No. 85-101
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
STP-TE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
TF.OY FORD,
Defendant 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 Twentieth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f L a k e ,
The H o n o r a b l e C . B. M c N e i l , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
P h i l i p J . G r a i n e y ; F r e n c h , Mercer, G r a i n e y and
Duckworth, P o l s o n , Montana
For Respondent:
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
J o h n F r e d e r i c k , County A t t o r n e y , P o l s o n , Montana
S u b m i t t e d on b r i e f s : J u l y 25, 1985
Decided: October 8, 1955
~ i l e:
d
OCT 8 1985
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant appeals the order revoking his suspended
sentence. The District Court of the Twentieth Judicial
District, Lake County, reinstated the five-yea-rsentence for
aggravated burglary and assault, based upon a violation of a
probation condition requiring immediate entrance into and
completion of an in-patient alcoholism treatment program.
We affirm the revocation order but remand. to the Twen-
tieth Judicial District for findings of fact and conclusions
of law on the designated dangerous offender status.
Appellant presents the following issues for review:
1. Does the record offer substantial evidence to
support the District Court determination that the defendant
violated a condition of his suspended sentence?
2. Did the probation officer adequately advise proba-
tioner as required by § 46-23-1011, MCA?
3. Did the court abuse its discretion in considering
defendant's prior record and the offenses for which he was
sentenced rather than. limiting the hearing to the issue of
probation violation?
4. Did the court properly classify defendant as a
dangerous offender?
Troy Ford, aged twenty-three, pled guilty to charges of
aggravated burglary and assault. He and two other males had
entered a double-wide mobile home at about midnight on August
19, 3.984, and wielded a baseball bat and a large stick upon
the two unsuspecting occupants. Ford initialed his request
to enter a guilty plea.
District Court Jud.ge James B. Wheelis sentenced Ford on
November 28, 1984, to five-years confinement at the Montana.
State Prison with a five-year period of suspension with
standard conditions and supervision. The minute entry re-
corded that defendant was to obtain alcohol counseling as
recommended, including in-pa.tient program. Further, l1[i1f
the probation is revoked and the defendant is ever sent to
MSP, he is designated a dangerous offender."
The iudgment based on the sentencing was entered Decem-
ber 10, 1984. However, following completion of sentencing on
November 28, 1984, Ford was placed under the jurisdiction of
the Adult Probation and Parole Division of the State of
M0ntan.a Department of Institutions and ordered to comply with
the terms and conditions of probation as established by the
division.
On that same date, November 28, 1984, Ford met with Ron
Nlsbury, probation and parole officer for Lake County.
Alsbury discussed with Ford the conditions of his probation
and Ford initialed each of the requirements especially per-
taining to him. In particular, Ford initialed before each. of
seven typed-in special conditions. The following pertains to
the issues on appeal:
14. SPECIAL CONDITIONS:
(1) Immediately enter & successfully
complete in-patient alcoholism treatment
program to be followed by aftercare
program including half-way house, coun-
seling, AA attendance & monitored
antabuse if necessary.
Ford also initialed a condition restricting him to Lewis and
Clark and Broadwater Counties where he wanted his probation
transferred. Finally, Ford signed the entire agreement on
conditions of probation, which stated that he fully und.er-
stood and agreed to abide by and follow the conditions, fully
understanding the penalties for any manner of violation of
conditions.
The director/counselor of the Lake County chemical
dependency program had evaluated and counseled Ford before
the plea bargain. After checking into several programs, she
concluded that Galen was the only available program where he
could be admitted right away and which had required
in-patient treatment. She scheduled the appointment at
Galen.
Ford met in Helena on November 29, 1984, with his new
probation officer, Thomas Lofland, and said he was scheduled
to go to Galen. 1,ofland issued the travel permit, advising
him to verify that he was in Gal-en in the in-patient alcohol
treatment program. Instead, Ford told the detox counselor at
Galen that he did not have an al-coho1 problem and did not
belong there. When contacted, Lofland told the counselor to
advise Ford that there may be consequences in his refusal.
Ford returned to Helena voluntarily on December 5, 1984, met
with Lofland and was promptly arrested for violating condi-
tions of his probation.
District Court Judge C. B. McNeil sitting at the revo-
cation hearing on January 16, 1985, heard testimony from
I,ofland, Alsbury, Ford, and the two detox counselors in the
matter. In its order, the court determined that Ford knew he
had to comply with the conditions of the Adult Probation and
Parole Division and that he had to enter and complete an
in-patient alcoholism treatment program as recommended by his
probation officer. The court found that Ford knew and dis-
cussed the required in-patient program with Alsbury, took the
bus to Galen to the in-patient program he was required to
enter and complete, and knowingly refused to participate in
the program. The court concluded that the State had met its
burden of proof by sufficient evidence that Ford had violated
the conditions imposed at sentencing on November 28, 1984;
ordered that he be designated a dangerous offender for pur-
poses of parole; and reinstated the full five-year sentence
based upon the previous record of violent crimes.
1. Substantial evidence. Counsel for appellant con-
tends that the sentencing proceedings and the subsequent
judgment signed pursuant to the sentencing required Ford to
obtain alcohol counseling but did not specify a particular
program. Appellant asserts that the Lake County al.coholism
counselor left Ford with the impression that he had a choice
of alternative programs and he declined at Galen thinking he
could get into another program. Arguing that the condition
of attending the program at Galen was not a condition on the
record, appellant claims that there is not substantial evi-
dence to support the court's determination of a violation of
the condition.
We hold that there was substantial evidence on the
record to determine that Ford had knowingly violated the
condition of attending the in-patient alcoholism treatment
program. At sentencing on November 28, 1984, the court made
clear that Ford was to attend an in-patient program as recom-
mended and that he was under supervision. On November 28,
1984, his supervisory probation officer read every condition
with Ford and Ford initialed the significant pertinent condi-
tions, particularly that he "immediately enter [and] success-
fully complete in-patient alcoholism treatment program.
. . ." Ford's later claim that he did not read the document
he signed is without merit. The form he signed stated: "I
have read, or have had read to me, the foregoing conditions
of my probation/parole." Once the Lake County alcoholism
counselor realized that j-n-patient treatment was required,
she scheduled an appointment at Galen for December 3, 1984,
as the only suitable program he could immediately enter as
required.
Further evidence on the record indicates that Ford met
with his new supervisory officer on November 29, 1984. He
received his traveling papers for Galen with the understand-
ing that he should verify he was in the in-patient treatment
program. He knew that immediate in-patient was a condition
of his suspended sentence and that the consequences of
breaching the conditions would he loss of the suspension of
the sentence. He refused to sign the papers to enter the
program, a violation of the sentencing requirement to obtain
alcoholism counseling, including immediate in-patient treat-
ment as recommended, and a violation of the conditions of
probation, as initialed and signed.
2. Probation officer's duty to advise. Appellant
contends that Lofland-,the second probation officer, violated
46-23-1011, MCA, in the duty to consult with the proba-
tioner ". . . to encourage him to improve his condition and
conduct. " Before Ford was transferred to Lofland's
supervision, however, Alsbury in Lake County had explained
the conditions of the suspended sentence. The Galen appoint-
ment had been made, and Alsbury further emphasized to Ford.
the importance of the Galen program and possible consequences
when he gave him a ride to Missoula so that he could follow
through on his appointment. Once there was a violation of
the condition in Ford's denial of an alcohol problem and his
refusal to enter immediately into the program, Lofland's duty
to advise was replaced by his duty to report the violation.
The record supports the fact that Ford had been well-advised
and counseled by his probation officer at the time of sen-
tencing and after to follow the conditions he signed.
3. Standard - determining
for abuse of
- discretion.
Appellant contends that the court abused its discretion in
going beyond the issue of whether there wa-s a violation of
the condition of suspension. We find that the court revoked
the suspension pursuant to the discretion granted in
S; 46-18-203, MCA, under which the sentencing judge who had
the authority and discretion to suspend the sentence under
S 46-18-201, MCA, ". . . or his successor is authorized in
his discretion to revoke the suspension or impose sentence
and order the person committed." For revocation following a
hearing under 5 46-23-1013, MCA, establishment of the viola-
tion of the probationary condition is necessary in order to
exercise the discretion properly. State v. Kern (Mont.
1984), 695 P.2d 1300, 41 St.Rep. 1810. "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 he if he were given
liberty." State v. Robinson (Mont. 1980), 619 P.2d 81.3, 815,
37 St.Rep. 1830, 1833.
The court must be satisfied at a minimum that the
defendant violated the conditions of probation to revoke the
suspension. This does not mean the court is limited on.ly to
consider facts on the alleged violation. The hearing afford-
ed a defendant who has been arrested for an alleged probation
violation is not required to follow the formalities of a
hearing on a criminal offense: "The hearing may be informal
or summary." Section 46-23-1013, MCA. Furthermore, the
court has considerable discretion in sentencing once the
violation is proved.:
Action of court after arrest [of
violator] .
46-23-1013 (2). If the viola.tion is
established, the court may continue to
revoke the probation or suspension of
sentence and may require him to serve
the sentence imposed or any lesser
sentence and, if imposition of sentence
was suspended, may impose any sentence
which might originally have been
imposed.
Once the violation was established, the court could. not
consider the violation for purposes of revocation without
reference to the original offense and sentence. In a case
previously decided by this Court, an appellant contended that
the District Court erred in not showing "findings that con-
tinued probation would be at odds with society's interest in
defendant's rehabilitation as well as the need to protect
society." Kern, 695 P.2d at 1301. There we held that the
court properly exercised its discretion. In addition to the
revocation hearing, the court took the matter under advise-
ment. The defendant had due process beyond the minimum
required informal or summary hearing. Yet at its d-iscretion
the court could revoke the suspension based upon the estab-
lished violation alone.
Here we have process in which the court held a. full
evidentiary hearing for purposes of establishing the viola-
tion, took the matter under advisement, determined. that there
was a violation, and then considered the interests of society
and defendant's rehabilitation before imposing the sentence
originally imposed pursuant to S 46-23-1013, MCA. "The
decision to revoke a suspended sentence cancels a prior act
of grace and is a matter within the discretion of the
district court." Kern, 695 P . 2 d at 1301.
We hold that there was no abuse of discretion, once the
violation was established, in the court's consideration of
the factors in the original sentencing to determine what
sentence to impose. It is within the court's discretionary
power to revoke the benevolent decision (to suspend the
sentence) pursuant to 5 46-18-203, MCA, when defendant does
not merit further liberty or beneficence. Kern, 695 P.2d at
1302, citing Robinson, 619 P.2d at 814. Upon revocation, the
court may exercise its discretion in determining a suitable
sentence, based upon the original sentencing under
46-23-1013, MCA. It is within its discretion to consider
the entire record.
4. Designation - dangerous offender status.
of Appel-
lant contends that the judge presiding at the revocation
hearing had no jurisdiction to classify Ford as a dangerous
offender and that Ford was improperly classified as a danger-
ous offender by the sentencing court. We find that the judge
a.t the revoca.tion hearing did not classify Ford; the sentenc-
ing court determined that the defendant was not eligible for
nondangerous designation. This was within the discretion of
the sentencing court under § 46-18-404, MCA.
This Court, however, has articulated requirements for a
judgment determining dangerous offender status: 'I. .. an
individual may be designated a dangerous offender, if, in the
discretion of the sentencing court, he is determined to
represent a substantial danger to other persons or society;
however, - - - than a mere recital - - statutory language
more - of the
- required.
is The sentencinq court must articulate - -
p
its rea-
sons underlying its determination." In the Matter of
McFadden (19801, i85 Mont. 220, 222, 605 P.2d 5991 600.
(Emphasis added.) Where the record revealed substantial
evidence to support a District Court determination of "dan-
gerous" designation, this Court remanded the cause to the
district iudge for findings to support the conclusions.
State v. Camitsch (Mont. 1981), 626 P.2d 1250, 1259, 38
St.Rep. 563, 573. Without the findings, this Court could not
determine if there was an abuse of discretion.
We vacate that part of the judgment classifying appel-
lant as a dangerous offender and remand to the District Court
of the Twentieth Judicial District for findings and judgment
on appellant's dangerous offender status. There is substan-
tial evidence on the record, but without the reasons articu-
lated - - . -the judgment, we cannot make the determination if
in
appellant was properly classified a dangerous offender.
Affirmed in part and, remanded with instructions.
We concur:
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Justices