State v. N. McGuire

2024 MT 104N, 547 P.3d 1284

Opinion

05/14/2024

DA 22-0633 Case Number: DA 22-0633

IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 104N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

NICHOLAS RYAN McGUIRE,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-2018-459(D) Honorable Dan Wilson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jennifer Dwyer, Avignone, Banick & Williams, Bozeman, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Travis Ahner, Flathead County Attorney, John H. Donovan, Deputy County Attorney, Kalispell, Montana

Submitted on Briefs: April 10, 2024

Decided: May 14, 2024

Filed:

Vir-6A.-if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Defendant Nicholas Ryan McGuire (McGuire) appeals a September 15, 2022 Order

of Revocation and Disposition issued by the Eleventh Judicial District Court, Flathead

County, revoking his three-year deferred imposition of sentence and sentencing him to four

years at the Department of Corrections (DOC), none suspended. McGuire contends the

Order must be vacated because it violated his right to due process and exceeded the District

Court’s statutory authority. McGuire also argues the District Court failed to properly credit

him with the appropriate amount of “street time,” as well as time served in custody. We

affirm the District Court with respect to the revocation and its determination of McGuire’s

street time credit, but we reverse and remand to the District Court with instructions to award

more credit for time spent in custody.

¶3 In December 2018, McGuire was charged in Flathead County with felony criminal

endangerment and DUI. He pled guilty to the charges in accordance with a plea agreement

that contemplated a three-year deferred imposition of sentence for the criminal

endangerment charge and a six-month jail sentence for the DUI charge. Thereafter, the

Court permitted McGuire to withdraw his plea for DUI and dismissed that charge. In May 2 2019, consistent with the remainder of the plea agreement, the District Court deferred

imposition of sentence for three years and gave him credit for 86 days served in custody

for the DUI. The District Court also required that McGuire be supervised by DOC

personnel and abide by various other conditions, which included consenting to random or

routine body fluid tests, refraining from the possession or use of alcohol and illegal drugs,

and obeying all other state and federal laws.

¶4 On August 4, 2021, one of McGuire’s probation officers, Shawn Heidrick (Officer

Heidrick), was alerted that McGuire had provided a urinalysis sample that tested positive

for methamphetamine and amphetamine. On the same day, McGuire admitted to using

methamphetamine. On August 5, 2021, Officer Heidrick and another officer identified

paraphernalia and a small bag of methamphetamine in McGuire’s home, and he was

arrested and booked at the Missoula County Detention Center for the alleged violations.

He was charged with criminal possession of dangerous drugs and posted bond in the

amount of $20,000 on August 8, 2021.

¶5 On August 10, 2021, Officer Heidrick filed a report of violation (ROV) in which he

documented the August 4th and 5th violations. Therein, he remarked that McGuire’s

supervision had been “dismal” and that “[t]here is no community supervision available at

this time that will keep this Defendant safe or the community safe.” He also noted

admissions from McGuire on June 29, 2021, when McGuire confessed to using

methamphetamine over the course of several weeks. The State filed a petition to revoke

3 McGuire’s deferred sentence on August 19, 2021, with Officer Heidrick recommending

therein that McGuire be sentenced to three years to the DOC, with none suspended.

¶6 On September 16, 2021, McGuire was arrested for DUI. Another probation officer,

Laishia Roth (Officer Roth), filed a supplemental ROV on September 27, 2021. The

supplemental ROV detailed McGuire’s arrest and included his admission to using

methamphetamine on September 7, 2021. It also stated that he tested positive for other

opiates. Officer Roth concurred with Officer Heidrick’s recommendation for a revocation

sentence of a three-year commitment to the DOC, with no time suspended.

¶7 On January 20, 2022, McGuire appeared before the District Court, where he was

informed of his rights and the allegations brought against him in Officer Heidrick’s August

2021 ROV and petition to revoke. McGuire entered denials on the allegations. The District

Court then scheduled an evidentiary hearing for March 3, 2022. McGuire failed to appear

at that hearing, and the District Court issued a warrant with bail set at $35,000. Notably,

McGuire’s original sentence from 2019, for the felony criminal endangerment charge,

expired on March 5, 2022. He was nevertheless served with an arrest warrant on March 7,

2022, and he posted bond the same day.

¶8 On May 18, 2022, McGuire refused to complete a urinalysis test and threatened to

kill a probation officer. This prompted Officer Roth to file a second supplemental ROV

alleging 14 additional probation violations occurring from September 30, 2021, through

May 18, 2022. The next day, the State filed its second petition for revocation. The District

Court then issued another warrant and set bail, this time for $30,000, in connection with 4 the 14 additional violations alleged by Officer Roth in the second supplemental ROV. The

State also charged him anew in Missoula County for his threats to the probation officer,1

and a separate bail of $50,000 was set by the Missoula County Justice Court for the

probation violations. McGuire thereafter remained in custody at the Missoula County

Detention Facility.

¶9 Eventually, on July 7, 2022, McGuire appeared remotely before the Flathead

County District Court and was arraigned on the probation violations filed in the second

supplemental ROV filed in May 2022, and he entered denials on all those allegations. He

sought reduction of the bail amount, but his request was denied by the District Court. On

July 29, 2022, he posted bond on the $30,000 Flathead County warrant. The District Court

set a revocation hearing for September 8, 2022, but McGuire again failed to appear for the

hearing. The hearing was reset for September 15, 2022.

¶10 At the September 15, 2022 revocation hearing, Officer Roth testified about

McGuire’s purported violations throughout the previous year. The District Court made

several findings regarding the ROVs filed in August 2021, September 2021, and May 2022,

1 While not determinative in the present matter, there is some uncertainty regarding the exact nature of the criminal charges filed by the State in connection with McGuire’s threats, since the charging documents are not in the record. The State contends these charges were for “either intimidation or threats to officials” but only cites to the July 7, 2022 Hearing in the District Court, where McGuire’s attorney conveyed that she did not know what the specific charges were, but that they emanated from the May 18, 2022 incident with the probation officer, and that his attorney in Missoula was trying to get that case into the Missoula Veterans Court. For his part, McGuire only references these “new charges,” without specificity, in various Motions to Continue filed with the District Court in June 2022.

5 respectively. Regarding the August 2021 ROV, the District Court found that McGuire

committed the violations of possession of methamphetamine and use of methamphetamine.

For the September 2021 ROV, the District Court found that the evidence did not support

the DUI charge but did support the charge for positive methamphetamine and opiates test,

as well as a violation for failure to report as required. Finally, for the May 2022 ROV, the

District Court found all 14 violations to be supported.2

¶11 Regarding her recommendation for disposition, Officer Roth suggested that the

District Court revoke McGuire’s three-year deferred imposition of sentence and replace it

with three years at the DOC with no time suspended. After considering McGuire’s

violations, as well as Officer Roth’s testimony, the District Court concluded that McGuire

could not be treated or rehabilitated while on community supervision. The District Court

thus revoked McGuire’s three-year deferred imposition of sentence and sentenced him to

four years at the DOC, none suspended.

¶12 At the revocation hearing, Officer Roth was also asked about street time credit

earned by McGuire. She responded that from December 2019 to August 2020, “[h]e had

eight months of compliance so I would grant him those eight months.” The District Court

asked whether this recommendation was “based on [her] review of his probation

compliance records in this case.” Officer Roth answered in the affirmative. The parties

2 These violations included admission to use of methamphetamine, failing to appear for probation meetings, possession of alcohol, threatening to kill a probation officer, and failure to provide a sample for urinalysis.

6 also agreed that McGuire was still entitled to 86 days for time spent in custody in

connection with his original 2019 sentence, as well as two additional days for time served

in custody on October 15, 2021, and March 7, 2022. McGuire appeals.

¶13 “This Court reviews a district court’s decision to revoke a suspended sentence to

determine whether the court abused its discretion.” State v. Jardee, 2020 MT 81, ¶ 5, 399

Mont. 459, 461 P.3d 108. Revocation decisions “involve both legal and factual findings,”

and we review legal findings de novo and factual findings for clear error. Jardee, ¶ 5.

Additionally, this Court reviews de novo a district court’s determination of credit for time

served, as calculating such time is non-discretionary. State v. Tippets, 2022 MT 81, ¶ 10,

408 Mont. 249, 509 P.3d 1.

¶14 We first consider whether the District Court abused its discretion in revoking

McGuire’s deferred sentence and resentencing him to four years at the DOC. McGuire

argues that the District Court must be reversed because its decision was based on findings

over which it had no jurisdiction, and which violated McGuire’s right to due process.

Specifically, McGuire contends the District Court did not advise him of all allegations

against him prior to his revocation hearing, as he was not notified or arraigned concerning

the allegations in the September 2021 ROV. McGuire also argues the District Court

improperly considered the 14 violations in the May 2022 ROV and the second petition to

revoke, as they were both filed after the expiration of his original sentence. We address

each of these arguments in turn.

7 ¶15 While a revocation hearing is a “civil proceeding,” criminal defendants are

nevertheless “entitled to the protections of due process, including written notice of the

alleged violation[s] . . . .” State v. Edmundson, 2014 MT 12, ¶ 16, 373 Mont. 338, 317

P.3d 169. A criminal sentence is reviewed for legality only and will stand so long as it

falls within applicable statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont.

344, 151 P.3d 892.

¶16 Here, after finding that McGuire violated the terms of his deferred sentence, the

District Court was authorized to revoke that sentence and reimpose “any sentence that

might have been originally imposed.” Section 46-18-203(7)(a)(iv), MCA. McGuire’s

original crime was for felony criminal endangerment, which provides that a violator “shall

be fined an amount not to exceed $50,000 or imprisoned in the state prison for a term not

to exceed 10 years, or both.” Section 45-5-207, MCA. Thus, the four-year revocation

sentence itself was properly within the applicable statutory parameters for felony criminal

endangerment and therefore lawful.

¶17 As the State concedes, there is no record indication of McGuire being arraigned for

the violations alleged in Officer Roth’s September 2021 supplemental ROV. Further, the

second petition to revoke was filed after McGuire’s sentence had expired. A petition to

revoke must be filed before a sentence has expired. Section 46-18-203(2), MCA.

However, McGuire was also alleged to have violated the terms of his sentence in the

petition to revoke filed before the expiration of his original sentence on March 5, 2022,

based upon Officer Heidrick’s August 2021 ROV, in which McGuire admitted to using 8 and possessing methamphetamine, and for which he was advised of the allegations and

entered a denial. Moreover, eight of the violations in the May 2022 ROV occurred before

March 5, 2022, including multiple admissions of methamphetamine use and consistent

failures to report to probation officers. Even putting aside the purported violations listed

in the supplemental September 2021 and May 2022 ROVs, the State conclusively

established the probation violations alleged in the August 2021 ROV. As this Court has

explained, “[a] single violation of the conditions of a suspended sentence is sufficient to

support a district court’s revocation of that sentence.” State v. Sebastian, 2013 MT 347,

¶ 24, 372 Mont. 522, 313 P.3d 198; see also State v. Pedersen, 2003 MT 315, ¶ 20, 318

Mont. 262, 80 P.3d 79 (“A revocation hearing is not a criminal trial, but rather a hearing to

establish whether or not a probation violation has occurred.”). McGuire admitted to not

just one, but several probation violations, and the process error regarding the September

2021 ROV allegations does not undermine those admissions.

¶18 Next, McGuire argues that the District Court improperly based its revocation

sentence on the 14 allegations made in the May 2022 ROV and the second petition to

revoke. As noted, because both were filed after the expiration period, the District Court

lacked authority to revoke McGuire’s sentence based upon allegations in that ROV or

otherwise act on the State’s second petition to revoke. McGuire concedes the District Court

had authority to revoke under the original petition from August 2021, but responds that the

record makes clear that the sentence was based on later allegations contained in the May

2022 ROV, pointing to the District Court’s statement that “the violations amount to over a 9 dozen compliance violations.” However, McGuire fails to acknowledge that there was

nonetheless ample and even undisputed evidence sufficient to support revocation and the

revocation sentence imposed by the District Court. McGuire admitted to using

methamphetamine on August 4, 2021, in violation with his probation terms. Drug

paraphernalia was also found in his bedroom the next day. Moreover, the initial ROV filed

by Officer Heidrick documented other violations occurring before August 2021, including

an admission of drug use in June 2021. Based on these violations alone, the sentence was

permissible. To be sure, Officers Heidrick and Roth recommended the same sentence in

both August 2021 and September 2022, but that does not necessarily mean the first

recommendation, based upon timely allegations, was itself insufficient to support the new

sentence. We thus conclude that the District Court did not abuse its discretion in revoking

McGuire’s original deferred sentence or resentencing him to four years at the DOC.

¶19 We turn to McGuire’s argument that the District Court erred by failing to award

“street time” or elapsed time for periods of time served on probation without an identified

violation. Credit for elapsed time is governed by § 46-18-203(7)(b), MCA, which provides:

If a suspended or deferred sentence is revoked, the judge shall consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit against the sentence. If the judge determines that elapsed time should not be credited, the judge shall state the reasons for the determination in the order.

10 Though the District Court gave McGuire credit from December 2019 to August 2020, he

argues that it did not specifically identify violations that occurred before December 2019

or after August 2020 that would preclude credit for those time periods as well.

¶20 McGuire’s assertions are contrary to the record. To begin, the District Court

followed the statute by consulting the records and recollections of probation officers

assigned to McGuire, specifically Officer Roth’s, when the District Court asked her how

much street time McGuire should receive and confirmed that her recommendation was

“based on [her] review of his probation compliance records in this case.” Furthermore, the

initial ROV filed by Officer Heidrick in August 2021 details his recollections of various

violations from the start of McGuire’s sentence up to his August 4, 2021 admission of

methamphetamine use, including the consumption of alcohol on July 1, 2019 and

November 16, 2019. A period of sobriety and otherwise conforming behavior then

occurred from December 2019 to August 2020, which the District Court gave him credit

for. But in August 2020, McGuire was removed from group housing for drinking alcohol,

and similar violations continued to occur in March 2021 and June 2021. There were also

numerous violations from September 2021 until the end of the original sentence in March

2022 that were recorded by Officer Roth in the May 2022 ROV. Even if these violations

could not independently support revocation, they were part of the probation records, and

the District Court could consider them in determining whether McGuire had been in

compliance during the course of his sentence.

11 ¶21 McGuire argues the District Court’s ruling violates our decision in Jardee, where

we held that it is “insufficient for a district court to base a denial of street credit time solely

on ‘pattern’ of criminal behavior.” Jardee, ¶ 11. We explained that the State must point

to an “actual violation” that “is found in the record or recollection of the probation officer.”

Jardee, ¶ 11. Here, records and recollections offered by the State point to specific

violations, particularly the continued abuse of alcohol and drugs on multiple dates

throughout his original sentence, as discussed above. It is true that the District Court did

not write these violations into its Order, but it discussed them orally at the revocation

hearing and it heard related testimony from Officer Roth. Accordingly, we conclude the

District Court sufficiently conveyed its reasons for limiting street time credit to eight

months.

¶22 Last, McGuire contends that the District Court erred by failing to grant him

appropriate credit for time served in custody. The District Court granted 88 days of credit,

86 of which stemmed from jail time related to McGuire’s later-dismissed DUI charge in

2019. The other two days were earned for time in custody on October 15, 2021, and

March 7, 2022. McGuire argues that the District Court should have awarded an additional

76 days to account for jail time served on August 5-8, 2021; September 16, 2021; and

May 19-July 27, 2022. The State concedes this point, and we otherwise find support in the

record for McGuire’s contentions. Accordingly, the District Court’s determination

regarding time served is reversed, and we remand to the District Court for entry of an

additional 76 days of custody credit. 12 ¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶24 Affirmed in part, reversed in part, and remanded to the District Court for action

consistent with this Opinion.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON