State v. Butler, 94-341
| Citation | 272 Mont. 286,900 P.2d 908 |
| Decision Date | 04 August 1995 |
| Docket Number | No. 94-341,94-341 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Bruce Eugene BUTLER, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Atty. Gen., Micheal Wellenstein, Asst. Atty. Gen., Helena, Robert L. Deschamps, Missoula County Atty., Fred VanValkenburg, Deputy County Atty., Missoula, for respondent.
On August 18, 1992, the State charged defendant Bruce Eugene Butler (Butler) by information in the Fourth Judicial District Court, Missoula County, with one count of sexual assault, a felony. Butler initially pleaded not guilty to the charge but subsequently entered an Alford plea. Upon the State's recommendation, the District Court suspended Butler's sentence subject to court-ordered conditions. Alleging numerous violations of the conditions, the State filed a petition to revoke Butler's suspended sentence. Following the State's second petition to revoke Butler's suspended sentence, the District Court revoked the suspended sentence and ordered Butler committed to the Montana State Prison for ten years. Butler appeals the District Court's revocation of his suspended sentence. We affirm.
Butler raises the following issue on appeal:
Did the District Court violate Butler's Fifth Amendment right against self-incrimination by revoking Butler's suspended sentence?
On August 18, 1992, the State charged Butler with one count of sexual assault, a felony. At the hearing on Butler's motion to dismiss counsel, the District Court explained to Butler the option and consequences of entering an Alford plea under § 46-12-212(2), MCA. Four days later, Butler entered an Alford plea to the charge of sexual assault, stating that it was in his best interest to enter the plea and that there was a factual basis for the charge. Pursuant to the plea bargain agreement, Butler waived the pre-sentence investigation. The District Court sentenced Butler to ten years in the Montana State Prison, but suspended Butler's sentence subject to the following thirteen conditions:
1. supervision of probation and parole;
2. mental health counseling and/or alcohol and drug counseling as directed by Butler's probation officer;
3. no consumption of alcohol or entering bars;
4. submit to a test of bodily fluids for alcohol or drugs;
5. at Butler's own expense, undergo a sex offender evaluation by a professional person designated by the probation officer and enter and complete a sexual offender treatment program recommended by the probation officer;
6. pay restitution to the victim for the cost of her counseling;
7. submit to a search of his person, vehicle, or residence at the request of his probation officer;
8. no contact with the victim or her family;
9. reimburse Missoula County for the cost of his public defender;
10. pay $100 for the cost of the prosecution;
11. pay a surcharge of $20;
12. serve 120 days in the Missoula County Jail with credit for time already served; and
13. obey all laws.
The District Court also ordered Butler to immediately sign up for probation, to obtain a travel permit when leaving the state, and upon arrival at his destination, to have a law enforcement agency confirm Butler's location to the probation officer.
On March 19, 1993, the State filed a petition to revoke Butler's suspended sentence, alleging that Butler had been entering bars, drinking, and had not undergone a sexual offender evaluation or treatment program. Butler did not appear at the revocation hearing On December 7, 1993, the State filed a second petition to revoke Butler's suspended sentence. The State alleged that Butler 1) changed his place of residence without first obtaining permission; 2) left his assigned district without first obtaining written permission from his probation officer; 3) did not maintain employment; 4) did not personally report to his probation officer; 5) did not undergo a sexual offender evaluation; 6) did not complete a sexual offender treatment program; 7) had not reimbursed Missoula County for the cost of his public defender; 8) had not paid the $20 surcharge; and 9) had not paid $100 for the cost of his prosecution.
and the District Court subsequently issued a bench warrant for his arrest. On July 26, 1993, Butler appeared in court and denied the State's allegations. On August 30, 1993, Butler withdrew his denials and admitted all of the allegations. The District Court continued [272 Mont. 289] Butler's probation, ordered Butler to follow all of the original conditions, and required Butler to enter a sexual offender program within 60 days
Butler denied the allegations but later admitted them with explanations. The State recommended continued probation; however, the probation officer recommended incarceration. Based on Butler's admissions, the District Court found that Butler violated his probation and therefore revoked his suspended sentence and ordered Butler committed to the Department of Corrections for ten years without eligibility for parole until Butler completes the sexual offender program. Butler appeals the revocation of his suspended sentence.
Did the District Court violate Butler's Fifth Amendment right against self-incrimination by revoking Butler's suspended sentence?
Butler alleges that the District Court revoked his suspended sentence primarily because he would not admit guilt in order to either undergo a sexual offender evaluation or enter a sexual offender treatment program. Thus, Butler claims that the District Court violated his Fifth Amendment right against self-incrimination when it revoked his suspended sentence.
The standard for revocation of a suspended sentence only requires that the judge be reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. State v. Lundquist (1992), 251 Mont. 329, 331, 825 P.2d 204, 206 (citing State v. Robinson (1980), 190 Mont. 145, 148-49, 619 P.2d 813, 815). We review a district court's decision to revoke a suspended sentence to determine if the district court abused its discretion. Lundquist, 825 P.2d at 206.
The State argues that this Court should not review Butler's claim that the District Court violated Butler's Fifth Amendment right against self-incrimination because Butler did not raise his Fifth Amendment claim in the District Court. The State bases its claim on § 46-20-104(2), MCA, which covers the scope of appeal by a defendant and provides in part:
Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).
In State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321, we construed § 46-20-104(2), MCA, to bar a defendant from raising an issue on appeal if that defendant did not raise the issue before the district court.
Although Butler did not specifically state that his Fifth Amendment right against self-incrimination had been violated, he raised the issue that he was in a catch-22 situation if he wanted a suspended sentence but did not want to admit guilt to the sexual acts. Butler evidenced his misgivings about having to admit guilt before undergoing either a sexual offender evaluation or a sexual offender treatment program when he answered the District Court's questions as follows:
Like I said, if it goes to a jury trial, I'm going to end up in prison for something I didn't do. And if I plead guilty and go to this doctor and don't admit it to him, I still end up in prison for a year.
The issue of self-incrimination was central to Butler's discussion with the District Court on December 10, 1992. We conclude that Butler sufficiently raised the issue of his Fifth Amendment right against self-incrimination, and, therefore, we review Butler's claim on its merits.
Butler argues that our holding in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979, controls the instant case. In Imlay, we held that in sex offense cases, we should "protect the defendant's constitutional right against self-incrimination, and ... prohibit augmenting a defendant's sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination." Imlay, 813 P.2d at 985. Following a jury trial, defendant Imlay was convicted of sexual assault, a felony, and sentenced to five years in the Montana State Prison. Defendant was placed on formal probation for all but 35 days of the sentence on the condition that he enroll in a sexual therapy program. When the defendant enrolled in, and scheduled six consecutive appointments, but was unable to complete the program because he would not admit guilt of the crime he was convicted of, the district court revoked his suspended sentence. Imlay, 813 P.2d at 980-82.
In contrast, Butler did not go to trial and assert his Fifth Amendment right against self-incrimination but instead entered an...
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