State v. Nelson, 97-306

• Decision Date: 10 September 1998
• Docket Number: No. 97-306,97-306
• Parties: , 1998 MT 227 STATE of Montana, Plaintiff/Respondent, v. Glenn NELSON, Defendant/Appellant.
• Court: Montana Supreme Court

Page 133

966 P.2d 133

291 Mont. 15, 1998 MT 227

STATE of Montana, Plaintiff/Respondent, v. Glenn NELSON, Defendant/Appellant.

No. 97-306.

Supreme Court of Montana.

Submitted on Briefs Aug. 13, 1998.

Decided Sept. 10, 1998.

Carrie L. Garber, Deputy Public Defender, Billings, for Appellant.

Dennis Paxinos, Yellowstone County Attorney, Billings, Montana; Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, for Respondent.

NELSON, Justice.

¶1 Glenn Nelson (Nelson) appeals from the April 23, 1997 order of the Thirteenth Judicial District Court, Yellowstone County, revoking his suspended sentence. We reverse and remand for further proceedings and for entry of an order consistent with this opinion.

Background

¶2 On September 18, 1990, Nelson pleaded guilty to the offenses of sexual intercourse without consent, a felony (Count I), sexual assault, a felony (Count II), and unlawful transactions with children, a misdemeanor (Count III), in cause number DC 90-261. He also pleaded guilty to domestic abuse, a felony, in cause number DC 90-101. On December 7, 1990, as to DC 90-261, the District Court sentenced Nelson to thirty years at the Montana State Prison (MSP) with twenty years suspended on Count I; ten years at MSP on Count II; and six months in the county jail on Count III. As to DC 90-101, the court sentenced Nelson to five years at MSP. All sentences in both causes were ordered to run concurrently.

¶3 As part of the sentencing order the court required, among other things, that Nelson not be considered for parole until he had successfully completed the sexual offender program at MSP. However, Nelson was never paroled from MSP. Rather, on April 15, 1996, he was discharged from MSP and began the suspended portion of his sentence in Hardin, Big Horn County, Montana.

¶4 On July 1, 1996, the Big Horn County Attorney filed a petition for revocation of Nelson's suspended sentence alleging that Nelson had violated and disregarded the rules and regulations of his probation. In support of his petition, the County Attorney attached and incorporated by reference a "report of violation" from Nelson's probation officer. In relevant part, this report stated:

SPECIAL COURT CONDITION # 6:

The Defendant shall not be considered for parole until he has successfully completed the sexual offender program at the Montana State Prison.

SPECIAL CONDITION # 7:

The Defendant shall, as a condition [sic] from the Montana State Prison enroll and maintain an aftercare program. He shall also continue out-patient treatment for his illness for as long as his mental health professionals or other professionals feel that it is necessary.

On 6-4-96, the Defendant met with Mike Sullivan of South Central Treatment Associates in an effort to enroll in sex offender treatment program. Mr. Sullivan entered into a contract which was signed by the Defendant outlining the conditions set forth for his treatment obligations (see attached).

One of the conditions specified by Mr. Sullivan is that the Defendant be placed on intensive supervision in the Billings area.

On 6-12-96, the Defendant's file was screened by the Intensive Supervision programs screening committee and was denied (see attached).

ADJUSTMENT TO SUPERVISION:

The Defendant failed to enter into and complete A Sex Offender program, due to his supervision denial by the Intensive Supervision program in Billings, Mt.

According to the referenced attachment to the probation officer's report, Nelson was denied admission to the Intensive Supervision Program (ISP)because his residence was not approved by the ISP screening process.

¶5 On July 22, 1996, the Yellowstone County Attorney filed an amended petition for revocation, along with an amended affidavit in support of the petition, alleging that:

Since on or before the 4th day of June, 1996, the defendant has failed to enroll in an aftercare program, failed to participate in outpatient treatment and failed to participate in sex offender treatment program.

¶6 On August 2, 1996, Nelson appeared with court-appointed counsel from the Yellowstone County Public Defender's Office. Nelson admitted that the facts alleged in the petition for revocation were true but asserted that these facts did not constitute grounds for a revocation of his suspended sentence. The State requested an evidentiary hearing and counsel discussed the necessity for submitting briefs in support of their respective positions in advance of the hearing. Accordingly, on August 6, 1996, the trial court ordered the parties to submit legal memoranda supporting their respective positions concerning whether the facts admitted to by Nelson constituted grounds for revocation of his suspended sentence. Briefs were submitted, and on October 4, 1996, the District Court entered an order denying the State's petition for revocation.

¶7 In pertinent part, the court's order provides as follows:

IT IS HEREBY ORDERED that the Petition for Revocation of the Order Suspending Sentence dated the 7th day of December, 1990, be denied upon the following additional conditions:

1. The defendant shall participate in, successfully complete and abide by the rules of the Intensive Supervision Program (I.S.P.), follow the contract provisions of all three phases, including independent living situation. Defendant understands that any violation of the program rules and contract can result in revocation of the suspended sentence and the defendant will face the original sentence in prison.

2. The defendant shall have no alone-contact with minor children unless a responsible adult is present, one fully aware of defendant's offending pattern.

IT IS FURTHER ORDERED that the said GLENN NELSON be, and he is hereby notified that it is his duty to register as a Sex Offender as required by § 46-18-254 and § 46-23-501 through 46-23-508, Montana Codes Annotated.

In all other respects, the previous Orders, conditions and reasons of this Court stated on the 7th day of December 1990, shall remain unchanged and are reimposed and shall continue as if set forth herein, all under the authority of this Court and defendant's Supervision Officer.

¶8 At some point following the State's filing of its petition for revocation, but prior to the court's October 4, 1996 order denying the petition, Nelson began residing at the Rescue Mission, a homeless shelter in Billings. Since this residence was apparently acceptable to the program's screeners, Nelson was placed in ISP.

¶9 He was not yet out of the woods, however. On October 11, 1996, the Yellowstone County Attorney's Office filed another petition for revocation of Nelsons suspended sentence based on an allegation that

on or about the 3rd day of October, 1996, the defendant while residing at the Mission kissed a minor girl; therefore has been terminated from the New Life Program and sex offender treatment with South Central Treatment Associates.

This petition, likewise, incorporated the probation officer's report of violation.

¶10 A hearing on the County Attorney's petition was held on April 14, 1997, and on April 23, 1997, the court entered its order revoking Nelson's suspended sentence. The court found that Nelson had violated the terms and conditions of his suspended sentence by violating the court's October 4, 1996 order, condition number 2, that "[t]he defendant ... have no alone-contact with minor children unless a responsible adult is present, one fully aware of defendants offending pattern," and State's special condition number 2, that Nelson "participate in sexual offender counseling on a regular basis as determined by [the] Intensive Supervision Officer [and] ... have no contact with minor children." As a result of these findings the court committed Nelson to MSP for the balance of the time previously suspended. This appeal followed.

Issues

¶11 Nelson presents three issues for our review:

¶12 1. Whether the District Court erred when, having denied the State's petition to revoke Nelson's suspended sentence, it added new conditions to the original suspended sentence.

¶13 2. Whether the Department of Corrections can unilaterally and without leave of court require sex-offender treatment as a new condition of the suspended portion of a probationer's sentence.

¶14 3. Whether a licensed therapist who provides therapy to a probationer can require that probationer be imprisoned or otherwise restrained of liberty during the course of therapy.

¶15 Because our decision as to Issue 1 is dispositive, we decline to address Issues 2 and 3.

Standard of Review

¶16 Typically, we review a district court's decision to revoke a suspended sentence to determine whether the court abused its discretion and whether the court's decision was supported by a preponderance of the evidence in favor of the state. See, e.g., State v. Lindeman (1997), 285 Mont. 292, 302, 948 P.2d 221, 228 (citations omitted). Where, however, the issue is whether the court followed the statutory requirements applicable to the revocation proceedings, the question is one of law over which our review is plenary. We decide the case at bar under this latter standard.

Discussion

¶17 Whether the District Court erred when, having denied the State's petition to revoke Nelson's suspended sentence, it added new conditions to the original suspended sentence.

¶18 Nelson argues that, having denied the State's July 1, 1996 (amended July 22, 1996) petition to revoke his suspended sentence, the District Court imposed the new probation...