No. 84-140
IN THE SUPREME COURT O F THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CARL EDWARD KERN,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Charles Luedke, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Fontana
(David Hoefer, Deputy)
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Submitted on Briefs: July 27, 1984
Decided: September 25, 1984
Filed: "
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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant pled guilty to sexual intercourse without
consent and was sentenced to ten years imprisonment with the
last five years suspended. After defendant had served his
prison term, the District Court of Yellowstone County revoked
the suspended sentence and ordered him returned to prison to
serve the remainder of the sentence. Defendant attacks this
exercise of discretion by the court. We affirm.
The sole issue on appeal is whether the District Court
abused its discretion when it revoked the defendant's
suspended sentence, absent findings that continued probation
would be at odds with society's interest in defendant's
rehabilitation as well as the need to protect society.
On February 5, 1.980, defendant plead guilty to sexual
intercourse without consent, a felony. He completed his
prison term on February 24, 1983, and was placed on
probation. In the order suspending five years of the
ten-year sentence, the District Court required the defendant
to abide by a number of conditions, including not using
intoxicants, not frequenting places where intoxicants are
sold, and not violating any law or ordinance. Upon release
from prison, d.efendant signed conditions of probation and
parole which included his agreement not to drink any
intoxicants, not to frequent any place where intoxicants were
sold, to comply with all laws and ordinances, and to conduct
himself as a good citizen.
On October 13, 1983, defendant's probation officer filed
a report detailing a number of alleged violations of
probation. The county attorney filed a petition to revoke
the suspended sentence. Initially, the defendant fa.iled to
appear. He did appear after the issuance of a bench warrant,
but his explanation of his initial failure to appear was
weak. At the hearing 01
1 the petition for revocation,
defendant and one other witness testified. At the conclusion
of the hearing, the District Court indicated its desire to
study the file carefully before reaching a decision.
Approximately two weeks later, the court issued its findings
of fact, conclusions of law and order revoking the suspended
sentence.
The findings of fact include a reference to defendant's
conditions of probation. The court found that the defendant
had entered a guilty plea to a driving while intoxicated
charge in the City of Billings; that the defendant had
forfeited bond on a charge of failure to drive in a careful
and prudent manner in Billings; and that the defendant had
pled guilty to a charge of disorderly conduct in Billings.
The District Court concluded that the evidence showed a
continuous disregard by defendant for the conditions of
probation and the laws of Montana. The court revoked its
previous order suspending five years of the original
sentence.
Defendant admits that his alcohol problem is so serious
that he is unable to control it without taking antabuse. He
suggested that he should be required to take antabuse under a
physician's supervision, thereby insuring that he would
continue to take the medication. Defendant also conceded
that the court's findings with regard to his probation
violations awe correct.
Defendant argues that, standing alone, proof of
violation of a prohibition against drinking by an alcoholic
is not sufficient for revocation of probation. He contends
that, in addition, the State must establish that the
continuation of probation would be at odds with the need. to
protect society and society's interest in the defendant's
CORRECTION. In preparing this opinion for pub-
Hon. Fred J. Weber lication, we noted in our verification o titles and
f
Justice, Supreme Court
citations the matters listed below. Corrections have
Room 414 Justice Building
been made on our copy of the opinion.
215 North Sanders
Helena, Montana 59620
October 24, 1984
State v. Kern, No. 84-140, Sept. 25, 1984 0%
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Page 4, line 9 -- Trumbley v. State should read Trumbly v. State.
(Also cited in lines 10 and 23, same page).
WEST PUBLISHING COMPANY
Box 43526
St. Paul. MN 55164
rehabilitation. As authority for that contention, defendant
cites State v. Ruby (Alaska 1982), 650 ~ . 2 d412.
The Alaska Supreme Court concluded in Ruby that proof of
a violation of the conditions of probation while necessary
for revocation, is not sufficient. The Alaska Court held
that, in addition, it must be established that continuation
of probationary status would be at odds with the need to
protect society and society's interest in defendant' s
rehabilitation. That rule was formulated in ~rumbl$y v.
State (Alaska 1973) , 515 P. 2d 707. The ~rumbl$y Court cited
Alaska Stat. § 12.55.110, which provides in pertinent part:
"When, sentence has been suspended, it shall not be revoked
except for good cause shown." The Alaska court construed
this statute as follows:
"The requirement that probation revocation follow
after a showing of 'good cause' requires the trial
judge to find that continuation of probationary
status would be at odds with the need to protect
society and society's interest in the probationer's
rehabilitation. Revocation should follow violation
of a condition of probation when that violation
indicates that the corrective aims of probation
Trumbl , 515 P.2d at 709.
cannot be achieved.''
4
Montana has no statutory requirement similar to Alaska Stat.
S 12.55.110. The Alaska cases therefore are not authority
here.
Section 46-23-1013, MCA specifies the action required of
the District Court at a revocation hearing:
" ( 1 .. the court shall cause the defendant to be
brought before it without unnecessary delay for a
hearing on the violation charged. The hearing may
be informal or summary.
" (2) If the violation is established, the court
may continue to revoke the probation or suspension
of sentence and may require him to serve the
sentence imposed . . ."
The District Court's findings of fact clearly establish that
the court met the requirements of this section. In addition,
the record indicates that after the revocation hearing, the
court took the matter under advisement in order that it might
carefully consider all of the facts and review the extensive
court file before reaching its conclusion.
The decision to revoke a suspended sentence cancels a
prior act of grace and is a ma.tter within the discretion of
the District Court. As we stated in State v. Robinson (Mont.
". . .
The District Court may, as a province of its
discretionary powers, under section 46-18-201, MCA,
suspend a criminal sentence. It follows,
therefore, that the court may pursuant to section
46-18-203, MCA, revoke its benevolent decision when
it becomes apparent that the defendant does not
merit further liberty or beneficence.
". . . - that is required is that the facts
All
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."
It is undisputed that the defendant's conduct during the
term of probation was not what he agreed it would be when he
was given liberty. He acknowledged three specific violations
of his conditions of probation. We find that the District
Court properly concluded that the defendant displayed a
continuous disregard for the conditions of probation and the
laws of Montana.
The defendant has completely failed to show that the
discretion of the District Court was improperly exercised by
the revocation of probation. In view of defendant's admitted
problem with alcohol and his stated willingness to accept
treatment, we voice the hope that he will seek the assistance
of the alcohol treatment available to him at the state
prison.
We concur: