No. 00-285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 70N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JON T. LeBEAU,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brad L. Arndorfer, Arndorfer Law Firm, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula,
Montana
Submitted on Briefs: December 28, 2000
Decided: April 11, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public document
with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause
number and result to the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.
¶2 Jon T. LeBeau (LeBeau) appeals from the judgment entered by the Fourth Judicial District
Court, Missoula County, on its order revoking the suspended portions of his sentences on two counts
of burglary and one count of forgery. We affirm.
¶3 The sole issue on appeal is whether the District Court had jurisdiction to revoke LeBeau’s
suspended sentences.
BACKGROUND
¶4 On April 18, 1996, the State of Montana (State) charged LeBeau by information with two
counts of felony burglary and one count of felony forgery. LeBeau subsequently pleaded guilty to
all three counts pursuant to a plea agreement. The District Court sentenced him to 20 years with the
Montana Department of Corrections on each count, with 10 years of each sentence suspended, the
sentences to run concurrently. LeBeau was then transported to the Montana State Prison (MSP) to
begin serving the nonsuspended portion of his sentences.
¶5 In July of 1999, while incarcerated at the MSP, LeBeau was convicted of attempted
aggravated assault for spitting on a correctional officer and shouting that he intended to give the
correctional officer AIDS. The State subsequently petitioned the District Court to revoke LeBeau’s
suspended sentences on the burglary and forgery convictions, asserting that LeBeau’s conviction for
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attempted aggravated assault violated the court-imposed condition for those sentences that required
him to comply with all state laws and conduct himself as a good citizen. LeBeau appeared at the
hearing on the State’s petition with counsel and admitted the allegation in the revocation petition
that he had been convicted of attempted aggravated assault. Based on this admission, the District
Court determined LeBeau violated the condition that he comply with all state laws and revoked the
three 10-year suspended sentences. It then sentenced LeBeau to three concurrent 10-year sentences
in the MSP and entered judgment on the revocation and sentencing. LeBeau appeals.
DISCUSSION
¶6 Did the District Court have jurisdiction to revoke LeBeau’s suspended sentences?
¶7 Section 46-18-203(2), MCA, provides that a petition to revoke a sentence “must be filed with
the sentencing court during the period of suspension or deferral.” LeBeau asserts that, because he
was incarcerated in the MSP and not yet serving the suspended portions of his sentences at the time
he committed the offense on which the State based its revocation petition, the District Court lacked
jurisdiction to revoke his suspended sentences. In response, the State contends as a threshold matter
that LeBeau waived his right to appeal this issue by failing to raise it in the District Court during the
revocation proceedings.
¶8 Our longstanding rule is that we will not address issues which are raised for the first time on
appeal. See, e.g., State v. Weaselboy, 1999 MT 274, ¶ 16, 296 Mont. 503, ¶ 16, 989 P.2d 836, ¶ 16;
State v. Stewart, 2000 MT 379, ¶ 30, 303 Mont. 507,¶ 30, 16 P.3d 391, ¶ 30. LeBeau concedes
that he did not raise this issue in the District Court when he admitted to the allegation of the
revocation petition. He asserts, however, that this is a matter of subject matter jurisdiction
which may be raised at any time pursuant to our statement in State v. Akers (1938), 106
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Mont. 43, 57, 74 P.2d 1138, 1145, that the issue of whether a court lacks subject matter
jurisdiction over a case is never waived and may be raised at any point in the proceedings.
Thus, LeBeau contends he may raise this issue on appeal notwithstanding his failure to raise
it below. We disagree.
¶9 Akers is distinguishable from the present case, in part, in that the defendant there raised the
jurisdictional issue during the proceedings in the trial court and that court denied the jurisdictional
challenge. Akers, 106 Mont. at 57-58, 74 P.2d at 1145-46. More importantly, however, Akers
predated the Montana Legislature’s enactment of § 46-20-701, MCA. Section 46-20-701(2), MCA,
permits a claim alleging a jurisdictional error to be noticed on appeal, even where not raised in the
trial court, if the party asserting the error establishes both prejudice and the existence of one of the
circumstances set forth in subsections (a) through (c). LeBeau does not address this statute, but it is
clear from the record that none of the three circumstances set forth in § 46-20-701(2)(a)-(c), MCA,
exists here. Moreover, since LeBeau admitted the allegation of the revocation petition, no prejudice
exists on this record with regard to the actual revocation of his suspended sentences. Therefore,
LeBeau waived his right to raise the jurisdictional issue on appeal.
¶10 In any event, however, LeBeau also acknowledges our previous decisions holding that § 46-
18-203, MCA, does not prohibit revocation of a suspended sentence before the defendant actually
begins serving the suspended sentence. See Christofferson v. State (1995), 272 Mont. 518, 521, 901
P.2d 588, 589; State v. Sullivan (1982), 197 Mont. 395, 401, 642 P.2d 1008, 1011. He contends that
those cases are distinguishable on the facts because, although those defendants had not begun
serving the suspended portions of their sentences when the sentences were revoked, both were on
parole at the time. He further contends that the policy considerations underlying our decisions in
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Christofferson and Sullivan are not the same when a person is still incarcerated, rather than on
parole, because a parolee has been released into the community and has proven that he or she is
incapable of abiding by the conditions of the release. On the other hand, according to LeBeau,
“[i]nmates have totally different problems and adjustments to incarceration than someone being
allowed to be out under supervision. They cannot show lack of ability to live in society, because
they are not in society.”
¶11 In Sullivan, we based our holding on
the strong public policy that if a person convicted of a crime, and granted a period of
probation as part of the sentence, should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation, the court has the power to
revoke or change the order of probation, both during the period of probation, and
before the period of probation commences.
Sullivan, 197 Mont. at 401, 642 P.2d at 1011. This public policy is not qualified by whether the
defendant is on parole or incarcerated at the time the conduct underlying the revocation is
committed.
¶12 Moreover, LeBeau’s argument appears to be premised on a belief that the sole purpose of
incarceration is punishment and that it does not relate to rehabilitation. It is Montana’s correctional
and sentencing policy, however, that any sentence have multiple purposes: punishment, public
protection, reparation and rehabilitation. See § 46-18-101(2), MCA. Thus, even a sentence
requiring a period of incarceration has an underlying purpose of rehabilitating the offender so he or
she may be reintegrated into the community. If an inmate cannot abide by the rules and conditions
while in the regulated environment of the MSP, it is a strong indication that the inmate will not act
appropriately in the more liberal situation of release into the community on either parole or
probation under a suspended sentence. The policy considerations outlined in Sullivan are equally
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applicable to a defendant who is incarcerated as to a parolee.
¶13 Furthermore, in State v. Vallier, 2000 MT 225, 301 Mont. 228, 8 P.3d 112, we addressed a
situation identical to that presented before us. There, we held that a district court did not abuse its
discretion in revoking a suspended sentence before it began and where the defendant was
incarcerated at the time of the revocation. Vallier, ¶ 16. In that case, we stated that the revocation
was appropriate because the defendant had shown--before he was released from incarceration--that
he was incapable of complying with the terms of his suspended sentence. Vallier, ¶¶ 13-16.
¶14 Finally, LeBeau does not challenge the District Court’s revocation on any basis other than
subject matter jurisdiction and, in light of his admitting the allegation of the petition that he had been
convicted of an offense, he could not do so successfully on this record.
¶15 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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State v. Lebeau
Combined Opinion