No. 96-050
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
STEVE HARDY,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted Mimer, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Rem, Attorney at Law, Rachel A. Clark,
Intern, Montana Defender Project, School of
Law, University of Missoula, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana
Edward G. Beaudette, Anaconda-Deer Lodge
County Attorney, Anaconda, Montana
Submitted on Briefs: July 18, 1996
Decided: October 22, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The petitioner, Steven D. Hardy, filed a petition for
post-conviction relief in the District Court of the Third Judicial
District in Deer Lodge County. The District Court denied the
petition. Hardy appeals from that decision. We affirm the
judgment of the District Court.
The issue on appeal is whether the District Court erred when
it denied Hardy's petition for post-conviction relief.
FACTUAL BACKGROUND
In 1989, Steven D. Hardy was charged by information with seven
counts of burglary. Pursuant to a plea agreement, he pled guilty
to four of those counts. The District Court sentenced him to four
concurrent terms of ten years in prison, with nine years suspended.
In 1990, he was released on probation to serve the suspended
portion of his sentence; and pursuant to §§ 46-23-1101 to -1106,
MCA, the "Interstate Compact, 'I Montana authorities transferred the
supervision of his probation to the State of Utah.
In 1991, Hardy was arrested in Utah, and charged with two
counts of felony assault. At that time, he contacted David
Robbins, his Montana probation officer. In an affidavit submitted
in this proceeding, Robbins stated that he advised Hardy that the
State of Montana's general policy is that probation revocation
proceedings are not initiated if the crimes are misdemeanors and
the supervising state agrees to continue supervision. Hardy
ultimately pled no contest to two reduced charges of misdemeanor
2
assault on a police officer. Prior to his sentencing hearing,
however, he was again arrested and charged with aggravated assault.
Utah probation officials subsequently informed the State of Montana
that they were no longer willing to supervise Hardy's probation.
Based on the assault convictions and the State of Utah's
refusal to continue the supervision of Hardy's probation, the
Deputy County Attorney for Deer Lodge County, Montana, filed an
application for a bench warrant and a petition to revoke Hardy's
suspended sentence. Attached to the petition were documents
regarding the Utah criminal proceedings, and an interstate case
report in which the Utah Department of Corrections requested that
Montana extradite Hardy after adjudication of the Utah charges.
Hardy was sentenced in Utah, and subsequently returned to Montana
for his probation revocation hearing.
Prior to the probation revocation hearing, the District Court
received and filed letters from Hardy in which he set forth facts
which corroborated his guilty pleas to the Utah charges. Then, at
the April 1992 probation revocation hearing, Hardy appeared, with
counsel, and admitted the allegations in the State's petition.
The District Court: (1) revoked the suspended portion of
Hardy's sentence; (2) sentenced him to four concurrent terms of
nine years; and (3) ordered that he shall not receive credit for
his "street time" (the two years he spent on probation in Utah).
In November 1994, Hardy filed a petition for post-conviction
relief. On December 14, 1995, the District Court denied the
3
petition, and entered its findings of fact, conclusions of law, and
order.
DISCUSSION
Did the District Court err when it denied Hardy's petition for
post-conviction relief?
The standard of review of a district court's findings of fact
is whether they are clearly erroneous. Dairies v. Knight (1995) , 269
Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a
district court 's conclusions of law is whether the court's
interpretation of the law is correct. Carbon Cotrnly v. Union Reserve Coal Co.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
On appeal, Hardy contends that the District Court erred when
it denied his petition for post-conviction relief. He claims that
the revocation of his probation was invalid, and that, therefore,
his probation should now be reinstated. Specifically, he asserts
that the revocation of his probation was invalid for the following
three reasons: (1) he was denied a preliminary on-site hearing;
(2) Dave Robbins, his Montana probation officer, assured him that
his probation would not be revoked for misdemeanor convictions; and
(3) the District Court arbitrarily denied him credit for his
"street time" when it failed to sufficiently set forth, in the
record, its reasons for the denial.
1. THE DENIAL OF A PRELIMINARY ON-SITE HEARING
After Utah officials refused to continue the supervision of
Hardy's probation, he was extradited and returned to Montana for
4
his probation revocation hearing. Prior to his return, however, he
was denied a preliminary on-site hearing. He asserts that this
denial violated his rights pursuant to (1) the Due Process Clause
of the Fourteenth Amendment of the United States Constitution, and
(2) § 46-23-1103, MCA. We will address both of these alleged
violations separately.
A. DUE PROCESS
In Morrisseyv. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33
L. Ed. 2d 484, the U.S. Supreme Court held that a parolee's liberty
involves significant values entitled to the protection of the due
process clause of the Fourteenth Amendment; and that termination of
that liberty requires an informal hearing to insure that the
finding of a parole violation is based on sufficient facts to
support the revocation. In Gagnonv. Scarpelli (1973), 411 U.S. 778, 93
S. Ct. 1756, 36 L. Ed. 2d 656, the U.S. Supreme Court extended and
applied the principles announced in Morrissey to probation revocation
proceedings.
In State v. Howell (1986), 222 Mont. 136, 720 P.2d 1174, we
analyzed the due process requirements established by Morrissey and
Gagnon in the context of a Montana probation revocation proceeding.
Howell was a Montana probationer under supervision in Idaho when he
was arrested and jailed for assault. A petition to revoke
probation was filed, and he was returned to Montana. He later
claimed that the failure to conduct a preliminary on-site hearing
5
in Idaho denied him due process as required by Morrissey and Gagnon.
We rejected his claim, and held that he "was not deprived of a
liberty interest by the failure of the authorities to provide for
him a preliminary or on-site hearing." Howell 222 Mont. at 140, 720
P.2d at 1177. We based our holding on our determination that:
[Tlhe purpose of the on-site preliminary hearing and the
eventual full-blown hearing on revocation is to provide
due process to the parolee, rind to protect his liberty interest at the
time. In this case, Howell did not have a liberty
interest at the time of the proceedings against him for
the revocation of his parole. He was at the time under
arrest in Idaho by reason of a charge against him for
assault. His transfer by the Idaho authorities to the
Montana authorities while he was still under arrest did
not deprive him of any liberty interest since his
detention by the Idaho authorities was at all times
lawful.
Howell, 222 Mont. at 139-40, 720 P.2d at 1176.
Hardy was charged with three offenses in Utah. He entered
pleas of no contest, was convicted of each charge, and was
sentenced accordingly. He was serving that sentence at the time
the Montana revocation proceedings were initiated. At the time he
was extradited to Montana, he was detained in the Salt Lake County
Jail, pursuant to his one-year sentence for the Utah convictions.
Nothing in the record suggests that he was or would have been
released from jail in Utah had it not been for his extradition and
transfer to Montana authorities. Based on our prior holding in
Howell, therefore, Hardy's right to due process was not infringed
upon by his extradition to Montana and the commencement of the
6
revocation proceedings in Montana. Accordingly, a preliminary
hearing was not required.
We hold that the District Court was correct when it concluded
that the failure to conduct a preliminary on-site hearing did not
violate Hardy's due process rights pursuant to the Fourteenth
Amendment.
B. RIGHTS PURSUANT TO 5 46-23-1103, MCA
Section 46-23-1103, MCA, provides as follows:
(1) Where supervision of a . probationer is being
administered pursuant to the interstate compact for the
supervision of . . . probationers, the appropriate
judicial or administrative authorities in this state
shall notify the compact administrator of the sending
state whenever in their view consideration should be
given to retaking or reincarceration for a .
probation violation.
(2) Prior to the giving of any such notification,
a hearing shall be held in accordance with this part
within a reasonable time unless such hearing is waived by
the . probationer. Following termination of any such
hearing, the appropriate officer or officers of this
state shall, as soon as practicable, report to the
sending state, furnish a copy of the hearing record, and
make recommendations regarding the disposition to be made
of the . probationer by the sending state . .
When the language of a statute is plain and unambiguous, the
statute speaks for itself and no further interpretation is
required. InreEsiareofLangendo~f (1993), 262 Mont. 123, 125, 863 P.2d
434, 436. The language of § 46-23-1103(2), MCA, plainly and
unambiguously requires a preliminary on-site hearing. Despite the
statute's clear mandate, Hardy was denied a hearing, and his rights
pursuant to the statute were, in fact, violated. The District
court, therefore, erred in 1992 when it did not require an on-site
hearing prior to Hardy's return to Montana. However, for reasons
that follow, the District Court's failure to require a preliminary
on-site hearing was not prejudicial to Hardy's rights, and
therefore, did not constitute reversible error. See § 46-20-701(l),
MCA. For that reason, the District Court's refusal to grant
post-conviction relief on the ground that Hardy was denied a
preliminary on-site hearing in contravention of § 46-23-1103(2),
MCA, must be affirmed. See Rule 61, M.R.Civ.P.
Our holding today should not be interpreted as diminishing the
importance of § 46-23-1103(2), MCA. In fact, most probation
revocation proceedings initiated pursuant to 55 46-23-1101 to
-1106, MCA, the "Interstate Compact," will require a preliminary
on-site hearing. Preliminary on-site hearings are necessary to
allow a probationer to contest the reasons for the revocation of
his or her probation, and to develop a record when the evidence is
fresh and when it is readily available.
For example, in Fisherv. Gist (1979), 182 Mont. 124, 594 P.2d
1140, we held that the failure to provide Fisher with a preliminary
on-site hearing violated his rights pursuant to 5 46-23-1103, MCA.
Fisher was a Montana probationer under the supervision of the State
of Washington. Montana authorities sought to revoke his probation
based on: (1) his failure to report to his Washington probation
officer; and (2) his failure to cooperate with the Seattle Indian
Alcohol Program. We determined that Fisher should have received a
preliminary on-site hearing because,
8
[hle was told that he was charged with two violations,
both of which he contested and should have been the
subject of a probable cause hearing in Seattle where he
could have had the opportunity to present witnesses and,
perhaps, refute the allegations.
Fisher, 182 Mont. at 128, 594 P.2d at 1142.
In this case, however, a preliminary on-site hearing would
have contributed nothing to a determination of whether Hardy had
violated the terms of his probation. Unlike Fisher, Hardy's
probation violations (which were the basis for revocation) were not
disputed, and probable cause for the initiation of revocation
proceedings clearly existed. Essential to our holding is the fact
that Hardy plednocontest to three offenses in Utah. Additionally, he
wrote letters to the District Court which corroborated his guilt;
and, during his probation revocation hearing, he admitted the
allegations in the State's petition. He had, as evidenced by his
i-l0 contest pleas and admissions, indisputably violated the
conditions of his probation, and a preliminary on-site hearing
could not have led to any other finding.
Based on the facts of this case, the failure to provide Hardy
with a preliminary on-site hearing did not prejudice his
substantial rights. Accordingly, we hold that the District Court
was correct when it concluded that Hardy is not entitled to
post-conviction relief.
2. ASSURANCES FROM HIS PROBATION OFFICER
After his arrests in Utah, Hardy faced three felony charges.
Ultimately, however, he pled- no contest to three misdemeanor
9
charges and avoided felony convictions. Hardy asserts that Dave
Robbins, his Montana probation officer, assured him that his
probation would not be revoked for misdemeanor convictions. He
contends that, based on those assurances, his probation should not
have been revoked.
Dave Robbins, however, contended that he did not make any
unconditional assurances or guarantees; rather, he spoke generally
about the State of Montana's procedures. In his affidavit, Robbins
stated:
I informed . Hardy that our general policy was that
if a misdemeanor crime was committed and the supervising
state agreed to continue supervision that no revocation
proceeding is initiated . . [tlhat decisions regarding
the filing of a Petition for Revocation are within the
exclusive discretion of the county attorney and my
responsibility is only to report infractions and make
recommendations.
The District Court's findings and conclusions are based on an
acceptance of Robbins' version of his conversations with Hardy and
his Utah attorney.
Furthermore, Montana officials did not participate in the plea
negotiations between Hardy and the State of Utah. Finally, Hardy
knowingly, voluntarily, and with the assistance of counsel entered
into a no contest plea agreement which included the following
language:
I know and understand the nature and the elements of the
charges pending against me . . . no one has made any
promises or threats to induce me to plead guilty or no
contest. My plea of guilty or no contest today is my own
voluntary decision.
10
We conclude that the District Court's findings regarding
Robbins' representations to Hardy were not clearly erroneous, and
that the District Court's conclusion that the State was not
estopped from proceeding with revocation proceedings based on those
representations, was correct.
3. TKE DENIAL OF CREDIT FOR "STREET TIME"
When the District Court sentenced Hardy, it denied him credit
for his "street time" (the two years he spent in Utah on
probation). Hardy asserts that the District Court arbitrarily
denied him credit for his "street time" when it failed to
sufficiently set forth its reasons for the denial in the record.
Specifically, he alleges that the District Court did not comply
with 5 46-18-201, MCA, which states in relevant part:
14) If any restrictions or conditions imposed under
subsection (1) (a) or (1) (b) are violated, the court shall
consider any elapsed time and either expressly allow part
or all of it as a credit against the sentence or reject
all or part as a credit. The court shall state its
reasons in the order . . .
The record, however, does not support Hardy's contention. In
its amended judgment, the District Court stated:
7) That the reasons for this sentence are the
Defendant's age, past record of numerous convictions, the
Defendant's inability to stay out of trouble when not
incarcerated, and the serious nature of the crimes
committed in Utah and the four (4) underlying Burglary
charges on which the defendant was convicted in this
Court.
The denial of credit for "street time" is an express provision of
Hardy's sentence. The reasons for the sentence, therefore, include
the reasons for the denial of credit for "street time."
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The District Court adequately considered § 46-18-201, MCA, and
sufficiently stated its reasons when it denied Hardy credit for his
"street time." Accordingly, we hold that the District Court was
correct when it concluded that Hardy was not arbitrarily denied
credit for his "street time."
We hold that the District Court's findings of fact were not
clearly erroneous, and that its conclusions of law were correct.
Accordingly, the judgment of the District Court is affirmed.
7 J stiq'e
We concur:
Justices
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October22, 1996
CERTIFICATEOF SERVICE
I herebycertify that the following certified order was sentby United Statesmail, prepaid, to the
following named:
Jeffrey T. Retu
RachelClark, Intern
MontanaDefenderProject
Schoolof Law
University of Montana
Missoula,MT 59812
Ed Beaudette
Anaconda-DeerLodge CountyAttorney
800SouthMain
Anaconda, 59711-2999
MT
Hon. Joseph Mazurek, A. G.
P.
JohnPaulson,Assistant
215 N. Sanders
Helena,MT 59620
ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA
BY: &-
Deputy