No
No. 97-306
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 227
STATE OF MONTANA,
Plaintiff/Respondent,
v.
GLENN NELSON,
Defendant/Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carrie L. Garber, Deputy Public Defender, Billings, Montana
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For Respondent:
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana; Joseph P. Mazurek, Attorney
General, Jennifer Anders, Assistant Attorney General, Helena, Montana
Submitted on Briefs: August 13, 1998
Decided: September 10, 1998
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Glenn Nelson (Nelson) appeals from the April 23, 1997 order of the Thirteenth
Judicial District Court, Yellowstone County, revoking his suspended sentence. We
reverse and remand for further proceedings and for entry of an order consistent with
this opinion.
Background
¶2 On September 18, 1990, Nelson pleaded guilty to the offenses of sexual intercourse
without consent, a felony (Count I), sexual assault, a felony (Count II), and unlawful
transactions with children, a misdemeanor (Count III), in cause number DC 90-261.
He also pleaded guilty to domestic abuse, a felony, in cause number DC 90-101. On
December 7, 1990, as to DC 90-261, the District Court sentenced Nelson to thirty
years at the Montana State Prison (MSP) with twenty years suspended on Count I;
ten years at MSP on Count II; and six months in the county jail on Count III. As to
DC 90-101, the court sentenced Nelson to five years at MSP. All sentences in both
causes were ordered to run concurrently.
¶3 As part of the sentencing order the court required, among other things, that
Nelson not be considered for parole until he had successfully completed the sexual
offender program at MSP. However, Nelson was never paroled from MSP. Rather,
on April 15, 1996, he was discharged from MSP and began the suspended portion of
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his sentence in Hardin, Big Horn County, Montana.
¶4 On July 1, 1996, the Big Horn County Attorney filed a petition for revocation of
Nelson’s suspended sentence alleging that Nelson had violated and disregarded the
rules and regulations of his probation. In support of his petition, the County
Attorney attached and incorporated by reference a "report of violation" from
Nelson’s probation officer. In relevant part, this report stated:
SPECIAL COURT CONDITION #6:
The Defendant shall not be considered for parole until he has successfully
completed the sexual offender program at the Montana State Prison.
SPECIAL CONDITION #7:
The Defendant shall, as a condition [sic] from the Montana State Prison enroll
and maintain an aftercare program. He shall also continue out-patient
treatment for his illness for as long as his mental health professionals or other
professionals feel that it is necessary.
On 6-4-96, the Defendant met with Mike Sullivan of South Central Treatment
Associates in an effort to enroll in sex offender treatment program. Mr.
Sullivan entered into a contract which was signed by the Defendant outlining
the conditions set forth for his treatment obligations (see attached).
One of the conditions specified by Mr. Sullivan is that the Defendant be
placed on intensive supervision in the Billings area.
On 6-12-96, the Defendant’s file was screened by the Intensive Supervision
program’s screening committee and was denied (see attached).
ADJUSTMENT TO SUPERVISION:
The Defendant failed to enter into and complete A Sex Offender program, due
to his supervision denial by the Intensive Supervision program in Billings, Mt.
According to the referenced attachment to the probation officer’s report, Nelson was
denied admission to the Intensive Supervision Program (ISP) because his residence was
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not approved by the ISP screening process.
¶5 On July 22, 1996, the Yellowstone County Attorney filed an amended petition for
revocation, along with an amended affidavit in support of the petition, alleging that:
Since on or before the 4th day of June, 1996, the defendant has failed to enroll
in an aftercare program, failed to participate in outpatient treatment and failed
to participate in sex offender treatment program.
¶6 On August 2, 1996, Nelson appeared with court-appointed counsel from the
Yellowstone County Public Defenders’ Office. Nelson admitted that the facts alleged
in the petition for revocation were true but asserted that these facts did not constitute
grounds for a revocation of his suspended sentence. The State requested an
evidentiary hearing and counsel discussed the necessity for submitting briefs in
support of their respective positions in advance of the hearing. Accordingly, on
August 6, 1996, the trial court ordered the parties to submit legal memoranda
supporting their respective positions concerning whether the facts admitted to by
Nelson constituted grounds for revocation of his suspended sentence. Briefs were
submitted, and on October 4, 1996, the District Court entered an order denying the
State’s petition for revocation.
¶7 In pertinent part, the court’s order provides as follows:
IT IS HEREBY ORDERED that the Petition for Revocation of the Order
Suspending Sentence dated the 7th day of December, 1990, be denied upon
the following additional conditions:
1. The defendant shall participate in, successfully complete and abide by the
rules of the Intensive Supervision Program (I.S.P.), follow the contract
provisions of all three phases, including independent living situation.
Defendant understands that any violation of the program rules and contract
can result in revocation of the suspended sentence and the defendant will face
the original sentence in prison.
2. The defendant shall have no alone-contact with minor children unless a
responsible adult is present, one fully aware of defendant’s offending pattern.
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IT IS FURTHER ORDERED that the said GLENN NELSON be, and he is
hereby notified that it is his duty to register as a Sex Offender as required by
§46-18-254 and § 46-23-501 through 46-23-508, Montana Codes Annotated.
In all other respects, the previous Orders, conditions and reasons of this Court
stated on the 7th day of December 1990, shall remain unchanged and are
reimposed and shall continue as if set forth herein, all under the authority of
this Court and defendant’s Supervision Officer.
¶8 At some point following the State’s filing of its petition for revocation, but prior to
the court’s October 4, 1996 order denying the petition, Nelson began residing at the
Rescue Mission, a homeless shelter in Billings. Since this residence was apparently
acceptable to the program's screeners, Nelson was placed in ISP.
¶9 He was not yet out of the woods, however. On October 11, 1996, the Yellowstone
County Attorney’s Office filed another petition for revocation of Nelson’s suspended
sentence based on an allegation that
on or about the 3rd day of October, 1996, the defendant while residing at the
Mission kissed a minor girl; therefore has been terminated from the New Life
Program and sex offender treatment with South Central Treatment Associates.
This petition, likewise, incorporated the probation officer’s report of violation.
¶10 A hearing on the County Attorney’s petition was held on April 14, 1997, and on
April 23, 1997, the court entered its order revoking Nelson’s suspended sentence. The
court found that Nelson had violated the terms and conditions of his suspended
sentence by violating the court's October 4, 1996 order, condition number 2, that "[t]
he defendant . . . have no alone-contact with minor children unless a responsible
adult is present, one fully aware of defendant’s offending pattern," and State’s
special condition number 2, that Nelson "participate in sexual offender counseling on
a regular basis as determined by [the] Intensive Supervision Officer [and] . . . have
no contact with minor children." As a result of these findings the court committed
Nelson to MSP for the balance of the time previously suspended. This appeal
followed.
Issues
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¶11 Nelson presents three issues for our review:
¶12 1. Whether the District Court erred when, having denied the State’s petition to
revoke Nelson’s suspended sentence, it added new conditions to the original
suspended sentence.
¶13 2. Whether the Department of Corrections can unilaterally and without leave of
court require sex-offender treatment as a new condition of the suspended portion of
a probationer’s sentence.
¶14 3. Whether a licensed therapist who provides therapy to a probationer can
require that probationer be imprisoned or otherwise restrained of liberty during the
course of therapy.
¶15 Because our decision as to Issue 1 is dispositive, we decline to address Issues 2
and 3.
Standard of Review
¶16 Typically, we review a district court’s decision to revoke a suspended sentence to
determine whether the court abused its discretion and whether the court's decision
was supported by a preponderance of the evidence in favor of the state. See, e.g.,
State v. Lindeman (1997), 285 Mont. 292, 302, 948 P.2d 221, 228 (citations omitted).
Where, however, the issue is whether the court followed the statutory requirements
applicable to the revocation proceedings, the question is one of law over which our
review is plenary. We decide the case at bar under this latter standard.
Discussion
¶17 Whether the District Court erred when, having denied the State’s petition to
revoke Nelson’s suspended sentence, it added new conditions to the original
suspended sentence.
¶18 Nelson argues that, having denied the State's July 1, 1996 (amended July 22,
1996) petition to revoke his suspended sentence, the District Court imposed the new
probation conditions set forth in its October 4, 1996 order in violation of § 46-18-203,
MCA (1995). The State responds that the court substantially complied with this
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statute when it imposed the added conditions of probation and that these conditions
properly served as the basis for the revocation of Nelson's suspended sentence. We
disagree with the State and agree with Nelson.
¶19 Section 46-18-203, MCA (1995), sets out the statutory law governing the
revocation of a suspended or deferred sentence. In relevant part, this statute
provides:
(7) If the court finds that the defendant has violated the terms and conditions
of the suspended . . . sentence, the court may
(b) continue the suspended sentence with modified or additional terms and
conditions. [Emphasis added.]
¶20 In the construction of a statute, we are simply to ascertain and declare what is in
terms or in substance contained therein, neither inserting what has been omitted nor
omitting what has been inserted. Section 1-2-101, MCA. Applying this oft-cited black
letter law to the statute at issue here, it is clear that the plain language of § 46-18-203
(7)(b), MCA (1995), requires that the trial court find the defendant violated the
terms and conditions of the suspended sentence as a predicate to exercising its
authority to continue the suspended sentence with modified or additional terms and
conditions.
¶21 In the case sub judice it is undisputed that the District Court's October 4, 1996
order contains no express finding that Nelson violated the terms and conditions of his
suspended sentence. Nevertheless, the State argues that such a finding was implicit in
the court's order. We cannot agree.
¶22 In the first revocation proceedings, Nelson contested the State's argument that
his admitted failure to enroll in and complete the sex-offender treatment program
while on probation constituted a violation of the terms of his suspended sentence. In
this regard, the record supports Nelson's position. Although Nelson attempted to
enroll in the sex-offender treatment program, the therapist refused to admit him
unless he was a participant in ISP. However, ISP would not accept Nelson because it
determined that his place of residence was unacceptable. Under these circumstances,
it is more likely that the court agreed with Nelson --i.e., that his technical failure to
enroll in sex-offender treatment did not constitute an actual violation of the terms
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and conditions of his suspended sentence because his inability to enroll in the sex-
offender treatment program was not for any lack of a good faith attempt to do so on
his part. Rather, impediments imposed by the therapist and the State prevented his
enrollment. Once the State found him a new place to live, he was accepted into ISP
and thereafter into the sex-offender treatment program.
¶23 If the court had concluded that Nelson had, in actuality, violated his suspended
sentence, then the court would have granted the State's petition. In point of fact, the
court denied the State's petition. On this record, we are unwilling to make the leap of
logic necessary to conclude, as does the State, that in denying its petition to revoke,
the court was also finding that Nelson was in violation of the terms and conditions of
his suspended sentence. If we are to surmise anything from this, it is that the court
found no actual violation.
¶24 That brings us to the trial court's October 4, 1996 order. It is well-established
that a district court's authority to impose sentences in criminal cases is defined and
constrained by statute. State v. Wilson (1996), 279 Mont. 34, 37, 926 P.2d 712, 714.
Moreover, "a district court has no power to impose a sentence in the absence of
specific statutory authority." State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d
1025, 1029 (citations omitted); Wilson, 279 Mont. at 37, 926 P.2d at 714. Here, having
failed to make the statutorily required predicate finding that Nelson violated the
terms and conditions of his suspended sentence, the trial court was without authority
to continue his suspended sentence with modified or additional terms and conditions.
Section 46-18-203(7)(b), MCA (1995).
¶25 Importantly, it was Nelson's violation of one of these conditions added in the
court's October 4, 1996, order--i.e., that Nelson "have no alone-contact with minor
children unless a responsible adult is present, one fully aware of defendant’s
offending pattern"--that provided the basis for the State's October 11, 1996 petition
to revoke and, ultimately, the District Court's determination that the violation of this
added condition necessitated revoking Nelson's suspended sentence. (Nelson was
participating in a sex-offender treatment program at the time the State's October 11,
1996 petition was filed, so he was not in violation of that condition of the court's
original suspended sentence.)
¶26 In short, since the court was without authority to impose any modified or added
condition on Nelson's probation (having denied the State's July 22, 1996 amended
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petition to revoke) the court was, likewise, without authority to revoke Nelson's
suspended sentence for violation of this condition.
¶27 Under the circumstances, the District Court's April 23, 1997 order revoking
Nelson's suspended sentence and its Judgment and Commitment of the same date
must be vacated and Nelson must be restored to his probationary status under the
terms and conditions imposed by the court in its December 7, 1990 order suspending
sentence.
¶28 Reversed and remanded for further proceedings and for entry of an order
consistent with this opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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