NO. 92-494 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDARREN 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~n had 

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 Courtrs actual 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 irlontana's 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 55 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* 

objectives of rehabilitation 

pursuant to 5 46-18-202(1) (e) 

limitation reasonably related to the 

and the protection of societyw 

, MCA. We conclude that Brown is 

partially correct in his assertion. 

section 46-18-201(1) (b), Ma, allows a sentencing court to 

impose reasonable restrictions or conditions such as restitution 

only durina the Deriod of the sus~ended sentence. 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 55 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 can a sentence when it is 

"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 tke 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. 

*^..-. e, c:.., k,..,, .L.VYL CV LAY.= I.UULD after the victims were strack, a bl=& 

sample was taken from appellant Darren James Brown. Upon laboratory 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 semiauto weapon, the .44 magnum Ruger revolver, the .45 

caliber Smith & Wesson revolver, and the .357 magnum 

Rxjer G.P. weapon), aiid to eqiially divida the proceeds of 

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 ultimately 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 quicksilver 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 of the crime and thereby limiting in this 

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 attentionobtaining 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