State v. Lindeman

• Decision Date: 04 November 1997
• Docket Number: No. 97-022,97-022
• Citation: 285 Mont. 292,948 P.2d 221
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard Darrell LINDEMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 221

948 P.2d 221

285 Mont. 292

STATE of Montana, Plaintiff and Respondent, v. Richard Darrell LINDEMAN, Defendant and Appellant.

No. 97-022.

Supreme Court of Montana.

Submitted on Briefs June 5, 1997.

Decided Nov. 4, 1997.

[285 Mont. 295] John E. Smith, Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Bob Slomski, Sanders County Attorney, Thompson Falls, for Plaintiff and Respondent.

HUNT, Justice.

This is an appeal from the Twentieth Judicial District Court, Sanders County. On September 25, 1996, the District Court entered judgment revoking Defendant Lindeman's suspended sentence and imposing the full sentence of four concurrent ten-year terms in the Montana State Prison. From this judgment Defendant Lindeman appeals. We affirm in part, reverse in part, and remand.

We frame the issues raised on appeal as follows:

1. Was the District Court's order modifying Lindeman's condition of probation res judicata on its subsequent order revoking Lindeman's suspended sentence?

2. Did the District Court abuse its discretion when it revoked Lindeman's suspended sentence?

3. Did the District Court err in reserving its determination of Lindeman's parole eligibility?

BACKGROUND

In September 1989, Richard Darrell Lindeman (Lindeman) was arrested and charged with two counts of felony sexual assault and two counts of felony incest of his two minor stepdaughters. On October 10, 1989, Lindeman pleaded guilty, and on December 19, 1989, the District Court sentenced him to four concurrent ten-year sentences. All but 30 days were suspended, provided Lindeman abided by certain terms and conditions of probation. Among those terms, Lindeman was prohibited from having unsupervised contact with minors and was required to complete an approved sex offender treatment program.

Lindeman began treatment in an approved program known as SABER (Sexual Abusive Behavior Evaluation and Recovery), which was run by Dr. Michael Scolatti in Missoula, Montana. Lindeman attended the weekly therapy sessions for about one and a half years.

In March 1991, Dr. Scolatti terminated Lindeman from the program, because Lindeman, who was approximately 40, had become sexually involved with a woman who was about 20 years his junior. The program had a rule that those undergoing treatment were not allowed to have a sexual relationship with anyone whose age differed by more than 5 years. Even though the woman was of legal age, Dr. Scolatti considered a sexual relationship to perpetuate the cycle of abuse. Dr. Scolatti testified that Lindeman had originally assured him that the relationship was platonic, but when the woman became pregnant, it was evident Lindeman had been lying. Dr. Scolatti refused to continue working with him. He did, however, recommend another treatment program run by Andy Hudak, called the Northwest Family Recovery Program.

Lindeman eventually married the young woman, and they had a daughter. Instead of entering the treatment program recommended by Dr. Scolatti, he began counseling sessions in April 1991 with Dr. Jack Oakwright in Sandpoint, Idaho. Lindeman's probation officer at that time was aware of those sessions.

Subsequently, Lindeman received a new probation officer, who also knew that Lindeman was receiving treatment from Dr. Oakwright. At no time did that second probation officer disapprove of the treatment. On January 6, 1992, Dr. Oakwright wrote the probation officer a letter stating that Lindeman had "graduated," although Lindeman's wife and he were continuing with additional counseling sessions. The probation officer does not recall ever telling Lindeman that he had successfully completed the required sex offender treatment program. It was his opinion that because Lindeman was still receiving some counseling, he was still in the treatment mode. Additionally, the probation officer testified that at some point he had expected to receive a copy of an official graduation letter from Dr. Oakwright confirming that Lindeman had indeed successfully completed sex offender treatment. The written confirmation was never received.

In July 1992, Lindeman and his wife moved to Great Falls, Montana, and he again received a new probation officer. This third probation officer insisted that Lindeman either move out of his home or make arrangements for his daughter to live elsewhere. Lindeman's wife was attending school, and the probation officer was concerned that Lindeman would be spending significant time alone with his daughter, in violation of the condition of probation that he not have unsupervised contact with minors.

Additionally, this probation officer reviewed Lindeman's file and saw no evidence that Lindeman had completed any sex offender treatment program. He noticed that Lindeman had attended a few brief sessions with Dr. Oakwright, whom he contacted. Dr. Oakwright informed him that Lindeman had not completed treatment and recommended that Lindeman continue couples therapy with someone who was knowledgeable of sex offender issues. In Dr. Oakwright's opinion, Lindeman had a "significant sexual addiction which ... survived throughout his treatment."

Accordingly, Lindeman was referred to Ron Silvers at the Montana Sex Offenders Treatment Association. Silvers met with Lindeman in April 1993. After an evaluation Lindeman did not enter any treatment program and did not move out of his home to protect his daughter. Instead, in May 1993, just ten months after moving to Great Falls, he moved to Plains, Montana. His earlier second probation officer became his probation officer once again.

Silvers found he was not amenable to outpatient treatment. He testified that Lindeman had a poor attitude and refused to sign medical releases to enable him to obtain records from Dr. Scolatti. He also found Lindeman's behavior to be alarming. Lindeman denied that he had a problem and did not want treatment. He sought an evaluation only because he wanted Silvers to certify that he posed no risk to his daughter or other minor children. Silvers refused to accept Lindeman into treatment.

On August 19, 1993, Lindeman requested the District Court to modify his rules of probation to allow him unsupervised contact with minors. He represented to the District Court that he had successfully completed the required sex offender treatment program. Additionally, he had passed a polygraph examination with questions formulated to reveal any sex crimes committed since his conviction, any inappropriate contact with his daughter, or any thought processes common among offenders towards his infant daughter. At this point, his current probation officer apparently believed that Lindeman had successfully completed a sex offender treatment program and concurred with Lindeman's request with one change. He requested that Lindeman be allowed unsupervised contact only with his two-year old daughter rather than all minors. On September 23, 1993, the District Court modified the condition to allow Lindeman unsupervised contact with his daughter. It further ordered that Lindeman be subjected to routine polygraph examinations. In all other respects, the original terms of the probation remained unchanged.

In August 1993, Lindeman moved again, this time to Kila, Montana. Once there, two or three probation officers were assigned to his case for various time periods. In October, 1995, he received his latest probation officer, who reviewed his file. She found no evidence that Lindeman had completed the required sex offender treatment program.

That probation officer also discovered that although Dr. Oakwright had provided Lindeman with some treatment, Dr. Oakwright was not certified to provide sex offender counseling as required by the terms of the probation. He was not a member of the National Association for Treatment of Sexual Abusers, the Montana Sex Offenders Treatment Association, or any other equivalent state program. Indeed, Dr. Oakwright admitted to the probation officer that he was not qualified to provide sex offender treatment services.

Additionally, the counseling Dr. Oakwright provided did not meet the standards of the state and national organizations. Lindeman had attended only ten one-hour sessions, and those were frequently accompanied by his wife. Lindeman had attended one or two additional treatment sessions. He attended no group therapy sessions.

The probation officer further discovered that Lindeman had not completed the treatment that even Dr. Oakwright had suggested. With regard to the 1992 letter stating that Lindeman had "graduated," Dr. Oakwright explained that Lindeman had only completed an "educational treatment program" and nothing more. Lindeman had quit counseling without giving Dr. Oakwright any notice. It remained Dr. Oakwright's opinion that Lindeman required further counseling.

Thus, on January 3, 1996, the probation officer held an intervention hearing to give Lindeman another chance to comply with the conditions of his probation. As a result of that hearing Lindeman was ordered to enter and successfully complete an approved sex offender treatment program. He was further ordered to contact an approved therapist by January 15, 1996. He once again was referred to Andy Hudak of the Northwest Family Recovery Program.

Lindeman contacted Hudak by January 15, as required. Hudak sent him an evaluation packet to complete and return. Hudak had agreed to allow Lindeman to pay a reduced fee of $150.00. Moreover, Hudak gave him On May 23, 1996, the State filed a petition to revoke Lindeman's suspended sentence. On September 25, 1996, the District Court entered judgment finding that Lindeman had violated the condition of his suspended sentence by failing to complete sex offender treatment with a certified specialist approved by the probation office. It therefore revoked the suspended sentence and imposed the full four ten-year concurrent sentences at the Montana...