STATE v FORD
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No. 85-101 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 STP-TE OF MONTANA, P l a i n t i f f and Respondent, -vsTF.OY FORD, Defendant and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Twentieth J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f L a k e , The H o n o r a b l e C . B. M c N e i l , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: P h i l i p J . G r a i n e y ; F r e n c h , Mercer, G r a i n e y and Duckworth, P o l s o n , Montana For Respondent: Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J o h n F r e d e r i c k , County A t t o r n e y , P o l s o n , Montana S u b m i t t e d on b r i e f s : Decided: ~ i l e: d OCT 8 1985 October 8, J u l y 25, 1955 1985 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Defendant appeals the order revoking his sentence. suspended The District Court of the Twentieth Judicial District, Lake County, reinstated the five-yea-rsentence for aggravated burglary and assault, based upon a violation of a probation condition requiring immediate entrance into and completion of an in-patient alcoholism treatment program. We affirm the revocation order but remand. to the Twentieth Judicial District for findings of fact and conclusions of law on the designated dangerous offender status. Appellant presents the following issues for review: 1. Does the record offer substantial evidence to support the District Court determination that the defendant violated a condition of his suspended sentence? 2. Did the probation officer adequately advise proba- tioner as required by 3. § 46-23-1011, MCA? Did the court abuse its discretion in considering defendant's prior record and the offenses for which he was sentenced rather than. limiting the hearing to the issue of probation violation? 4. Did the court properly classify defendant as a dangerous offender? Troy Ford, aged twenty-three, pled guilty to charges of aggravated burglary and assault. He and two other males had entered a double-wide mobile home at about midnight on August 19, 3.984, and wielded a baseball bat and a large stick upon the two unsuspecting occupants. Ford initialed his request to enter a guilty plea. District Court Jud.ge James B. Wheelis sentenced Ford on November 28, 1984, to five-years confinement at the Montana. State Prison with a five-year period standard conditions and supervision. of suspension with The minute entry re- corded that defendant was to obtain alcohol counseling as recommended, including in-pa.tient program. Further, l1[i1f the probation is revoked and the defendant is ever sent to MSP, he is designated a dangerous offender." The iudgment based on the sentencing was entered December 10, 1984. However, following completion of sentencing on November 28, 1984, Ford was placed under the jurisdiction of the Adult Probation and Parole Division of the State of M0ntan.a Department of Institutions and ordered to comply with the terms and conditions of probation as established by the division. On that same date, November 28, 1984, Ford met with Ron Nlsbury, probation and parole officer for Lake County. Alsbury discussed with Ford the conditions of his probation and Ford initialed each of the requirements especially per- taining to him. In particular, Ford initialed before each. of seven typed-in special conditions. The following pertains to the issues on appeal: 14. SPECIAL CONDITIONS: (1) Immediately enter & successfully complete in-patient alcoholism treatment program to be followed by aftercare program including half-way house, counattendance & monitored seling, AA antabuse if necessary. Ford also initialed a condition restricting him to Lewis and Clark and Broadwater Counties where he wanted his probation transferred. Finally, Ford signed the entire agreement on conditions of probation, which stated that he fully und.erstood and agreed to abide by and follow the conditions, fully understanding the penalties for any manner of violation of conditions. The director/counselor of the Lake County chemical dependency program had evaluated and counseled Ford before the plea bargain. After checking into several programs, she concluded that Galen was the only available program where he could be in-patient admitted right treatment. She away and which had required scheduled the appointment at Galen. Ford met in Helena on November 29, 1984, with his new probation officer, Thomas Lofland, and said he was scheduled to go to Galen. 1,ofland issued the travel permit, advising him to verify that he was in Gal-en in the in-patient alcohol treatment program. Instead, Ford told the detox counselor at Galen that he did not have an al-coho1 problem and did not belong there. When contacted, Lofland told the counselor to advise Ford that there may be consequences in his refusal. Ford returned to Helena voluntarily on December 5, 1984, met with Lofland and was promptly arrested for violating conditions of his probation. District Court Judge C. B. McNeil sitting at the revocation hearing on January 16, 1985, heard testimony from I,ofland, Alsbury, Ford, and the two detox counselors in the matter. In its order, the court determined that Ford knew he had to comply with the conditions of the Adult Probation and Parole Division and that he had to enter and complete an in-patient alcoholism treatment program as recommended by his probation officer. The court found that Ford knew and dis- cussed the required in-patient program with Alsbury, took the bus to Galen to the in-patient program he was required to enter and complete, and knowingly refused to participate in the program. The court concluded that the State had met its burden of proof by sufficient evidence that Ford had violated the conditions imposed at sentencing on November 28, 1984; ordered that he be designated a dangerous offender for purposes of parole; and reinstated the full five-year sentence based upon the previous record of violent crimes. 1. Substantial evidence. Counsel for appellant con- tends that the sentencing proceedings and the subsequent judgment signed pursuant to the sentencing required Ford to obtain alcohol counseling but did not specify a particular program. Appellant asserts that the Lake County al.coholism counselor left Ford with the impression that he had a choice of alternative programs and he declined at Galen thinking he could get into another program. Arguing that the condition of attending the program at Galen was not a condition on the record, appellant claims that there is not substantial evidence to support the court's determination of a violation of the condition. We hold that there was substantial evidence on the record to determine that Ford had knowingly violated the condition of attending the in-patient alcoholism treatment program. At sentencing on November 28, 1984, the court made clear that Ford was to attend an in-patient program as recommended and that he was under supervision. On November 28, 1984, his supervisory probation officer read every condition with Ford and Ford initialed the significant pertinent conditions, particularly that he "immediately enter [and] successfully . . ." complete in-patient alcoholism treatment program. Ford's later claim that he did not read the document he signed is without merit. The form he signed stated: "I have read, or have had read to me, the foregoing conditions of my probation/parole." Once the Lake County alcoholism counselor realized that j-n-patient treatment was required, she scheduled an appointment at Galen for December 3, 1984, as the only suitable program he could immediately enter as required. Further evidence on the record indicates that Ford met with his new supervisory officer on November 29, 1984. He received his traveling papers for Galen with the understanding that he should verify he was in the in-patient treatment program. of his He knew that immediate in-patient was a condition suspended sentence and that the consequences of breaching the conditions would he loss of the suspension of the sentence. He refused to sign the papers to enter the program, a violation of the sentencing requirement to obtain alcoholism counseling, including immediate in-patient treatment as recommended, and a violation of the conditions of probation, as initialed and signed. 2. Probation officer's duty to advise. Appellant contends that Lofland-,the second probation officer, violated 46-23-1011, MCA, in the duty to consult with the probationer ". . . conduct. " to encourage him to improve his condition and Before Ford was transferred to Lofland's supervision, however, Alsbury in Lake County had explained the conditions of the suspended sentence. The Galen appoint- ment had been made, and Alsbury further emphasized to Ford. the importance of the Galen program and possible consequences when he gave him a ride to Missoula so that he could follow through on his appointment. Once there was a violation of the condition in Ford's denial of an alcohol problem and his refusal to enter immediately into the program, Lofland's duty to advise was replaced by his duty to report the violation. The record supports the fact that Ford had been well-advised and counseled by his probation officer at the time of sentencing and after to follow the conditions he signed. 3. Standard for - determining abuse of - discretion. Appellant contends that the court abused its discretion in going beyond the issue of whether there wa-s a violation of the condition of suspension. the S; suspension pursuant We find that the court revoked to the discretion granted in 46-18-203, MCA, under which the sentencing judge who had the authority and discretion to suspend the sentence under S 46-18-201, MCA, ". . . or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed." For revocation following a hearing under 5 46-23-1013, MCA, establishment of the violation of the probationary condition is necessary in order to exercise the discretion properly. State v. 1984), 695 P.2d 1300, 41 St.Rep. 1810. is that the facts before him be Kern (Mont. "All that is required such that the judge is reasonably satisfied that the conduct of the probationer has he agreed it would he if not been what liberty." State v. Robinson (Mont. 1980), 619 P.2d 81.3, 815, he were given 37 St.Rep. 1830, 1833. The court must be satisfied at a minimum that the defendant violated the conditions of probation to revoke the suspension. This does not mean the court is limited on.ly to consider facts on the alleged violation. The hearing afford- ed a defendant who has been arrested for an alleged probation violation is not required to follow the formalities of a hearing on a criminal offense: or summary." "The hearing may be informal Section 46-23-1013, MCA. Furthermore, the court has considerable discretion in sentencing once the violation is proved.: Action of violator] . court after arrest [of 46-23-1013 (2). If the viola.tion is established, the court may continue to revoke the probation or suspension of sentence and may require him to serve the sentence imposed or any lesser sentence and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. Once the violation was established, the court could. not consider the violation for purposes of revocation without reference to the original offense and sentence. In a case previously decided by this Court, an appellant contended that the District Court erred in not showing "findings that continued probation would be at odds with society's interest in defendant's rehabilitation as well as the need to protect society." Kern, 695 P.2d at 1301. There we held that the court properly exercised its discretion. In addition to the revocation hearing, the court took the matter under advisement. The defendant had due process beyond the minimum required informal or summary hearing. Yet at its d-iscretion the court could revoke the suspension based upon the established violation alone. Here we have process in which the court held a. full evidentiary hearing for purposes of establishing the violation, took the matter under advisement, determined. that there was a violation, and then considered the interests of society and defendant's rehabilitation before imposing the sentence originally imposed pursuant to S 46-23-1013, MCA. "The decision to revoke a suspended sentence cancels a prior act of grace and is a matter within district court." the discretion of the Kern, 695 P . 2 d at 1301. We hold that there was no abuse of discretion, once the violation was established, in the court's consideration of the factors in the original sentencing to determine what sentence to impose. power It is within the court's discretionary to revoke the benevolent decision (to suspend the sentence) pursuant to 5 46-18-203, MCA, when defendant does not merit further liberty or beneficence. 1302, citing Robinson, 619 P.2d at 814. Kern, 695 P.2d at Upon revocation, the court may exercise its discretion in determining a suitable sentence, based upon 46-23-1013, MCA. the original sentencing under It is within its discretion to consider the entire record. 4. Designation - dangerous offender status. of Appel- lant contends that the judge presiding at the revocation hearing had no jurisdiction to classify Ford as a dangerous offender and that Ford was improperly classified as a dangerous offender by the sentencing court. We find that the judge a.t the revoca.tion hearing did not classify Ford; the sentencing court determined that the defendant was not eligible for nondangerous designation. the sentencing court under This was within the discretion of § 46-18-404, MCA. This Court, however, has articulated requirements for a judgment determining dangerous offender status: 'I. .. an individual may be designated a dangerous offender, if, in the discretion of the sentencing court, he is determined to represent a substantial danger to other persons or society; however, - - - than a mere recital - - statutory language more of the is - required. sons The sentencinq court must articulate - its rea- p underlying its determination." In the Matter of McFadden (19801, i85 Mont. (Emphasis added.) Where 220, 222, 605 P.2d 5991 600. the record revealed substantial evidence to support a District Court determination of "dangerous" designation, this Court remanded the cause to the district iudge for State v. Camitsch St.Rep. 563, 573. findings to support the (Mont. 1981), 626 P.2d conclusions. 1250, 1259, 38 Without the findings, this Court could not determine if there was an abuse of discretion. We vacate that part of the judgment classifying appellant as a dangerous offender and remand to the District Court of the Twentieth Judicial District for findings and judgment on appellant's dangerous offender status. There is substantial evidence on the record, but without the reasons articuin lated - - . -the judgment, we cannot make the determination if appellant was properly classified a dangerous offender. Affirmed in part and, remanded with instructions. We concur: r .I, .-,.(.( / ' ' .(,~&;;~.!~~?.i: Justices
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