No. 88-61
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KEVIN D. STANGELAND,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dooling Law Office; Thomas A. Dooling, Dillon, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Patricia J. Schaeffer, Asst. Atty. General, Helena
Thomas R. Scott, County Attorney, Dillon, Montana
Submitted on Briefs: June 30, 1988
Decided : August 11, 1988
Filed: mg! lga'
1
pil,
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Defendant Kevin D. Stangeland (Stangeland) appeals from
a Beaverhead County District Court order revoking his
conditional suspended sentence for the offense of felony
sexual assault. We affirm.
On October 31, 1986, Stangeland pled guilty to four
counts of felony sexual assault. The guilty plea was part of
the plea bargain in which the State reduced the charges from
felony sexual intercourse without consent with a minor.
Stangeland sexually assaulted his eight-year-old stepdaughter
over a period of several months. The District Court found
the presentence investigation unnecessary and set a date for
sentencing. Stangeland did not object to the District
Court's decision not to order a presentence investigation.
On October 31, 1986, Stangeland was sentenced to ten
years imprisonment at the Montana State Prison with
imposition of the sentence suspended upon the following terms
and conditions:
1. That the Defendant ... immediately
sign up with and be placed under the
supervision of the Department of Adult
Parole and Probation of the State of
Montana and shall be subject to all their
rules, conditions, and regulations during
the entire term of this sentence.
2. That the said Defendant shall serve
45days in the Beaverhead County jail and
shall be given credit for time served in
the Beaverhead County jail in this matter
of 2 5 days while awaiting sentence
herein.
3. That the Defendant shall not violate
any law of the State of Montana, the
United States or any state therein or the
ordinance of any city or town.
4. That said Defendant shall, at his own
expense, complete all admission tests to,
be accepted to, comply with and complete
all requirements of the sexual offender
program by Mental Health Services, Inc.,
of Helena, Montana. That application by
said Defendant to said program must be
made, completed, and admission tests done
within sixty (60) days of his release
from confinement in the Beaverhead County
Jail.
5. That in the event Defendant is unable
to complete the sexual offender program
because said program is or becomes no
longer in existence then such event shall
not constitute a breach of the terms and
conditions herein and said Defendant may
be returned to the Court and required to
complete a similar program if deemed
appropriate.
6. That said Defendant shall be
specifically prohibited from the family
home, or any home wherein ...
stepdaughterl is located and shall be
[his
specifically prohibited from seeing or
visiting .. . [his stepdaughterl without
the specific approval and consent of both
the Beaverhead County Welfare Department
and the sexual offender program.
(Additions ours.)
On May 5, 1987, the Beaverhead County Attorney filed a
motion for revocation of Stangeland's suspended imposition of
sentence and for a warrant of arrest. The County Attorney's
affidavit in support of his motion alleged that Stangeland
had violated the terms and conditions of the suspended
imposition of sentence. The alleged violations include
termination from the Mental Health Services, Inc., sexual
offender program, conviction of driving an automobile while
under the influence of alcohol, and Stangeland's presence at
the home of the victim, his stepdaughter.
Stangeland was subsequently arrested and the District
Court ordered that a revocation hearing be held. Stangeland
was examined by one psychologist and one psychiatrist at his
own expense during the period between his arrest and the
revocation hearing. After considerable delay, a lengthy
revocation hearing was held on October 30, 1987. The
District Court found that Stangeland had violated the
provisions of his suspended sentence by his failure to
complete the sexual offender program and by his D.U.I.
conviction, although it found that the State failed to show
that Stangeland had been in contact with his stepdaughter.
Stangeland's suspended sentence was revoked and he was
sentenced to nine years in the Montana State Prison with four
years suspended on the condition that he successfully
complete the sexual offender program at the Montana State
Prison. Stangeland appeals from the District Court's
judgment and order of sentence and we identify the following
issues:
1. Did the District Court err in not ordering a
presentence investigation?
2. Was the District Court without jurisdiction to
revoke Stangeland's probation?
3. Did the District Court abuse its discretion in
revoking Stangeland's suspended sentence and imposing a
sentence of incarceration.
Stangeland argues that the District Court should have
ordered a presentence report. The State points out that
Stangeland failed to object to the waiver of a presentence
report prior to the original sentencing order dated October
31, 1986. Additionally, the State asserts that Stangeland
specifically appealed from the District Court's sentencing
order of October 30, 1987, and not from the order of October
31, 1986. Given these facts, Stangeland's first issue is
both untimely and not properly before this Court. Section
46-20-104 (2), MCA.
On the second issue, Stangeland contends that the
District Court did not have jurisdiction to revoke his
suspended sentence. According to Stangeland, his probation
officer must first report a parole violation to the county
attorney before the District Court is vested with
jurisdiction to revoke a suspended sentence.
Stangeland's argument is without merit. Section
46-18-203, MCA, provides as follows:
(1) A judge, magistrate, or justice of
the peace -- suspendedthe execution
who has -
-of-a sentence or deferred the imposition
- a sentence of imprisonment under
of
46-IF-201 - - successor - authorized
or his is
- - - impose sertence and order
in his discretion
suspension or
to revoke -
the
- person committed. He may also, in
the
his discretion, order the prisoner placed
under the jurisdiction of the department
of institutions as provided by law or
retain such jurisdiction with his court.
(2) A petition seeking revocation of a
suspended sentence or imposition of a
sentence previously deferred must be
filed with the sentencing court during
the period of suspension or deferral.
Expiration of the period of suspension or
deferral after the petition is filed does
not deprive the court of jurisdiction to
rule on the petition.
(3) Prior to the revocation of an order
suspending or deferring the imposition of
sentence, the person affected shall be
given a hearing. (Emphasis added.)
The District Court acted upon the petition filed by the
county attorney and held a hearing pursuant to subsections
(2) and (3) above. Subsection (1) specifically authorizes
the District Court to revoke Stangeland's suspended sentence
and order him committed to the Montana State Prison. Felix
v. Mohler (1981), 195 Mont. 391, 636 P.2d 830. The statute
does not require any particular action from Stangeland's
probation officer and does not divest the District Court of
jurisdiction over Stangeland upon placement with the
Department of Adult Parole and Probation of the State of
Montana. We hold that the District Court exercised proper
jurisdiction pursuant to S 46-18-203, MCA, in revoking
Stangeland's original suspended sentence.
Stangeland's last argument is that the District Court
abused its discretion in revoking his suspended sentence.
Both parties recognize that the District Court has
discretionary power to revoke a deferred or suspended
sentence. State v. Robinson (Mont. 1980), 619 P.2d 813, 814,
37 St.Rep. 1830, 1832. We will not reverse a District
Court's revocation of a suspended or deferred sentence absent
a showing that the court abused that discretion. Robinson,
619 P.2d at 815.
Stangeland argues that his sentence again should be
suspended and he should be allowed to try another sexual
offender treatment program of his choosing. Throughout this
appeal, Stangeland has contended that he is a victim of
circumstances and that his violations of the terms and
conditions of his suspended sentence were brought about by
flaws in "the system" and errors made by the District Court
and others in positions of authority over him. Stangeland
admits to having "many difficulties" with the assigned sexual
offender program but insists that he was predestined to
failure because the program was unsuited to his particular
needs and problems.
Stangeland's "difficulties," as he terms them, with the
sexual offender program include a poor, hostile and
uncooperative attitude, verbal threats to harm a program
therapist, irregular attendance at program sessions,
visitation of the victim's home, and the consumption of
alcohol; all are in violation of his contract with the
program. The program staff collectively decided to terminate
Stangeland's participation in the program for the above
reasons and because they felt he was not amenable to
outpatient treatment and was a risk to re-offend.
Stangeland presented expert witness testimony of
psychiatrist Dr. George Cloutier at the revocation hearing.
After hearing the testimony of Dr. Cloutier and the other
witnesses at the hearing, the District Court concluded that
" [ilt is necessary that . .
. [Stangeland] undertake the
sexual offender treatment program under the supervision and
control of the Montana State Prison ... " Stangeland
contends that the testimony of Dr. Cloutier and others must
be interpreted to allow him another chance at outpatient
sexual offender treatment rather than treatment at the
Montana State Prison.
Stangeland's arguments are similar to those presented
to this Court in State v. Friedman (Mont. 1 9 8 7 ) , 732 P.2d
1322, 4 4 St.Rep. 313. Friedman was given a forty-year
sentence on convictions for two counts of sexual intercourse
without consent and one count of aggravated assault. The
sentence review board suspended twenty years of the sentence
on the condition that Friedman successfully complete a sexual
offender program. Friedman failed to complete the sexual
offender program and the district court subsequently
reinstated his original sentence. On appeal, Friedman
claimed he was a "victim of circumstances," was amenable to
treatment, and should be given another chance at treatment.
We found that there was substantial evidence to justify the
revocation of Friedman's suspended sentence and that Friedman
was not entitled to another treatment program. Friedman, 732
P.2d at 1326.
In the instant case it is undisputed that Stangeland
violated the terms and conditions of his suspended sentence
by his failure to complete the sexual offender program and by
his conviction of D.U.I. Given these violations, the
District Court had the discretion to revoke Stangeland's
suspended sentence. State v. Ford (Mont. 1985), 707 P.2d 16,
19, 42 St.Rep. 1530, 1535. Here, as in Friedman, the
district court also sufficiently examined the reason for
Stangeland's failure to complete the sexual offender program.
The District Court was not required to give Stangeland a
second chance at outpatient treatment as a matter of right.
Friedman, 732 P.2d at 1326. The District Court found it
necessary that Stangeland undertake the sexual offender
program at the Montana State Prison. Stangeland has failed
to show an abuse of the District Court's discretion.
Affirmed.
f
We concur:
Justices