No. 86-372
I N THE SUPREME COURTOF THE STAT& O MONTANA
F
1987
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
KENNETH A. FRIEDMAN,
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 Court of t h e Fourth J u d i c i a l District,
I n a n d f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
O I B r i e n & Conrad; James P . O ' B r i e n , M i s s o u l a , 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
R o b e r t F . W . S m i t h , A s s t . Atty:General, Helena
R o b e r t Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana
S u b m i t t e d on B r i e f s : Dec. 31, 1986
Decided: February 1 9 , 1987
Filed: FEB 1 9 1987
e *,\k
l Clerk
0
Mr. J u s t i c e Frank B. M o r r i s o n , Jr. d e l i v e r e d t h e Opinion of
t h e Court.
Defendant Kenneth Friedman a-ppeals t h e May 8, 1986,
o r d e r of t h e Fourth J u d i c i a l D i s t r i c t Court r e i n s t a t i n g h i s
o r i g i n a l f o r t y year sentence. W affirm.
e
I n 1982, d e f e n d a n t was c o n v i c t e d on two c o u n t s o f s e x u a l
intercourse without consent and one count of aggravated
assault. Defendant was s e n t e n c e d t o a t e r m o f 40 y e a r s i n
t h e Montana S t a t e P r i s o n w i t h a d a n g e r o u s d e s i g n a t i o n . The
sentence review board modified t h e sentence t o 40 y e a r s w i t h
2 0 y e a r s suspended p r o v i d e d d e f e n d a n t s u c c e s s f u l l y completed
a s e x t r e a t m e n t program i n F l o r i d a .
Defendant entered the Florida s e x t r e a t m e n t c l i n i c on
J u l y 11, 1983. A c l i n i c r e p o r t f i l e d J a n u a r y 1 0 , 1984, n o t e d
t h a t d e f e n d a n t ' s r e s p o n s e t o t r e a t m e n t had been p o o r and t h e
prognosis f o r change by d e f e n d a n t was p o o r . A subsequent
report filed April 10, 1984, recommended defendant be
r e t u r n e d t o Montana a s h e was n o t amenable t o t r e a t m e n t and
remained a danger t o o t h e r s . O May 25,
n 1984, d e f e n d a n t ' s
p r o g r e s s was reviewed by t h e c l i n i c ' s c a s e r e v i e w team which
found defendant had a characterological disorder which
prevented constructive personality growth. The team
concluded defendant had shown no progress and should be
d i s m i s s e d from t h e program a s f u r t h e r t r e a t m e n t e f f o r t s would
be f u t i l e .
Defendant was d i s c h a r g e d from t h e c l i n i c June 1, 1984,
and r e t u r n e d t o t h e Montana S t a t e P r i s o n . O January 18,
n
1985, defendant was informed that his original 40 year
s e n t e n c e was reimposed f o r f a i l u r e t o s u c c e s s f u l l y c o m p l e t e
the Florida treatment program. Defendant filed a civil
r i g h t s a c t i o n a g a i n s t p r i s o n o f f i c i a l s i n f e d e r a l c o u r t , and
a l s o f i l e d a t l e a s t two p e t i t i o n s f o r w r i t o f habeas c o r p u s
with t h i s Court.
On August 5, 1985, the Missoula Deputy County Attorney
filed a petition in District Court for revocation of the
probationary portion of defendant's sentence. On October 24,
1985, this Court entered an order directing that an
evidentiary hearing be held in District Court concerning
possible revocation of the suspended portion of defendant's
sentence for failure to complete the Florida treatment
program.
Hearings were held on the 4th, 18th, and 25th of
November, 1985, and December 23, 1985. Dr. Ted Shaw,
director of the treatment program, testified that he took a
special interest in defendant's case as it was unusual for a
Jewish person to be involved in a sex offender program. Dr.
Shaw is also Jewish and was unable to perceive any
discrimination against defendant. Dr. Shaw further testified
that the consensus of the staff was that defendant did not
attempt to participate in his treatment, that complaints had
been received from Montana about defendant contacting his
victims, and that he considered defendant to be extremely
dangerous.
Jonah Young, a social worker in the treatment program,
testified that staff members disliked defendant and gave him
little chance to succeed in the program. Mr. Young further
testified that defendant was considered to be dishonest by
other patients because he constantly complained that
erroneous information was in his file. Mr. Young believed
that defendant was working hard at following the treatment
program but had no chance to succeed due to the staff's
mistrust and open dislike for him.
Dr. Mark Mozer, a clinical psychologist who evaluated
defendant at Deer Lodge both prior to and subsequent to
defendant's involvement in the program, testified that
defendant showed improvement following his discharge from the
program. Dr. Mozer believed defendant was taking more
responsibility for his conduct and rationalizing his crimes
less than previously.
Reports from the Florida clinic were introduced into
evidence and the District Court took the matter under
consideration. On May 8, 1986, the District Court entered
its order reinstating defendant's original sentence of 40
years with a dangerous designation. Defendant appeals the
order and raises five issues which are fully addressed by the
following:
1) Whether defendant's due process rights were
violated?
2) Whether the District Court determination to revoke
the probationary portion of defendant's sentence is supported
by substantial evidence?
Defendant contends the State violated his due process
rights by failing to abide by the procedures set forth for
parole and probation revocation in Morrissey v. Brewer
(1972), 408 U.S. 471, 92 S.Ct. 2539, 33 L.Ed.2d 484, and
Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656. Specifically, defendant asserts his right to
the following was violated: 1) an on-site hearing to
determine whether probable cause exists to believe conditions
of parole have been violated; 2) a two step hearing process
including a subsequent final revocation hearing; 3) a final
revocation hearing held within a reasonable time.
Defendant has at all times remained incarcerated which
distinguishes this case from Morrissey and Gagnon. Defendant
had substantial time remaining to be served in the Montana
State Prison after his discharge from the Florida clinic,
regardless of the outcome of the probation revocation
proceedings. Defendant's immediate liberty interest was not
at stake and therefore no on-site preliminary hearing was
necessary. This Court has previously held no preliminary
hearing is necessary before commencement of parole or
probation revocation proceedings where detention is not
involved. Petition of Meidinger (1975), 168 Mont. 7, 539
P.2d 1185.
Having determined that no preliminary hearing was
necessary, we proceed to consider whether defendant had a
right to a final revocation hearing within a reasonable time.
The record shows defendant was discharged from the Florida
clinic June 1, 1984, and the final revocation hearing
commenced November 4, 1985. There is no evidence that
defendant requested a speedy hearing.
The right to a speedy trial is guaranteed only in
criminal prosecutions and is not applicable in revocation of
probation proceedings. State v. Oppelt (1979), 184 Mont. 48,
601 P.2d 394. Sections 46-23-1013 and 46-23-1024, MCA,
provide a right to a hearing within a reasonable time after a
defendant is arrested for violation of probation or parole.
These statutes are not applicable here for defendant's
violation of the conditions of probation occurred during his
incarceration.
Defendant contends the delay in holding the revocation
hearing caused him substantial prejudice. Contrary to
defendant's assertions, the hearing transcript reveals the
clinicians had excellent recall concerning defendant's stay
at the clinic. Further, much of the evidence submitted
consisted of reports drawn during defendant's stay at the
clinic. We find the delay in holding the revocation hearing
caused no prejudice to defendant.
Morrissey, supra, and Gagnon, supra, held that the
minimum due process requirements for final parole or
probation revocation hearings include: a) written notice of
the claimed violations of parole or probation; b) disclosure
to the parolee or probationer of evidence against him; c)
opportunity to be heard in person and to present witnesses
and documentary evidence; d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
finds good cause for not allowing confrontation); e) a
neutral and detached hearing body; and f) a written statement
by the factfinders a s to evidence relied on and the reasons
.
for revoking probation or parole. Morrissey, 408 U.S. 489,
92 S.Ct. 2604, 33 L.Ed.2d 499, Gagnon, 411 U.S. 786, 93 S.Ct.
1762, 36 L.Ed.2d 664.
In Petition of Meidinger, supra, this Court found these
requirements were not inflexible, especially where the
original sentencing judge revokes probation. 168 Mont. 13,
539 Mont. 1189. However, in the present case, - of the
all
above requirements were met, plus defendant was assisted by
court appointed counsel. Defendant's due process rights have
not been violated in any manner.
The next issue is whether there is substantial evidence
supporting the District Court determination to revoke the
probationary portion of defendant1 sentence. We find that
s
there is.
Dr. Shaw, director of the Florida clinic, testified that
defendant was discharged early due to his bad attitude,
dangerousness, and contacting one of his victims by
telephone. This testimony was confirmed in a report by
defendant's personal therapist, Albert Haskell. Defendant
points to a report by Dr. Rodney Poetter which states
defendant is amenable to treatment. Defendant conveniently
overlooks one of Dr. Poetterls conclusions that "at worst,
[defendant] is an extremely cunning and bright psychopath who
is concerned simply with manipulating the system so that he
can 'beat the rap' and avoid further incarceration in a
standard prison environment."
Defendant contends he was the victim of circumstances
and that due to the staff's extreme dislike of him he had no
chance to succeed in the program. Jonah Young and
defendant's mother testified similarly. Even given this
evidence, there is substantial evidence supporting a
conclusion that defendant's behavior and attitude were
responsible for his failure in the program.
Defendant argues the District Court failed to make a
specific finding that he was not a victim of circumstances as
required by this Court's order dated October 24, 1985. A
reading of the transcript and the District Court order
revoking probation make it clear this issue was thoroughly
treated. The District Court chose to place the greatest
weight on the testimony of Dr. Shaw, who had the most
expertise in the area of treatment of sexual offenders and
was involved in the staff decisions concerning defendant.
Dr. Shaw testified that defendant's being Jewish and from
Montana had no bearing on defendant's failure in the program.
This Court's order dated October 24, 1985, required the
District Court to determine whether defendant failed to
complete the conditions of the modified sentence thereby
justifying revocation. We find the District Court
sufficiently examined the circumstances surrounding
defendant's failure in the program and there is substantial
evidence supporting the revocation of the probationary
portion of defendant's sentence.
Defendant's final contention is that the final hearing
was premature because he should be allowed to enter another
sex treatment program. In this Court's order dated June 5,
1986, we specifically stated defendant had one opportunity to
meet the sentence conditions. Defendant has failed and is
not entitled to another treatment program as a matter of
right.
The District Court is affi
We concur: