No. 80-156
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
ALVIN L. ROBINSON,
Defendant and Appellant.
Appeal from: District Court of the Ninth Judicial District,
In and for the aounty of Toole.
Honorable R. D. McPhillips, Judge presiding.
Counsel of Record:
For Appellant:
Randono, Lewis and Donovan, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Rae Kalbfleisch, County Attorney, Shelby, Montana
Submitted on Briefs: October 9, 1980
Decided: &QV 1,"9 q$j&
Mr. Justice John C. Harrison delivering the Opinion of the
Court.
Alvin Robinson was convicted of burglary and theft on
June 19, 1975, in the Toole County ~istrictCourt. He
received ten-year sentences on each count, with the sen-
tences to run concurrently. The District Court suspended
the defendant's sentence and placed him on probation. On
December 5, 1979, the Toole County Attorney filed a petition
for revocation of the 1975 suspended sentence. After a
hearing on the revocation petition, the District Court
revoked two of the remaining five years of Robinson's sen-
tence. This appeal follows. We affirm.
On the evening of October 29, 1979, a fight took place
between two patrons of Bill's Bar in Sweetgrass, Montana.
The Toole County Sheriff's Department was notified and two
offi.cers,
deputies Robins and Navratil, responded. When
the officers arrived, Robinson and another man were standing
outside the tavern. At the outset, Robinson indicated to
Navratil that the officers were unwelcome and made it clear
that he (Robinson) intended to take an active role in
resisting police interference in the barroom fight. As
Officer Navratil attempted to restrain one of the partici-
pants in the fight, the defendant began to pull the officer
away. At that point, Navratil struck Robinson with his
nightstick. Robinson's companion, Carl Brickel, threw a bar
stool at Navratil and was placed under arrest.
Outside the bar the officers had just put Brickel into
the squad car when Robinson appeared stating that he would
have Navratil's job. He was then arrested for interference
with the arrest of the man inside the bar, who had resumed
his fight when the officers arrested Brickel. The defendant
was handcuffed and placed in the back seat of the squad car.
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He then proceeded to kick at the window of the car until
Officer Navratil opened the door lest the window be broken.
With the door open, Robinson rolled out of the car, and the
officers placed him in the front seat. It is uncontroverted
that defendant had back problems which had recently been
treated, and he complained of the pain caused by having his
hands cuffed behind his back. Navratil offered to handcuff
his hands in front if he agreed to cease his hostilities.
As the officer removed the right handcuff, Robinson leaned
back on the seat and kicked Navratil in the left temple,
breaking his glasses and causing various minor injuries.
Robinson started to swing at the officer then pulled the
door shut and locked it from the inside. Officer Navratil
restrained Robinson after gaining access by means of the
back door.
During the course of his arrest and transportation to
Shelby, Robinson damaged the police radio, spit on Officer
Navratil and threatened to kill him. Based on the events of
October 29, the District Court revoked two years of defen-
dant's suspended sentence and ordered him incarcerated in
the state prison at Deer Lodge.
Robinson argues on appeal that the District Court was
unwarranted, as a matter of law, in revoking his suspended
sentence and abused its discretion in so doing. We do not
agree.
Section 46-18-203, MCA, provides:
"Revocation of suspended or deferred sentence.
A judge, magistrate, or justice of the peace
who has suspended the execution of a sentence
or deferred the imposition of a sentence of
imprisonment under 46-18-201 or his successor
is authorized, during the period of the sus-
pended sentence or deferred imposition of sen-
ience, - - discretion, to revoke the suspen-
in his
sion or impose sentence and order the person
committed. He may also, - - discretion,
in his
order the prisoner placed under the jurisdic-
tion of the board of pardons as provided by
law o r r e t a i n such j u r i s d i c t i o n w i t h h i s c o u r t .
P r i o r t o t h e r e v o c a t i o n of an o r d e r s u s p e n d i n g
o r d e f e r r i n g t h e i m p o s i t i o n of s e n t e n c e , t h e
p e r s o n a f f e c t e d s h a l l be g i v e n a h e a r i n g . "
(Emphasis a d d e d . )
A l v i n Robinson r e a d and s i g n e d a copy o f t h e Board of
P a r d o n s ' R u l e s of P a r o l e and P r o b a t i o n which r e a d s i n p e r t i n e n t
part:
"The p a r o l e e and p r o b a t i o n e r s h a l l r e s p e c t
and obey t h e law and a t a l l t i m e s be a good
citizen. "
F u r t h e r , t h e D i s t r i c t C o u r t o r d e r e d t h a t s e n t e n c e be suspended
and c o n d i t i o n a l upon t h e good b e h a v i o r of t h e d e f e n d a n t .
The g i s t of d e f e n d a n t ' s c l a i m b e f o r e t h i s Court i s t h a t
t h e D i s t r i c t C o u r t abused i t s d i s c r e t i o n when i t found t h a t
Robinson v i o l a t e d t h e t e r m s o f h i s p a r o l e by and t h r o u g h h i s
conduct on t h e n i g h t o f October 2 9 , 1979. Specifically, the
D i s t r i c t C o u r t found t h a t Robinson's 1975 suspended s e n t e n c e
was " c o n d i t i o n e d upon s a i d d e f e n d a n t ' s good b e h a v i o r . "
Robinson a r g u e s t h a t t h e "good b e h a v i o r " language added
n o t h i n g t o t h e r e q u i r e m e n t t h a t t h e p r o b a t i o n e r s h a l l obey
the law.
The t e r m "good b e h a v i o r " a s used i n t h e o r d e r means i n
o b e d i e n c e t o and c o n f o r m i t y w i t h t h e laws o f t h i s S t a t e ;
h a v i n g t h e demeanor o f a law-abiding c i t i z e n . S t a t e v.
M i l l n e r ( 1 9 5 4 ) , 240 N.C. 602, 83 S.E.2d 546. It i s apparent
t o t h i s C o u r t t h a t a v i o l a t i o n of t h e law, by a p e r s o n who
i s a t l i b e r t y by v i r t u e of t h e mercy of t h e D i s t r i c t C o u r t ,
c a n n o t be c o n s i d e r e d "good b e h a v i o r . " The D i s t r i c t C o u r t
may, a s a p r o v i n c e of i t s d i s c r e t i o n a r y powers, under s e c t i o n
46-18-201, MCA, suspend a c r i m i n a l s e n t e n c e . It f o l l o w s ,
t h e r e f o r e , t h a t t h e c o u r t may, p u r s u a n t t o s e c t i o n 46-18-
203, MCA, revoke i t s b e n e v o l e n t d e c i s i o n when i t becomes
a p p a r e n t t h a t t h e d e f e n d a n t does n o t m e r i t f u r t h e r l i b e r t y
o r beneficence.
The District Court's initial decision to place Robinson
on probation was a decision to forego complete denial of
liberty in favor of a period of restricted and conditional
liberty in hopes that the defendant's freedom would best
serve the purposes of rehabilitation. The inquiry at any
probation revocation hearing is whether the purposes of
rehabilitation are being achieved, and whether, by virtue of
subsequent criminal conduct or evidence that the defendant's
behavior was not in compliance with the rules and objectives
of his probation, the purposes of probation are best served
by continued liberty or by incarceration. Barker v. Ireland
(1964), 238 Or. 1, 392 P.2d 769.
Robinson was expected to walk the "straight and narrow"
and conduct himself in a manner which would justify the
District Court's leniency. The facts presented to or coming
before the district judge need not establish guilt beyond a
reasonable doubt. -
All that is required is that the facts
before him be such that the judge is reasonably satisfied
that the conduct of the probationer has not been what he
agreed it would be if he were given liberty. See Scott v.
State (1965), 238 Md. 265, 208 A.2d 575; Henry v. State
(1974), 20 Md.App. 296, 315 A.2d 797; In Re Anonymous (1972),
16 Ariz.App. 597, 494 P.2d 1342. A revocation proceeding is
not a criminal adjudication and does not require proof of a
new criminal offense to justify revocation since it merely
cancels a prior act of grace. State v. Eckley (1978), 34 Or.App.
563, 579 P.2d 291, cited with approval in State v. Oppelt (1979),
Mont. , 601 P.2d 394, 36 St.Rep. 1832. See also
State v. Baca (1969), 80 N.M. 527, 458 P.2d 602. Alvin
Robinson's conduct on the night of October 29, 1979, was
inexcusable, and his actions gave the District Court ample
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reason to revoke his suspended sentence.
We conclude, as we did in Petition of Meidinger (1975),
168 Mont. 7, 539 P.2d 1185, that we cannot overturn a Dis-
trict Court's decision to revoke a suspended sentence without
a showing that the court abused its discretion. No such
showing has been made here.
Accordingly, we affirm.
We Concur:
,(?chief Justice
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