State v. Lindeman

97-022

No. 97-022

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD DARRELL LINDEMAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John E. Smith, Missoula, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant
Attorney General, Helena, Montana; Bob Slomski, Sanders County Attorney,
Thompson Falls, Montana

Submitted on Briefs: June 5, 1997

Decided: November 4, 1997
Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (1 of 14)4/16/2007 4:13:22 PM
 97-022

__________________________________________
Clerk

Justice William E. Hunt delivered the Opinion of the Court.

This is an appeal from the Twentieth Judicial District Court, Sanders County.
On
September 25, 1996, the District Court entered judgment revoking Defendant Lindemanþs
suspended sentence and imposing the full sentence of four concurrent ten-year terms
in
the Montana State Prison. From this judgment Defendant Lindeman appeals. We affirm
in part, reverse in part, and remand.
We frame the issues raised on appeal as follows:
1. Was the District Courtþs order modifying Lindemanþs condition of probation
res judicata on its subsequent order revoking Lindemanþs suspended sentence?
2. Did the District Court abuse its discretion when it revoked Lindemanþs
suspended sentence?
3. Did the District Court err in reserving its determination of Lindemanþs
parole eligibility?
BACKGROUND
In September 1989, Richard Darrell Lindeman (Lindeman) was arrested and
charged with two counts of felony sexual assault and two counts of felony incest of
his
two minor stepdaughters. On October 10, 1989, Lindeman pleaded guilty, and on
December 19, 1989, the District Court sentenced him to four concurrent ten-year
sentences. All but 30 days were suspended, provided Lindeman abided by certain terms
and conditions of probation. Among those terms, Lindeman was prohibited from having
unsupervised contact with minors and was required to complete an approved sex
offender
treatment program.
Lindeman began treatment in an approved program known as SABER (Sexual
Abusive Behavior Evaluation and Recovery), which was run by Dr. Michael Scolatti in
Missoula, Montana. Lindeman attended the weekly therapy sessions for about one and
a half years.
In March 1991, Dr. Scolatti terminated Lindeman from the program, because
Lindeman, who was approximately 40, had become sexually involved with a woman who
was about 20 years his junior. The program had a rule that those undergoing
treatment
were not allowed to have a sexual relationship with anyone whose age differed by more
than 5 years. Even though the woman was of legal age, Dr. Scolatti considered a
sexual
relationship to perpetuate the cycle of abuse. Dr. Scolatti testified that Lindeman
had
originally assured him that the relationship was platonic, but when the woman became
pregnant, it was evident Lindeman had been lying. Dr. Scolatti refused to continue
working with him. He did, however, recommend another treatment program run by
Andy Hudak, called the Northwest Family Recovery Program.
Lindeman eventually married the young woman, and they had a daughter. Instead
of entering the treatment program recommended by Dr. Scolatti, he began counseling
sessions in April 1991 with Dr. Jack Oakwright in Sandpoint, Idaho. Lindemanþs
probation officer at that time was aware of those sessions.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (2 of 14)4/16/2007 4:13:22 PM
 97-022

Subsequently, Lindeman received a new probation officer, who also knew that
Lindeman was receiving treatment from Dr. Oakwright. At no time did that second
probation officer disapprove of the treatment. On January 6, 1992, Dr. Oakwright
wrote
the probation officer a letter stating that Lindeman had þgraduated,þ although
Lindemanþs
wife and he were continuing with additional counseling sessions. The probation
officer
does not recall ever telling Lindeman that he had successfully completed the
required sex
offender treatment program. It was his opinion that because Lindeman was still
receiving
some counseling, he was still in the treatment mode. Additionally, the probation
officer
testified that at some point he had expected to receive a copy of an official
graduation
letter from Dr. Oakwright confirming that Lindeman had indeed successfully completed
sex offender treatment. The written confirmation was never received.
In July 1992, Lindeman and his wife moved to Great Falls, Montana, and he again
received a new probation officer. This third probation officer insisted that
Lindeman
either move out of his home or make arrangements for his daughter to live elsewhere.
Lindemanþs wife was attending school, and the probation officer was concerned that
Lindeman would be spending significant time alone with his daughter, in violation of
the
condition of probation that he not have unsupervised contact with minors.
Additionally, this probation officer reviewed Lindemanþs file and saw no
evidence
that Lindeman had completed any sex offender treatment program. He noticed that
Lindeman had attended a few brief sessions with Dr. Oakwright, whom he contacted.
Dr. Oakwright informed him that Lindeman had not completed treatment and
recommended that Lindeman continue couples therapy with someone who was
knowledgeable of sex offender issues. In Dr. Oakwrightþs opinion, Lindeman had a
þsignificant sexual addiction which . . . survived throughout his treatment.þ
Accordingly, Lindeman was referred to Ron Silvers at the Montana Sex Offenders
Treatment Association. Silvers met with Lindeman in April 1993. After an
evaluation,
Silvers found he was not amenable to outpatient treatment. He testified that
Lindeman
had a poor attitude and refused to sign medical releases to enable him to obtain
records
from Dr. Scolatti. He also found Lindemanþs behavior to be alarming. Lindeman
denied
that he had a problem and did not want treatment. He sought an evaluation only
because
he wanted Silvers to certify that he posed no risk to his daughter or other minor
children.
Silvers refused to accept Lindeman into treatment.
Lindeman did not enter any treatment program and did not move out of his home
to protect his daughter. Instead, in May 1993, just ten months after moving to Great
Falls, he moved to Plains, Montana. His earlier second probation officer became his
probation officer once again.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (3 of 14)4/16/2007 4:13:22 PM
 97-022

On August 19, 1993, Lindeman requested the District Court to modify his rules
of probation to allow him unsupervised contact with minors. He represented to the
District Court that he had successfully completed the required sex offender treatment
program. Additionally, he had passed a polygraph examination with questions
formulated
to reveal any sex crimes committed since his conviction, any inappropriate contact
with
his daughter, or any thought processes common among offenders towards his infant
daughter. At this point, his current probation officer apparently believed that
Lindeman
had successfully completed a sex offender treatment program and concurred with
Lindemanþs request with one change. He requested that Lindeman be allowed
unsupervised contact only with his two-year old daughter rather than all minors. On
September 23, 1993, the District Court modified the condition to allow Lindeman
unsupervised contact with his daughter. It further ordered that Lindeman be
subjected
to routine polygraph examinations. In all other respects, the original terms of the
probation remained unchanged.
In August 1993, Lindeman moved again, this time to Kila, Montana. Once there,
two or three probation officers were assigned to his case for various time periods.
In
October, 1995, he received his latest probation officer, who reviewed his file. She
found
no evidence that Lindeman had completed the required sex offender treatment program.

That probation officer also discovered that although Dr. Oakwright had provided
Lindeman with some treatment, Dr. Oakwright was not certified to provide sex offender
counseling as required by the terms of the probation. He was not a member of the
National Association for Treatment of Sexual Abusers, the Montana Sex Offenders
Treatment Association, or any other equivalent state program. Indeed, Dr. Oakwright
admitted to the probation officer that he was not qualified to provide sex offender
treatment services.
Additionally, the counseling Dr. Oakwright provided did not meet the standards
of the state and national organizations. Lindeman had attended only ten one-hour
sessions, and those were frequently accompanied by his wife. Lindeman had attended
one or two additional treatment sessions. He attended no group therapy sessions.
The probation officer further discovered that Lindeman had not completed the
treatment that even Dr. Oakwright had suggested. With regard to the 1992 letter
stating
that Lindeman had þgraduated,þ Dr. Oakwright explained that Lindeman had only
completed an þeducational treatment programþ and nothing more. Lindeman had quit
counseling without giving Dr. Oakwright any notice. It remained Dr. Oakwrightþs
opinion that Lindeman required further counseling.
Thus, on January 3, 1996, the probation officer held an intervention hearing to
give Lindeman another chance to comply with the conditions of his probation. As a
result of that hearing Lindeman was ordered to enter and successfully complete an
approved sex offender treatment program. He was further ordered to contact an
approved
therapist by January 15, 1996. He once again was referred to Andy Hudak of the
Northwest Family Recovery Program.
Lindeman contacted Hudak by January 15, as required. Hudak sent him an
evaluation packet to complete and return. Hudak had agreed to allow Lindeman to pay

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (4 of 14)4/16/2007 4:13:22 PM
 97-022

a reduced fee of $150.00. Moreover, Hudak gave him several months, until April 1,
1996, to pay. In spite of this, Lindeman failed to complete and return the packet,
and
he failed to pay the fee. Hudak testified that if money was a problem, he would have
worked out a solution with Lindeman. However, Lindeman never communicated to him
that money was an issue, and Lindeman showed no motivation for treatment. By letter
dated May 13, 1996, Hudak notified his probation officer that Lindeman had failed to
follow through on the screening process for entering the treatment
program.

On May 23, 1996, the State filed a petition to revoke Lindemanþs suspended
sentence. On September 25, 1996, the District Court entered judgment finding that
Lindeman had violated the condition of his suspended sentence by failing to complete
sex
offender treatment with a certified specialist approved by the probation office. It
therefore revoked the suspended sentence and imposed the full four ten-year
concurrent
sentences at the Montana State Prison without eligibility for parole until he
successfully
completed the sex offender treatment program. On November 12, 1996, the District
Court denied Lindemanþs motion to reconsider. Lindeman now appeals.
ISSUE ONE
Was the District Courtþs order modifying Lindemanþs condition of probation res
judicata on its subsequent order revoking Lindemanþs suspended sentence?
On September 23, 1993, the District Court entered an order modifying the terms
of Lindemanþs probation to allow him unsupervised contact with his minor daughter.
In
so doing, it stated that Lindeman had completed a sex offender treatment program.
Specifically, the order provided:
The Court finding that the Defendant has successfully completed the
sex offender treatment program, and thereafter passed a polygraph
examination administered by Richard Stotts, and there being no objection
from the State of Montana;

IT IS HEREBY ORDERED that Defendantþs condition of probation
No. 3 contained in the Judgment of this Court, dated December 15, 1989,
is stricken; and substituted in its place is the following condition:

The Defendant may have unsupervised contact with his minor
child. The Defendant will be subject to polygraph
examination at the request of his probation officer. If the
polygraph examination results show any deception by
Defendant regarding inappropriate conduct with minors, the
Defendant shall not have any further unsupervised contact
with his minor child and shall be subject to a revocation
proceeding before this Court.

In all other respects, the Judgment of this Court, dated December 15,
1989 shall remain unchanged.
(Emphasis added.)
Lindeman argues that the foregoing constitutes a conclusive finding that he had
completed the required sex offender treatment program, and that the order actually

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (5 of 14)4/16/2007 4:13:22 PM
 97-022

removed that condition of probation. He contends that in the subsequent revocation
proceeding, the District Court was bound by this þfinding.þ According to his line
of
reasoning, the doctrine of res judicata prohibited the District Court from revoking
his
suspended sentence on the basis that he had failed to complete the treatment
program.
þ[R]es judicata is a final judgment which, when rendered on the merits, is an
absolute bar to a subsequent action between the same parties or those in privity with
them, upon the same claim or demand.þ Scott v. Scott (Mont. 1997), 939 P.2d 998,
1001, 54 St.Rep. 548, 550 (citing Fiscus v. Beartooth Electric Cooperative, Inc.
(1979),
180 Mont. 434, 436, 591 P.2d 196, 197). It prevents a party from re-litigating a
matter
that the party has already had the opportunity to litigate. Hollister v. Forsythe
(1996),
277 Mont. 23, 27, 918 P.2d 665, 667 (citing Loney v. Milodragovich, Dale & Dye, P.C.
(1995), 273 Mont. 506, 510, 905 P.2d 158, 161). A claim is res judicata when four
criteria are met: (1) the parties or their privies are the same; (2) the subject
matter of the
claim is the same; (3) the issues are the same and relate to the same subject
matter; and
(4) the capacities of the persons are the same in reference to the subject matter
and the
issues. Hollister, 918 P.2d at 667 (citing Loney, 905 P.2d at 161).
In this case, the issues in the two matters differed. The sole issue raised,
litigated,
and decided in the motion to modify the conditions of Lindemanþs suspended sentence
was whether his third condition of probation should be altered to allow him
unsupervised
contact with minors. Whether or not he had completed a sex offender treatment
program,
in compliance with the second condition, was not before the court. Lindeman did not
request the District Court to remove that condition, and the parties did not litigate
whether that condition had been satisfied. The District Court heard no testimony
regarding whether Lindeman ever completed treatment or whether Dr. Oakwright was a
certified sex offender treatment specialist.
The District Courtþs sole decision was to allow Lindeman unsupervised contact
with his minor daughter so long as he passed polygraph examinations on the issue of
his
sexual conduct towards minors. The court did not remove the condition that he
complete
treatment. Indeed, it specifically held in the last sentence of its order that all
other
conditions of probation remained unchanged.
Although the District Court mistakenly stated that Lindeman had completed
treatment, and Lindemanþs misrepresentations to the court in this regard must have
carried influence, such a þfindingþ was not necessary to the courtþs decision.
Rather, the
District Court had the authority to modify the condition to allow him unsupervised
contact
with his daughter þat any timeþ upon notice to the probation officer. Section 46-23-

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (6 of 14)4/16/2007 4:13:22 PM
 97-022

1011(4), MCA. In this case the District Court was apparently confident that a
polygraph
examination would adequately monitor Lindeman. In short, the District Courtþs
statement
that he had completed treatment does not constitute a conclusive, litigated
finding.
Lindeman cites State v. Black (1990), 245 Mont. 39, 798 P.2d 530 and State v.
Perry (1988), 232 Mont. 455, 758 P.2d 268 in support of his argument. Both are
distinguishable. In Black, this Court held that the issue of whether the defendant
had
been denied ineffective assistance of counsel was barred by the doctrines of res
judicata
and law of the case, because the District Court had already rendered a decision on
that
issue which we reviewed and affirmed. Black, 798 P.2d at 533. In Black, unlike this
case, an evidentiary hearing had been held before the District Court, and the issue
was
fully litigated. Black, 798 P.2d at 533.
In Perry, the defendant had argued that he was entitled to a new trial because
the
State had failed to provide him with exculpatory evidence. This Court held that
the issue
was res judicata because the defendant could have, but failed, to raise the issue on
his
initial appeal. Perry, 758 P.2d at 274. Unlike Perry, the issue as to whether or
not
Lindemanþs sentence should be revoked for failing to complete a treatment program
could
not have been decided by the District Court when ruling on the earlier motion.
Whether
or not to modify the conditions of Lindemanþs probation was before the District Court
solely by way of Lindemanþs motion, and the only issue Lindeman presented was whether
he should be allowed unsupervised contact with minors. The only method by which the
Sate could have challenged whether Lindeman had violated the condition of probation
and
request that his sentence be revoked was by filing a separate petition pursuant to
õ 46-
18-203, MCA. In such a case, the defendant is entitled to a hearing, with two
exceptions
not relevant here. Section 46-18-203(5), MCA. The State could not have tacked those
issues on to Lindemanþs earlier motion, which did not even require a full hearing
under
õ 46-23-1011(4), MCA.
The State did subsequently file such a petition to revoke and the matter went
to a
hearing. The issue as to whether Lindeman had completed the treatment program was
then litigated and decided for the first time. We hold that the prior order
modifying
Lindemanþs condition of probation was not res judicata on the District Courtþs
subsequent
order revoking his suspended sentence.
ISSUE TWO

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (7 of 14)4/16/2007 4:13:22 PM
 97-022

Did the District Court abuse its discretion when it revoked Lindemanþs suspended
sentence?
It is within the District Courtþs discretionary power to revoke a suspended
sentence
when a defendant has violated the terms and conditions of his suspended sentence.
Section 46-18-203(7), MCA, provides:
If the court finds that the defendant has violated the terms and conditions
of the suspended or deferred sentence, the court may:

. . . .

(c) revoke the suspension of sentence and require the defendant to serve
either the sentence imposed or any lesser sentence;

Section 46-23-1013(2), MCA, similarly provides :
If the violation [of a condition of probation] is established, the court may
continue to revoke the probation or suspension of sentence and may require
him to serve the sentence imposed or any lesser sentence and, if imposition
of sentence was suspended, may impose any sentence which might
originally have been imposed.

The standard for revoking a suspended sentence requires that the District Court
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. Butler (1995), 272 Mont. 286, 289, 900
P.2d
908, 910 (citing State v. Lundquist (1992), 251 Mont. 329, 331, 825 P.2d 204, 206.)
A violation of the terms and conditions of probation need only be proved by a
preponderance of the evidence. Section 46-18-203(6), MCA. We review the District
Courtþs decision to determine whether it abused its discretion. Butler, 900 P.2d at
910
(citing Lundquist, 825 P.2d at 206.)
The District Court revoked Lindemanþs suspended sentence because it found that
he failed to complete a sex offender treatment program with a certified specialist as
required by the second condition of his probation:
2) The Defendant shall continue to participate in sex offender treatment
approved by the Probation department, and that he continue in the same
treatment until he has been satisfactorily discharged by a certified treatment
specialist and approved by the Probation Department.
Lindeman argues that the District Court abused its discretion when it revoked
his
suspended sentence because it failed to consider several þunique factorsþ including
the
following: (1) he successfully completed a sex offender treatment program with the
approval of his probation officers; (2) he cannot afford to complete another sex
offender
treatment program; (3) he has a terminal, rare form of asthma; (4) he is a benefit
to the
community because he has devoted himself to a menþs church group; (5) the State made
no effort for over seven years after he left Dr. Scolattiþs program to have him
removed

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (8 of 14)4/16/2007 4:13:22 PM
 97-022

from the community; and (6) he has consistently followed all other rules of his
probation
and has committed no crime subsequent to his conviction. We examine each of these in
turn.
(1) Alleged Completion of Treatment Program
Although couched as merely the first þfactor,þ Lindeman is actually challenging
the District Courtþs finding that he failed to successfully complete the required sex
offender treatment program. But the evidence in support of the courtþs finding is
overwhelming and, for the most part, uncontroverted.
First, Lindeman does not dispute the fact that he failed to complete the SABER
program run by Dr. Scolatti. Dr. Scolatti terminated him when he violated the
programþs
rule regarding a sexual relationship with a younger person.
Second, although he received some treatment from Dr. Oakwright, Dr. Oakwright
was not a certified treatment specialist as required by the condition of probation.
He was
not a member of the National Association for Treatment of Sexual Abusers, the Montana
Sex Offenders Treatment Association, or any other equivalent state program. Indeed,
Dr.
Oakwright himself admitted to one of his probation officers that he was not
qualified to
treat sex offenders. Lindeman points to no evidence that Dr. Oakwright was a
certified
specialist or otherwise qualified to treat sex offenders.
Additionally, the treatment Dr. Oakwright actually provided was insufficient.
It
did not meet the standards of the state and national programs, and Dr. Oakwright had
described the treatment as only þeducationalþ in nature. Lindeman attended only ten
to
twelve couples counseling sessions with his wife, and he attended no group therapy
sessions. The experts, including Dr. Scolatti, Andy Hudak and Ron Silvers testified
that
the only type of sex offender treatment that meets Montana and national standards
involves group therapy with other sex offenders. Educational counseling in the
presence
of a wife does not qualify and is ineffective. Additionally, treatment can take
years. For
example, Silvers testified that his program lasts an average of three to five
years.
Lindeman points to no evidence that indicates that the treatment he received from Dr.
Oakwright was sufficient.
Finally, Dr. Oakwright himself stated that Lindeman had not successfully
completed even the treatment that he recommended. Although there was some confusion
over a letter he had written stating that Lindeman had þgraduated,þ Dr. Oakwright
explained to subsequent probation officers, that Lindeman had dropped out his program
without notice and that he had not completed treatment. He had only completed a so-
called educational treatment program and required more counseling. In his opinion,
Lindeman had a þsignificant sexual addiction which . . . survived throughout his
treatment.þ
Lindeman received no additional treatment from any other source. We hold that
the District Courtþs finding that Lindeman violated the condition of his probation is
supported by the preponderance of the evidence.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (9 of 14)4/16/2007 4:13:22 PM
 97-022

(2) Alleged Inability To Pay For Treatment
Lindemanþs protests that he cannot afford treatment are equally without merit.
At
no time was he denied treatment for monetary reasons. Although he still owed some
money to Dr. Scolatti when treatment was terminated, he was not terminated from the
program for that reason. Similarly, Silvers denied him entrance to his program not
for
monetary reasons, but because Lindeman was uncooperative and unwilling to undergo
treatment. Lindeman refused to even sign a medical release to enable Silvers to
obtain
records from Dr. Scolatti. Evidence in the record indicated that in the past Silver
accepted patients who could not pay. In this case, however, Lindeman never
approached
him or anyone regarding an alleged inability to pay.
Finally, in January 1996, Hudak had agreed to allow Lindeman to undergo an
evaluation for a reduced fee of $150.00. He also gave Lindeman three months to pay.
Lindeman never indicated that paying this amount was out of his financial reach. The
evidence suggests that Lindeman was simply unwilling to undergo treatment.
(3) Alleged Terminal Illness
Lindeman argues that the District Court failed to adequately consider the fact
that
he has a terminal form of asthma. Although there is some evidence that he has a
medical
condition which might shorten his life expectancy, there is no evidence in the
record that
the condition is terminal or that it prevented him from attending an approved sex
offender
therapy program.
(4) Alleged Membership In Prayer Group
Lindeman next contends that he belongs to a menþs prayer group and is therefore
a benefit to his community. This, however, is no substitute for the required
therapy. It
does not excuse the requirement that he successfully complete an approved sex
offender
treatment program. It does not justify his failure to take steps to enter Hudakþs
program
in 1996.
(5) Stateþs Delay In Filing Petition To Revoke Suspended Sentence
Lindeman complains that the State made no effort for over seven years after Dr.
Scolatti terminated him from the SABER program to have him removed from the
community. Dr. Scolatti terminated Lindeman from the program in March 1991, and it
was not until January 1996 that the State held an intervention hearing and ordered
Lindeman once again to seek treatment. In May 1996, the State filed the petition to
revoke. Although it was thus five years, and not seven years as asserted by
Lindeman,
Lindeman is nonetheless correct in noting that the State delayed for several years
before
taking action.
There is no doubt but that Lindeman fell through the cracks in the system at
nearly
every turn. The first occurred when Lindeman began treatment with Dr. Oakwright.
His

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (10 of 14)4/16/2007 4:13:22 PM
 97-022

probation officer at the time neither verified whether Dr. Oakwright was a certified
treatment specialist as required by the condition of probation, nor ensured that the
program was approved by the probation department. A second major mistake occurred
when a different probation officer concurred with Lindemanþs request to modify the
terms
of probation to allow him unsupervised contact with his then two-year old daughter.
The
probation officer apparently failed to determine whether in fact Lindeman had
actually
completed an approved sex offender treatment program by a certified specialist.
Although Lindeman went through a string of probation officers, only two picked up on
the fact that he had not completed treatment. In 1993, one probation officer sought
not
only to protect Lindemanþs daughter from unsupervised contact with Lindeman, but
attempted to get Lindeman back into treatment. But Lindeman once again slipped
through the cracks when he moved. Either this information was not communicated to
the
next probation officer or the next probation officer did not follow through on the
information. In either case, there again was a breakdown in the system. It was not
until
late 1995 that his latest probation officer again discovered Lindemanþs failure to
complete
treatment.
When the State finally discovered this fact, Lindemanþs suspended sentence was
not immediately revoked. Rather, Lindeman was given yet one more chance to enter an
approved treatment program. Despite this new opportunity, he failed to so much as
complete the entrance evaluation, once again demonstrating his hostility and
unwillingness
to undergo treatment. This time, however, the State did not delay. It took
immediate
steps to have him removed from the community.
Regardless of the Stateþs original lengthy delay, the fact remains that Lindeman
was an untreated sex offender who posed a danger to the community and in particular
to
his young daughter. He refused to get treatment in violation of the condition of his
probation, in spite of being given a third chance in 1996. The District Court did
not
abuse its discretion by revoking his suspended sentence notwithstanding the Stateþs
original delay.
(6) Allegedly Following All Other Conditions of Probation
Sixth, Lindeman argues that he has consistently followed all other rules of his
probation and has committed no crime subsequent to his conviction. At the revocation
hearing, the State presented evidence that Lindeman had violated other conditions of
probation by possessing firearms in his basement and by allowing a teenage boy to
live
in his home. The District Court made no findings of fact regarding those two alleged
violations. We need not address whether or not Lindeman in fact followed all other
rules
of his probation. The fact remains that he already violated one condition of
probation
when he refused to enter and complete a treatment program. We have held in the past
that þno violation of a probation agreement is minor.þ Butler, 900 P.2d at 911

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (11 of 14)4/16/2007 4:13:22 PM
 97-022

(citing
State v. Rogers (1989), 239 Mont. 327, 330, 779 P.2d 927, 929). We hold that even
without other violations, the District Court did not abuse its discretion in
revoking his
suspended sentence based upon the one violation.
Lindeman nonetheless insists that the facts in his case are analogous to
those
in State v. Lundquist (1992), 251 Mont. 329, 825 P.2d 204, and that based upon that
case this Court should reverse the District Court. In Lundquist, the defendant had
been
terminated from his sex offender treatment program because he had not paid the
outstanding balance of $1,260.00 owed his therapist. Lundquist, 825 P.2d at 205.
Six
months after his termination from the program, the therapist provided a second reason
for his termination and stated that the defendant had not participated in the
written
portion of the program. Lundquist, 825 P.2d at 206. At the revocation hearing, the
therapist also testified that he originally wondered whether Lundquist was psychotic,
because the defendant claimed to have undergone a religious metamorphosis and spoke
to angels who guided him. Eventually the therapist concluded that Lundquist was not
psychotic, but was simply following his system of religious beliefs. Lundquist, 825
P.2d
at 206.
Other evidence, indicated that the defendant in Lundquist had attempted to
comply
with the condition of his suspended sentence. Prior to his termination from the
program,
the defendant had faithfully attended seventy-six group therapy sessions and thirteen
individual sessions--each of which required a 150-mile round trip from Lundquistþs
residence in Philipsburg, Montana, to the therapist in Missoula, Montana. Lundquist,
825 P.2d at 205. Although he had an outstanding balance for the counseling
sessions,
he had already paid the therapist a total of $2,450 in counseling fees. Lundquist,
825
P.2d at 205. Finally, the therapist testified that the defendant realized that child
molestation is bad and that the defendant posed only a low to moderate probability of
reoffending. Lundquist, 825 P.2d at 206.
Based upon the facts in that case, we held that the District Court abused its
discretion in revoking the suspended sentence. To the extent the District Court
based its
decision on the defendantþs failure to pay fees, we held that it was unreasonable in
light
of his low income and the fees already paid. Lundquist, 825 P.2d at 206. We noted
that
the District Court could simply have required the defendant to offer a payment plan
or
to find another outpatient sex offender treatment program. Lundquist, 825 P.2d at
207.
To the extent revocation was based upon the defendantþs religious beliefs, we held
that
the decision contravened his right to free exercise of religion. Lundquist, 825
P.2d at

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (12 of 14)4/16/2007 4:13:22 PM
 97-022

206. We further noted that the defendant had complied fully with the terms of his
probation and that the State waited six months before taking steps to remove him from
the community. Lundquist, 825 P.2d at 206-07.
The facts in Lundquist differ significantly from those in this case. Unlike the
defendant in Lundquist, Lindeman was not terminated from the SABER program for
either financial or religious reasons. He was terminated because he failed to abide
by the
programþs rules. Moreover, the defendant in Lundquist posed a low to moderate risk
in
the community, whereas Dr. Scolatti characterized Lindeman as þone of the most
dangerous menþ with whom he had ever worked. Finally, in Lundquist, the defendant
offered to make a payment plan for readmission to the program or to seek another
treatment plan. In this case, Lindeman was unwilling and uncooperative. He
insisted to
Silvers in 1993 that he did not need treatment and refused to sign a medical
release. In
1996 when he was given one last chance to seek treatment from Hudak, he refused.
This
is not a situation as in Lundquist where the defendant did everything he could to
abide
by the terms of probation but simply had difficulty paying.
The one fact in this case that is similar to the Lundquist case is the fact
that the
State waited a significant period of time after he was terminated from the SABER
program before taking steps to remove him from the community. However, the State
took immediate action in 1996 after Lindeman failed to enter treatment as ordered at
his
intervention hearing. As we elaborated earlier, the Stateþs original delay does
not
justify liberating an untreated sex offender, particularly when the State gave
Lindeman
yet another opportunity in 1996 to comply.
As we have stated in the past:
The inquiry at any probation revocation hearing is whether the purposes of
rehabilitation are being achieved, and whether, by virtue of subsequent
criminal conduct or evidence that the defendantþs behavior was not in
compliance with the rules and objectives of his probation, the purposes of
probation are best served by continued liberty or by incarceration.

State v. Robinson (1980), 190 Mont. 145, 148, 619 P.2d 813, 815 (citation omitted).
In this case, the purposes of rehabilitation were not being achieved, and Lindeman
had
not complied with the rules of his probation. We hold that the District Court did
not
abuse its discretion when it revoked Lindemanþs suspended sentence.
ISSUE THREE
Did the District Court err in reserving its determination of Lindemanþs parole
eligibility?
In its 1989 judgment, the District Court specifically reserved the right under
õ 46-
18-202, MCA, to impose the restriction that Lindeman be ineligible for parole while
serving his term, in the event that Lindeman ever violated a condition of probation

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (13 of 14)4/16/2007 4:13:22 PM
 97-022

that
resulted in revocation of his suspended sentence. Subsequently, upon revoking
Lindemanþs suspended sentence in 1996, the District Court ordered that Lindeman be
ineligible for parole until he successfully completed the sex offender treatment
program
at the Montana State Prison.Lindeman cites State v. Finley (1996), 276 Mont. 126,
915 P.2d 208, and contends that the District Court lacked statutory authority to
reserve
the right to restrict his eligibility for parole and later impose the restriction
upon revoking
the suspended sentence. The State concedes that Finley controls and that the
District
Court had no such authority. We agree.
When a court revokes the suspended sentence, it has the authority to require the
defendant to serve either the sentence imposed or a lesser sentence. It has no
authority
to impose additional restrictions. Section 46-18-203(7)(c), MCA. The restrictions
of
Lindemanþs parole eligibility exceed the authority of õ 46-18-203(7), MCA.
Furthermore, õ 46-18-202, MCA, the statutory provision relied upon by the
District Court when reserving the right to impose the restriction, applies only to
the
original sentence under õ 46-18-201, MCA. The District Court has no authority to
reserve the right to impose such a restriction upon subsequently revoking the
suspended
sentence. For that very reason in Finley, we reversed the portion of the courtþs
judgment
that reserved the right to restrict the defendantþs parole eligibility. Finley, 915
P.2d at
222. In this case too, we hold that the District Court erred in reserving its
determination of Lindemanþs parole eligibility.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent
with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-022%20Opinion.htm (14 of 14)4/16/2007 4:13:22 PM