State v. Morrison

• Citation: 2008 MT 16,176 P.3d 1027,341 Mont. 147
• Decision Date: 22 January 2008
• Docket Number: No. DA 06-0262.,DA 06-0262.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Joseph Curtis MORRISON, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

176 P.3d 1027

2008 MT 16

341 Mont. 147

STATE of Montana, Plaintiff and Appellee, v. Joseph Curtis MORRISON, Defendant and Appellant.

No. DA 06-0262.

Supreme Court of Montana.

Submitted on Briefs June 6, 2007.

Decided January 22, 2008.

For Appellant: William F. Hooks, Attorney at Law, Helena, Montana.

For Appellee: Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana, Michael B. Hayworth, County Attorney, Forsyth, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Joseph Curtis Morrison (Morrison) appeals from the order of the Sixteenth Judicial District Court, Rosebud County, revoking his suspended sentence. We affirm.

¶ 2 We address the following issue:

¶ 3 Did the District Court have jurisdiction to consider and grant the State's petition to revoke Morrison's five-year suspended sentence prior to Morrison beginning to serve the five-year suspended sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On January 10, 2005, Morrison entered a plea agreement whereby he pled guilty to driving under the influence of. alcohol, his fourth or subsequent offense, a felony, in violation of § 61-8-401, MCA. The District Court sentenced Morrison to the Montana Department of Corrections (DOC) for thirteen months followed by a consecutive, suspended sentence to the Montana State Prison (MSP) for five years with conditions. As a part of Morrison's thirteen-month sentence he was to be "screened for placement at the Warm Springs Addictions Treatment & Change Program WATCh' by the Department of Corrections" and upon successful completion of WATCh; or a chemical dependency treatment program determined by the DOC, the remainder of his thirteen-month sentence was to be suspended.

¶ 5 On August 19, 2005, Morrison filed a pro se motion for an order suspending the balance of his thirteen-month sentence because he had completed an Intensive Treatment Program Unit (ITU). The State initially opposed the motion because the ITU program is not as intensive as the WATCh program. However, the parties eventually stipulated that Morrison had successfully completed a qualifying chemical dependency treatment program. As a result, the remaining seven months of Morrison's thirteen-month incarceration were suspended, and he was released from MSP. As a condition of his release, Morrison was instructed to "[deport in person to John Uden, Miles City Probation and Parole, on November 14, 2005." Morrison did not contact Officer Udell, On December 5, 2005, the County Attorney filed a petition to revoke Morrison's suspended sentence on the basis of his failure to satisfy the "reporting" condition of his suspended sentence.

¶ 6 At the revocation hearing, Morrison moved to dismiss the petition, contending that, pursuant to § 61-8-731, MCA, the remainder of the thirteen-month sentence was not a "suspended sentence" but rather a probationary period that could not be revoked by filing a petition to revoke a suspended sentence.¹ Morrison also argued that the petition to revoke was untimely filed pursuant to § 46-18-203, MCA, because in order to revoke the five-year suspended sentence the petition must be "filed during the period of suspension." In sum, Morrison contended that the court should dismiss the State's petition as erroneously filed.

¶ 7 In defense of its petition, the State clarified that it sought to revoke only the five-year suspended sentence and not the remainder of the thirteen-month sentence. The State also argued that the thirteen-month sentence and the five-year suspended sentence "stacked" together, allowing for revocation of the five-year suspended sentence based on a violation occurring while Morrison served the remainder of his thirteen-month sentence on probation. The District Court agreed with the State. First, the court concluded that there was no difference between a probationary period and a suspended sentence and, consequently, the remainder of the thirteen-month sentence was a "suspended sentence" that could be revoked. Morrison has not challenged this conclusion on appeal. Second, the court concluded that the thirteen-month and five-year suspended sentences "stacked," such that the court could properly hear the petition to revoke the five-year suspended sentence based on a violation occurring during the thirteen-month sentence. Accordingly, the court denied Morrison's motion to dismiss the petition.

¶ 8 At the conclusion of the hearing, the court determined that Morrison had "violated the condition of probation and suspended sentences" for "both the 13-month and the five-year" sentences. Subsequently, the court revoked both the remainder of Morrison's thirteen-month sentence and his five-year sentence, committing him to the DOC for "five years and one month[.]" Morrison appeals the revocation of his five-year suspended sentence.

STANDARD OF REVIEW

¶ 9 We review a district court's decision to revoke a defendant's suspended sentence to determine if there was an abuse of discretion. State v. Osborne, 2007 MT 217, ¶ 8, 339 Mont. 45, ¶ 8, 167 P.3d 405, ¶ 8. Where the issue is whether the court had authority to take a specific action, the question is one of law, and our review is plenary. State v. Richardson, 2000 MT 72, ¶ 8, 299 Mont. 102, ¶ 8, 997 P.2d 786, ¶ 8.

DISCUSSION

¶ 10 As a preliminary matter, we address Morrison's argument that the State has raised a new theory on appeal and that "[f]or this reason alone, the Court should reject the [State's] argument." We deem issues which are presented for the first time on appeal to be untimely and will not consider them. State v. Adgerson, 2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12. "A party may not raise new arguments or change its legal theory on appeal because it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider." Adgerson, ¶ 12.

¶ 11 The State argues on appeal that "Morrison was serving a single sentence for a single offense, which became an entirely suspended sentence when Morrison was placed on probation." The State contends that the "suspended terms have to merge" in order to encourage rehabilitation and avoid the absurd result of permitting a "probationer to violate at the end of the 13-month DOC commitment without risking possible revocation of the remaining five-year (or less) suspended sentence." Morrison replies that the State's argument that the suspended sentences "merge" into a "single sentence" is a new theory on appeal because at the revocation hearing the State argued that Morrison had two separate sentences, albeit "stacking" together. Essentially, Morrison's change in theory complaint stems from the State's assertion of "stacking" two sentences in the District Court versus the State's assertion of one "merged" sentence on appeal.

¶ 12 However, whether using the "stacked" or "merged" theory, the underlying premise of the State's argument is the same: that a violation occurring during the thirteen-month sentence provides a basis for revoking the five-year suspended sentence even though the violation occurred prior to commencement of that part of the sentence. Accordingly, the difference between the "merge" and "stack" theories is de minimis and does not merit complete rejection of the State's argument on appeal. Moreover, whether we consider the thirteen-month sentence and five-year sentence as separate and consecutive or as a combined sentence, they arise out of the same sentencing order for the same underlying offense, and therefore, the jurisdictional issue Morrison raises on appeal remains and must be addressed.

¶ 13 Did the District Court have jurisdiction to consider and grant the State's petition to revoke Morrison's five-year suspended sentence prior to Morrison beginning to serve the five-year suspended sentence?

¶ 14 Morrison argues that the District Court did not have jurisdiction² to revoke his five-year suspended sentence prior to commencement of that portion of his sentence. Although acknowledging our holdings to the contrary in State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), and. Matter of Ratzlaff, 172 Mont. 439, 564 P.2d 1312 (1977), Morrison notes the language of § 46-18-203(2), MCA, referencing the filing of a revocation petition "during the period of suspension or deferral," and asserts that the 1983 amendment to this statute now prohibits a district court from revoking a suspended sentence unless the petition is filed after the period of suspension has begun. Morrison asserts that, as a result of the 1983 amendment, our prior decisions are no longer valid authority.

¶ 15 In Sullivan, the defendant's suspended sentence was revoked while he was on parole from his prison sentence and before he had begun serving the suspended portion of his sentence. Sullivan, 197 Mont. at 399, 642 P.2d at 1010. In approving of the prior revocation of Sullivan's suspended sentence, we relied on our previous decision in Ratzlaff, which we determined answered Sullivan's contention "in spirit if not factually[.]" Sullivan, 197 Mont. at 400, 642 P.2d at 1010. In Ratzlaff, the defendant was sentenced to twenty-five years in MSP with ten years suspended. Ratzlaff was released on parole after serving approximately three years in prison and subsequently violated the conditions of his release. As a result, the district court revoked his ten-year suspended sentence for violations of both probationary and parole conditions, Ratzlaff, 172 Mont. at 441, 564 P.2d at 1313, and he petitioned this Court for post-conviction relief. We denied the petition, and as we later explained in Sullivan, our decision in Ratzlaff was based on the "necessary implication that a suspended sentence may be revoked before the defendant actually begins serving probation." Sullivan, 197 Mont. at 400, 642 P.2d at 1010. We further explained that:

What comes out of these cases is the strong public policy that if a...