State v. Cook, DA 11–0058.

• Decision Date: 14 February 2012
• Docket Number: No. DA 11–0058.,DA 11–0058.
• Citation: 364 Mont. 161,272 P.3d 50,2012 MT 34
• Parties: STATE of Montana, Plaintiff and Appellee, v. Rozell Roland COOK, Defendant and Appellant.
• Court: Montana Supreme Court

2012 MT 34

272 P.3d 50

364 Mont. 161

STATE of Montana, Plaintiff and Appellee,

v.Rozell Roland COOK, Defendant and Appellant.

No. DA 11–0058.

Supreme Court of Montana.

Submitted on Briefs Jan. 4, 2012.Decided Feb. 14, 2012.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Shilo Hernandez, Assistant Appellate Defender, Helena, Montana, Robin A. Meguire; Attorney at Law, Great Falls, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney; Great Falls, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[364 Mont. 162] ¶ 1 In 1999, Rozell Roland Cook (Cook) pled guilty via an Alford¹ plea to two charges of felony sexual assault in violation of § 45–5–502, MCA. He was sentenced to the Department of Corrections (DOC) for two concurrent, 20–year terms with ten years suspended. He was classified as a tier III sexual offender, and his sentence imposed numerous conditions on the suspended portion related to this classification.

¶ 2 The State moved to revoke the suspended portion of Cook's sentence on June 17, 2010—two days before he was scheduled to be released from custody. The District Court of the Eighth Judicial District, Cascade County, revoked Cook's suspended sentence and sentenced him to two concurrent, 10–year commitments to the DOC with five years suspended. Cook timely appeals from the District Court's disposition order revoking his suspended sentence. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The suspended portion of Cook's sentence contained 25 total conditions. The following four played some role in his revocation:

1. Defendant shall be placed under the supervision of the Adult Probation and Parole Bureau during the suspended portion of the sentence and shall follow all rules and regulations thereof.

...

6. Defendant shall obtain any counseling/evaluations, at his own expense, as deemed appropriate by his supervising officer and shall follow all recommendations of his counseling/evaluations.

...

10. Defendant shall obtain sex offender counseling by an MSOTA [Montana Sexual Offender Treatment Association] recognized therapist and abide by all of the expenses, conditions and recommendations of the therapist....

...

15. Defendant's place of residence shall not be within 1500 feet of a school, playgrounds, toy stores, etc....

¶ 4 Having served nearly 10 years and completed sexual offender treatment under his initial commitment, Cook's pre-parole plan listed his sister-in-law's Great Falls address as his residence upon release. However, he was notified in January, 2010 that this address violated the condition of his suspended sentence that prohibited him from residing within 1500 feet of certain locations. Cook was then told by his institutional probation officer that he could stay at a rescue mission in Great Falls, but this was later ruled out because of its proximity to a women's athletic center. His probation officer then informed him he could be released as a transient. Three days before his release, however, Cook was told that his outpatient treatment provider was dropping him because of lack of adequate housing. Cook was now in violation of condition 10 as well. The next day, on June 17, the State petitioned to revoke his suspended sentence, alleging that he was in violation of conditions 1, 10 and 15. Cook was arrested while still an inmate and held pending hearings in September and November of 2010.

¶ 5 With the hearings pending, Cook found providers for outpatient treatment in both Great Falls and Helena. Blair Hopkins was willing to accept Cook as a client in Helena, and Dr. Donna Zook was willing to treat him in either city. He also found potentially suitable housing in each community. In Great Falls, Cook found a trailer park with other sexual offenders living in it that his probation officer was willing to approve. They also found an apartment that complied with his residency conditions. In Helena, he obtained a commitment from God's Love Shelter.

¶ 6 The State argued that the Helena shelter was inappropriate because it served women and children, although those populations resided on a separate, locked floor. Similarly, the State opposed the Great Falls trailer park residence because a rebuttal witness informed the court that she drove past the park and it was “virtually across the street” from school bus stops. The witness did concede, however, that several other sex offenders had been paroled to that particular park. As for the Great Falls apartment, the State's witness testified that while it was not near schools, daycares, or parks, “grandmothers, reside within the building that provide daycare to their grandchildren.” Travel to Helena for treatment was rejected because Cook could not be supervised there by his parole officer. Finally, the State opposed treatment in Great Falls by Dr. Zook because she was not a member of MSOTA. Cook presented evidence by an investigator who testified that in two months of effort, he found a single landlord who would rent Cook one of three apartments. Only one of those apartments satisfied condition 15. Cook argued that the DOC made no effort to help him comply with his conditions, and that because of his lack of culpability and the fact that there were alternatives available, due process required consideration of alternatives to revocation.

¶ 7 The District Court found that Cook violated conditions 1 and 15 of his suspended sentence by not having an approved residence on the eve of his release. Instead of finding that he had violated condition 10, the court found that he violated condition 6 with respect to treatment and counseling. The District Court found that “with respect to residence, [Cook] has not identified a place of residence outside the 1,500 feet from schools, playgrounds, places where children congregate, etc ... in the nearly five months that have elapsed since his discharge dates.” The court rejected the Great Falls apartment complex because it contained “at least nine units, and maybe more, in which it can be assumed that children live and congregate.” Treatment from Dr. Zook was rejected because she was not MSOTA qualified, and the court was unwilling to consider Cook living at the shelter or travelling to Helena for his treatment. The court opined, “This is the defendant's issue and the difficulty is a result of his conduct and record. And that is not something that the Court can remedy or overlook.” In addition to revoking Cook's suspended sentence and sentencing him to two concurrent, 10–year commitments to the DOC with five years suspended, the District Court reimposed the conditions of Cook's original suspended sentence and added 16 more.

[364 Mont. 165] ¶ 8 Cook initially claims that the District Court lacked authority to revoke his suspended sentence because the petition to revoke was not filed during the term of the suspended sentence. He also claims that the District Court erred in finding that he violated the conditions of his suspended sentence when he was still in custody and had yet to have the opportunity to comply with the conditions. He urges that it was an abuse of discretion and due process violation to revoke his suspended sentence when his alleged violations were not willful and alternative measures were available to meet the State's penological interests. Finally, he argues that his revocation sentence contains illegal sentencing conditions.

¶ 9 Issue one: whether the District Court exceeded its statutory authority, in violation of § 46–18–203(2), MCA (1999), when it considered and granted the State's petition to revoke Cook's suspended sentence that was filed before the period of suspension had begun.

¶ 10 Issue two: whether the District Court abused its discretion by revoking Cook's suspended sentence when his violations were unwillful.

¶ 11 Issue three: whether the District Court imposed illegal conditions on Cook's revocation sentence.

STANDARDS OF REVIEW

¶ 12 We review a district court's decision to revoke a suspended sentence for abuse of discretion and whether a preponderance of the evidence supported the court's decision. State v. Stiffarm, 2011 MT 9, ¶ 8, 359 Mont. 116, 250 P.3d 300. The trial judge must be reasonably satisfied that the conduct of the probationer has not been what the probationer agreed it would be if the probationer were given liberty. State v. Goff, 2011 MT 6, ¶ 13, 359 Mont. 107, 247 P.3d 715. A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Burke, 2005 MT 250, ¶ 11, 329 Mont. 1, 122 P.3d 427. However, when the issue presented is whether the district court had authority to take a specific action, the question is one of law and is subject to de novo review. Stiffarm, ¶ 8.

¶ 13 Where a defendant was sentenced to more than one year of actual incarceration, and therefore is eligible for sentence review, we review the sentence for legality only. State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114.

DISCUSSION

¶ 14 Issue one: whether the District Court exceeded its statutory authority, in violation of § 46–18–203(2), MCA (1999), when it considered and granted the State's petition to revoke Cook's suspended sentence that was filed before the period of suspension had begun.

¶ 15 In Stiffarm, we concluded that then-existing case law that allowed prosecutors to file petitions to revoke before the start of the suspended sentence was contrary to the plain language of § 46–18–203(2), MCA (1999), which at the time provided: “[T]he petition for a revocation must be filed with the sentencing court during the period of suspension or deferral.” Stiffarm, ¶ 19. Because the State filed its petition to revoke two days before the commencement of...