                                                                                          November 13 2012


                                           DA 11-0663

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2012 MT 257N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DEAN MARVIN KIPPENHAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 08-0585
                        Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jennifer A. Giuttari, Montana Legal Justice, PLLC, Missoula, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney; Ann-Marie McKittrick, Deputy
                        County Attorney, Billings, Montana


                                                    Submitted on Briefs: October 24, 2012
                                                               Decided: November 13, 2012



Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Appellant Dean Marvin Kippenhan (Kippenhan) appeals the District Court’s order

denying his motion to withdraw his guilty plea. We affirm.

¶3     The State charged Kippenhan with two counts of felony incest and one count of

misdemeanor unlawful transactions with children. Kippenhan eventually entered into a plea

agreement with the State whereby he agreed to enter a guilty plea to the charge of felony

incest. The State agreed to recommend a sentence of 25 years of imprisonment in the

Montana State Prison with ten years suspended.

¶4     Problems arose during Kippenhan’s allocution. The District Court inquired of

Kippenhan what he had done that made him guilty of committing felony incest. Kippenhan

responded he had “sexual contact with my daughter.”           The court asked Kippenhan

specifically whether he had sexual intercourse with his daughter as alleged in the

information. Kippenhan responded, “I don’t know. The evidence shows that I did. We were

drinking.” The court further inquired whether the sexual contact with his daughter went to

the extent of sexual intercourse. Kippenhan responded, “I want to believe that it didn’t, but

evidence shows that it did, so I’m taking responsibility.” The evolution of Kippenhan’s

guilty plea into an Alford plea prompted the State to make an offer of proof.



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¶5    The State’s offer of proof consisted of the following information. Kippenhan took his

two daughters, ages 16 and 12, and their friends to a hotel in Billings, Montana. Kippenhan

supplied alcohol to the girls, all of whom were minors. Kippenhan and several of the girls

also smoked marijuana. Kippenhan made advances toward his 16-year-old daughter. At one

point, he told the daughter that he wanted to have oral sex with her to which the daughter

responded “No,” and the two continued to drink. Kippenhan ignored the girl’s objection and

proceeded to pull down her pants to perform oral sex on her. Kippenhan then began having

vaginal intercourse with his 16-year-old daughter. Kippenhan’s 12-year-old daughter and

two other friends returned to the hotel room to discover Kippenhan and his 16-year-old

daughter engaged in sexual intercourse. The 16-year-old daughter ran naked into the

bathroom upon the arrival of her sister and the friends. Kippenhan remained naked in the

bed. DNA evidence taken from Kippenhan’s 16-year-old daughter was found on a sample

taken from Kippenhan’s scrotum and a pair of his underwear.

¶6    The District Court eventually accepted Kippenhan’s guilty plea to felony incest. The

presentence investigation included a psychosexual evaluation completed by Michael

Sullivan. Sullivan recommended that Kippenhan enter into a community-based sex offender

treatment program after his release from prison to complete Phase II of the sex offender

treatment program. Condition No. 28 of the PSI required Kippenhan to enter and complete

successfully a sex offender treatment program.

¶7    The District Court sentenced Kippenhan consistent with the State’s recommended

term of 25 years to the Montana State Prison with ten years suspended. The court further

required Kippenhan to “participate in a full outpatient sexual offender treatment program,
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regardless of the fact that you will have completed Phase I and possibly Phase II of treatment

in prison.” Kippenhan did not object.

¶8     The court issued its written sentencing order on July 22, 2010. The court issued a

nunc pro tunc order on December 20, 2010, that clarified that Kippenhan must “complete

Level I Sex Offender Treatment while in the Montana State Prison and [upon release he]

must enter into and complete the Sex Offender Treatment Program.”

¶9     Kippenhan filed a motion to withdraw his Alford plea on February 14, 2011.

Kippenhan argued that the court’s imposition of the requirement that he complete a Level I

sex offender treatment program while at the Montana State Prison exceeded the terms of the

plea agreement and thereby entitled him to rescind the agreement. The State responded that

Montana law requires that any person convicted of a sexual offense who is sentenced to a

term of imprisonment at the Montana State Prison must complete successfully the education

phase of the sex offender treatment program. With regard to Kippenhan’s objection to the

requirement that he complete Phase II of the sex offender treatment program upon his release

from prison, the State pointed out that § 46-18-207(5)(d), MCA, mandates that an offender

complete Phase II of the program upon release from prison. Kippenhan appeals.

¶10    We review a district court’s findings in its order regarding a defendant’s motion to

withdraw a guilty plea to determine whether it is clearly erroneous. State v. Stephenson,

2008 MT 64, ¶ 13, 342 Mont. 60, 179 P.3d 502. We review the District Court’s conclusions

of law to determine if they are correct. Stephenson, ¶ 13. We review de novo the legality of

a criminal sentence. Stephenson, ¶ 15. It is manifest on the face of the briefs and the record



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before us that substantial evidence supports the District Court’s findings and that the District

Court correctly applied the law to those findings.

¶11    Affirmed.

                                                   /S/ BRIAN MORRIS



We Concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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