No. 94-341
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRUCE EUGENE BUTLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Stenerson, Attorney at Law, Hamilton,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal Wellenstein, Ass't Attorney General,
Helena, Montana
Robert L. Deschamps, Missoula County Attorney,
Missoula, Montana
Fred VanValkenburg, Deputy County Att'y, Missoula
Montana .,I
Submitted on Briefs: March 30, 1995
Justice James C. Nelson delivered the Opinion of the Court.
On August 18, 1992, the State charged defendant Bruce Eugene
Butler (Butler) by information in the Fourth Judicial District
Court, Missoula County, with one count of sexual assault, a felony.
Butler initially pleaded not guilty to the charge but subsequently
entered an Alford plea. Upon the State's recommendation, the
District Court suspended Butler's sentence subject to court-ordered
conditions. Alleging numerous violations of the conditions, the
State filed a petition to revoke Butler's suspended sentence.
Following the State's second petition to revoke Butler's suspended
sentence, the District Court revoked the suspended sentence and
ordered Butler committed to the Montana State Prison for ten years.
Butler appeals the District Court's revocation of his suspended
sentence. tie affirm.
Butler raises the following issue on appeal:
Did the District Court violate Butler's Fifth Amendment right
against self-incrimination by revoking Butler's suspended sentence?
BACKGROUND FACTS
On August 18, 1992, the State charged Butler with one count of
sexual assault, a felony. At the hearing on Butler's motion to
dismiss counsel, the District Court explained to Butler the option
and consequences of entering an Alford plea under § 46-12212(2),
MCA. Four days later, Butler entered an Alford plea to the charge
of sexual assault, stating that it was in his best interest to
enter the plea and that there was a factual basis for the charge.
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Pursuant to the plea bargain agreement, Butler waived the pre-
sentence investigation. The District Court sentenced Butler to ten
years in the Montana State Prison, but suspended Butler's sentence
subject to the following thirteen conditions:
1. supervision of probation and parole;
2. mental health counseling and/or alcohol and drug
counseling as directed by Butler's probation officer;
3. no consumption of alcohol or entering bars;
4. submit to a test of bodily fluids for alcohol or
drugs;
5. at Butler's own expense, undergo a sex offender
evaluation by a professional person designated by the
probation officer and enter and complete a sexual
offender treatment program recommended by the probation
officer;
6. pay restitution to the victim for the cost of her
counseling;
7. submit to a search of his person, vehicle, or
residence at the request of his probation officer;
8. no contact with the victim or her family;
9. reimburse Missoula County for the cost of his public
defender;
10. pay $100 for the cost of the prosecution;
11. pay a surcharge of $20;
12. serve 120 days in the Missoula County Jail with
credit for time already served; and
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13. obey all laws.
The District Court also ordered Butler to immediately sign up for
probation, to obtain a travel permit when leaving the state, and
upon arrival at his destination, to have a law enforcement agency
confirm Butler's location to the probation officer.
On March 19, 1993, the State filed a petition to revoke
Butler's suspended sentence, alleging that Butler had been entering
bars, drinking, and had not undergone a sexual offender evaluation
or treatment program. Butler did not appear at the revocation
hearing and the District Court subsequently issued a bench.warrant
for his arrest. On July 26, 1993, Butler appeared in court and
denied the State's allegations. On August 30, 1993, Butler
withdrew his denials and admitted all of the allegations. The
District Court continued Butler's probation, ordered Butler to
follow all of the original conditions, and required Butler to enter
a sexual offender program within 60 days.
On December 7, 1993, the State filed a second petition to
revoke Butler's suspended sentence. The State alleged that Butler
1) changed his place of residence without first obtaining
permission; 2) left his assigned district without first obtaining
written permission from his probation officer; 3) did not maintain
employment; 4) did not personally report to his probation officer;
5) did not undergo a sexual offender evaluation; 6) did not
complete a sexual offender treatment program; 7) had not reimbursed
Missoula County for the cost of his public defender; 8) had not
paid the $20 surcharge; and 9) had not paid $100 for the cost of
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his prosecution.
Butler denied the allegations but later admitted them with
explanations. The State recommended continued probation; however,
the probation officer recommended incarceration. Based on Butler's
admissions, the District Court found that Butler violated his
probation and therefore revoked his suspended sentence and ordered
Butler committed to the Department of Corrections for ten years
without eligibility for parole until Butler completes the sexual
offender program. Butler appeals the revocation of his suspended
sentence.
DISCUSSION
Did the District Court violate Butler's Fifth Amendment right
against self-incriminationby revoking Butler's suspended sentence?
Butler alleges that the District Court revoked his suspended
sentence primarily because he would not admit guilt in order to
either undergo a sexual offender evaluation or enter a sexual
offender treatment program. Thus, Butler claims that the District
Court violated his Fifth Amendment right against self-incrimination
when it revoked his suspended sentence.
The standard for revocation of a suspended sentence only
requires that the judge be reasonably satisfied that the conduct of
the probationer has not been what he agreed it would be if he were
given liberty. State v. Lundquist (1992), 251 Mont. 329, 331, 825
P.Zd 204, 206 (citing State v. Robinson (1980), 190 Mont. 145, 148-
49, 619 P.2d 813, 815). We review a district court's decision to
revoke a suspended sentence to determine if the district court
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abused its discretion. Lundquist, 825 P.2d at 206.
The State argues that this Court should not review Butler's
claim that the District Court violated Butler's Fifth Amendment
right against self-incrimination because Butler did not raise his
Fifth Amendment claim in the District Court. The State bases its
claim on § 46-20-104(2), MCA, which covers the scope of appeal by
a defendant and provides in part:
Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 46-20-701(2).
In State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307,
321, we construed § 46-20-104(2), MCA, to bar a defendant from
raising an issue on appeal if that defendant did not raise the
issue before the district court.
Although Butler did not specifically state that his Fifth
Amendment right against self-incrimination had been violated, he
raised the issue that he was in a catch-22 situation if he wanted
a suspended sentence but did not want to admit guilt to the sexual
acts. Butler evidenced his misgivings about having to admit guilt
before undergoing either a sexual offender evaluation or a sexual
offender treatment program when he answered the District Court's
questions as follows:
Like I said, if it goes to a jury trial, I'm going to end
up in prison for something I didn't do. And if I plead
guilty and go to this doctor and don't admit it to him,
I still end up in prison for a year.
The issue of self-incrimination was central to Butler's discussion
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with the District Court on December 10, 1992. We conclude that
Butler sufficiently raised the issue of his Fifth Amendment right
against self-incrimination, and, therefore, we review Butler's
claim on its merits.
Butler argues that our holding in State v. Imlay (1991), 249
Mont. 82, 813 P.2d 979, controls the instant case. In u, we
held that in sex offense cases, we should "protect the defendant's
constitutional right against self-incrimination, and . . prohibit
augmenting a defendant's sentence because he refuses to confess to
a crime or invokes his privilege against self-incrimination."
Imlav, 813 P.2d at 985. Following a jury trial, defendant Imlay
was convicted of sexual assault, a felony, and sentenced to five
years in the Montana State Prison. Defendant was placed on formal
probation for all but 35 days of the sentence on the condition that
he enroll in a sexual therapy program. When the defendant enrolled
in, and scheduled six consecutive appointments, but was unable to
complete the program because he would not admit guilt of the crime
he was convicted of, the district court revoked his suspended
sentence. Imlav, 813 P.2d at 980-82.
In contrast, Butler did not go to trial and assert his Fifth
Amendment right against self-incrimination but instead entered an
Alford plea and admitted guilt in order to obtain favorable
sentencing recommendations. A defendant waives certain
constitutional rights by pleading guilty, including the right to
trial and the right against compulsory self-incrimination. Boykin
v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23
L.Ed.2d 274, 279. "In light of the importance of the rights
waived, it is a well-settled legal principle that a guilty plea
must be a voluntary, knowing, and intelligent choice among the
alternative courses of action open to the defendant." State v.
Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206 (citing North
Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d
162). There was every indication that Butler voluntarily and
knowingly chose among his alternative courses of action. The
District Court and Butler's attorney discussed with Butler "that
the prosecutor [was not] willing . . . to do anything less than sex
offender treatment." The District Court further counseled Butler,
[elf course, you always have the Alford plea if you need
to do that; but on these sexually-related charges, you've
got sexual treatment -- that you never get out of sexual
offender treatment unless you admit to the allegations
ordinarily.
Sexual offender evaluation and treatment were conditions of the
suspended sentence that Butler knew the State would not forego.
The State argues that the plea bargain agreement between
Butler and the State was a contractual agreement. In State v.
Owens (1992), 254 Mont. 224, 836 P.2d 595, we held that "[pIlea
bargaining agreements are subject to contract law standards."
Owens, 836 P.2d at 598 (quoting State v. Dinndorf (1983), 202 Mont.
308, 311, 658 P.2d 372, 373). We have held that we will not lend
our assistance to a person accused of a crime in escaping the
obligations of a plea bargain agreement after accepting its
benefits. State v. Reynolds (1992), 253 Mont. 386, 392, 833 P.2d
153, 157.
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In the instant case, Butler chose to plead guilty instead of
going to trial and agreed to the conditions of his suspended
sentence in return for the State recommending his suspended
sentence. However, Butler failed to comply with the conditions and
therefore did not fulfill his end of the bargain. Importantly,
Butler not only failed to comply with the sexual offender
conditions of the suspended sentence but he also violated seven
other conditions.
Butler contends that the District Court revoked Butler's
suspended sentence primarily because of Butler's failure to undergo
sexual offender evaluation and treatment. In contrast, the State
contends that seven of the nine violations of Butler's suspended
sentence did not concern sexual offender treatment. We have held
that "no violation of a probation agreement is minor." State v.
Rogers (1989), 239 Mont. 327, 330, 779 P.2d 927, 929 (quoting
Collins v. State (Wyo. 1986), 712 P.2d 368, 371). In Roqers, the
sole issue on appeal was whether the district court abused its
discretion when it revoked Rogers' suspended sentence and imposed
a ten-year sentence of incarceration. Roaers, 779 P.2d at 928. We
noted that a "district court's decision to revoke a suspended
sentence cancels a prior act of grace and is within the court's
discretion." Roqers, 779 P.2d at 929. Rogers argued that he had
substantially complied with the terms and conditions of his
probation and that his violations were merely technical. Roqers,
779 P.2d at 928. In Roqers, we held that the record clearly
demonstrated, and that the defendant did not deny, that he violated
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the conditions of his suspended sentence. Roarers, 779 P.2d at 929.
Similarly, Butler admitted that he violated seven conditions
of his suspended sentence. Notwithstanding the sexual offender
treatment violations, there was a sufficient basis to support the
District Court's decision to revoke Butler's suspended sentence.
In light of the record, the District Court did not abuse its
discretion when it revoked Butler's suspended sentence.
Butler requested that we allow him to withdraw his Alford plea
and proceed to trial as a remedy for the violation of his Fifth
Amendment right against self-incrimination. The State argues that
Butler did not file a motion to withdraw his guilty plea in the
District Court and is therefore precluded from doing so before this
Court. Without reaching the issue of whether such a motion must be
"filed," i.e. in writing, we have, nevertheless, consistently held
that a request to withdraw a guilty plea must be first raised in
district court. See RadiI 818 P.2d at 1206 ("Initially, the grant
-
or denial of a motion to withdraw a guilty plea is within the sound
discretion of the trial court"); State v. Martz (1988), 233 Mont.
136, 760 P.Zd 65; Matter of Hardy (19801, 188 Mont. 506, 614 P.2d
528.
Moreover, subject to the exceptions of § 46-20-701(2), MCA,
this Court will not entertain issues not raised before the trial
court. State v. Redfern (1987), 228 Mont. 311, 313, 741 P.2d 1339,
1340. Thus, we need not discuss the merits of Butler's request to
withdraw his guilty plea because the issue was not first raised
before the District Court.
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In summary, we hold that the District Court did not abuse its
discretion in revoking Butler's suspended sentence.
AFFIRMED.
We concur:
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