No. 13774
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
THE STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
T N M.
O Y KNAPP,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e F r a n k E. B l a i r , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
S c h u l z , D a v i s and Warren, D i l l o n , Montana
J o h n Warren a r g u e d , D i l l o n , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , F4ontana
D a n i e l K e r n m i s a r g u e d , M i s s o u l a , Montana
W. G. G i l b e r t , 111, a r g u e d , County A t t o r n e y , D i l l o n ,
Montana
Submitted: September 2 9 , 1977
Filed: ' .. .
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6~,--, lerk
M r . J u s t i c e Daniel J . Shea d e l i v e r e d t h e Opinion of t h e Court:
Defendant appeals from an o r d e r of t h e D i s t r i c t Court,
Beaverhead County, revoking a d e f e r r e d imposition of sentence
f o r f a i l u r e t o make r e g u l a r r e p o r t s t o a probation o f f i c e r ,
and sentencing t h e defendant t o two concurrent 10-year terms
i n p r i s o n f o r two counts of robbery.
On appeal defendant a l l e g e s t h e d i s t r i c t judge abused h i s
d i s c r e t i o n when he revoked defendant's d e f e r r e d imposition of
sentence. He claims t h e judge was unduly influenced by public
opinion when he revoked, t h a t he mistook t h e defendant f o r an-
o t h e r defendant being sentenced t h e same day i n t h e same c o u r t ,
t h a t t h e judge misunderstood t h e offenses involved i n t h e
defendant's own c a s e , and t h a t he based h i s decision on in-
s u f f i c i e n t evidence.
Because of t h e apparent confusion a s t o t h e crimes involved,
which confusion may have e x i s t e d before t h e revocation o r d e r ,
w e a r e compelled t o s e t a s i d e t h e revocation and sentencing.
W f i n d no merit i n defendant's o t h e r a l l e g a t i o n s of abuse of
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discretion.
Defendant was charged with two counts of robbery and one
count of burglary by Information f i l e d March 13, 1975. He pled
g u i l t y t o t h e two robbery counts on arraignment May 20, 1975.
The c o u r t dismissed t h e burglary count on motion of t h e county
attorney. O n June 17, 1975, t h e c o u r t imposed a t h r e e year
d e f e r r e d imposition of sentence on both counts of robbery. As
a c o n d i t i o n of t h e d e f e r r e d imposition, t h e c o u r t required de-
fendant t o abide by t h e r u l e s and r e g u l a t i o n ~of t h e S t a t e Board
of Pardons. One of t h e r u l e s required defendant t o make monthly
reports t o a parole officer.
Defendant reported r e g u l a r l y t o a p a r o l e o f f i c e r from
June 17, 1975 t o June 15, 1976, b u t then f a i l e d t o r e p o r t f o r
t h e next f o u r months, a t which p o i n t t h e probation department
issued a r e p o r t of v i o l a t i o n .and issued an a r r e s t warrant.
Defendant was a r r e s t e d February 28, 1977, and appeared with
counsel March 10, 1977, a t a hearing on t h e s t a t e ' s motion t o
revoke t h e defendant's deferred imposition of sentence. The
probation o f f i c e r t e s t i f i e d t o t h e f a i l u r e t o make monthly
r e p o r t s and h i s v i o l a t i o n r e p o r t was admitted i n evidence. De-
fendant d i d n o t e x p l a i n h i s f a i l u r e t o r e p o r t .
A f t e r g r a n t i n g t h e motion t o revoke, t h e d i s t r i c t judge
commented t h a t he was " s u b j e c t t o untold c r i t i c i s m " f o r h i s
o r i g i n a l d e c i s i o n t o d e f e r t h e defendant' s imposition of sentence.
Although he commented on t h e two counts of robbery before he
revoked t h e deferred sentence, almost immediately a f t e r t h e
order of revocation he sentenced defendant t o s i x months i n
j a i l and a $500 f i n e f o r misdemeanor t h e f t , and 10 years i n
prison f o r felony t h e f t . Counsel f o r defendant pointed out
t o t h e judge t h a t t h e offenses t o which t h e defendant had pled
g u i l t y were two counts of robbery. A t t h a t p o i n t t h e judge
reexamined t h e Information charging t h e defendant, and sentenced
him t o 10 years on felony t h e f t and 10 years on burglary. Counsel
f o r defendant again c o r r e c t e d the judge a s t o t h e offenses i n -
volved, and t h e judge imposed a sentence of 10 years i n p r i s o n
on each count of robbery, t h e terms t o run concurrently.
W do n o t agree with defendant's contention t h a t t h e judge
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was unduly influenced by public opinion. H i s comment t h a t he had
been "subjected t o untold criticism" by imposing t h e o r i g i n a l
sentence was made i n the permissible context t h a t t h e judge
o r i g i n a l l y had conf idence i n defendant b u t defendant had
not upheld t h a t ; confidence. Such comment i s n o t n e c e s s a r i l y
an i n d i c a t i o n of passion o r prejudice a s defendant a s s e r t s .
I n Commonwealth ex r e l . Hendrickson v. Myers, 182 Pa.Super.
169, 126 A.2d 485, 488 (1956), t h e reviewing c o u r t s t a t e d
in a similar situation:
'"Judge ~ o y e r ' sremarks * * * were c h a r a c t e r i s t i c a l l y
phrased i n terms of almost personal concern t h a t
r e l a t o r had n o t seen f i t t o p r o f i t by t h e p r i o r con-
s i d e r a t i o n given him by the j u v e n i l e c o u r t probation.
W cannot b e l i e v e t h a t t h e r e was any element of
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o r u n f a i r n e s s p r e s e n t i n h i s mind. I t 1
The same i s t r u e i n t h e i n s t a n t case. Here, the t r i a l judge
a s much a s s t a t e d he had confidence i n defendant and com-
passion f o r h i s wife and c h i l d , b u t defendant did n o t uphold
h i s confidence.
Furthermore, t h e evidence c l e a r l y showed a v i o l a t i o n of
t h e probation conditions. Defendant admitted he agreed t o
follow t h e r u l e s and r e g u l a t i o n s of t h e p a r o l e board, one of
which required r e g u l a r r e p o r t s t o a probation o f f i c e r . Montana
Administrative Code 5 5 20-3.10(18)-S10150; 20-3.10(6)-S10060
(1) ( f ) . Section 95-3305, R.C.M. 1947, provides t h a t f a i l u r e t o
abide by a condition of probation i s grounds f o r revocation of
probation. A f a i l u r e t o r e p o r t i s s u f f i c i e n t grounds f o r
revocation. People v. McCaster, 19 111.App.3d 824, 313 N.E.2d
308,309 (1974); Moore v. S t a t e , 0kla.Cr. 1971, 489 P.2d 1359,
1360.
While revoking s o l e l y m t h a t ground should be s p a r i n g l y
used, h e r e t h e r e was an 8 month period between defendant's
f a i l u r e t o r e p o r t and u l t i m a t e a r r e s t . Moreover, a t t h e hearing
he d i d n o t explain h i s f a i l u r e t o r e p o r t , nor h i s conduct
during those 8 months. One of t h e reasons f o r r e q u i r i n g a
r e p o r t i s t o have a t l e a s t some idea of what defendant had been
doing during t h e i n t e r i m period. The probation o f f i c e had no
idea. I n f a c t , it d i d n o t even know where he was during t h a t
time. S e c t i o n 95-2206(1), R.C.M. 1947, g i v e s t h e c o u r t d i s c r e t i o n
t o revoke a d e f e r r e d sentence and we cannot say t h a t d i s c r e t i o n
was abused under t h e above f a c t s .
Even though a d i s t r i c t c o u r t has t h e d i s c r e t i o n a r y power
t o revoke a d e f e r r e d sentence, t h a t d i s c r e t i o n must be e x e r c i s e d
i n such manner t h a t t h e sentencing judge knows who t h e defendant
i s and t h e charges upon which t h e s t a t e i s seeking t o have a
sentence imposed. I n t h e present c a s e we cannot say with any
c e r t a i n t y t h a t t h e d i s t r i c t judge before he revoked t h e d e f e r r e d
sentence, knew defendant had pled g u i l t y only t o two counts of
robbery.
Here, immediately a f t e r t h e judge revoked t h e d e f e r r e d
sentence, h e sentenced t h e defendant f o r misdemeanor t h e f t and
felony t h e f t . For misdemeanor t h e f t he sentenced defendant t o
t h e maximum, 6 months i n t h e county j a i l and a $500 f i n e . For
felony t h e f t he sentenced defendant t o 10 years i n prison.
Defendant was never convicted of misdemeanor t h e f t . A charge of
felony t h e f t , f i l e d along w i t h t h e robbery charges, was dismissed.
I t was only a f t e r a prolonged discussion between defense counsel,
t h e prosecutor, and t h e judge t h a t t h e judge r e a l i z e d t h e only
charges before t h e c o u r t were 2 counts of robbery. Defendant
was then sentenced t o 10 years on each count of robbery, t h e
sentences t o run concurrently.
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Although t h e record does n o t r e v e a l what was i n t h e
judge's mind before he revoked t h e d e f e r r e d sentence, we
can only s p e c u l a t e a s t o whether h i s mistaken impression
t h a t defendant had been convicted of felony t h e f t and misde-
meanor t h e f t influenced h i s d e c i s i o n t o revoke t h e d e f e r r e d
sentence. Since defendant had been convicted of n e i t h e r ,
t h e order of revocation, and consequently, t h e sentencing,
must be s e t a s i d e .
I n c o r r e c t o r misunderstood information regarding a de-
fendant may be grounds f o r vacating a sentence imposed upon
him on t h e b a s i s of t h a t information. Townsend v. Burke, 334
U.S. 736, 68 S.Ct. 1252, 92 L ed 1690,1693 (1948); United
S t a t e s ex r e l . Jackson v. Myers, 374 F.2d 707 (3rd C i r . 1967);
United S t a t e s v. Weston, 448 F.2d 626 ( 9 t h C i r . 1971) ; United
S t a t e s v. Espinoza, 481 F.2d 553 (5th C i r . 1973); S t a t e v.
Gowin, 97 Idaho 146, 540 P.2d 808*(1975). I n Townsend t h e
sentencing c o u r t considered two dismissed charges a g a i n s t t h e
defendant and two charges of which t h e defendant had been a c q u i t t e d .
On s e t t i n g a s i d e t h e sentence and remanding f o r resentencing,
t h e United S t a t e s Supreme Court s t a t e d :
"* * * W e a r e n o t a t l i b e r t y t o assume t h a t items
given such emphasis by t h e sentencing c o u r t , d i d n o t
i n f l u e n c e t h e sentence which t h e p r i s o n e r i s now serving.
"We b e l i e v e t h a t on t h e record before us, i t i s
evident t h a t t h i s uncounseled defendant was e i t h e r
overreached by t h e prosecution's submission of m i s -
information t o t h e c o u r t o r was prejudiced by t h e
c o u r t ' s own misreading of t h e record. *** Conse-
quently *** t h i s p r i s o n e r was sentenced on t h e
b a s i s of assumptions concerning h i s c r i m i n a l record
which were m a t e r i a l l y untrue. Such a r e s u l t , whether
caused by c a r e l e s s n e s s o r design, i s i n c o n s i s t e n t w i t h
due process of law, and such a conviction cannot stand."
92 L ed 1693."
W recognize t h a t counsel was not present i n Townsend, but
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was present i n the i n s t a n t case, and the i n i t i a l hearing i n
t h i s case was a revocation hearing, a s opposed t o a sentencing
hearing. However, not much could be done here by counsel t o
c o r r e c t an erroneous impression i n the judge's mind t h a t could
have e x i s t e d before h i s revocation order. The information did
n o t come out u n t i l a f t e r the revocation order. Surely a de-
fendant can be prejudiced a s much by mistaken assumptions
concerning h i s criminal background when a deferred sentence i s
revoked, a s he can when he i s sentenced, I n United S t a t e s v.
Weston, supra, the court s t a t e d :
"In Townsend v. Burke *** t h e Supreme Court
made it c l e a r t h a t a sentence cannot be predicated
on f a l s e information. *** A r a t i o n a l penal
system must have some concern f o r the probable
accuracy of the informational imputs i n the sen-
tencing process ." 448 F. 2d 634.
I n Ryan v. C r i s t , Mont . , 563 P.2d 1145, 34 St,Rep.
342 (1977), t h i s Court held the sentencing court t o rigorous
standards with regard t o the use of information before t h e
court i n a presentence r e p o r t . Rigorous standards a r e equally
a s important when t h e t r i a l court i s passing upon the s t a t e ' s
motion t o revoke a deferred o r suspended sentence. W hold
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the t r i a l judge must have, and the record must r e f l e c t t h a t
he has, s u b s t a n t i a l l y c o r r e c t information concerning the de-
fendant before he can a f f e c t a defendant's s u b s t a n t i a l r i g h t s
by entering an order of revocation.
The order of revocation and sentence i s s e t a s i d e and
the cause i s remanded f o r f u r t h e r hearing on the s t a t e ' s p e t i t i o n
t o revoke.
W Concur:.
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Y
Chief M t i c e
Justices.