No. 85-473
I N THE SUPREME COURT OF THE STATE OF NONTANA
1986
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
DONALD CHARLES WATTS, J R . ,
Defendant and Appellant.
APPEAL FR.OM: District Court o f t h e F i r s t 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 Lewis & C l a r k ,
The H o n o r a b l e H e n r y L o b l e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Cannon & S h e e h y ; Edmund F. Sheehy, Jr., Helena,
Montana
For 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
Barbara Claassen, A s s t . Atty. General, Helena
Mike McGrath, C o u n t y A t t o r n e y , H e l e n a , Montana
C a r o l y n Clemens, Deputy County A t t o r n e y , Helena
-
S u b m i t t e d on B r i e f s : Feb. 20, 1986
Decided: A p r i l 1 7 , 1986
-, . ,a 1 : i35b
Filed:
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Charles Watts, Jr. appeals the order of the District
Court of the First Judicial District revoking Watts'
previously suspended sentence arising from an earlier guilty
plea to the felony offense of sexual intercourse without
consent.
Affirmed..
The issues we are called upon to decide are:
1. Whether defendant's constitutional rights under Art.
11, 5 24 of the Montana Constitution were violated when the
State, after filing charges of aggravated kidnapping and
assault, elected to dismiss those charges and proceed on a
revocation of parole of defendant's suspended sentence.
2. Whether the District Court arbitrarily and
capriciously concluded that defendant's suspended sentence
should be revoked.
In August 1981, Watts pled guilty to felony sexual
intercourse without consent and was sentenced to 20 years in
Montana State Prison with ten years suspended. One condition
for the suspension was that Watts remain a law-abiding
citizen during the term of his sentence. On April 26, 1985,
Watts was charged with aggravated kidnapping and misdemeanor
assault. These charges stemmed from the incidents of the
evening of March 22, 1985 and the early morning of March 23,
1985. On that night, Watts was alleged to have intimidated
Robert McClelland, by holding him against his wil.1 in Watts'
automobile, and beating him with his fists.
On May 23, 1985, the State petitioned the District Court
to revoke Watts' suspended sentence. At the June 6, 1985
hearing on the revocation petition, Watts moved to dismiss
the petition for the reason that his rights under Art. 11, §§
24 and 26 of the Montana Constitution were violated. Those
sections guarantee respectively the rights of the accused in
criminal proceedings and the right to trial by jury. Watts
contended to the District Court, and now contends to this
Court, that because the State had filed an information
against him, criminal proceedings against him had been
initiated. Once instituted, these criminal proceedings give
rise to the rights under Art. 11, 5 s 24 and 26. The State
should not be allowed to circumvent these constitutional
guarantees, argues Watts, by filing a petition to revoke his
suspended sentence. The District Court rejected Watts'
argument and refused to dismiss the petition. On August 13,
1985 that court revoked the suspension of the last ten years
of Watts' sentence for sexual intercourse without consent.
The State later dropped the kidnapping and assault charges
pending against Watts.
We reject Watts' claims that his Montana constitutional
right to jury trial and his rights as an accused have been
violated. Watts would have us combine into one action two
completely separate proceedings against him. Certainly the
State, by filing an information charging kidnapping and
assault, instituted criminal proceedings against him.
However, the action to revoke his previously suspended
sentence is not a criminal adjudication. State v. Robinson
(Mont. 1980), 619 P.2d 813, 37 St.Rep. 1830; State v. Oppelt
(1979), 184 Mont. 48, 601 P.2d 394. A defendant given a
suspended sentence lives knowing that "a fixed sentence for a
definite term hangs over him." Roberts v. United States
(1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Oppelt, 184
Mont. 48, 601 P.2d 394. Suspension of sentence is a
discretionary act of grace by a district court. Sectton
46-18-201, MCA; Oppelt, 184 Mont. 48, 601 P.2d 394. In
contrast to the proof required to convict Matts on the
information charged, in order to revoke his suspended
sentence the State need only show Watts failed to live up to
the requirement that he remain law-abiding. That requirement
conditioned the suspension of a portion of a sentence, which
had been imposed only after Watts had been tried, and
convicted, with all the rights secured to him by our
constitution attaining in the proceeding.
Watts essentially argues that the State, in order to
punish him for the alleged new offenses of kidnapping and
assaul-t, chose to proceed through the revocation hearing
instead of through full trial. This argument fails to take
into account that as a convicted felon, his liberty was
already conditioned by the requirements of the original
sentencing court. Watts1 argument that the State punished
him without trial for a new offense by imposing a sentence
which already had been pronounced against him, equates a
suspended sentence with no sentence at all.
Clearly the District Court can revoke the suspension of
a sentence, without that revocation constituting punishment
for a new offense. Oppelt, 184 Mont. 48, 601 P.2d 394.
Rather, revocation of a suspended sentence indicates a
determination by the court that the purposes of
rehabilitation are not being served by the suspension.
_ P elt,
0 -
E 184 Mont. 48, 601 P.2d 394; State v. Robinson (Mont.
1980), 61-9 P.2d 813, 37 St.Rep. 1830. The fact that the
later charges were dropped after the revocation decision does
not affect the character of the revocation hearing. In State
v. Ryan (1975), 1-66 Mont. 419, 533 P . 2 d 1076, we noted the
difference between a revocation hearing and a criminal trial
stemming from the same conduct. The revocation hearing
focuses on whether terms conditioning the suspended sentence
have been violated. Trial focuses on violation of statutes
pertaining to the new charges. Ryan, 166 Mont. at 1079.
Watts' constitutiona1 rights were not violated by the
revocation of his suspended sentence.
Finally, Watts contends the District Court abused its
discretion in finding that he had violated the condition that
he remain law-abiding. In Robinson we noted, " [tlhe inquiry
at any probation revocation hearing is whether the purposes
of rehabilitation are being achieved, and whether by virtue
of ... evidence that the defendant's behavior was not in
compliance with the rules and objectives of [defendant's]
probation, the purposes of probation are best served by
continued liberty or by incarcerati.on." State v. Robinson
(Mont. 1980), 619 P.2d 813, 815, 37 St.Rep. 1830, 1833.
Furthermore, "[a.]ll that is required is that the facts before
him be such that the judge is reasonably sa.tisfied that the
conduct of the probationer has not been wha.t he agreed it
would be if he were given liberty. Robinson, 619 P.2d at
815.
The evidence presented at the revoca.tion hearing
included testimony by two witnesses that Watts had beaten
McClelland and had held the terrified McClelland in a car
owned and driven by F?atts. Watts ad.mitted.that his car
displayed expired and fictitious license plates. Testimony
indicated Watts had accepted money from McClelland as the
purchase price for marijuana Watts was to procure.
Certainly this evidence is sufficient for the Court to
find Watts had not remained law-abid-ing.
The order of the District Court revoking Watts'
suspended sentence is affirmed.
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Justice
Con
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