State v. Richardson, No. 98-422.

Docket NºNo. 98-422.
Citation299 Mont. 102, 2000 MT 72, 997 P.2d 786
Case DateMarch 21, 2000
CourtUnited States State Supreme Court of Montana

997 P.2d 786
2000 MT 72
299 Mont. 102

STATE of Montana, Plaintiff and Respondent,
v.
John Coe RICHARDSON, Defendant and Appellant

No. 98-422.

Supreme Court of Montana.

Submitted on Briefs November 18, 1999.

Decided March 21, 2000.


997 P.2d 787
William F. Hooks, Appellate Defender Office; Helena, Montana, For Appellant

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena, Montana, Mike McGrath, Lewis & Clark County Attorney; Helena, Montana, for Respondent.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 John Richardson (Richardson) appeals from the order of the First Judicial District Court, Lewis and Clark County, revoking his suspended sentence and sentencing him to the Montana State Prison (MSP) for the remainder of the 20-year term originally imposed, and from its amended judgment conditioning his parole on completion of Phases I and II of the sexual offender treatment at the MSP. We affirm in part, reverse in part and remand.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court abuse its discretion in revoking Richardson's suspended sentence and sentencing him to the remaining portion of the sentence originally imposed?

997 P.2d 788
¶ 4 2. Did the District Court err in imposing an additional condition on Richardson's sentence on revocation

BACKGROUND

¶ 5 The State of Montana (State) charged Richardson with felony sexual assault against a minor child in 1995. Richardson subsequently entered a plea of guilty pursuant to an Acknowledgment of Waiver of Rights by Plea of Guilty. The District Court sentenced Richardson to a term of 20 years imprisonment at the MSP, with all but 70 days suspended, and the 70 days to be served in the Lewis and Clark County Jail in 14-day increments for each of the next five years. The conditions of the suspended portion of Richardson's sentence included:

4. The defendant shall remain in, and complete, [sex offender treatment provider] Ron Silvers' sex offender program. He shall abide by all treatment recommendations and requirements, including, but not limited to, the following:
. . . .
c. The defendant shall have no unsupervised contact with any minor aged male or female.
d. The defendant shall refrain from attendance at any gathering where minor aged persons are likely to frequent.

Richardson entered the sex offender treatment program operated by Ron Silvers (Silvers) on March 9, 1995, and Silvers subsequently referred him to additional individual therapy to deal with post traumatic stress disorder.

¶ 6 Richardson's coworkers at the State Department of Disability Services invited Silvers to a staff meeting in November of 1995, and informed him of their concerns about Richardson's presence at gatherings where children had been present. Silvers and Cathy Murphy (Murphy), Richardson's probation officer, attended another staff meeting on August 27, 1997, during which they were informed of additional incidents of Richardson's contact with children. Silvers subsequently discharged Richardson from his sex offender treatment program because Richardson's lack of progress was unacceptable in an outpatient treatment program for three reasons: 1) Richardson continued to violate the program rules regarding contact with children; 2) Richardson's ongoing unresolved issues of blame, anger, avoidance, and denial were indicators of increased risk to reoffend; and 3) Richardson demonstrated an oppositional and defiant attitude in group therapy, particularly when receiving critical and vital feedback on dysfunctional behaviors and attitudes.

¶ 7 On September 2, 1997, the State petitioned the District Court to revoke Richardson's suspended sentence based on his failure to abide by its conditions. During the hearing on the State's petition, Richardson admitted he had contact with minor children, which he characterized as incidental and unintentional, leading to his discharge from Silvers' program. Silvers and Murphy both testified that Richardson was a high risk to reoffend. The court subsequently found that Richardson had violated the conditions of his suspended sentence, revoked the remaining portion of the suspended sentence, and sentenced Richardson to the MSP for the remainder of he originally-imposed 20-year term. The court also required Richardson to complete Phases I and II of the sexual offender treatment at the MSP before being granted parole. Richardson appeals.

STANDARD OF REVIEW

¶ 8 We review a district court's decision to revoke a suspended sentence to determine whether the court abused its discretion. State v. Lindeman (1997), 285 Mont. 292, 302, 948 P.2d 221, 228 (citations omitted). Where an issue is whether the court had authority to take a specification, however, "the question is one of law over which our review is plenary." State v. Nelson, 1998 MT 227, ¶ 16, 291 Mont. 15, ¶ 16, 966 P.2d 133, ¶ 16.

DISCUSSION

¶ 9 1. Did the District Court abuse its discretion in revoking Richardson's suspended sentence and sentencing him to the remaining portion of the sentence originally imposed?

997 P.2d 789
¶ 10 If a district court finds that a defendant has violated the terms and conditions of a suspended sentence, it may
(a) continue the suspended ... sentence without a change in conditions;
(b) continue the suspended sentence with modified or additional terms and conditions; [or]
(c) revoke the suspension of sentence and require the defendant to serve either the sentence imposed or any lesser sentence[.]

Section 46-18-203(7), MCA (1997). The standard for revoking a suspended sentence requires that the district court be reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. Lindeman, 285 Mont. at 302, 948 P.2d at 228 (citations omitted). In addition, the State need only prove a violation of the terms and conditions of the suspended sentence by a preponderance of the evidence. Section 46-18-203(6), MCA (1997).

¶ 11 At the conclusion of the revocation hearing in the present case, the District Court explained to Richardson that

[t]he only thing keeping you out of prison in the first place was the fact that I placed you in Ron Silvers' program. I asked you to stay in the program.
. . . .
[W]hen I make an order, I mean it. I told you if you came back and violated it I would send you to prison. And I guess this hard choice we've got here is of your choice. You put us in this spot.
I've got a highly respected sex offender person telling me that you're an extremely high risk. I've got the probation people telling me that you are a high risk and you should go to prison. So in the interest of protecting the children of this state, which I think is my primary obligation at this point,
...

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14 practice notes
  • State v. Ayers, No. 01-423.
    • United States
    • Montana United States State Supreme Court of Montana
    • April 28, 2003
    ...is whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason. State v. Richardson, 2000 MT 72, ¶ 24, 299 Mont. 102, ¶ 24, 997 P.2d 786, ¶ 24 (citation DISCUSSION Issue 1 ¶ 27 Did the District Court err in denying Ayers' motion in limine to ......
  • State v. Schowengerdt, DA 15-0677
    • United States
    • Montana United States State Supreme Court of Montana
    • January 16, 2018
    ...reason resulting in substantial injustice." State v. Brasda , 2003 MT 374, ¶ 14, 319 Mont. 146, 82 P.3d 922 (citing State v. Richardson , 2000 MT 72, ¶ 24, 299 Mont. 102, 997 P.2d 786 ). ¶ 16 We review for abuse of discretion both procedures employed by a district court during the initial i......
  • State v. Morrison, No. DA 06-0262.
    • United States
    • January 22, 2008
    ...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, ¶ ¶ 10 As a preliminary matter, we address Morrison's argument that the State has raised a new theory ......
  • State v. Bauer, No. 01-079.
    • United States
    • Montana United States State Supreme Court of Montana
    • January 15, 2002
    ..."acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." State v. Richardson, 2000 MT 72, ¶ 24, 299 Mont. 102, ¶ 24, 997 P.2d 786, ¶ ¶ 20 In response to Bauer's motion in limine, the District Court barred mention at trial by the p......
  • Request a trial to view additional results
14 cases
  • State v. Ayers, No. 01-423.
    • United States
    • Montana United States State Supreme Court of Montana
    • April 28, 2003
    ...is whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason. State v. Richardson, 2000 MT 72, ¶ 24, 299 Mont. 102, ¶ 24, 997 P.2d 786, ¶ 24 (citation DISCUSSION Issue 1 ¶ 27 Did the District Court err in denying Ayers' motion in limine to ......
  • State v. Schowengerdt, DA 15-0677
    • United States
    • Montana United States State Supreme Court of Montana
    • January 16, 2018
    ...reason resulting in substantial injustice." State v. Brasda , 2003 MT 374, ¶ 14, 319 Mont. 146, 82 P.3d 922 (citing State v. Richardson , 2000 MT 72, ¶ 24, 299 Mont. 102, 997 P.2d 786 ). ¶ 16 We review for abuse of discretion both procedures employed by a district court during the initial i......
  • State v. Morrison, No. DA 06-0262.
    • United States
    • January 22, 2008
    ...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, ¶ ¶ 10 As a preliminary matter, we address Morrison's argument that the State has raised a new theory ......
  • State v. Bauer, No. 01-079.
    • United States
    • Montana United States State Supreme Court of Montana
    • January 15, 2002
    ..."acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." State v. Richardson, 2000 MT 72, ¶ 24, 299 Mont. 102, ¶ 24, 997 P.2d 786, ¶ ¶ 20 In response to Bauer's motion in limine, the District Court barred mention at trial by the p......
  • Request a trial to view additional results

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