No. 91-110
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
JAY LUNDQUIST,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs, Attorney at Law, Missoula, Montana.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana: John Paulson, Assistant Attorney General,
Helena, Montana: Robert L. Deschamps, 111, County
Attorney, Missoula, Montana: Betty Wing, Deputy
County Attorney, Missoula, Montana.
Submitted on Briefs: December 12, 1991
Decided: January 23, 1992
Filed: 2 8 1992
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Chief Justice J. A. Turnage delivered the Opinion of the Court.
In September 1988 Jay Lundquist pled guilty to sexual
intercourse without consent. He was sentenced to ten years in the
Montana State Prison with the entire sentence suspended on certain
conditions of probation. In January 1991 the District Court of the
Fourth Judicial District, Missoula County, revoked Lundquist's
probation. He appeals. We reverse and remand.
The issue is whether the District Court abused its discretion
in revoking Lundquist's probation and sentencing him to prison.
Lundquist was charged with sexual intercourse without consent
upon information obtained from his former foster daughter. At the
time of the complaint, she was a freshman in high school.
Lundquist agreed to plead guilty in exchange for a recommendation
by the State that he receive a three-year deferred imposition of
sentence with a requirement that he complete a sexual offender
treatment program under licensed clinical psychologist Michael
Scolatti, Ph.D., or qnother approved program.
The District Court rejected the State's recommendation and
sentenced Lundquist to a term of ten years in the Montana State
Prison, all suspended, with thirteen separate terms and conditions
of probation. These included that he "shall obtain a sexual
offender evaluation by Dr. Scolatti" at his own expense and that he
"shall participate and complete counseling as recommended by the
sexual offender evaluation."
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Between his sentencing in October 1988 and April 1990,
Lundquist entered Dr. Scolatti's program and attended seventy-six
group therapy sessions and thirteen individual sessions. Each
session required a 150-mile round trip from Lundquist's residence
in Philipsburg, Montana, to Dr. Scolatti's office in Missoula,
Montana. During this time, Lundquist had a 100 percent attendance
record, with one excused absence. He paid Dr. Scolatti a total of
$2,450 in counseling fees.
On May 7, 1990, Dr. Scolatti wrote to Lundquist stating that
he was being terminated from the sexual offender program because he
had failed to develop a payment schedule for his outstanding
therapy balance of $1,260. A copy of the May 7 letter was provided
to Lundquist's probation officer.
On November 7, 1990, Dr. Scolatti wrote directly to Lund-
quist's probation officer. In that letter, he stated that
Lundquist had been terminated from the sexual offender program
because 1) he was unable to pay for the program, and 2) he had
repeatedly refused to participate in the written portion of the
program. On December 7, 1990, the State filed a petition to revoke
Lundquist's suspended sentence. After a hearing at which the State
presented testimony by Dr. Scolatti and his associate, and
Lundquist and his wife testified, the District Court revoked the
suspended sentence. The court found that Lundquist had violated
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the term of his probation that he "participate and complete
counseling as recommended by the sexual offender evaluation."
Section 46-23-1013(2), MCA, provides that
[i]f the violation [of a condition of release on proba-
tion] is established [at a revocation hearing], the court
may ... revoke the probation or suspension of sentence
and may require [the person on probation] to serve the
sentence imposed or any lesser sentence and, if imposi-
tion of sentence was suspended, may impose any sentence
which might originally have been imposed.
The standard for revocation of probation is whether the judge is
reasonably satisfied that the conduct of the probationer has not
been what he agreed it would be if he were given liberty. State v.
Robinson (1980), 190 Mont. 145, 148-49, 619 P.2d 813, 815. This
Court's standard of review is whether the district court has abused
its discretion. Robinson, 619 P.2d at 815.
In State v. Stangeland (1988), 233 Mont. 230, 758 P.2d 776,
this Court affirmed the revocation of a suspended sentence based on
Stangeland's failure to complete an outpatient sexual offender
treatment program. Stangeland had a "poor, hostile and uncoopera-
tive attitude," verbally threatened to harm a program therapist,
irregularly attended program sessions, visited the victim's home,
and consumed alcohol, all in violation of his contract with the
sexual offender program. Stanseland, 758 P.2d at 778.
In State v. Friedman (1987), 225 Mont. 373, 732 P.2d 1322,
this Court affirmed the revocation of a probationary period of
defendant's sentence for failure to complete a sexual offender
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treatment program. The director of the treatment program testified
at the revocation hearing that Friedman did not attempt to
participate in his treatment, that complaints had been received
about Friedman contacting his victims, and that he considered
Friedman to be extremely dangerous. Friedman, 732 P.2d at 1324.
In Stanqeland and Friedman, the violations of the terms of
probation were more grievous than the violations alleged here. In
this case, the reason originally given in May 1990 for Lundquist‘s
termination from the sexual offender program was his failure to
develop a schedule for payment of $1,260 he owed Dr. Scolatti. At
that time, he had been in the program for eighteen months and had
paid some $2,450 in counseling fees. At the revocation hearing,
Lundquist introduced into evidence his income tax return for 1989,
which showed that he and his wife, with one dependent daughter, had
an adjusted gross income in 1989 of $6,713. He also testified that
he had paid restitution to his victim in the amount of $540.
In November 1990, six months after Lundquist was terminated
from the sexual offender treatment program, a second reason was
given for his termination from the program. In the letter to
Lundquist’s probation officer, Dr. Scolatti wrote that Lundquist
was terminated from the program because of his “repeated refusals
to participate in the written portion of the program.” At the
revocation hearing, Dr. Scolatti testified that Lundquist attempted
to act “more as a co-therapist rather than as a member of the
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group" in group therapy sessions. He further testified that
Lundquist indicated that he had been through a religious metamor-
phosis or transformation and that he is no longer the man who
committed the offenses. In Lundquist's view, the man he has become
does not require counseling, because he would not reoffend. He now
talks to angels who guide him through most of his life. Dr.
Scolatti testified that he had considered whether Lundquist was
psychotic, but had concluded that this was simply Lundquist's
system of religious beliefs.
Dr. Scolatti testified that Lundquist agrees that child
molestation is bad and that he admits to his offense. He also
testified that there is a low to moderate probability that
Lundquist will reoffend.
Here, the reasons for termination from the program were subtle
and complicated. To the extent that revocation was based on
Lundquist's failure to pay full fees, we conclude that it was
unreasonable, given the evidence of his low income and the fees he
had already paid to Dr. Scolatti. To the extent revocation was
based on Lundquist's reasonable expression of his genuine religious
beliefs, it appears to contravene his right to free exercise of
religion.
We hold that, based on the evidence presented at the revoca-
tion hearing, the District Court abused its discretion in sentenc-
ing Lundquist to serve his original prison sentence. The terms of
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Lundquist's probation did not require that he give up his religious
beliefs or take food from his family's table to pay for sexual
offender counseling. He had an eighteen-month history of compli-
ance with the only condition of probation which he was accused of
violating. For over six months after he was terminated from the
sexual offender program, no effort was commenced to have him
removed from the community. Lundquist has no previous criminal
history. As was suggested by Lundquist's counsel, the District
Court could have required him to offer a payment plan and apply for
readmission into Dr. Scolatti's program or to find another
outpatient sexual offender treatment program.
We reverse the judgment of the District Court and remand this
matter to District Court for further proceedings consistent with
this Opinion.
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We c o n c u r :
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