State v. Ballensky, 980108

• Citation: 586 N.W.2d 163
• Decision Date: 19 November 1998
• Docket Number: No. 980108,980108
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jerric BALLENSKY, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 163

586 N.W.2d 163

1998 ND 197

STATE of North Dakota, Plaintiff and Appellee, v. Jerric BALLENSKY, Defendant and Appellant.

Criminal No. 980108

Supreme Court of North Dakota.

Nov. 19, 1998.

Larry W. Quast, State's Attorney, Stanton, for plaintiff and appellee.

Michael R. Hoffman, of Tuntland and Hoffman, Mandan, for defendant and appellant.

MARING, Justice.

¶1 Jerric Ballensky appeals from the district court's order revoking his probation. Because the district court's finding that Ballensky violated a condition of his probation is clearly erroneous, we reverse.

I

¶2 On September 12, 1996, the Mercer County State's Attorney filed a criminal complaint against Ballensky on the charge of manslaughter. The State alleged in the complaint that Ballensky recklessly caused the death of a passenger in his vehicle in an accident which occurred on October 4, 1995. On September 23, 1996, Ballensky appeared in Mercer County District Court to answer the complaint. He pled not guilty and was released on bond pending trial.

¶3 On January 13, 1997, the Mercer County State's Attorney again filed a criminal complaint against Ballensky on the charge of disorderly conduct for conduct that occurred on January 6, 1997.

¶4 On April 3, 1997, the State reduced Ballensky's manslaughter charge to negligent homicide, and recommended a suspended sentence of five years in prison with five years of supervised probation. On May 13, 1997, Ballensky appeared in Mercer County District Court and pled guilty to the negligent homicide charge. At the sentencing hearing the same day, the district court deferred imposition of Ballensky's sentence for five years on the condition that he, among other things, successfully complete five years of supervised probation.

¶5 In the district court's order deferring imposition of sentence, one of the conditions stated "the Defendant, during that period, will be on probation and shall not violate any criminal laws of any city, county, state or federal government[.]" In addition, the appendix to the court's order stated as one of the conditions of probation that Ballensky "not violate any Federal, State, County, or Municipal criminal law or ordinance during the period of probation." The district court was not informed at the sentencing hearing that there was a disorderly conduct charge pending against Ballensky, involving an incident on January 6, 1997.

¶6 On September 24, 1997, nearly five months after being sentenced to probation, Ballensky again appeared in Mercer County District Court and pled guilty to the disorderly conduct charge. Five days later, the Mercer County State's Attorney petitioned for revocation of his probation. The State argued that by pleading guilty to the disorderly conduct charge on September 24, 1997, Ballensky violated the law during the period of his probation and therefore violated the terms of his probation. Ballensky resisted the petition, arguing probation cannot be revoked for an offense where the conduct occurred prior to probation being imposed.

¶7 In its memorandum opinion of December 31, 1997, the district court concluded:

Until a judgement of guilty is entered, the defendant is innocent of the charge, regardless of when it occurred, even if it occurred before the probation was imposed. Also, it is appropriate for the prosecution to await disposition of a criminal charge before beginning a revocation proceeding. State v. Gefroh, 458 N.W.2d 479 (N.D.1990).

The district court subsequently revoked Ballensky's May 13, 1997, deferred imposition of sentence and probation, and imposed a sentence of 22 months to be served with the Department of Corrections. Ballensky's timely appeal to this court followed.

II

¶8 A probation revocation is reviewed in two steps. First, we review a trial court's factual finding that a condition of probation was violated under a clearly erroneous standard. State v. Monson, 518 N.W.2d 171, 173 (N.D.1994). Second, we review a trial court's determination that the violation warrants revocation under an abuse of discretion standard. Id. A trial court's factual finding is clearly erroneous when it has been induced by an erroneous view of the law. Lawrence v. Delkamp, 1998 ND 178, p 9, 584 N.W.2d 515. We reach only the first step in our review of this probation revocation because we are convinced the trial court based its factual finding on an erroneous view of the law.

¶9 Ballensky argues revocation of probation should only be based on a probationer's conduct which occurs during the probationary period. In support of his argument, he points to N.D.C.C. § 12.1-32-07(2), which provides in part:

The conditions of probation must be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so. The court shall provide as an explicit condition of every probation that the defendant not commit another offense during the period for which the probation remains subject to revocation. (Emphasis added.)

Recognizing his condition of probation was phrased such that he "not violate" any law, Ballensky argues "not violate" should be construed to mean "not commit" further offenses during the period of probation. We agree.

¶10 We have long held conditions of probation are to be strictly construed in favor of the offender. Monson, 518 N.W.2d at 173. In Monson, we stated:

[I]f conditions of probation are capable of two constructions, we will construe the conditions in favor of the defendant....

"[T]here is great value in making all conditions of release clear and capable of being understood by the offender in order that he knows exactly what is expected of him."

Id. (quoting State v. Drader, 432 N.W.2d 553, 554 (N.D.1988)). Ballensky's condition of probation that he "not violate any Federal, State, County, or Municipal criminal law or ordinance during the period of probation" is clear. We determine a violation occurs when the conduct is committed. Therefore, because Ballensky's disorderly conduct occurred nearly six months before the imposition of his sentence, he did not "violate any ... law or ordinance during the period of probation."

¶11 Construing the terms of Ballensky's probation to include conduct committed prior to the sentence of probation would undermine one of the primary purposes of probation. We have recognized "the basic purpose of probation, namely [is] to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement...." State v. Schlosser, 202 N.W.2d 136, 138 (N.D.1972) (citation omitted). As one commentator has stated, "a sentence to probation ... is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against." Cohen & Gobert, The Law of Probation and Parole § 1.03, at 9 (1st ed.1984) (emphasis added) (quoting ABA Project on Standards for Criminal Justice, Standards Relating to Probation (Approved Draft 1970)). The idea is that the probationer is put to the test. If the probationer complies with the conditions of probation, he avoids incarceration. In this instance, there was nothing Ballensky could have done after he was sentenced to probation on May 13, 1997, to change the course of events of January 6, 1997. We fail to see how revoking one's probation for conduct committed prior to being sentenced to probation serves its rehabilitative purpose.

¶12 Other jurisdictions addressing this issue are in accord with our interpretation. The Maryland Supreme Court recently addressed the issue of whether parole may be revoked when non-compliance with parole conditions occurred prior to the defendant being paroled. See Patuxent Inst. Bd. of Review v. Hancock, 329 Md. 556, 620 A.2d 917, 923-24 (Md.1993), cert. denied, 510 U.S. 905, 114 S.Ct. 284, 126 L.Ed.2d 234 (1993). In reaching its conclusion that non-compliance must occur after the parole has been granted, the Hancock court referenced a number of decisions addressing the issue in the context of probation revocation. The court first noted two of its own prior decisions and concluded:

We held in both cases that probation revocation proceedings may be pursued and may be held after the probationary period has expired, so long as the act constituting a violation of probation occurred during the probationary period. Revocation of probation, in other words, must be based on conduct occurring subsequent to the grant of probation, but prior to its expiration.

Hancock, 620 A.2d at 927 (emphasis added) (citing State v. Miller, 289 Md. 443, 424 A.2d 1109, 1111 (Md.1981); State v. Berry, 287 Md. 491, 413 A.2d 557, 562 (Md.1980)). ¹ The law in other jurisdictions is equally as clear on this issue. See Bryce v. Commonwealth, 13 Va.App. 589, 414 S.E.2d 417, 418 (Va.Ct.App.1992) (noting "[g]enerally, where the suspension is conditioned upon future good conduct, the revocation of the suspension must be predicated upon a showing of conduct which occurs subsequent to the imposition of the suspended sentence"); Bell v. State, 656 S.W.2d 502, 504 (Tex.Ct.App.1982) (concluding "probation cannot be revoked upon the basis of an offense committed prior to appellant's being placed on probation"); Demchak v. State, 351 So.2d 1053, 1054 (Fla.Dist.Ct.App.1977) (holding that "[i]mproper conduct occurring prior to entry of the probation order cannot be the basis for revocation even though the conviction resulting from such conduct occurs while the defendant is on probation"); see also United States v. Drinkall, 749 F.2d 20, 21 (8th Cir.1984) (stating in dicta that in order to revoke probation for violating federal law, the district court must determine the defendant was engaged in unlawful conduct while on probation; thus, the probationer was correct in arguing "the court may not revoke her probation based solely on unlawful conduct of which it or the...