State v. Kennedy

• Court: Montana Supreme Court
• Decided: August 22, 1984
• Docket: 83-332
• Status: Published

Opinion

83-332 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiff and Respondent, -vs-

BRUCE KENNEDY, Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Blaine, The Honorable Chan Ettien, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Andrew M. Small, Billings, Montana

For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Donald Ranstrom, County Attorney, Chinook, Montana

Submitted on Briefs: ~ p r i l5, 1984

~ecided: ~ u g u s t22, 1984

Clerk Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of the Court.

Appellant, Kennedy, appeals from an order of the

District Court, Blaine County, amending the conditions of

p r o b a t i o n f o r one of a p p e l l a n t ' s two f e l o n y c o n v i c t i o n s , to

i n c l u d e a t h i r t y day p r i s o n s e n t e n c e . This order followed a

hearing on the State's petition to revoke a suspended

s e n t e n c e on one c o n v i c t i o n and a d e f e r r e d s e n t e n c e on t h e

other. The s e n t e n c e was s t a y e d p e n d i n g t h i s a p p e a l .

On May 27, 1 9 8 2 , judgment was e n t e r e d i n t h e c a s e o f

The S t a t e o f Montana v . B r u c e Kennedy, w h e r e i n Kennedy p l e d

guilty to the c h a r g e of burglary in violation of section

45-6-201(1), MCA. The c o u r t e n t e r e d i t s judgment d e f e r r i n g

imposition of t h e s e n t e n c e f o r a p e r i o d of two y e a r s . On

March 8 , 1 9 8 3 , judgment was e n t e r e d i n a n o t h e r c a u s e w h e r e i n

Kennedy entered a plea of g u i l t y t o a c h a r g e of theft in

violation section 45-6-301(2)(a), MCA. The t h e f t t o which

Kennedy e n t e r e d a g u i l t y p l e a d i d n o t o c c u r d u r i n g t h e t i m e

he was on probation for entering the guilty plea to

b u r g l a r y , b u t n e a r l y s e v e n months p r i o r t o t h e May 1982 p l e a

of guilty. The c o u r t a t t h a t time imposed a sentence of

five years in t h e Montana State Prison, a l l of which was

s u s p e n d e d f o r a p e r i o d o f t h r e e y e a r s b e g i n n i n g on t h e d a t e

of e n t r y of judgment. A p p e l l a n t was p l a c e d on s u p e r v i s e d

probation f o r both periods ordered above. Both sentences

required that Kennedy be subject to the rules and

r e g u l a t i o n s o f t h e Community C o r r e c t i o n s B u r e a u , a l l orders

of t h e c o u r t and the restrictions set o u t i n the standard

p a r o l e and p r o b a t i o n c o n t r a c t o f t h e Montana D e p a r t m e n t o f

Institutions. On May 1 0 , 1983, a r e p o r t of v i o l a t i o n was filed with the District Court by appellant's probation o f f i c e r , a l l e g i n g v i o l a t i o n s of t h e c o n d i t i o n s of p r o b a t i o n . A h e a r i n g was h e l d on May 1 3 , 1 9 8 3 , w h e r e Kennedy r e q u e s t e d

c o u n s e l r e g a r d i n g a p e t i t i o n f o r r e v o c a t i o n which was f i l e d by t h e S t a t e . The m a t t e r was c o n t i n u e d u n t i l May 24, 1983, when Kennedy a p p e a r e d w i t h c o u n s e l . A h e a r i n g was h e l d on t h e p e t i t i o n f o r r e v o c a t i o n on

May 2 4 , 1983. The p e t i t i o n a l l e g e d v i o l a t i o n s o f two r u l e s of p r o b a t i o n and o n e v i o l a t i o n o f t h e c o u r t c o n d i t i o n No. 2

i n t h e t h e f t charge. The a p p e l l a n t d e n i e d t h e a l l e g a t i o n s a s t o t h e v i o l a t i o n of Rule 1 and a d m i t t e d t h e a l l e g a t i o n s

pertaining to the violations of Rule 5 of the probation contract and v i o l a t i o n s of court c o n d i t i o n No. 2 in the t h e f t charge. Three issues are presented by appellant. We have

combined t h e f o l l o w i n g i n t o two i s s u e s a s i n c l u s i v e o f t h e t h r e e s e t f o r t h by t h e a p p e l l a n t : I J ' 2; (1) Whether t h e a p p e l l a n t ' s r i g h t t o due p r o c e s s were " v i o l a t e d when h e was o r d e r e d t o g o f o r w a r d w i t h h i s e v i d e n c e

i n m i t i g a t i o n e v e n t h o u g h t h e S t a t e had o f f e r e d no e v i d e n c e and had n o t c a r r i e d i t s b u r d e n o f p r o o f i n s u p p o r t of its

a l l e g a t i o n s i n i t s p e t i t i o n of r e v o c a t i o n o f s u s p e n d e d and deferred sentences.

( 2 ) I n o r d e r t o best a c h i e v e r e h a b i l i t a t i o n , whether r e v o c a t i o n of a s e n t e n c e s h o u l d r e q u i r e a d e t e r m i n a t i o n t h a t t h e defendant cannot avoid a n t i s o c i a l behavior r a t h e r than a

t e c h n i c a l f a i l u r e t o comply w i t h t h e r u l e s o f p r o b a t i o n . The f i r s t i s s u e i s n o t o n l y d i s p o s i t i v e , b u t is t h e only issue that applies to the f a c t s of t h i s case. The s e c o n d i s s u e need n o t be d i s c u s s e d . A p p e l l a n t a r g u e s t h a t he was d e p r i v e d of d u e p r o c e s s

because t h e t r i a l c o u r t , without t h e S t a t e p r e s e n t i n g proof

of t h e p r o b a t i o n v i o l a t i o n , d i r e c t e d a p p e l l a n t t o g o forward

with proof that he did not violate the conditions of

probation. W do n o t b e l i e v e t h a t t h i s e i s what the t r i a l

court did or intended. Furthermore t h e record j u s t i f i e s t h e

procedure taken, and w e d o n o t f i n d it n e c e s s a r y t o v a c a t e

t h e o r d e r and remand f o r f u r t h e r h e a r i n g .

We have reviewed the record and transcript which

reveal t h a t a r e v o c a t i o n h e a r i n g was h e l d in the District

Court, with the appellant and his counsel present. Both

a p p e l l a n t and h i s c o u n s e l a c k n o w l e d g e t h a t t h e y had r e c e i v e d

t h e p e t i t i o n f o r r e v o c a t i o n and w e r e f a m i l i a r w i t h i t .

The court asked appellant how he responded to the

charge in the petition that he failed to make himself

available to the probation officer, failed to inform the

officer of his whereabouts, and had not contacted the

officer or the s h e r i f f ' s o f f i c e during a c e r t a i n period of

time. To that charge, the appellant stated: "Not true.''

Therefore, on that ground, the a p p e l l a n t appeared t o have

d e n i e d t h e same.

The court next considered the allegation of the

petition that covered the last written monthly report

s u b m i t t e d by t h e a p p e l l a n t , which was d a t e d O c t o b e r 5 , 1982

and the last t i m e a p p e l l a n t appeared before h i s p r o b a t i o n o f f i c e r was December 7 , 1982. The h e a r i n g t h a t t o o k p l a c e

was on May 24, 1983. Looking to the position of the

a p p e l l a n t a s t o t h e charge of f a i l i n g t o make a p p e a r a n c e s ,

we find the following occurred between the court and the

appellant: "THE COURT: The last personal appearance before his probation officer was December 7, 1982. Is that admitted or denied? "MR. SMALL [counsel for appellant] : Pursuant to the terms of the order and the conditions of probation and parole agreement, that is correct. "THE COURT: OK. And that he has not appeared before Mr. Matkin [the supervising probation officer] since December 7, 1982. Does he deny or admit that? ''A. [by appellant]: I admit that, Your Honor. " The court then asked whether the appellant admitted or denied the charge that he had made no contribution to the Western Bank (the victim of the second offense) for restitution, and had not consulted with the probation officer with regard to setting up a plan of restitution, all

as contained in his conditions of probation. The appellant admitted he had not done so. Thereafter, the court asked if the appellant had anything to say in mitigation of his admissions. Counsel for the appellant said "Yes, they have a substantial amount of testimony to put on." The parties then agreed to proceed. Counsel for the appellant asked if the State was to present its case with regard to the petition. At that point the court stated that in view of the admissions by the appellant, there was no reason for the State to submit evidence. Counsel for the appellant then pointed out the only reason for asking, was that if the State was not going to put on its evidence he would like to call the probation officer. The court advised him he could call anyone he wished. The appellant then proceeded to call various witnesses, starting with the probation officer . The transcript of these hearings show that an agreement was reached between the court, appellant's counsel and the county attorney that the admissions on the part of the appellant as to the allegations in the petition for revocation went to both files, that is two different cases, with the denial to apply only to one allegation in both files. Subsequently, the following took place. "THE COURT: You may call anybody you wish. Incidentally, will counsel agree that these admissions, the petition for revocation are the same in each file, and that the admissions go to each file? "MR. RANSTROM [counsel for the plaintiff]: That's correct, Your Honor. My understanding is that the only three allegations contained therein, that the first one was denied, but the other two admitted, in substance? "MR. SMALL [counsel for appellant] : That's correct, Your Honor. On the initial, the first allegation, Your Honor, my statement was that as the petition reads, it is denied. "MR. RANSTROM: That was with regard to the allegation that he was to go directly to the approved program and shall report to the probation and the parole officer or other designated person, make himself available. "THE COURT: At line 17 Rule 1 starting with the rule-- "MR. RANSTROM: That's correct. "THE COURT: And that is denied by the defendant? "MR. SMALL: Correct, Your Honor. "THE COURT: Do you wish to put the testimony at this time on that? "MR. SMALL: Yes, Your Honor. We would like to. "THE COURT: Very well. You may proceed. " On the basis of this record, we conclude that

a p p e l l a n . t l s due process rights were not violated. The

D i s t r i c t Court's order of imprisonment for t h i r t y days is

upheld.

We c o n c u r :

"bk&J. Chief J u s t i c e Wd\

Justices

Mr. J u s t i c e Daniel J. Shea d i s s e n t s , and w i l l f i l e a w r i t t e n

dissent later.