No. 86-406
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1987
THE S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-VS-
FRED ANDREW NELSON,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of 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 C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
M a r k P. Yeshe, Helena, Montana
For R e s p o n d e n t :
Hon. Mike Greely, A t t o r n e y General, Helena, Montana
P a t r i c i a J. Schaeffer, A s s t . A t t y . General, Helena
Mike McGrath, County Attorney, Helena, Montana
S u b m i t t e d on B r i e f s : Nov. 20, 1986
Decided: January 2 9 , 1987
Filed: J N 2 9 1981
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P Clerk
Mr. J u s t i c e F r a n k B. Morrison, J r . d e l i v e r e d t h e O p i n i o n of
t h e Court.
Defendant, F r e d Andrew N e l s o n , appeals t h e order of the
First Judicial District Court, County o f Lewis and C l a r k ,
revoking a four-year suspended sentence. We affirm the
revocation.
Defendant h a s been involved i n i l l e g a l a c t i v i t i e s s i n c e
h i s youth. On F e b r u a r y 5 , 1 9 8 1 , d e f e n d a n t p l e d g u i l t y t o one
count of burglary and one count o f theft. S e n t e n c i n g was
d e f e r r e d f o r t h r e e months. On J u n e 1, 1 9 8 1 , t h e t r i a l j u d g e ,
upon m o t i o n o f t h e L e w i s and C l a r k County A t t o r n e y , revoked
d e f e n d a n t ' s d e f e r r e d s e n t e n c e and s e n t e n c e d d e f e n d a n t t o t e n
y e a r s i m p r i s o n m e n t on e a c h c o u n t , t o b e s e r v e d c o n c u r r e n t l y .
The l a s t f o u r y e a r s o f e a c h t e r m w e r e s u s p e n d e d .
On J u l y 20, 1983 (following h i s release from p r i s o n ) ,
d e f e n d a n t was a g a i n c h a r g e d w i t h f e l o n y t h e f t . Thereafter,
t h e County A t t o r n e y f i l e d a p e t i t i o n t o revoke d e f e n d a n t ' s
four-year suspended sentence. A h e a r i n g on t h e p e t i t i o n was
set, b u t defendant f a i l e d t o appear. Upon his eventual
a r r e s t , d e f e n d a n t was r e t u r n e d i n J a n u a r y o f 1985 t o Montana
S t a t e Prison a s a parole violator. The p e t i t i o n t o r e v o k e
t h e four-year s u s p e n d e d s e n t e n c e was d r o p p e d . D e f e n d a n t was
next discharged from t h e Montana S t a t e Prison i n December
1985.
On March 1 3 , 1 9 8 6 , d e f e n d a n t was a r r e s t e d w i t h two o t h e r
i n d i v i d u a l s and c h a r g e d w i t h t h e b u r g l a r y o f The Pop Shoppe
c o n v e n i e n c e s t o r e i n H e l e n a , Montana. A p e t i t i o n t o revoke
the four-year suspended sentence was once again filed on
A p r i l 24, 1986. H e a r i n g s were h e l d on t h e p e t i t i o n May 1 9 ,
May 27 and J u n e 2 , 1986.
Defendant i s unable t o r e c a l l t h e e v e n t s preceding h i s
arrest. However, a t t h e May 27, 1986, hearing, defendant
conceded that the State had sufficient, uncontrovertable
evidence to show that defendant had not been a law-abiding
citizen. Specifically, a witness identified defendant as one
of the participants and an accomplice implicated defendant in
the burglary. The trial judge accepted defendant's
concession.
The State then asked the trial judge to revoke
defendant's suspended sentence and send defendant back to
Montana State Prison. The State presented no witnesses, but
asserted that defendant's record mandated such a disposition.
Defendant presented several witnesses, including defendant's
former probation officer, a chemical dependency counselor at
Sunrise Ranch Alcohol Treatment Center and the administrator
of that facility. Defendant had previously completed Sunrise
Ranch's chemical dependency treatment program. These
individuals all testified that defendant's problems with the
law stem directly from chronic chemical dependency. None of
the individuals believed defendant ' s best interests would be
served by a return to Montana State Prison. Each testified
that defendant would most benefit from long-term placement
with the Lighthouse Chemical Dependency Program at Galen
State Hospital. However, Lighthouse no longer provides
long-term treatment. Concern was also voiced that defendant
would "run", as the facility is an open one. The matter was
continued.
At the June 2, 1986, hearing, defendant's present
probation officer testified at the judge's request. He also
concluded that although there was a probability defendant
would run, placement at Lighthouse would be the most suitable
disposition.
The trial judge accepted these recommendations and
rendered his decision from the bench, stating:
. . . I am confident that if I put you in the
penitentiary for the last four years that isn't
going to do any good either. You are going to be
just as bad when you get out as you are now, if not
worse. So that isn't going to help. So we have
this one last shot, the Lighthouse Program. . .
. . . You are a relatively young man and it seems
to me that your difficulty is almost entirely
derived from your dependency on chemicals, either
alcohol or drugs, one or the other. If we could
get you away from that, I think we would have a
chance to save you. .. What I am trying to do is
see if I can save a 24 year old man with one last
shot of a 90 day program at Lighthouse.
Tr. p. 99, In. 18-23; p. 100, In. 8-13, 20-21.
An order was issued June 4, 1986, continuing the
proceeding until defendant could enroll in, attend and
complete the Lighthouse program. Upon completion of the
program, defendant was to be returned to court for further
disposition. Defendant was to remain in the Lewis and Clark
County jail until June 10, 1986, when he would be transferred
to the Lighthouse program.
Defendant became involved in an altercation with a
jailer at lunch on June 4, 1986. The incident resulted in
defendant being charged with a misdemeanor, obstructing a
police officer in the performance of his duties.
The County Attorney filed a petition June 9, 1986, again
seeking to revoke defendant's suspended sentence. A hearing
was held on the petition June 16, 1986. At the start of that
hearing, the State moved to amend the June 9, 1986, petition
to incorporate the grounds for revocation set forth in the
April 24, 1986, petition. The defendant did not object and
the motion was granted. Tr. p. 114, In. 1-9.
At the hearing, the State presented evidence of other
disciplinary actions taken against defendant while he was in
jail, in addition to various accounts of the June 4
incident. The trial judge ultimately determined "that
Defendant was difficult to handle on that day, that he
profanely insulted the jailer, that force was required to
control him, but that one of the jailers may have used
excessive force." Order dated June 18, 1986, p. 3. The
trial judge then revoked defendant's suspended sentence and
had him returned to Montana State Prison.
On appeal, defendant raises two issues:
1. Did the District Court err in admitting certain
matters into evidence and in considering those matters in its
decision to revoke?
2. Did the District Court err in revoking defendant's
suspended sentence and sending defendant to the Montana State
Prison rather than continuing suspension of sentence and
sending defendant to the Lighthouse Chemical Dependency
Center?
Defendant objects to the use of the reports of previous
disciplinary action taken against him for two reasons: 1)
they violate the hearsay rule; and 2) he was not given notice
of the State's intent to admit the reports. The rules of
evidence do not apply to probation revocation hearings. Rule
101(c) (3), Mont. R. Evid. Courts in general allow the
admission of hearsay evidence at sentence revocation
hearings. "Admissibility of Hearsay Evidence in Probation
Revocation Hearings", 11 ALR 4th 999 (1982).
The minimum requirements of due process are extended to
sentence revocation hearings. Gagnon v. Scarpelli (1973),
411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. Thus, defendant
was entitled to notice of all alleged violations leading to
the petition to revoke. State v. Steffan (1981), 195 Mont.
395, 398, 636 P.2d 836, 838. Since defendant was not
notified of the State's intent to use these disciplinary
reports against him, the trial judge erred in admitting them
into evidence. However, in his order revoking defendant's
suspended sentence, the trial judge gave only passing mention
to those reports. The primary reason for the judge's
decision was the altercation which occured June 4, 1986.
When the Court addressed Nelson in open court at
the time he was going to be allowed to go to
Lighthouse, the Court advised Nelson that this was
his last chance. This impressed him not at all as
was shown by his difficulty in the Lewis and Clark
County Jail almost directly thereafter. The Court
had hoped Nelson would take his one last chance.
It is now clear he is a hopeless case.
Order of June 18, 1986, p. 4. Defendant is entitled to prior
notice of the reasons relied on by the trial judge when
revoking the suspended sentence. Defendant had such notice.
Therefore, any error is harmless. State v. Steffans, supra.
Defendant also asserts that the trial judge erred in
revoking his suspended sentence because the revocation was
not premised upon the violation of any condition of his
suspended sentence. Defendant has overlooked the order
amending the June 9, 1986, petition to revoke to include the
grounds for revocation set forth in the April 24, 1986,
petition. Defendant's suspended sentence was revoked because
defendant conceded, on the basis of his participation in the
The Pop Shoppe convenience store burglary, that the State
could prove he had not been a "law-abiding citizen." Thus,
an implied condition of suspension was violated. The Court's
most recent order merely changes the disposition imposed
after revocation of the suspended sentence. It is supported
by substantial evidence.
Affirmed.