State v. Aune, 02-356.

• Decision Date: 09 January 2003
• Docket Number: No. 02-356.,02-356.
• Citation: 61 P.3d 785,314 Mont. 1,2003 MT 3
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jason Floyd AUNE, Defendant and Appellant.
• Court: Montana Supreme Court

61 P.3d 785

2003 MT 3

314 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Jason Floyd AUNE, Defendant and Appellant.

No. 02-356.

Supreme Court of Montana.

Submitted on Briefs November 21, 2002.

Decided January 9, 2003.

James L. Vogel, Vogel Law Office, Hardin, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Montana Attorney General, Helena, Montana; Christine Cooke, Big Horn County Attorney, Hardin, Montana, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 In 1996, Jason Aune (Aune) pled guilty in the Twenty-Second Judicial District Court to two counts of felony sexual assault and one count of criminal mischief, a misdemeanor. Aune was sentenced to two twenty-year terms at the Montana State Prison (MSP) and a six month jail term, with all time suspended. On July 17, 2001, the State filed a petition to revoke Aune's suspended sentence. Following hearings on the petition, the District Court revoked Aune's suspended sentence and sentenced him to MSP for a period of fifteen years, 259 days on each sexual assault count, with time running concurrently on each. Aune appeals from this order. We affirm.

¶ 2 The sole issue presented on appeal is whether the District Court erred when it found that Aune had violated the terms and conditions of his probation and revoked Aune's suspended sentence.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On August 29, 1995, Aune was charged in Big Horn County with two counts of felony sexual assault for fondling two three-year-old boys, and one count of criminal mischief, a misdemeanor, for damage caused during his attempt to elude law enforcement. Pursuant to a plea agreement, Aune pled guilty to all three charges on October 15, 1996. On December 23, 1996, following preparation of a presentence investigation, the District Court sentenced Aune to MSP for a term of twenty years on both counts of sexual assault and to the County Jail for a term of six months for criminal mischief, with all three sentences to run concurrently. The District Court then suspended Aune's sentence entirely.

¶ 4 Included in the conditions of Aune's suspended sentence were the standard rules and regulations required by the Department of Adult Probation and Parole, as well as payment of various fees. In addition, the District Court included the following conditions:

2. The Defendant shall, in a timely manner to be determined by his supervising officer, complete a Sexual Offender Evaluation and follow through with any recommendations made therein to the satisfaction of his supervising officer.

3. Defendant shall have no contact with minor children unless approved by a Sex Offender Counselor or Treatment Team.

¶ 5 Directly following imposition of this suspended sentence, Aune was transported to North Dakota where he faced revocation of a three-year deferred sentence that he had received for convictions of burglary and criminal trespass in 1995. Apparently, Aune also faced a charge for issuing bad checks in North Dakota. The record is unclear as to the disposition of those matters.

¶ 6 In the Spring of 1997, Aune was transported back to Montana on a charge of issuing bad checks in Richland County. Following a plea of guilty, Aune was sentenced on May 6, 1997, by the Seventh Judicial District Court to eight years at MSP, with two years suspended. In addition to the standard rules and regulations of probation, the court imposed several conditions of suspension on Aune, including that Aune participate in sexual offender counseling on a regular basis if determined necessary by his parole/probation officer, and also that he have no contact with minor-aged children. The Seventh Judicial District Court also ordered Aune to complete Phases I and II of the Sex Offender Treatment Program (SOTP) at MSP prior to being considered for parole. In ordering these conditions, the court noted that

[a]s a condition of his sentence in Big Horn County, Montana, the Defendant was supposed to obtain sex offender treatment. He has not done so and will not have the opportunity to do so in the remainder of his time in custody in North Dakota. Rather than risk having a convicted sex offender slip through the cracks because of the numerous charges pending against this Defendant, the [c]ourt deems it appropriate to include the treatment as a part of this sentence, recognizing that this was not a crime of a sexual nature.

Aune did not challenge this conviction or sentence.

¶ 7 MSP received Aune on December 3, 1997, and while in the prison, Aune completed Phase I of SOTP, which focuses on education and usually takes about sixteen weeks to complete. Although Aune began Phase II of SOTP, he quit participating one month before he discharged to probation from MSP on August 13, 2000. During Phase II, which is the intensive treatment component of SOTP, offenders complete specific tasks addressing a wide-range of issues related to sexual offending and recovery, and then present those tasks during individual and group therapy sessions. Phase II generally takes at least two years to complete. Aune explained that he attended Phase II for thirteen or fourteen months, but complained that the other participants were not working on counseling issues during sessions. Aune felt the sessions were not helpful and he was getting depressed.

¶ 8 Upon leaving MSP, Aune sought to have his probation transferred to Williston, North Dakota, so he could reside with his parents and find work. Aune was initially denied supervision in North Dakota since there were no appropriate treatment programs in Williston, and North Dakota's probation department would not accept Aune, who was a high risk to re-offend, without treatment. During the process of trying to transfer his probation to North Dakota, Aune applied for enrollment with the Sex Offender Treatment Program at the Badlands Human Service Center (Badlands) in Dickinson, North Dakota, which is 125 miles from Williston.

¶ 9 Aune completed a sex offender evaluation at Badlands, eventually being accepted into the program, and North Dakota assumed probationary supervision of Aune as of September, 2000. However, Aune's acceptance into Badlands was conditioned on an agreement that in addition to the requirements under the standard Badlands treatment contract, Aune would also abide by an addendum to the contract that was specifically designed for him. The addendum prohibited Aune from having contact with minors and from using the Internet, and required that Aune abide by a curfew, keep a daily log of activities, and notify his case manager of any changes in address/employment. Pertinent to this appeal, Aune was also required to abide by the following condition contained in the standard Badlands' treatment contract:

All partners of clients who are involved in an ongoing marital, common law, or live-in relationship must agree to participate in treatment as recommended by a therapist or treatment team.

Aune signed both the contract and accompanying addendum, and began attending treatment sessions in November of 2000.

¶ 10 Initially, Aune lived in Dickinson, but later moved to Williston, commuting to Dickinson for his counseling sessions at Badlands. From November 2000 to June 2001, Aune attended over ninety group or individual sessions, and in April of 2001, he got married. In June of 2001, Aune was terminated from the sex offender treatment program at Badlands. On July 17, 2001, the State of Montana filed a petition for revocation of Aune's 20-year suspended sentence for felony sexual assault. The petition to revoke was supported by an allegation that Aune failed to pay required court costs, had not participated in sexual offender counseling on a regular basis, citing his termination from Badlands, and that Aune had unauthorized contact with minors.

¶ 11 The District Court set a hearing on the petition for September 24, 2001, when it heard testimony from the following witnesses: Lois Merkle (Merkle), Aune's probation officer from North Dakota; Karen Goyne (Goyne), a counselor at Badlands; Cotton Secrest (Secrest), a probation officer in Big Horn County; Aune; and Aune's landlady, father, and brother.

¶ 12 Merkle testified that Aune was terminated from Badlands in June of 2001, for failing to follow contract and addendum rules, such as lying, violating curfew, and having contact with minors. According to Merkle, Aune admitted that he had lied to her and to his counselors at Badlands. Merkle also testified that two minor girls lived at a farm where Aune worked and explained that Aune was in contact with them in violation of the conditions of his probation and the contract-addendum with Badlands. Merkle told the court that Aune admitted to her that he had contact with minor children and that he knew they were under age eighteen. However, Merkle conceded that following an Interstate Compact Preliminary Hearing in Williston on July 9, 2001, where Merkle presented similar testimony, the hearing officer found there was no probable cause to support the belief that Aune had contact with minors.

¶ 13 Goyne, a psychiatric nurse at Badlands who worked with Aune in her role as group facilitator with the sex offender program, explained that the principal reason Aune was terminated from the program was because of the dishonesty he displayed to the treatment team. Goyne agreed that physical presence at counseling sessions was a big part of treatment, but added that "more than attendance is their willingness to be honest and participate in the program, be an active member, share honestly, those kind of things." Goyne relayed to the court that Aune told her, "I lie for no reason," and told the court that she explained to Aune that if he wanted to remain in the program he would have to be honest and disclose any violations of his contract, which according to Goyne, Aune failed to do.

¶ 14 Goyne further testified that Aune's girlfriend/wife met with the...