No. 81-347
I N THE SUPNME COURT O THE STATE O M N A A
F F OTN
1981
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
VS .
A T O Y D.
NH N SULLIVAN,
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 C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f S i l v e r Bow
Honorable Arnold Olsen, Judge p r e s i d i n g
C o u n s e l o f Record:
For Appellant:
P a t r i c k D. McGee, B u t t e , 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 , Montana
R o b e r t McCarthy, County A t t o r n e y , B u t t e , Montana
S u b m i t t e d on b r i e f s : O c t o b e r 29, 1 9 8 1
Decided: F e b r u a r y 25, 1982
Filed: fkbl 2 5 1982
Mr. J u s t i c e John C . Sheehy d e l i v e r e d t h e Opinion of t h e
Court.
Anthony D. S u l l i v a n a p p e a l s from an o r d e r of t h e ~ i s t r i c t
C o u r t , Second J u d i c i a l D i s t r i c t , S i l v e r Bow County, r e v o k i n g
a p r e v i o u s l y suspended s e n t e n c e .
On August 20, 1975, S u l l i v a n was c h a r g e d w i t h b u r g l a r y
and a f t e r h i s c o n s u l t a t i o n w i t h c o u r t - a p p o i n t e d c o u n s e l ,
S u l l i v a n e n t e r e d a p l e a of g u i l t y t o t h e c h a r g e on O c t o b e r
A judgment of c o n v i c t i o n w a s e n t e r e d , and t h e D i s t r i c t
C o u r t d e f e r r e d h i s s e n t e n c e f o r t h r e e y e a r s and p l a c e d
S u l l i v a n on p r o b a t i o n .
S u l l i v a n ' s r e c o r d i n d i c a t e s t h a t h e was t w i c e p l a c e d on
p r o b a t i o n , and h i s p r o b a t i o n h a s been t w i c e revoked. He h a s
been p a r o l e d t h r e e t i m e s , and t h r e e t i m e s h i s p a r o l e h a s
ended i n f a i l u r e . I n each i n s t a n c e , t h e revocation o r
reimprisonment o f S u l l i v a n was due t o h i s v i o l a t i o n of one
o r t h e o t h e r of two c o n d i t i o n s o f h i s r e l e a s e : (1) a b s t e n t i o n
from a l c o h o l , and ( 2 ) submission t o a l c o h o l t r e a t m e n t and
counseling.
The f o l l o w i n g t a b l e of e v e n t s g i v e s an o u t l i n e of
S u l l i v a n ' s record following conviction:
October 7 , 1975 Defendant p l e d g u i l t y t o c h a r g e of
b u r g l a r y ; judgment of c o n v i c t i o n ;
sentence deferred f o r t h r e e years;
d e f e n d a n t on p r o b a t i o n .
August 1 9 , 1977 Hearing on p e t i t i o n t o r e v o k e d e f e r r e d
s e n t e n c e on p r o b a t i o n v i o l a t i o n s ; c o u r t
d e f e r r e d i m p o s i t i o n of s e n t e n c e f o r
additional t h r e e years; defendant
ordered t o r e t u r n t o alcohol treatment
c e n t e r s a t Galen and K e l l o g g , I d a h o ;
t h e r e a f t e r t o report t o probation
o f f i c e r i n Butte.
October 1 8 , 1977 Defendant a r r e s t e d f o r b r e a k i n g i n t o
home o f h i s former w i f e .
October 28, 1977 C o u r t s e n t e n c e d d e f e n d a n t on t h e
o r i g i n a l burglary conviction t o t e n
years in prison, with five years
suspended. Defendant to be under
supervision of Butte office of Board
of Pardons when he is not in prison.
October 2, 1978 Defendant paroled to Helena.
June 1979 Defendant returned to prison on parole
revocation.
February 1, 1980 Defendant paroled upon condition that
he complete certain alcohol treatment
programs.
June 18, 1980 Defendant returned to prison on parole
revocation.
February 24, 1981 Defendant paroled to Butte area under
supervision of parole officer.
April 14, 1981 Defendant arrested for parole violations
April 16, 1981 Defendant agreed to admit himself to
Galen State Hospital for alcoholic
treatment; left Galen next morning.
April 20, 1981 Defendant again arrested for drinking.
April 27, 1981 Court revoked the five year suspended
sentence and ordered defendant returned
to prison to serve the remainder of his
sentence.
Without belaboring the record with details, it is
enough to say that over the course of his post-conviction
history, Sullivan has shown no disposition to abide by the
conditions of his deferred imposition of sentence, or of his
parole as they relate to his use of alcohol.
The defendant now appeals from the court's order of
April 27, 1980, revoking his suspended sentence. He raises
the following issues:
1. May Sullivan's suspended sentence be revoked before
he actually begins serving it?
2. May the sentencing court revoke his suspended
sentence for violation of parole conditions imposed by the
Board of Pardons where a suspended sentence follows a term
of imprisonment?
3. May the District Court require a probationer to
abstain from alcohol when the probationer is an alcoholic
and is powerless to control his drinking?
4. Did Sullivan receive due process in the revocation
of his probation?
5. Did the District Court lose jurisdiction to defer
imposition of a sentence for an additional three years under
its order of August 19, 1977?
The District Court on October 28, 1977, sentenced
Sullivan to ten years imprisonment with the last five years
suspended, The record is not clear as to the date when
Sullivan would make the transition from parole status to
probation status, that is, when the date of suspended
sentence would begin. This is because the record does not
clearly show the accumulation of "good time" by Sullivan
during the term of his sentence. The probation officer in
Butte determined that the transition date was April 16,
1981, probably influenced by our decision in Crist v. Segna
(1981)I ,
Mont. - 622 P.2d 1028, 38 St.Rep. 150. The
Department of Institutions takes the position that the
transition date was May 25, 1981. It appears therefore that
Sullivan was technically on parole at the time that his
suspended sentence was revoked because he had not yet passed
the transition date from parole to suspended sentence time.
Section 46-18-203, MCA, authorizes the original sentencing
judge who has suspended a sentence, to revoke that suspension
"during the period of the suspended sentence." It is Sullivan's
contention that the District Court is without jurisdiction
to revoke the suspended sentence before the period of the
suspended sentence begins.
Sullivan's contention is answered in spirit if not
factually, by our decision in Matter of Ratzlaff (1977), 172
Mont. 439, 564 P.2d 1312. There the parole violation occurred
before the defendant began serving his suspended sentence. In
that case the defendant had been sentenced to 25 years
imprisonment for robbery. The final 10 years of that sentence
was later suspended. After serving approximately three years
in prison, the defendant was paroled. He was later charged
with violating the conditions of his parole and revocation
proceedings were instituted.
At the same time a petition for the revocation of his
10 year suspended sentence was filed before the original
sentencing court. Ratzlaff contended that the District
Court had no jurisdiction to revoke his suspended sentence
because he was under the jurisdiction of the parole board.
This Court disagreed and held that the suspended sentence
was properly revoked. Thus, we held by necessary implication
that a suspended sentence may be revoked before the defendant
actually begins serving probation.
Other courts addressing the issue have held that a
suspension of sentence may be revoked for acts done by a
probationer after sentence is imposed but before he actually
begins serving the suspended sentence. See, e.g., United
States v. Ross (5th Cir. 1974), 503 F.2d 940; United States
ex rel. Sole v. Rundle (3d Cir. 1971), 435 F.2d 721; Com.
v. Wendowski (1980), 278 Pa. Super. Ct. 453, 420 A.2d 628;
Hart v. Florida (Fla. 1978), 364 So.2d 544; State v. Morris
(1977), 98 Idaho 328, 563 P.2d 52; Brown v. Com. (Ky. 19771,
564 S.W.2d 21; Parrish v. Ault (1976), 237 Ga. 401, 228
S.E.2d 808; Wright v. United States (D.C. 1974), 315 A.2d
839; Martin v. State (Fla. Dist. Ct. App. 1971), 243 So.2d
189; Coffey v. Commonwealth ( 1 9 6 9 ) , 209 Va. 760, 167 ~ . ~ . 2 d
343; see a l s o , Trueblood Longknife v. United S t a t e s ( 9 t h
Cir. 1 9 6 7 ) , 381 F.2d 1 7 , c e r t . d e n . 390 U.S. 926, 88 S.Ct.
859, 1 9 L.Ed.2d 987.
What comes o u t of t h e s e c a s e s i s t h e s t r o n g p u b l i c
p o l i c y t h a t i f a p e r s o n c o n v i c t e d of a c r i m e , and g r a n t e d a
p e r i o d of p r o b a t i o n a s p a r t of t h e s e n t e n c e , s h o u l d commit
o f f e n s e s o f such n a t u r e as t o d e m o n s t r a t e t o t h e c o u r t t h a t h e
i s unworthy of p r o b a t i o n , t h e c o u r t h a s t h e power t o r e v o k e
o r change t h e o r d e r of p r o b a t i o n , b o t h d u r i n g t h e p e r i o d of
p r o b a t i o n , and b e f o r e t h e p e r i o d of p r o b a t i o n commences.
James v. U n i t e d S t a t e s ( 5 t h C i r . 1944), 1 4 0 F.2d 392, 394.
W e h o l d , t h e r e f o r e , t h a t t h e language of s e c t i o n
46-18-203, MCA, d o e s n o t p r o h i b i t r e v o c a t i o n of p r o b a t i o n
b e f o r e t h e d e f e n d a n t a c t u a l l y b e g i n s s e r v i n g t h e suspended
sentence. Wright v . United S t a t e s , s u p r a ; 315 A.2d a t 841,
842.
Under t h e second i s s u e , S u l l i v a n c o n t e n d s t h a t a t t h e
t i m e h i s suspended s e n t e n c e was revoked, h e had v i o l a t e d
o n l y t h e c o n d i t i o n s of h i s p a r o l e s e t by t h e Board of P a r d o n s ,
and t h a t o n l y t h e s e n t e n c i n g c o u r t c o u l d s e t t h e c o n d i t i o n s
f o r t h e r e v o c a t i o n of h i s s u s p e n s i o n .
The S t a t e answers t h i s c o n t e n t i o n by p o i n t i n g t o
R a t z l a f f , s u p r a , 172 llont. 439, 564 P.2d 1312, where t h i s
C o u r t h e l d t h a t i n t h e a b s e n c e of c o n d i t i o n s o r d e r e d by t h e
s e n t e n c i n g c o u r t , t h e c o n d i t i o n s of p a r o l e imposed by t h e
Board of Pardons are t h e c o n d i t i o n s o f a suspended s e n t e n c e .
I n R a t z l a f f , w e p o i n t e d o u t t h e d u a l n a t u r e of c o n d i t i o n s
imposed by t h e Board of Pardons i n t h a t t h e i r r e g u l a t i o n s
w i t h r e s p e c t t o c o n d i t i o n s of p a r o l e a p p l y a l s o t o s u s p e n s i o n s
of s e n t e n c e , and t h a t t h e s e r e g u l a t i o n s a p p l i e d i n t h e
absence of conditions imposed by a court. 172 Mont. at
444, 564 P.2d at 1315. Moreover, in this case, the sentencing
court, on October 28, 1977, in imposing the 10 year imprison-
ment with five years suspended, expressly directed "that at
all times when Defendant is not under the jurisdiction of
the warden of the Montana State Prison he shall be under the
supervision of the State Board of Pardons and Parole, Butte,
local office." Thus the District Court made the defendant
subject to any supervisory conditions that the Board of
Pardons saw fit to impose in overseeing the defendant's
conditional release on parole and on probation.
Sullivan on appeal relies on language in the conditions
that state "on parole you must have regular alcohol counseling"
as not applying to probation. The argument is specious. At
all times from the beginning of his conviction, the District
Court has imposed as a condition for his deferred imposition
of sentence, and now for his suspended sentence, that he
avoid alcohol. The District Court, by making express
direction that when Sullivan was not under the jurisdiction
of the warden, he would be under the jurisdiction of the
Butte parole officer, indicates the court's intent that
whatever the conditions of Sullivan's freedom from imprisonment,
during the term of his probation he could not use alcohol.
We therefore find no merit in defendant's second issue.
Sullivan's third issue involves his contention that it
is "vindictive" to require him, an acknowledged alcoholic,
to refrain from drinking as a condition of his probation or
parole. Sullivan relies on State v. Oyler (1968), 92 Idaho
43, 436 P.2d 709, wherein the Idaho Supreme Court stated
that it would be "vindictive" to condition probation on
abstinence if the judge knew the defendant was a chronic
alcoholic subject to an irresistible compulsion to drink to
excess. In Oyler, the Idaho court also stated that a
judge who discovers that it is impossible for a probationer
to abstain from drink may revoke the probation if in his
judgment the overriding purpose of probation, that is
rehabilitation, cannot be achieved without the condition of
abstention. 436 P.2d at 713.
Montana's 1972 constitution mandates that laws for the
punishment of crime shall be founded on the principles of
prevention and reformation. Art. 11, S 28, 1972 Mont.
Const. The District Court's power to impose conditions during
the period of a deferred or suspended sentence is directed
to what is "considered necessary for rehabilitation or for
the protection of society. " Section 46-18-201 (1)(a)(ix),
MCA. If a person convicted of crime because of addiction to
alcohol or a character disorder is unable to control his
drinking of alcohol to excess, he has no right constitutionally
or statutorily to be released from imprisonment on parole,
or on suspension, free from limitations respecting his use
of alcohol. Such a grant would not aid in his rehabilitation
nor would it be conducive to the protection of society.
Sullivan's case is the best example: his original burglary
conviction probably involved the use of alcohol to excess,
and at least once on parole, under the influence of alcohol,
he broke into the home of his former wife. His history
makes clear that he should either spend the remainder of his
term in prison or abide by any condition of his parole that
prohibits his use of alcohol. When authorities consider
parole or probation for a person convicted of crime, the
necessity to protect society stands on at least equal
footing with the necessity to provide rehabilitation for the
convicted person.
We see no merit in Sullivan's contention that prohibiting
his use of alcohol was an unreasonable or illegal condition
to his probation or parole. Sobota v. Williard (1967), 247
Or. 151, 427 P.2d 758, 759.
Sullivan next contends he was deprived of due process
in connection with the revocation hearing on April 27, 1981.
His contention is based chiefly upon the claim that District
Judge Arnold Olsen was biased because he called a witness in
connection with the revocation hearing.
The District Court called Raymond Redferm of the Montana
Alcoholism Services Center at Galen to the stand to resolve
a conflict in the evidence. Two police officers had testified
that Sullivan had been transported to Galen to be placed in
the alcohol treatment center there and that Sullivan had
walked away from the program the following morning. The
sheriff testified that to his knowledge the defendant would
have been admitted to the alcoholic treatment program at
Galen after he had completed detoxification. Sullivan
testified that he walked away from Galen the morning after
his admittance because the hospital refused to admit him to
its alcohol treatment program. At this point the district
judge announced his intention to ascertain whether Sullivan
had indeed been refused admission to the program.
Redfern testified that patients brought to the hospital
ordinarily spend three days in the detoxification ward and
are then brought to an evaluation clinic several times
before a decision is made to admit them. Redfern also
testified that Sullivan did not complete the first phase of
the program, detoxification.
Sullivan contends that by calling a witness in the
manner indicated, the district judge became a "prosecutor"
and an "adversary" which deprived him of due process at the
revocation hearing.
There is no merit to this contention. A court on its
own motion may call witnesses to testify. Rule 614(a),
M.R.Evid. ; sections 3-1-111 (6) and 3-1-402 (3), MCA. In
State v. Hart (1981), - Mont . -, 625 P.2d 21, 26, 38
St-Rep. 133, 137, we held that the trial court's act of
calling its own witness to verify the testimony of a prosecuting
witness was neither an abuse of discretion by the trial court nor
a denial of defendant's right to a fair trial.
Moreover, Sullivan failed to object to the calling of
Redfern as required by Rule 614(c), M.R.Evid. He may not
now assert such error on appeal. State v. Bier (1979), -
Mont. -, 591 P.2d 1115, 1119, 36 St.Rep. 466, 471; State
v, Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631, 632-633.
Sullivan also contends that a letter written by District
Judge Olsen to the warden of the penitentary respecting the
total amount of jail time which should be credited against
Sullivan's sentence was prejudicial. The evidence indicates,
however, that the letter was written at defendant's instigation,
and that Sullivan himself was later complimentary to the
judge, thanking him for his efforts on his behalf. Again we
find no prejudice on the part of the district judge in this
regard. In fact we do not see how the letter played any
part in the decision of the district judge to revoke Sullivan's
suspended sentence.
Sullivan's final contention is that the District Court
had no jurisdiction to defer imposition of his sentence a
second time as was done on August 19, 1977.
The contention does not affect the District Court's
power to revoke Sullivan's sentence in the circumstances
appearing here, and so we will not consider the issue as
validly raised. The conviction and first deferment of
imposition of sentence occurred on October 7, 1975. The
District Court sentenced the defendant to 10 years with 5
years suspended on October 28, 1977. This was within the 3
year period first set on October 7, 1975, by the court for
the deferment of the imposition of his sentence. Under this
situ.ation, the District Court could not be held in error for
imposing an additional 3 years of deferred imposition on
August 19, 1977.
The order of the District Court revoking Sullivan's
suspended sentence is affirmed.
-1
Justice
We Concur: