Kessler and the Due Process Floor at Sentencing: No Resentencing Absent Reliance on Materially False Information; Clerical Correction of Offense Level under § 45-6-301(7)(b)(i), MCA

Introduction

This memorandum opinion arises from Jonathan Louis Kessler’s challenge to his felony theft sentence in the Eighth Judicial District Court (Cascade County). Kessler sought resentencing on due process grounds, arguing the District Court misapprehended his prior theft convictions and incorrectly believed a mandatory minimum prison term applied. The case centers on two intertwined issues: the scope of due process protections at sentencing—specifically, the rule that resentencing requires proof that the court relied on materially false information—and the operation of Montana’s theft sentencing statute, § 45-6-301(7)(b)(i), MCA, which imposes a two-year mandatory minimum only for a third or subsequent felony theft conviction.

Although Kessler pled guilty to “felony theft, third or subsequent offense,” a subsequent presentence investigation (PSI) showed he in fact had only one prior felony theft conviction (alongside several misdemeanor thefts). The District Court recognized this at sentencing, yet the final written Judgment inadvertently labeled the conviction as a third-or-subsequent offense while imposing a sentence consistent with the non-binding plea recommendation: four years to the Department of Corrections (DOC), with two years suspended. On appeal, Kessler claimed the court’s inclusion of two years of incarceration reflected a mistaken assumption that the law required a two-year minimum. The Montana Supreme Court affirmed the sentence as lawful, finding no due process violation, and remanded solely to correct the clerical offense-level mislabeling in the Judgment to “Second Offense.”

Importantly, the Court designated this matter a memorandum opinion under Section I, Paragraph 3(c) of its Internal Operating Rules (IOR), meaning it is noncitable and does not announce a new, binding precedent. Nonetheless, it offers a clear application of settled due process and sentencing principles.

Summary of the Opinion

• Disposition: Affirmed; remanded for clerical correction of the Judgment to reflect “Second Offense.”
• Holding: Kessler failed to demonstrate that the District Court relied on materially false information when imposing sentence. The record shows the court understood this was Kessler’s second felony theft, not a third-or-subsequent offense, and did not assume a mandatory minimum applied. The four-year DOC sentence (two suspended) falls within statutory parameters for a second felony theft under § 45-6-301(7)(b)(i), MCA.
• Key reasoning: Due process protects against sentencing based on materially false information, but the defendant must affirmatively show reliance on such misinformation. Here, the District Court expressly acknowledged the correct offense level and grounded the sentence in Kessler’s history of untreated addiction and poor performance under supervision, not in any mandatory minimum or prior misdemeanor “stacking.”
• Remedy: Because the written Judgment inadvertently referred to “third or subsequent offense,” the Supreme Court remanded for the purely clerical correction to “Second Offense.”

Analysis

Statutory Framework: § 45-6-301(7)(b)(i), MCA

The Montana theft statute delineates graduated penalties keyed to offense count when the value of stolen property exceeds $1,500 and does not exceed $5,000:

• First offense: imprisonment up to 3 years and/or fine up to $1,500.
• Second offense: imprisonment up to 5 years and/or fine up to $1,500.
• Third or subsequent offense: imprisonment from 2 to 5 years (mandatory minimum 2 years) and an optional fine up to $5,000.

The Court underscores that the two-year mandatory minimum attaches only to a third or subsequent felony theft conviction. A second felony theft carries no mandatory minimum and has a five-year maximum. Kessler’s sentence—four years with two suspended (i.e., two years to serve)—is therefore permissible for a second offense.

Precedents Cited and Their Influence

• State v. Hinshaw, 2018 MT 49, ¶ 7, 390 Mont. 372, 414 P.3d 271 – Establishes the standard of review: appellate review of sentences is limited to legality. The Court adheres to this framework, focusing on statutory authority, compliance with statutory parameters, and adherence to affirmative statutory mandates.
• State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102 – Clarifies that legality review asks whether the sentence falls within applicable statutory parameters and whether the court had authority and followed statutory mandates. Here, the four-year sentence with two suspended is within the second-offense theft parameters.
• State v. Legg, 2004 MT 26, ¶ 24, 319 Mont. 362, 84 P.3d 648 – Due process challenges at sentencing are reviewed de novo as questions of law. The Court applies de novo review to Kessler’s claim that due process was violated by reliance on mistaken information.
• State v. Lee, 2025 MT 30, ¶ 17, 420 Mont. 335, 563 P.3d 731 (citing State v. Klippenstein, 239 Mont. 42, 778 P.2d 892 (1989)) – Confirms the broad scope of inquiry at sentencing: courts may consider any relevant evidence about the crime, defendant’s character and history, and other probative material. This supports the District Court’s reliance on Kessler’s addiction history and difficulties under supervision as proper sentencing considerations.
• Bauer v. State, 1999 MT 185, ¶¶ 21–22, 295 Mont. 306, 983 P.2d 955 (citing Bishop v. State, 254 Mont. 100, 835 P.2d 732 (1992)) – Articulates the due process rule: a defendant must have an opportunity to rebut information that may influence sentencing; sentencing cannot rely on materially false information. Crucially, the defendant bears an affirmative duty to show material inaccuracy or prejudice before a sentence will be overturned. The Court uses Bauer’s framework to assess and reject Kessler’s due process claim.
• State v. Pearson, 217 Mont. 363, 704 P.2d 1056 (1985) – Source for the “affirmative duty” to show material inaccuracy or prejudice. Applied to emphasize that Kessler did not meet his burden.
• Kills on Top v. State, 2000 MT 340, ¶ 67, 303 Mont. 164, 15 P.3d 422 – If the sentencing court did not rely on improper or erroneous information, there is nothing to correct or rebut, and resentencing is unwarranted. This directly undercuts Kessler’s request for resentencing.

Legal Reasoning

The Court’s reasoning proceeds in three steps:

1. Correct offense level acknowledged. The PSI revealed Kessler had only one prior felony theft. The District Court explicitly recognized at sentencing—and in its written order—that this was a second felony theft, not a third or subsequent offense. The mistake persisted only in the captioning/labeling of the written Judgment, which the Supreme Court identifies as inadvertent and clerical in nature.
2. No reliance on materially false information. Due process bars reliance on materially false information. The record shows the District Court did not rely on any such misinformation. The court named and relied on permissible considerations: Kessler’s long-standing untreated methamphetamine addiction, the relationship between that addiction and his criminal behavior, and his poor performance on prior supervision (including revocation of a deferred sentence). It did not invoke any mandatory minimum requirement or “stack” misdemeanor thefts to convert this into a third-or-subsequent felony status.
3. Sentence within statutory bounds. Under § 45-6-301(7)(b)(i), MCA, a second felony theft permits up to five years’ imprisonment and carries no minimum term. The imposed four-year DOC sentence with two years suspended is lawful within those limits. The fact that the incarceration portion equals two years—coincidentally the mandatory minimum for third-or-subsequent offenses—does not itself evidence reliance on a mistaken legal assumption, especially where the court articulated sentencing reasons unrelated to any statutory minimum.

Because Kessler did not satisfy his affirmative burden to show the District Court relied on materially false information, due process affords him no resentencing. The only relief warranted is correction of the clerical mislabeling in the Judgment from “third or subsequent offense” to “second offense.”

Impact and Practitioner Takeaways

Although noncitable under the Montana Supreme Court’s IOR, the opinion provides practical guidance on several fronts:

• Due process at sentencing demands reliance, not mere presence, of error. The appellant must pinpoint that the sentencing court actually relied upon materially false information. Mere existence of incorrect information in the record or similarity between the sentence imposed and a statutory minimum applicable to a different offense level is insufficient.
• PSI accuracy and record clarity can be outcome-determinative. Here, the PSI corrected the plea colloquy misstatement about prior felony thefts, and the District Court expressly adopted the correct status. Clear sentencing findings inoculate the sentence against due process attack.
• Clerical error vs. substantive error. Mislabeling the offense level in the written Judgment, without more, is a clerical mistake that can be corrected on remand without disturbing a lawful sentence.
• Non-binding plea agreements. A district court may impose a sentence consistent with a non-binding recommendation, but the sentence must still be independently justified and within statutory ranges. This opinion illustrates a court articulating treatment and supervision-history reasons for incarcerative time.
• Theft sentencing tiers. The two-year mandatory minimum applies only to a third-or-subsequent felony theft. A second felony theft sentence may include incarceration—even two years—so long as the court is not applying a nonexistent mandatory minimum and the total sentence respects the statutory maximum.
• Defense practice pointer. Verify criminal history before a change-of-plea. If the plea’s factual basis on prior convictions is later contradicted by the PSI, ensure the court corrects the record at sentencing and that the written Judgment matches the oral findings and the correct offense level.
• Prosecution and court practice pointer. When prior convictions trigger enhanced sentencing tiers, make the basis explicit and confirm the PSI aligns with the charging theory. If the court does not apply a mandatory minimum, expressly say so when the incarceration term coincides with a statutory minimum for a higher tier, to prevent misperception on appeal.

As a memorandum opinion, this decision does not establish binding precedent, but it reinforces settled standards governing sentencing review, due process safeguards, and the limited appellate scope focusing on sentence legality.

Complex Concepts Simplified

• Memorandum opinion (noncitable): Under the Montana Supreme Court’s Internal Operating Rules, some cases are resolved by short opinions that apply settled law to the facts. They are published on a quarterly list but cannot be cited as precedent.
• Legality review of sentences: Appellate courts ask whether the sentencing court had statutory authority, whether the sentence fits within statutory limits, and whether mandatory statutory directives were followed. They generally do not re-weigh sentencing factors for “reasonableness.”
• Due process at sentencing: A defendant has the right not to be sentenced based on materially false information and must have a chance to rebut adverse information. To obtain resentencing, the defendant must demonstrate the court relied on materially inaccurate or prejudicial information.
• Materially false information and reliance: “Material” means the information could meaningfully affect the sentence. “Reliance” means the court actually used the misinformation to decide the sentence. If the record shows the court did not rely on the error, resentencing is unwarranted.
• DOC sentence with suspended time: A sentence to the Department of Corrections can include a suspended portion. Here, four years with two suspended means two years of potential incarceration followed by a suspended term subject to conditions.
• Clerical vs. substantive error: Clerical errors are mistakes in the written judgment that do not reflect the court’s actual findings or intent (e.g., mislabeling “third offense” instead of “second offense”). Substantive errors go to the legality or basis of the sentence. Clerical errors can be corrected without resentencing.
• “Second” vs. “third or subsequent” felony theft: Under § 45-6-301(7)(b)(i), MCA, a second felony theft allows up to 5 years, but no mandatory minimum; a third or subsequent felony theft requires a 2-year minimum and allows up to 5 years.
• Prior convictions and sentencing tiers: Prior convictions often change only the sentencing range and are typically found by the judge at sentencing. In Kessler, the court determined the correct prior-felony count from the PSI.

Conclusion

State v. Kessler underscores two durable propositions in Montana sentencing law. First, due process protects against sentencing based on materially false information—but resentencing requires a clear showing that the court actually relied on such misinformation. Second, theft sentencing under § 45-6-301(7)(b)(i), MCA, imposes a two-year mandatory minimum only for a third or subsequent felony theft; a second felony theft permits, but does not require, incarcerative time up to five years.

Applying these settled principles, the Supreme Court affirmed Kessler’s sentence as lawful, grounded in legitimate considerations of addiction and supervision history, and within statutory parameters for a second felony theft. The Court remanded solely to correct a clerical mislabeling in the Judgment from “third or subsequent offense” to “second offense.” While noncitable, Kessler offers pragmatic guidance: ensure PSIs and sentencing records accurately reflect prior convictions, articulate sentencing reasons independent of any mistaken assumptions about mandatory minimums, and promptly correct clerical discrepancies to maintain the integrity of the judgment.