE DEFENDANT: Yes." 

However, this language was not contained in the written 

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 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'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 appellant now appeals. 

The issue presented in this case is whether 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 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, 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 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 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 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 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 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 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 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 

af f irmed . /*' , ---rrr*-c%--------d----------- 

Hon. Jack Shanstrom, district 

judge, sitting in place of Mr. 

Chief Justice James T. Harrison. 

We concur: