State v. Osborne

Decision Date05 September 2007
Docket NumberNo. DA 06-0206.,DA 06-0206.
Citation167 P.3d 405,339 Mont. 45,2007 MT 217
PartiesSTATE of Montana, Plaintiff and Respondent, v. James OSBORNE, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Meghan Lulf Sutton, Great Falls, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Steve Gannon, County Attorney, Fort Benton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Defendant James Osborne (Osborne) appeals from the District Court's order revoking his suspended sentence for failure to complete sex offender treatment. We affirm.

¶ 2 We address the following issue:

¶ 3 Did the District Court abuse its discretion by revoking Osborne's suspended sentence for failing to complete sex offender treatment?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On October 15, 1996, Osborne was charged with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503(3)(a), MCA. Following a jury trial, Osborne was convicted and sentenced to fifteen years in the Montana State Prison, with eight years suspended. His conviction was affirmed by the Court. State v. Osborne, 1999 MT 149, 295 Mont. 54, 982 P.2d 1045. After serving the prison portion of his sentence, Osborne began serving the suspended portion on January 23, 2003, under several conditions, including that he enroll in and complete a sexual offender treatment program to the satisfaction of his probation and parole officer.

¶ 5 On April 27, 2005, the County Attorney petitioned the District Court for revocation of Osborne's suspended sentence due to five asserted violations of the suspended sentence conditions. The petition alleged that Osborne had violated the residency and employment requirements, failed to pay supervision fees, failed to complete a sexual offender treatment program, and had engaged in unsupervised contact with a minor child. The District Court ordered an evidentiary hearing on the matter.

¶ 6 The primary focus of the hearing was Osborne's alleged failure to complete a sexual offender treatment program. Osborne testified that he had not completed a sexual offender treatment program because he was innocent of the charges and had difficulty attending group sessions. The County Attorney offered the testimony of Osborne's probation officer, Dawn Handa (Handa). Handa testified that Osborne had been discharged from two different counseling programs. The first dismissal was based on Osborne's failure to identify any reasons for treatment, identify a cycle of abuse, or complete any of the assigned homework, as well as his inability to pay for treatment. At the time of his dismissal he had completed only half of the workbook he had been given eighteen months earlier and the counselor was concerned with his level of inactivity during group sessions, as he often fell asleep. Osborne then entered a second program and was subsequently terminated from that program for dishonesty. Handa explained that the programs were specifically developed for defendants like Osborne, who denied his guilt. Handa testified that, while it is difficult to treat deniers, individuals that deny guilt are treated using different counseling methods than individuals that admit guilt. These methods include identifying ways of avoiding future allegations of misconduct, as well as identifying general cycles of abuse and discussing "grooming activities" and "red flags" through the use of hypothetical questions. Moreover, deniers are asked to recognize other life problems and seek solutions. However, Osborne refused to complete any of these tasks.

¶ 7 Following the evidentiary hearing, the District Court determined that Osborne had violated the residency requirement, employment requirement, fee payment requirement and the sex offender treatment program requirement, concluding in its written order that the corresponding "violations 4a, 4b, 4c, and 4d are a sufficient basis for revocation of [Osborne's] suspended sentence." The District Court revoked Osborne's suspended sentence and sentenced him to eight years in the Montana State Prison, with four years suspended. Osborne appeals.

STANDARD OF REVIEW

¶ 8 The standard of review of a district court's decision to revoke a defendant's suspended sentence is "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." State v. Shockley, 2001 MT 180, ¶ 8, 306 Mont. 196, ¶ 8, 31 P.3d 350, ¶ 8.

DISCUSSION

¶ 9 Did the District Court abuse its discretion by revoking Osborne's suspended sentence for failing to complete sex offender treatment?

¶ 10 Osborne argues that the District Court erred by basing the revocation of his suspended sentence on the sex offender treatment condition because the treatment program required that he explicitly and implicitly admit guilt in order to participate. Thus, Osborne asserts that the treatment program violated his constitutional protections against self-incrimination, relying on State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991).

¶ 11 In Imlay, we held that subjecting an individual to a harsher penalty than he would otherwise be subjected to if he admitted guilt, is an impermissible violation of the constitutional right against self-incrimination. Imlay, 249 Mont. at 90-91, 813 P.2d at 985. Imlay, who was convicted of sexual assault, maintained his...

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2 cases
  • State v. Morrison
    • United States
    • Montana Supreme Court
    • January 22, 2008
    ...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 questio......
  • In re X.V.H.
    • United States
    • Montana Supreme Court
    • March 3, 2015
    ...to revoke X.V.H.'s probation, independent of X.V.H.'s initial unwillingness to admit to this further offense. The State cites State v. Osborne, 2007 MT 217, ¶ 12, 339 Mont. 45, 167 P.3d 405, in which we distinguished Imlay and found revocation of probation was proper when “Osborne failed th......

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