83-332
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BRUCE KENNEDY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Blaine,
The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew M. Small, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Donald Ranstrom, County Attorney, Chinook, Montana
Submitted on Briefs: ~ p r i l5, 1984
~ecided: ~ u g u s t22, 1984
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of
the Court.
Appellant, Kennedy, appeals from an order of the
District Court, Blaine County, amending the conditions of
p r o b a t i o n f o r one of a p p e l l a n t ' s two f e l o n y c o n v i c t i o n s , to
i n c l u d e a t h i r t y day p r i s o n s e n t e n c e . This order followed a
hearing on the State's petition to revoke a suspended
s e n t e n c e on one c o n v i c t i o n and a d e f e r r e d s e n t e n c e on t h e
other. The s e n t e n c e was s t a y e d p e n d i n g t h i s a p p e a l .
On May 27, 1 9 8 2 , judgment was e n t e r e d i n t h e c a s e o f
The S t a t e o f Montana v . B r u c e Kennedy, w h e r e i n Kennedy p l e d
guilty to the c h a r g e of burglary in violation of section
45-6-201(1), MCA. The c o u r t e n t e r e d i t s judgment d e f e r r i n g
imposition of t h e s e n t e n c e f o r a p e r i o d of two y e a r s . On
March 8 , 1 9 8 3 , judgment was e n t e r e d i n a n o t h e r c a u s e w h e r e i n
Kennedy entered a plea of g u i l t y t o a c h a r g e of theft in
violation section 45-6-301(2)(a), MCA. The t h e f t t o which
Kennedy e n t e r e d a g u i l t y p l e a d i d n o t o c c u r d u r i n g t h e t i m e
he was on probation for entering the guilty plea to
b u r g l a r y , b u t n e a r l y s e v e n months p r i o r t o t h e May 1982 p l e a
of guilty. The c o u r t a t t h a t time imposed a sentence of
five years in t h e Montana State Prison, a l l of which was
s u s p e n d e d f o r a p e r i o d o f t h r e e y e a r s b e g i n n i n g on t h e d a t e
of e n t r y of judgment. A p p e l l a n t was p l a c e d on s u p e r v i s e d
probation f o r both periods ordered above. Both sentences
required that Kennedy be subject to the rules and
r e g u l a t i o n s o f t h e Community C o r r e c t i o n s B u r e a u , a l l orders
of t h e c o u r t and the restrictions set o u t i n the standard
p a r o l e and p r o b a t i o n c o n t r a c t o f t h e Montana D e p a r t m e n t o f
Institutions. On May 1 0 , 1983, a r e p o r t of v i o l a t i o n was
filed with the District Court by appellant's probation
o f f i c e r , a l l e g i n g v i o l a t i o n s of t h e c o n d i t i o n s of p r o b a t i o n .
A h e a r i n g was h e l d on May 1 3 , 1 9 8 3 , w h e r e Kennedy r e q u e s t e d
c o u n s e l r e g a r d i n g a p e t i t i o n f o r r e v o c a t i o n which was f i l e d
by t h e S t a t e . The m a t t e r was c o n t i n u e d u n t i l May 24, 1983,
when Kennedy a p p e a r e d w i t h c o u n s e l .
A h e a r i n g was h e l d on t h e p e t i t i o n f o r r e v o c a t i o n on
May 2 4 , 1983. The p e t i t i o n a l l e g e d v i o l a t i o n s o f two r u l e s
of p r o b a t i o n and o n e v i o l a t i o n o f t h e c o u r t c o n d i t i o n No. 2
i n t h e t h e f t charge. The a p p e l l a n t d e n i e d t h e a l l e g a t i o n s
a s t o t h e v i o l a t i o n of Rule 1 and a d m i t t e d t h e a l l e g a t i o n s
pertaining to the violations of Rule 5 of the probation
contract and v i o l a t i o n s of court c o n d i t i o n No. 2 in the
t h e f t charge.
Three issues are presented by appellant. We have
combined t h e f o l l o w i n g i n t o two i s s u e s a s i n c l u s i v e o f t h e
t h r e e s e t f o r t h by t h e a p p e l l a n t :
I
J ' 2;
(1) Whether t h e a p p e l l a n t ' s r i g h t t o due p r o c e s s were "
v i o l a t e d when h e was o r d e r e d t o g o f o r w a r d w i t h h i s e v i d e n c e
i n m i t i g a t i o n e v e n t h o u g h t h e S t a t e had o f f e r e d no e v i d e n c e
and had n o t c a r r i e d i t s b u r d e n o f p r o o f i n s u p p o r t of its
a l l e g a t i o n s i n i t s p e t i t i o n of r e v o c a t i o n o f s u s p e n d e d and
deferred sentences.
( 2 ) I n o r d e r t o best a c h i e v e r e h a b i l i t a t i o n , whether
r e v o c a t i o n of a s e n t e n c e s h o u l d r e q u i r e a d e t e r m i n a t i o n t h a t
t h e defendant cannot avoid a n t i s o c i a l behavior r a t h e r than a
t e c h n i c a l f a i l u r e t o comply w i t h t h e r u l e s o f p r o b a t i o n .
The f i r s t i s s u e i s n o t o n l y d i s p o s i t i v e , b u t is t h e
only issue that applies to the f a c t s of t h i s case. The
s e c o n d i s s u e need n o t be d i s c u s s e d .
A p p e l l a n t a r g u e s t h a t he was d e p r i v e d of d u e p r o c e s s
because t h e t r i a l c o u r t , without t h e S t a t e p r e s e n t i n g proof
of t h e p r o b a t i o n v i o l a t i o n , d i r e c t e d a p p e l l a n t t o g o forward
with proof that he did not violate the conditions of
probation. W do n o t b e l i e v e t h a t t h i s
e i s what the t r i a l
court did or intended. Furthermore t h e record j u s t i f i e s t h e
procedure taken, and w e d o n o t f i n d it n e c e s s a r y t o v a c a t e
t h e o r d e r and remand f o r f u r t h e r h e a r i n g .
We have reviewed the record and transcript which
reveal t h a t a r e v o c a t i o n h e a r i n g was h e l d in the District
Court, with the appellant and his counsel present. Both
a p p e l l a n t and h i s c o u n s e l a c k n o w l e d g e t h a t t h e y had r e c e i v e d
t h e p e t i t i o n f o r r e v o c a t i o n and w e r e f a m i l i a r w i t h i t .
The court asked appellant how he responded to the
charge in the petition that he failed to make himself
available to the probation officer, failed to inform the
officer of his whereabouts, and had not contacted the
officer or the s h e r i f f ' s o f f i c e during a c e r t a i n period of
time. To that charge, the appellant stated: "Not true.''
Therefore, on that ground, the a p p e l l a n t appeared t o have
d e n i e d t h e same.
The court next considered the allegation of the
petition that covered the last written monthly report
s u b m i t t e d by t h e a p p e l l a n t , which was d a t e d O c t o b e r 5 , 1982
and the last t i m e a p p e l l a n t appeared before h i s p r o b a t i o n
o f f i c e r was December 7 , 1982. The h e a r i n g t h a t t o o k p l a c e
was on May 24, 1983. Looking to the position of the
a p p e l l a n t a s t o t h e charge of f a i l i n g t o make a p p e a r a n c e s ,
we find the following occurred between the court and the
appellant:
"THE COURT: The last personal appearance
before his probation officer was December
7, 1982. Is that admitted or denied?
"MR. SMALL [counsel for appellant] :
Pursuant to the terms of the order and
the conditions of probation and parole
agreement, that is correct.
"THE COURT: OK. And that he has not
appeared before Mr. Matkin [the
supervising probation officer] since
December 7, 1982. Does he deny or admit
that?
''A. [by appellant]: I admit that, Your
Honor. "
The court then asked whether the appellant admitted or
denied the charge that he had made no contribution to the
Western Bank (the victim of the second offense) for
restitution, and had not consulted with the probation
officer with regard to setting up a plan of restitution, all
as contained in his conditions of probation. The appellant
admitted he had not done so.
Thereafter, the court asked if the appellant had
anything to say in mitigation of his admissions. Counsel
for the appellant said "Yes, they have a substantial amount
of testimony to put on." The parties then agreed to
proceed. Counsel for the appellant asked if the State was
to present its case with regard to the petition. At that
point the court stated that in view of the admissions by the
appellant, there was no reason for the State to submit
evidence. Counsel for the appellant then pointed out the
only reason for asking, was that if the State was not going
to put on its evidence he would like to call the probation
officer. The court advised him he could call anyone he
wished. The appellant then proceeded to call various
witnesses, starting with the probation officer .
The transcript of these hearings show that an
agreement was reached between the court, appellant's counsel
and the county attorney that the admissions on the part of
the appellant as to the allegations in the petition for
revocation went to both files, that is two different cases,
with the denial to apply only to one allegation in both
files. Subsequently, the following took place.
"THE COURT: You may call anybody you
wish. Incidentally, will counsel agree
that these admissions, the petition for
revocation are the same in each file, and
that the admissions go to each file?
"MR. RANSTROM [counsel for the
plaintiff]: That's correct, Your Honor.
My understanding is that the only three
allegations contained therein, that the
first one was denied, but the other two
admitted, in substance?
"MR. SMALL [counsel for appellant] :
That's correct, Your Honor. On the
initial, the first allegation, Your
Honor, my statement was that as the
petition reads, it is denied.
"MR. RANSTROM: That was with regard to
the allegation that he was to go directly
to the approved program and shall report
to the probation and the parole officer
or other designated person, make himself
available.
"THE COURT: At line 17 Rule 1 starting
with the rule--
"MR. RANSTROM: That's correct.
"THE COURT: And that is denied by the
defendant?
"MR. SMALL: Correct, Your Honor.
"THE COURT: Do you wish to put the
testimony at this time on that?
"MR. SMALL: Yes, Your Honor. We would
like to.
"THE COURT: Very well. You may
proceed. "
On the basis of this record, we conclude that
a p p e l l a n . t l s due process rights were not violated. The
D i s t r i c t Court's order of imprisonment for t h i r t y days is
upheld.
We c o n c u r :
"bk&J.
Chief J u s t i c e
Wd\
Justices
Mr. J u s t i c e Daniel J. Shea d i s s e n t s , and w i l l f i l e a w r i t t e n
dissent later.