NO. 89-291 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsBRENT KLIPPENSTEIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth ~udicial District, 

In and for the County of Missoula, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Recht & Greef; Howard F. Recht, ~amilton, Montana 

For Respondent: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Attorney General, Helena 

Robert L. Deschamps, 111, County Attorney, iss sou la, 

Montana 

Submitted on ~riefs: Aug. 10, 1989 

Decided: August 30, 1989 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Brent lipp pen stein, convicted upon his plea of guilty of 

the offense of felony theft in the District Court, Fourth 

Judicial District, Ravalli County, appeals from the judgment 

and sentence imposed upon him. On consideration, we affirm 

the sentence imposed with one modification. 

The defendant was charged by information with one count 

of felony theft. The investigation revealed that he had 

embezzled approximately $396,000 from Washington Corporation 

over a four-year period. He embezzled the money by 

channeling false purchase orders through a nonexistent tire 

company he had set up. Some of the stolen funds were used as 

part of the start-up capital for an otherwise legitimate auto 

parts store. 

The defendant entered a plea of guilty to the charge of 

theft on December 23, 1988, and sentencing occurred on March 

2, 1989. After hearing the recommendations of the County 

Attorney, the defense counsel, and the Department of 

Institutions, the District Court sentenced the defendant, the 

pertinent part of which sentence follows: 

IT IS ADJUDGED AND DECREED that the Defendant is 

guilty of the offense charged. 

A Pre-sentence ~nvestigation Report was ordered and 

being fully advised as to the facts of this case; 

IT IS THE JUDGMENT OF THE COURT that BRENT 

KLIPPENSTEIN be and BRENT KLIPPENSTEIN is hereby 

sentenced to a term of ten (10) years in the 

Montana State Prison. 

It is the recommendation of the Court that when the 

Defendant qualifies according to the Montana State 
Prison then he shall be released to a Pre-Release 

Center. 

IT IS FURTHER ORDERED that upon release from 

prison, to the best of his ability, the Defendant 

shall make restitution to Chubb, 6500 ~ilshire, Los 

Angeles, CA (Attention: Frank Arenson) in the 

amount of Three Hundred Eighty-eight Thousand Eight 

Hundred Forty-nine and 31/100 Dollars 

($388,849.31) . 

IT IS FURTHER ORDERED that that Defendant's 

business, NAPA Auto Parts, Lolo, Montana, is to be 

sold by the Defendant and the proceeds applied to 

the restitution, unless the Internal Revenue 

Service has not [sic] already seized it. 

The maximum sentence permissible for the offense of 

felony theft is a fine "not to exceed $50,000 or be 

imprisoned in the state prison for any term not to exceed ten 

years or both." Section 45-6-301(6), MCA. On appeal the 

defendant contends that since he was given the maximum 

sentence of imprisonment allowed by law for the offense, no 

part of which was suspended or deferred, that the additional 

requirement that he pay restitution and that his auto parts 

business be sold exceeds the authority of the court. He 

contends that the authority the District Court order 

restitution extends only to cases where the court imposes 

restitution as a condition of a suspended or deferred 

sentence under 5 46-18-201, MCA. In State v. Shaver (Mont. 

1988), 760 P.2d 1230, 1236, this Court said: 

Under 5 46-18-201 (1) (a), MCA, the District Court 

has authority to impose reasonable restrictions or 

conditions including restitution (subsection (iv) 

and "any other reasonable conditions considered 

necessary for rehabilitation . . . " (subsection 

(x) ) The statute further states " [t] he sentencing 

judge may impose on the defendant any reasonable 

restrictions or conditions during the period of 

suspended sentence." Section 46-18-201(1) (b), MCA. 
The defendant has misinterpreted the sentence imposed by 

the District Court. The provision for restitution applies 

only if under the rules of the Montana State Prison he 

becomes eligible for parole and secures his release. If he 

never receives a parole, and serves the full term of ten 

years, then the condition of restitution does not apply, and 

the maximum imprisonment authorized by statute for the 

offense charged comes into play. In other words, the 

sentence imposed on him can never exceed the maximum allowed 

under the statutory authority of the court. 

The defendant assumes that his sentence is imposed under 

the provisions of s 46-18-201, MCA. That statute does refer 

to imposing restitution as a condition for deferred 

imposition of sentence or a suspended sentence. In this 

case, however, the District Court did not utilize the 

provisions of § 46-18-201, MCA, to impose either a deferred 

imposition of sentence or a suspended sentence. Instead, the 

court imposed a condition on parole of the defendant under 

the general power granted to the court in 5 46-18-202, MCA. 

The regulations of the Board of Pardons and Parole recognize 

that the sentencing court "may require other and additional 

special conditions to be placed upon the parolee." S 

20.7.1101 (14) , A.R.M. 

The second issue raised by the defendant is his 

contention that the ~istrict Court sentenced him for crimes 

which he did not commit and for which he has not been charged 

and convicted. 

In part, the sentencing court said: 

Now, I think you've got a break because you were 

only charged with one count. I think Gallatin 

County would have charged with 20 or 30 counts. 

Which could have consecutively been 200, 300, 400 

years in the prison. I don't know how you got the 

break and so forth, but you did get a break. 
Therefore, based upon the fact that you have had 

these breaks and you committed more felonies than I 

have ever seen committed since I have been on the 

bench, it is the sentencing judgment of this court 

that [sentence follows]. 

Again, the defendant has misinterpreted what the 

District Court did in imposing sentence. The information 

charging the defendant in a single count specified "on or 

between 1984 and 1988, the defendant purposely and knowingly 

asserted unauthorized control over monies and properties 

owned by Washington Incorporation etc." Because the 

defendant was charged only with one count, a count which 

embraced all of the embezzlements by the defendant as a 

common scheme, the court was limited in imposing sentence to 

the maximum imposed for one felony theft offense. The 

comments of the District Court indicated only that the 

defendant had been treated leniently insofar as the charges 

were concerned. 

In imposing sentence, the sentencing court may consider 

any relevant evidence relating to the nature and 

circumstances of the crime, the character of the defendant, 

his background history, mental and physical condition, and 

"any evidence the court considers to have probative 

force. . . ." Section 46-18-302, MCA. The District Court is 

given a wide scope of inquiry in sentencing. State v. D.B.S 

(1985), 216 Mont. 234, 247-48, 700 P.2d 630, 639-40. The 

information received by the sentencing court is not limited 

by the Rules of Evidence. Section 46-18-302, MCA; State v. 

Smith (Mont. 1988), 755 P.2d 569, 571-72. 

The defendant also contends that the ~istrict Court 

imposed the maximum sentence because of the ~istrict Court's 

belief that defendant's wife was also guilty by implication. 
In ref erring to the wife ' s knowledge of the embezzlements, 

the District Court referred only to the statement of the 

defendant that the wife didn't know of the ongoing 

embezzlements, and expressed a measure of disbelief in 

defendant's statement. Nothing in the record indicates that 

the ~istrict Court imposed its sentence upon the defendant 

for the presumed misfeasance of the defendant's wife. 

Referring again to the order of the District Court 

relating to restitution, the court ordered that the 

defendant's business, NAPA Auto Parts of Lolo, Montana, be 

sold and the proceeds applied to the restitution. At this 

juncture, the provision is not applicable, because as we 

stated above, restitution does not apply unless the defendant 

becomes eligible for parole. since the possibility of parole 

may occur at some indeterminable time in the future, a 

present order to sell the auto parts business is not 

workable. We will therefore modify the sentencing judgment 

to remove that paragraph. In so holding, it is not necessary 

for us to consider the due process arguments raised by the 

defendant as to this provision. 

~ccordingly, the judgment and sentence is modified to 

remove therefrom the provision that the defendant's business, 

NAPA Auto Parts of Lolo, Montana, is to be sold. As so 

modified, the sentence imposed by the District Court is 

affirmed and will stand. -\