State v. R. Brandt, 460 P.3d 427

From 2011–2015 Richard (Rick) Brandt ran Home Investors LLC and solicited about $1.94 million from mostly elderly investors promising high returns for house-flipping investments.
The operation functioned as a Ponzi scheme: Brandt used investor funds for personal expenses and to pay earlier investors; many investors received little or none of their principal or promised profit.
Brandt was charged by Information with six felonies, each alleged as part of a common scheme: (1) exploitation of an older person; (2) theft by embezzlement; (3) failure to register as a securities salesperson; (4) failure to register a security; (5) fraudulent practices; and (6) operating a Ponzi scheme.
A jury convicted Brandt on all six counts; the district court imposed consecutive ten-year terms on each count (sixty years total, twenty years suspended).
On appeal Brandt argued the multiple‑charges statute, § 46‑11‑410, MCA, barred convictions for offenses that were included offenses or specific instances of another charged offense, and alternatively claimed ineffective assistance for counsel’s failure to object.
The Supreme Court held the offenses as charged arose from the same transaction, concluded theft by embezzlement (Count 2) was subsumed by fraudulent practices (Count 5) and vacated Count 2, affirmed the other convictions, found counsel ineffective for failing to object, and remanded for resentencing.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Brandt)	Held
Whether multiple convictions violate § 46‑11‑410 because the offenses arose from the same transaction and some are included or specific instances of others	The charged counts contain distinct elements and are separately prosecutable; convictions may stand	Fraudulent practices (Count 5) subsumes Counts 1,2,3,4,6 because all were charged as a common scheme; only Count 5 may stand	The offenses were part of the same transaction; Count 2 (theft by embezzlement) is included in Count 5 and is vacated; Counts 1,3,4,5,6 affirmed
Whether Brandt received ineffective assistance for counsel’s failure to object under § 46‑11‑410	Issues were unpreserved; no reversible error	Counsel’s failure to object to multiple convictions was deficient and prejudicial	Counsel’s failure was deficient and prejudicial under Strickland; reversal of Count 2 and remand for resentencing warranted
Whether the Court should review the unpreserved multiple‑conviction claim under plain error	Plain error review not necessary because ineffective assistance claim is appropriate vehicle	Alternatively requested plain error review	Court declined plain error review after resolving the issue via ineffective assistance of counsel

Mosely v. Am. Express Fin. Advisors, Inc., 356 Mont. 27, 230 P.3d 479 (Mont. 2010) (defines a Ponzi scheme)
State v. Ellison, 393 Mont. 90, 428 P.3d 826 (Mont. 2018) (analyzes "same transaction" and when separate acts constitute a single transaction for multiple‑charges purposes)
State v. Parks, 372 Mont. 88, 310 P.3d 1088 (Mont. 2013) (framework for applying multiple‑charges statute)
State v. Hooper, 385 Mont. 14, 386 P.3d 548 (Mont. 2016) (standard for included offenses and ineffective‑assistance discussion)
State v. Weatherell, 355 Mont. 230, 225 P.3d 1256 (Mont. 2010) (use of elements comparison to determine included offenses)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two‑part test for ineffective assistance of counsel)