No. 96-044
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 12
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOHN BAISCH,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan,
Assistant Attorney General, Helena, Montana
Gerald J. Navratil, Dawson County Attorney, Glendive, Montana
Submitted on Briefs: January 8, 1998
Decided: January 30, 1998
Filed:
i Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
11 John Baisch (Baisch) appealsfrom the decisionof the SeventhJudicial District Court,
Dawson County, revoking his suspendedsentencebasedon violations of his probation and
sentencinghim to seven years to be served at the Montana State Prison. We affirm.
v Baisch was charged with aggravated assaultfollowing an altercation that occurred
at the Dawson Community College on March 19, 1994. Baisch pled guilty to that offense
pursuant to an Acknowledgment of Waiver of Rights and Plea of Guilty with the State of
Montana (State). The District Court ordered a deferred imposition of Baisch’s six-year
sentenceand imposed conditions of probation. Among other conditions, Baisch was ordered
to remain law abiding, to undergo a psychologicalexamination,and to complete his Graduate
Equivalency Diploma (GED) within one year.
ll3 On May 8, 1995, Baisch’s probation officer conducted an intervention hearing
regarding several alleged violations of probation. Thereafter, Baisch pled guilty to the
offense of unlawful transaction with minors, and the State filed a petition to revoke Baisch’s
deferred sentence. Following a hearing on the petition, the District Court found that Baisch
had violated several conditions of probation, revoked the deferred sentenceand imposed a
suspended
sentenceof sevenyears. The suspended
sentencealso imposedthe conditions that
Baisch remain law abiding, obtain psychological evaluations and complete his GED.
Although the record revealsthat Baischhad trouble meeting the psychologicalevaluation and
GED conditions ofhis probation, it was not until the events of September13, 1995occurred
that the State again petitioned for the revocation of Baisch’sprobation.
84 Baisch’sprobation officer, John Hodge (Hodge) received a letter from Baisch’sadult
basic education instructor indicating that Baisch was not meeting appointments and that she
no longer desired to work with Baisch on fulfilling his GED requirements. As a result,
Hodge contacted Baisch and requestedthat Baisch meet with him on September 13, 1995.
Hodge explainedthat his purposein meeting with Baischwas to find out why Baisch was not
cooperating with his instructor in fulfilling his GED requirements and to instruct Baisch to
cooperate.
ll5 However, Hodge testified that when he explained to Baisch why he had called the
meeting, Baisch “immediately became agitated, claiming he did not have an appointment
with [his adult basic education instructor], therefore he broke no appointment.” Hodge
further testified that as the conversationprogressed,Baisch becamemore agitated and began
using foul language,“at which time [Baisch] stood up and said something to the effect that
[Hodge] was the fault of this problem, that [Hodge] was the reason he was in trouble, and
[Baisch] could jump across that desk and hit [Hodge].” As a result of Baisch’s conduct,
Hodge informed Baisch that he was arresting him and calling the police to transport Baisch
to the jail.
lb Hodge testified that as soon as he hung up the phone, Baisch swept his arm across
Hodges desk knocking items onto the floor, then Baisch stompedout of the room and headed
3
out of the office. Baisch explained that he simply neededto cool off in an area away from
Hodge and intended to wait for the police to arrest him in the hallway; however, Hodge
thought Baisch was going to leave so he followed Baisch with a can of capsicum spray.
When Baisch stopped,Hodge put his hand on Baisch’sshoulder and instructed him to come
back. Hodge stated that when Baisch turned around he had his hand in a fist as though he
was going to hit Hodge so Hodge sprayedhim with the capsicumspray and led Baisch back
to his office.
v When the police arrived, Baisch was still expressinganger. One officer heard Baisch
threaten Hodge, while the other claimed he saw Baisch “lunge” toward Hodge. The officers
took custody of Baisch and charged him with assault and criminal mischief in city court;
however, those charges were dismissed without prejudice due to a defect in language.
Despite dismissal of the charges,the Statepetitioned to revoke Baisch’ssuspendedsentence
assertingthree allegedviolations of probation: 1) Baisch was chargedwith criminal mischief
and assault after becoming disorderly in the probation office; 2) Baisch failed to keep
scheduled appointments for mental health counseling; and 3) Baisch had not fulfilled the
GED condition of probation. The District Court concluded that Baisch violated Court Rule
#2 and State Rule #8 by failing to conduct himself as a good citizen, revoked Baisch’s
suspendedsentence, and sentencedhim to the Montana State Prison for a term of seven
years. Baisch presents two issues for appeal:
T3 1) Did the District Court abuseits discretion in revoking Baisch’ssuspended
sentence?
4
19 2) Did the District Court abuse its discretion in imposing a seven-year prison
sentence?
I
710 The standardof review for revocation of a suspendedsentenceis whether the district
court abusedits discretion. State v. Butler (1995), 272 Mont. 286,289, 900 P.2d 908, 910;
Statev. Docken (1995), 274 Mont. 296,298,908 P.2d 213,214. So long as the district court
is satisfied that the conduct of the probationer hasnot beenwhat he agreedit would be when
he was given liberty, this Court will not overturn a district court’s decision to revoke a
suspended sentence. Butler, 900 P.2d at 910. However, the State must prove by a
preponderance of the evidence that the probationer has violated the terms or conditions of
the suspendedsentence. Section 46-18-203, MCA.
711 Baisch arguesthat the State failed to show by a preponderanceof the evidence that
Baisch violated a condition ofprobation and therefore the District Court abusedits discretion
in revoking Baisch’s suspended sentence. The State asserts, however, that the record
supports the District Court’s decision that Baisch violated the conditions of probation;
therefore, the District Court appropriately revoked the suspendedsentence.
112 It is important to note that Baisch does not contest the fact that the events of
September 13, 1995 occurred. In fact, Baisch’sstatement of the facts is nearly identical to
that offered by the State. What Baisch does claim, however, is that his disorderly conduct
was the result of an undue amount of stressresulting from his work andhis attempts to fulfill
5
the conditions of probation while taking care of his family. Baisch asserts that he was
“pulled in any number of directions” in his attempts to meet the many obligations imposed
on him and “[w]hile his conduct toward Hodge may have beeninappropriate,it was the result
of the stress brought on by these factors.”
113 The State argues that Baisch’s initial difficulties with the law stemmed from his
inability to control his rage and his resulting aggravated assault against an individual at
Dawson Community College. Having failed to receive treatment for his intermittent
explosive disorder, Baisch exhibited his rage againby threateninghis probation officer. The
State further arguesthat Baisch’sconduct was clearly a violation of his probation conditions.
114 Despite the dismissal of Baisch’s assault and criminal mischief charges, the facts
offered by Baisch and the State support a finding by the District Court that Baisch violated
Court Rule #2 and StateRule #8 by failing to conducthimself as a good citizen. We hold that
the District Court did not abuseits discretion in revoking Baisch’ssuspendedsentence.
II
715 Upon finding that a condition of probation has been violated, the district court has
discretion to continue the suspendedsentencewithout a change in conditions, continue the
suspended sentence with modified or additional terms and conditions, or revoke the
suspendedsentenceand require the defendant to serve either the sentenceimposed or any
lesser sentence. Section 46-l&203(7), MCA. This Court reviews the district court’s
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sentencing decision for abuseof discretion. State v. Hurlbert (1988) 232 Mont. 115, 123,
756 P.2d 1110, 1115. Furthermore, on appeal,this Court will only review sentences their
for
legality. We will not review sentences mere inequity or disparity; that task is left to the
for
SentenceReview Division. State v. Ford (1996), 278 Mont. 353,363,926 P.2d 245,251.
116 Baisch doesnot assertthat his sentenceis illegal. Baisch arguesonly that the factors
describedabove,namely the stresscausedby meeting his obligations, causedhis disorderly
conduct and therefore “the totality of the circumstancesconfronting Baisch demonstratethat
imposing the full seven year sentence. . was an abuseof discretion.” Essentially, Baisch
arguesthat the District Court imposeda harshersentencethan it shouldhave. This argument
is appropriately presentedto the SentenceReview Division. We conclude that the District
Court did not abuseits discretion in imposing Baisch’s full sevenyear sentence,
We concur:
. 3
ustices
Fd