State v. Richardson, 98-422.

• Decision Date: 21 March 2000
• Docket Number: No. 98-422.,98-422.
• Citation: 299 Mont. 102,2000 MT 72,997 P.2d 786
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Coe RICHARDSON, Defendant and Appellant.
• Court: Montana Supreme Court

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.

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? ¶ 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? ¶ 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, since we've already tried to work with you, your sentence will be revoked.

Following these oral statements, the court entered a written order. The order noted that Richardson "admitted his violation of compliance with the sexual treatment program," and stated that the District Court "found that [Richardson] had violated the terms of his sentence and accordingly revoked the remaining portion of the previously imposed suspended sentence."

¶ 12 As a preliminary matter, Richardson contends that, under Black v. Romano (1985), 471 U.S. 606, 611-12, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636, 643, he is entitled to—but did not receive—a written statement of the evidence relied on and the reasons for revoking his probation. We agree that Black requires a written statement of the evidence relied on and the reasons for revoking probation (Black, 471 U.S. at 611-12, 105 S.Ct. at 2258, 85 L.Ed.2d at 643), but disagree that the District Court committed reversible error in this regard.

¶ 13 In Black, the sentencing court revoked the defendant's probation and ordered execution of the previously imposed sentence. In doing so, it prepared a memorandum of its findings, including that the defendant had violated his probation conditions by leaving the scene of an accident, but did not expressly indicate that it had considered alternatives to revoking probation. Black, 471 U.S. at 609, 105 S.Ct. at 2256, 85 L.Ed.2d at 641. The defendant petitioned the federal district court alleging that the sentencing court had violated his right to due process by revoking his probation without considering the alternatives to incarceration. Black, 471 U.S. at 610, 105 S.Ct. at 2257, 85 L.Ed.2d at 641. Both the district court and the Eighth Circuit Court of Appeals agreed, holding that the sentencing court was required to consider alternatives to incarceration on the record. Black, 471 U.S. at 610, 105 S.Ct. at 2257, 85 L.Ed.2d at 641-42.

¶ 14 The United States Supreme Court reversed. Black, 471 U.S. at 616,105 S.Ct. at 2260,85 L.Ed.2d at 646. In doing so, it recognized that the required written statement "helps to insure accurate fact finding with respect to any alleged violation and provides an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence." Black, 471 U.S. at 613-14,105 S.Ct. at 2259,85 L.Ed.2d at 644. The Supreme Court also acknowledged, however, that, "`when other procedural safeguards have minimized the risk of unfairness, there is a diminished justification for requiring a [court] to explain [its] rulings.'" Black, 471 U.S. at 613,105 S.Ct. at 2259,85 L.Ed.2d at 644 (quoting Harris v. Rivera (1981), 454 U.S. 339, 344-45, n. 11, 102 S.Ct. 460, 463-64, n. 11, 70 L.Ed.2d 530, 535, n. 11 (per curiam)). As a result, since the petitioner in Black did not dispute that he had an opportunity to present mitigating factors and to argue the appropriateness of alternatives to incarceration, the Supreme Court concluded that the sentencing court's memorandum and the hearing transcript, taken together, provided the necessary written statement explaining the evidence relied upon and the reasons for revoking probation. Black, 471 U.S. at 615-16,105 S.Ct. at 2260,85...