No
No. 98-728
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 240
296 Mont. 258
993 P.2d 1
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MELVIN WARREN WILLIAMS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial
District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
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For Appellant:
Robert B. Allison, Attorney at Law; Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,
Assistant Attorney General; Helena, Montana
Thomas J. Esch, Flathead County Attorney; Ed Corrigan,
Deputy County Attorney; Kalispell, Montana
Submitted on Briefs: June 10, 1999
Decided: October 14, 1999
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶ Melvin Warren Williams appeals from an order of the Eleventh Judicial District
Court, Flathead County, dated September 22, 1998, revoking his suspended sentence.
We affirm.
¶ Williams’ appeal raises the following issue:
¶ Whether the District Court abused its discretion by revoking a suspended sentence
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that was conditioned on the completion of a prerelease center program and a sexual
offender treatment program because the Defendant was unable to gain admission to
those programs?
FACTUAL BACKGROUND
¶ On March 25, 1998, Williams entered into a plea agreement with the State.
Pursuant to that agreement, Williams agreed to enter a plea of guilty to sexual
intercourse without consent and to move to dismiss his appeal of a youth court
transfer order which transferred jurisdiction of his case to district court. In
exchange, the State agreed to recommend a 5-year suspended sentence to the
Department of Corrections, followed by a 15-year suspended sentence to the
Montana State Prison subject to Williams’ completion of an approved sexual
offender treatment program, abstinence from alcohol and illegal drugs, and
compliance with all the standard rules of probation.
¶ On April 9, 1998, Williams pled guilty to the charge of sexual intercourse without
consent in violation of § 45-5-503, MCA (1997). On May 20, 1998, DeAnn Carmer, an
Adult Probation and Parole Officer for the Department of Corrections, completed
her Presentence Investigation of Williams. The Presentence Investigation included a
Sex Offender Amenability Evaluation, performed by the Northwest Family Recovery
Program, which concluded that Williams was "a moderate to high risk to reoffend."
On the basis of her investigation, Ms. Carmer recommended that Williams be placed
in the Billings Prerelease Center and initiated the screening process.
¶ The court entered its Judgment and Sentence on June 9, 1998. The District Court
committed Williams to the Department of Corrections for 5 years and sentenced
Williams to 15 years at the Montana State Prison, both terms suspended. The court
also imposed, in relevant part, the following conditions:
As conditions of probation, the Defendant must comply with the following:
2) He must complete the Billings or Great Falls Pre-Release Center. He is to remain in the
custody of the Flathead County Detention Center until his placement at a pre-release
center can be arranged.
....
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5) He must undergo a sexual offender treatment evaluation, complete a sexual offender
treatment program deemed appropriate by his probation officer, and follow all resulting
recommendations to the satisfaction of his probation officer and treatment provider.
¶ Williams remained in custody pending the outcome of the prerelease centers’
admissions evaluations because he had no appropriate place to stay. However, the
Billings and Great Falls Prerelease Centers declined to accept Williams. On June 19,
1998, the State filed a petition to revoke Williams’ suspended sentence because he
was unable to meet the conditions of suspension. On July 9, 1998, the District Court
held an initial hearing on the State’s petition to revoke and concluded that it needed
to hear from Ms. Carmer, Williams’ probation officer, concerning why both
prerelease programs rejected Williams. A subsequent hearing was set for July 16,
1998. At that hearing, Williams requested postponing a final determination on the
State’s petition in order to allow him to be evaluated by a psychiatrist to determine
whether there were medications that could be prescribed for Williams which would
enable him to qualify for one of the prerelease programs.
¶ Dr. Victor Houser completed a psychiatric evaluation of Williams on September
13, 1998. Dr. Houser concluded that, "Untreated and released (now or ten years from
now) he would almost certainly reoffend, probably another young child." Further, he
expressed his hope that the court send Williams to a treatment facility where he
could receive "the appropriate medical and psychiatric care along with the
prescribed sex offender treatment."
¶ On September 17, 1998, the District Court conducted a final hearing on the State’s
petition for revocation. At this hearing, Williams denied that he had violated the
conditions of his suspended sentence. Ms. Carmer, Williams’ probation officer,
testified that she had exhausted all possible combinations and that there were no
programs in which Williams could be placed for supervision and treatment. She
further testified that the prerelease centers had refused to accept Williams because of
the lack of social skills, immaturity, and acting out behavior he displayed while
residing at a youth home during the completion of his Sex Offender Amenability
Evaluation.
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¶ On September 23, 1998, the District Court entered its Order of Revocation. The
court found that Williams had been rejected by the Billings and Great Falls
Prerelease Centers, as well as the Northwest Family Recovery Program. The court
also found that Williams was not a suitable candidate for probation or the Intensive
Supervised Probation Program because Williams was unemployed, did not have a
place to live, lacked the social skills necessary to live independently, and had been
assessed as a moderate to high risk to reoffend. Accordingly, the court found
Williams to be in violation of the conditions of his probation and revoked his
suspended sentence. The court sentenced Williams to a term of 5 years in the custody
of the Department of Corrections, with credit for time served, and, upon his
discharge from the department, to a term of 15 years at the Montana State Prison,
with 12 years suspended. The court declared that Williams would be ineligible for
parole until he satisfactorily completed Phase I of the prison’s sex offender treatment
program. Williams appeals.
STANDARD OF REVIEW
¶ 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. Lindeman (1997), 285 Mont. 292, 302, 948
P.2d 221, 228 (citing State v. Butler (1995), 272 Mont. 286, 289, 900 P.2d 908, 910).
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. State v. Nelson,
1998 MT 227, ¶ 16, 291 Mont. 15, ¶ 16, 966 P.2d 133, ¶ 16 (citing Lindeman, 285
Mont. at 302, 948 P.2d at 228).
DISCUSSION
¶ Whether the District Court abused its discretion by revoking a suspended sentence
that was conditioned on the completion of a prerelease center program and a sexual
offender treatment program because the defendant was unable to gain admission to
those programs?
¶ The State filed a Petition for Revocation of Suspended Sentence on June 19, 1998.
In this Petition, the State alleged that:
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The Defendant’s probation officer, DeAnn Carmer, now reports that the Billings and Great
Falls Pre-Release Centers have refused to accept the Defendant for placement at their facilities.
She further reports that he is not suitable for Intensive Supervised Probation given his lack of social skills,
unemployment, lack of appropriate residence, and the Northwest Family Recovery Program’s conclusion that he
is not amenable for out-patient sex offender treatment.
The State requested that the court schedule a hearing to determine whether Williams’ suspended sentence should
be revoked. The District Court held a hearing on September 17, 1998, at the conclusion of which, it granted the
State’s petition. The court found Williams to be in violation of the conditions of his probation
and revoked his suspended sentence.
¶ Williams argues that the District Court’s revocation of his suspended sentence was
erroneous because the State’s petition did not allege a violation of the conditions of
his suspended sentence. Rather, Williams contends that the State only alleged that
the Department of Corrections declined to accept him at one of its prerelease centers.
He argues that, as a result the Department’s rejection, the condition requiring him to
complete a prerelease center program became impossible due to no wrongdoing on
his part. Following our decision in Lopez v. Crist (1978), 176 Mont. 352, 578 P.2d 312,
Williams argues that the Department of Corrections should be required "to find
appropriate and comparable treatment that does not entail incarceration at the
Montana State Prison."
¶ Section 46-18-203, MCA (1997), governs a district court’s revocation of a
suspended or deferred sentence. It states, in relevant part, that:
(7) If the court finds that the defendant has violated the terms and conditions of a
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; . . . .
¶ Clearly, § 46-18-203, MCA (1997), required the District Court find Williams
violated the terms and conditions of his suspended sentence before revoking the
suspension of his sentence. Williams does not contend that completion of a prerelease
program was not one of the conditions of his sentence nor does he contend that he
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completed a prerelease program. Rather, Williams contends that he did not violate
this condition because it became impossible to fulfill due to the decisions of the
Billings and Great Falls Prerelease Centers and not due to any wrongdoing on his
part.
¶ We conclude that the District Court did not abuse its discretion by determining
that the conduct of Williams was not "what he agreed it would be if he were given
liberty." Lindeman, 285 Mont. at 302, 948 P.2d at 228. First, we note that § 46-18-
203, MCA (1997), does not expressly require the court to determine whether a
defendant has willfully violated the terms of the defendant’s suspended sentence
before the court can revoke a suspended sentence. We have never directly confronted
the issue of whether a defendant’s violation of the conditions of a suspended sentence
must be willful. However, because Williams' inability to secure treatment frustrated
the purpose of probation, namely, his rehabilitation, we agree with the District Court
that revoking his suspended sentence and requiring him to participate in the
Montana State Prison sexual offender treatment program best serves the purpose of
Williams' rehabilitation.
¶ Courts in other jurisdictions have affirmed revocations based on violations beyond
the defendant’s control when they relate to the defendant’s potential for
rehabilitation. State v. Kochvi (N.H. 1996), 671 A.2d 115; State v. Garcia (Idaho Ct.
App. 1993), 860 P.2d 677; Davis, 462 N.E.2d 824; State v. Bennett (Wash. Ct. App.
1983), 666 P.2d 390. In Kochvi, the New Hampshire Supreme Court affirmed the
revocation of Kochvi’s sentence even though Kochvi’s failure to gain admission to a
sexual offender treatment program was beyond his control. Kochvi, 671 A.2d at 118.
Kochvi had pled guilty to two felony counts and three misdemeanor counts of sexual
assault. The sentence on the felony charges was deferred, and after serving a 12-
month sentence for the misdemeanor charges, Kochvi was placed on probation. The
terms of Kochvi’s deferred sentence and probation required him to participate in
and complete any treatment program assigned by his probation officer. However,
Kochvi was unable to enroll in a treatment program because the program
administrators concluded that he was not an appropriate candidate for their
program. Based on this information, the trial court found that the defendant had
violated the terms of his probation and revoked probation, imposing the sentence
that it had originally deferred.
¶ On appeal, Kochvi argued that the trial court erred in ordering revocation because
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his failure to secure admission into a treatment program was not his fault. In
particular, he asserted that he was rejected from two possible treatment programs
because he showed signs of weak impulse management, something he could not
control. Kochvi also argued that his sentence did not inform him that rejection from
sexual offender treatment programs, for reasons beyond his control, could result in
revocation of his probation.
¶ The New Hampshire Supreme Court affirmed the trial court’s revocation of
Kochvi’s probation, observing that the terms of Kochvi’s sentence required him to
participate in and complete a treatment program and Kochvi failed to comply with
this condition. Kochvi, 671 A.2d at 117. The court concluded that the trial court did
not abuse its discretion even if Kochvi was not at fault for not complying with the
terms of his probation. The court noted that Kochvi’s lack of impulse control and his
resulting inability to enroll in a treatment program "frustrated the dual functions of
probation–rehabilitation of the defendant and protection of society." Kochvi, 671
A.2d at 118. Lastly, the court concluded that Kochvi was on notice that if he failed to
gain entry into a treatment program he would violate the terms of his probation. The
court observed that nothing in Kochvi’s sentence implied that he would be accepted
into a treatment program. On the contrary, the condition that Kochvi participate in
and complete a treatment program implied that he had to be accepted into a
program in order to comply with the terms of his probation. Kochvi, 671 A.2d at 118.
¶ We agree with the New Hampshire Supreme Court’s reasoning in Kochvi to the
extent that it held that a trial court does not abuse its discretion in revoking a
defendant’s suspended sentence when it finds, by a preponderance of the evidence,
that a condition of suspension would not be met and continued suspension of the
defendant’s sentence would frustrate the purposes of suspension, namely, the
defendant’s rehabilitation. See Kochvi, 671 A.2d at 118. As we have stated on
previous occasions:
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
defendant's 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.
Lindeman, 285 Mont. at 308, 948 P.2d at 231 (quoting State v. Robinson (1980), 190 Mont. 145, 148,
619 P.2d 813, 815).
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¶ Because sexual offender treatment was not available to Williams as required by the terms of his
suspended sentence, the District Court could have been reasonably satisfied that Williams’
conduct had not been what he agreed it would be if he were given liberty. See Lindeman, 285
Mont. at 302, 948 P.2d at 228. Furthermore, the purpose of Williams’ probation, namely his
rehabilitation, was not being achieved because he was not being treated in a sexual offender
program. See Lindeman, 285 Mont. at 308, 948 P.2d at 231. The District Court also found that
Williams was not a suitable candidate for other programs such as the Intensive Supervised
Probation program because he was unemployed, did not have a place to live, appeared to lack the
social skills necessary to live independently, and was assessed as "a high to moderate risk to
offend." Thus the court found that it had no option but to revoke Williams’ suspended sentence
and sentence him to incarceration at the Montana State Prison where Williams could be treated in
the prison’s sex offender treatment program. We conclude that, given these facts, the District
Court did not abuse its discretion by revoking Williams’ suspended sentence.
¶ Lastly, we think that Williams’ reliance on Lopez to assert that the Department of Corrections
has an affirmative duty to find an appropriate treatment program that does not involve
incarceration is misplaced. The precise issue in Lopez was whether a parolee who, after a full
revocation hearing, has been found by the Board of Pardons not to have violated his parole may
nevertheless be confined pending his submission of an acceptable new parole plan. Lopez, 176
Mont. at 355. We held that due process placed an affirmative duty on the parole authorities to aid
Lopez in developing an acceptable plan and we ordered Lopez’s release. Lopez, 176 Mont. at 355-
56. The facts of Williams’ case are substantially different. Unlike Lopez, Williams is not being held
as the result of an erroneous decision that he violated the terms of his parole. Instead, Williams
remained in custody after the suspension of his sentence and pending his acceptance into one of
the prerelease centers because he was without an appropriate place to stay. Once the prerelease
centers refused to accept Williams, his suspended sentence was revoked. We refuse to extend
Lopez to the facts of this case.
¶ As a condition of Williams’ probation, Williams was required to complete a prerelease center
program as well as sexual offender treatment. Williams has not complied with those conditions.
The purpose of Williams’ suspended sentence was frustrated because he was unable to comply
with the conditions of his suspension. Accordingly, we conclude that the District Court did not
abuse its discretion by revoking Williams’ suspended sentence.
¶ We affirm the judgment of the District Court.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
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/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY
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