June 24 2014
DA 13-0349
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 163N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LENARD JAMES STANG,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 08-0073 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Ingrid Rosenquist, Deputy County Attorney, Billings, Montana
Submitted on Briefs: June 11, 2014 Decided: June 24, 2014
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Lenard J. Stang appeals from the Order and Decision of the Thirteenth Judicial
District Court, Yellowstone County, denying his motion to dismiss the State’s petition to
revoke his suspended sentence. We affirm.
¶3 Stang pleaded guilty in October 2008 to two felonies. The District Court imposed
concurrent sentences of eight years at the Department of Corrections, with four years
suspended. Stang began serving the suspended portion of his sentence in February 2012.
On March 29, 2012, he was arrested in Butte-Silver Bow County on misdemeanor
charges. Pursuant to § 46-23-1012(2), MCA, his probation officer authorized law
enforcement to detain Stang at the Butte-Silver Bow Detention Center for alleged
violations of his probation, including absconding from supervision and failing to remain
law abiding. Bond was set at $50,000.
¶4 On April 11, 2012, the State filed a petition for revocation in the Yellowstone
County District Court. The District Court issued an arrest warrant the following day. At
that time, Stang was incarcerated in Butte-Silver Bow County. Pursuant to the arrest
warrant, he was brought before the Butte-Silver Bow County Justice Court on April 20.
The court set bail at $20,000 and committed Stang to the Butte-Silver Bow Detention
2 Center until such time as he could be transported to Billings. The court ordered that if
Stang posted bail, he should appear before the Yellowstone County District Court within
seven days of his release.
¶5 Stang remained in custody in Butte-Silver Bow County until June 18, 2012, when
he posted bond. On June 20, his probation officer learned that Stang had committed a
theft in Bozeman. The probation officer authorized law enforcement to detain Stang at
the Gallatin County Detention Center for violating his probation. Stang appeared on
June 22 before the Gallatin County Justice Court, which set bond at $50,000.
¶6 The State filed an amended petition for revocation in the Yellowstone County
District Court on June 28, 2012, incorporating both the April probation violations and the
June probation violations. The District Court issued an arrest warrant that same day.
Stang remained in custody in Gallatin County. He was served with the second arrest
warrant on September 10, 2012, and was then transported to Yellowstone County. He
appeared before the Yellowstone County District Court on September 14, at which time
he was served with the amended petition for revocation and supporting documents.
Ultimately, the charges pending in Butte-Silver Bow County were resolved pursuant to a
plea agreement on October 31, 2012, and the charges pending in Gallatin County were
dismissed on December 5, 2012.
¶7 Stang moved to dismiss the State’s petition for revocation on the ground that his
“Constitutional Due Process rights under the State and Federal Constitution[s] were
violated when Stang was not brought before the Court to be advised of the Petition to
Revoke without unnecessary delay as required by Mont. Code Ann. § 46-18-203.” He
3 argued that “[t]he facts of this case are akin to” State v. West, 2008 MT 338, 346 Mont.
244, 194 P.3d 683. In West, this Court refused to consider a statutory-based challenge to
the delay in bringing a probationer before the court pursuant to § 46-18-203(4), MCA.
West, ¶ 22. However, exercising plain error review, the Court considered the
probationer’s constitutional argument and held that “the execution of a
probation-violation warrant without unreasonable delay is one of the due process
protections accorded defendants in the context of probation-revocation proceedings.”
West, ¶ 27. In evaluating whether the delay violates due process, a court must consider
the totality of the circumstances, including the length of the delay, the reasons for the
delay, the State’s diligence in attempting to serve the warrant, any conduct of the
probationer that frustrated or impeded service of the warrant, whether the probationer’s
whereabouts were known or readily ascertainable, and any actual prejudice suffered by
the probationer as a result of the delay (such as prejudice to his ability to defend against
the petition). West, ¶¶ 34-35.
¶8 Stang argued that the State had failed to execute the arrest warrants issued by the
District Court in a timely manner and, as a result, that he had not been brought before the
District Court without unreasonable delay. He noted that he was in the State’s custody
when the warrants were issued, and he argued that there was “no plausible explanation”
for the State’s failure to execute the warrants sooner. Stang further argued that the
alleged constitutional violation was presumptively prejudicial and, as such, that he did
not need to show actual prejudice. Nevertheless, at the hearing on his motion, Stang
testified that he had suffered anxiety and lost opportunities due to his incarceration.
4 ¶9 In denying Stang’s motion to dismiss, the District Court concluded that the delay
in bringing him before the court did not amount to an infringement of his due process
rights. The court determined that Stang had not suffered any prejudice to his ability to
defend against the petition. Moreover, while acknowledging that he had been in the
State’s custody during the vast majority of the delay, the court reasoned that Stang had
prolonged the delay by his own actions, particularly his failure to self-report to the court
within seven days of posting bond in Butte-Silver Bow County.
¶10 The case proceeded to a revocation hearing on March 12, 2013, at which Stang
admitted to violating certain conditions of his probation. The District Court resentenced
him to concurrent sentences of four years at the Montana State Prison, with one year
suspended.
¶11 On appeal, Stang maintains that the delay “violate[d] his rights to due process
under the State and Federal Constitution[s].” He contends that the State provided no
reasonable explanation for the delay and that the District Court failed to consider his
testimony about anxiety and lost opportunities. Alternatively, he reiterates his theory that
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June 24 2014
DA 13-0349
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 163N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LENARD JAMES STANG,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 08-0073 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Ingrid Rosenquist, Deputy County Attorney, Billings, Montana
Submitted on Briefs: June 11, 2014 Decided: June 24, 2014
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Lenard J. Stang appeals from the Order and Decision of the Thirteenth Judicial
District Court, Yellowstone County, denying his motion to dismiss the State’s petition to
revoke his suspended sentence. We affirm.
¶3 Stang pleaded guilty in October 2008 to two felonies. The District Court imposed
concurrent sentences of eight years at the Department of Corrections, with four years
suspended. Stang began serving the suspended portion of his sentence in February 2012.
On March 29, 2012, he was arrested in Butte-Silver Bow County on misdemeanor
charges. Pursuant to § 46-23-1012(2), MCA, his probation officer authorized law
enforcement to detain Stang at the Butte-Silver Bow Detention Center for alleged
violations of his probation, including absconding from supervision and failing to remain
law abiding. Bond was set at $50,000.
¶4 On April 11, 2012, the State filed a petition for revocation in the Yellowstone
County District Court. The District Court issued an arrest warrant the following day. At
that time, Stang was incarcerated in Butte-Silver Bow County. Pursuant to the arrest
warrant, he was brought before the Butte-Silver Bow County Justice Court on April 20.
The court set bail at $20,000 and committed Stang to the Butte-Silver Bow Detention
2 Center until such time as he could be transported to Billings. The court ordered that if
Stang posted bail, he should appear before the Yellowstone County District Court within
seven days of his release.
¶5 Stang remained in custody in Butte-Silver Bow County until June 18, 2012, when
he posted bond. On June 20, his probation officer learned that Stang had committed a
theft in Bozeman. The probation officer authorized law enforcement to detain Stang at
the Gallatin County Detention Center for violating his probation. Stang appeared on
June 22 before the Gallatin County Justice Court, which set bond at $50,000.
¶6 The State filed an amended petition for revocation in the Yellowstone County
District Court on June 28, 2012, incorporating both the April probation violations and the
June probation violations. The District Court issued an arrest warrant that same day.
Stang remained in custody in Gallatin County. He was served with the second arrest
warrant on September 10, 2012, and was then transported to Yellowstone County. He
appeared before the Yellowstone County District Court on September 14, at which time
he was served with the amended petition for revocation and supporting documents.
Ultimately, the charges pending in Butte-Silver Bow County were resolved pursuant to a
plea agreement on October 31, 2012, and the charges pending in Gallatin County were
dismissed on December 5, 2012.
¶7 Stang moved to dismiss the State’s petition for revocation on the ground that his
“Constitutional Due Process rights under the State and Federal Constitution[s] were
violated when Stang was not brought before the Court to be advised of the Petition to
Revoke without unnecessary delay as required by Mont. Code Ann. § 46-18-203.” He
3 argued that “[t]he facts of this case are akin to” State v. West, 2008 MT 338, 346 Mont.
244, 194 P.3d 683. In West, this Court refused to consider a statutory-based challenge to
the delay in bringing a probationer before the court pursuant to § 46-18-203(4), MCA.
West, ¶ 22. However, exercising plain error review, the Court considered the
probationer’s constitutional argument and held that “the execution of a
probation-violation warrant without unreasonable delay is one of the due process
protections accorded defendants in the context of probation-revocation proceedings.”
West, ¶ 27. In evaluating whether the delay violates due process, a court must consider
the totality of the circumstances, including the length of the delay, the reasons for the
delay, the State’s diligence in attempting to serve the warrant, any conduct of the
probationer that frustrated or impeded service of the warrant, whether the probationer’s
whereabouts were known or readily ascertainable, and any actual prejudice suffered by
the probationer as a result of the delay (such as prejudice to his ability to defend against
the petition). West, ¶¶ 34-35.
¶8 Stang argued that the State had failed to execute the arrest warrants issued by the
District Court in a timely manner and, as a result, that he had not been brought before the
District Court without unreasonable delay. He noted that he was in the State’s custody
when the warrants were issued, and he argued that there was “no plausible explanation”
for the State’s failure to execute the warrants sooner. Stang further argued that the
alleged constitutional violation was presumptively prejudicial and, as such, that he did
not need to show actual prejudice. Nevertheless, at the hearing on his motion, Stang
testified that he had suffered anxiety and lost opportunities due to his incarceration.
4 ¶9 In denying Stang’s motion to dismiss, the District Court concluded that the delay
in bringing him before the court did not amount to an infringement of his due process
rights. The court determined that Stang had not suffered any prejudice to his ability to
defend against the petition. Moreover, while acknowledging that he had been in the
State’s custody during the vast majority of the delay, the court reasoned that Stang had
prolonged the delay by his own actions, particularly his failure to self-report to the court
within seven days of posting bond in Butte-Silver Bow County.
¶10 The case proceeded to a revocation hearing on March 12, 2013, at which Stang
admitted to violating certain conditions of his probation. The District Court resentenced
him to concurrent sentences of four years at the Montana State Prison, with one year
suspended.
¶11 On appeal, Stang maintains that the delay “violate[d] his rights to due process
under the State and Federal Constitution[s].” He contends that the State provided no
reasonable explanation for the delay and that the District Court failed to consider his
testimony about anxiety and lost opportunities. Alternatively, he reiterates his theory that
the alleged constitutional violation was presumptively prejudicial. The State responds
that Stang’s conduct of getting arrested in Bozeman, after being released on bail, caused
part of the delay and that Stang has failed to show that he was prejudiced by the delay.
¶12 We review questions of constitutional law de novo and findings of fact for clear
error. State v. Covington, 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43. Due process
is flexible and calls for such procedural protections as the particular situation demands.
West, ¶ 32. Among the factors relevant to a due process claim under West is whether the
5 probationer suffered “actual” prejudice. West, ¶ 34. Thus, Stang’s argument premised on
presumptive prejudice is misplaced. As for actual prejudice, the District Court found that
Stang had failed to demonstrate the delay prejudiced his ability to defend against the
petition. Stang has not shown this determination to be in error. He asserts that he
experienced anxiety and lost opportunities; however, it appears from the District Court’s
order that the court did not find this claim to be particularly credible. We defer to such
assessments. Ditton v. Motor Vehicle Div., 2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d
1268. Finally, there is no evidence of bad faith on the part of the State, and the record
supports the District Court’s finding that Stang’s conduct was a factor in the delay.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
District Court did not err in denying Stang’s motion to dismiss.
¶14 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ JIM RICE