State v. Sullivan, 81-347
| Decision Date | 25 February 1982 |
| Docket Number | No. 81-347,81-347 |
| Citation | 642 P.2d 1008,197 Mont. 395 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Anthony D. SULLIVAN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Patrick D. McGee, Butte, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Robert McCarthy, County Atty., Butte, for plaintiff and respondent.
Anthony D. Sullivan appeals from an order of the District Court, Second Judicial District, Silver Bow County, revoking a previously suspended sentence.
On August 20, 1975, Sullivan was charged with burglary and after his consultation with court-appointed counsel, Sullivan entered a plea of guilty to the charge on October 7, 1975.
A judgment of conviction was entered, and the District Court deferred his sentence for three years and placed Sullivan on probation.
Sullivan's record indicates that he was twice placed on probation, and his probation has been twice revoked. He has been paroled three times, and three times his parole has ended in failure. In each instance, the revocation or reimprisonment of Sullivan was due to his violation of one or the other of two conditions of his release: (1) abstention from alcohol, and (2) submission to alcohol treatment and counseling.
The following table of events gives an outline of Sullivan's record following conviction:
October 7, 1975 Defendant pled guilty to
charge of burglary
judgment of conviction
sentence deferred for
three years; defendant
on probation
August 19, 1977 Hearing on petition to
revoke deferred sentence
on probation violations
court deferred
imposition of sentence
for additional three
years; defendant
ordered to return to
alcohol treatment centers
at Galen and Kellogg
Idaho; thereafter to
report to probation
officer in Butte.
October 18, 1977 Defendant arrested
for breaking into home of his
former wife.
October 28, 1977 Court sentenced
defendant on the original
burglary conviction to
ten years in prison, with
five years suspended.
Defendant to be under
supervision of Butte
office of Board of
Pardons when he is not
in prison.
October 2, 1978 Defendant paroled to
Helena.
June 1979 Defendant returned to
prison on parole
revocation.
February 1, 1980 Defendant paroled
upon condition that he
complete certain alcohol
treatment programs.
June 18, 1980 Defendant returned to
prison on parole
revocation.
February 24, 1981 Defendant paroled to
Butte area under
supervision of
parole officer.
April 14, 1981 Defendant arrested for
parole violations.
April 16, 1981 Defendant agreed to
admit himself to Galen
State Hospital for
alcoholic treatment; left
Galen next morning.
April 20, 1981 Defendant again
arrested for drinking.
April 27, 1981 Court revoked the five
year suspended sentence
and ordered defendant
returned to prison to
serve the remainder of
his sentence.
Without belaboring the record with details, it is enough to say that over the course of his post-conviction history, Sullivan has shown no disposition to abide by the conditions of his deferred imposition of sentence, or of his parole as they relate to his use of alcohol.
The defendant now appeals from the court's order of April 27, 1980, revoking his suspended sentence. He raises the following issues:
1. May Sullivan's suspended sentence be revoked before he actually begins serving it?
2. May the sentencing court revoke his suspended sentence for violation of parole conditions imposed by the Board of Pardons where a suspended sentence follows a term of imprisonment?
3. May the District Court require a probationer to abstain from alcohol when the probationer is an alcoholic and is powerless to control his drinking?
4. Did Sullivan receive due process in the revocation of his probation?
5. Did the District Court lose jurisdiction to defer imposition of a sentence for an additional three years under its order of August 19, 1977?
The District Court on October 28, 1977, sentenced Sullivan to ten years imprisonment with the last five years suspended. The record is not clear as to the date when Sullivan would make the transition from parole status to probation status, that is, when the date of suspended sentence would begin. This is because the record does not clearly show the accumulation of "good time" by Sullivan during the term of his sentence. The probation officer in Butte determined that the transition date was April 16, 1981, probably influenced by our decision in Crist v. Segna (1981), Mont., 622 P.2d 1028, 38 St.Rep. 150. The Department of Institutions takes the position that the transition date was May 25, 1981. It appears therefore that Sullivan was technically on parole at the time that his suspended sentence was revoked because he had not yet passed the transition date from parole to suspended sentence time.
Section 46-18-203, MCA, authorizes the original sentencing judge who has suspended a sentence, to revoke that suspension "during the period of the suspended sentence." It is Sullivan's contention that the District Court is without jurisdiction to revoke the suspended sentence before the period of the suspended sentence begins.
Sullivan's contention is answered in spirit if not factually, by our decision in Matter of Ratzlaff (1977), 172 Mont. 439, 564 P.2d 1312. There the parole violation occurred before the defendant began serving his suspended sentence. In that case the defendant had been sentenced to 25 years imprisonment for robbery. The final 10 years of that sentence was later suspended. After serving approximately three years in prison, the defendant was paroled. He was later charged with violating the conditions of his parole and revocation proceedings were instituted.
At the same time a petition for the revocation of his 10-year suspended sentence was filed before the original sentencing court. Ratzlaff contended that the District Court had no jurisdiction to revoke his suspended sentence because he was under the jurisdiction of the parole board. This Court disagreed and held that the suspended sentence was properly revoked. Thus, we held by necessary implication that a suspended sentence may be revoked before the defendant actually begins serving probation.
Other courts addressing the issue have held that a suspension of sentence may be revoked for acts done by a probationer after sentence is imposed but before he actually begins serving the suspended sentence. See, e.g., United States v. Ross (5th Cir. 1974), 503 F.2d 940; United States ex rel. Sole v. Rundle (3d Cir. 1971), 435 F.2d 721; Com. v. Wendowski (1980), 278 Pa.Super.Ct. 453, 420 A.2d 628; Hart v. Florida (Fla.App.1978), 364 So.2d 544; State v. Morris (1977), 98 Idaho 328, 563 P.2d 52; Brown v. Com. (Ky.1977), 564 S.W.2d 21; Parrish v. Ault (1976), 237 Ga. 401, 228 S.E.2d 808; Wright v. United States (D.C.1974), 315 A.2d 839; Martin v. State (Fla.Dist.Ct.App.1971), 243 So.2d 189; Coffey v. Commonwealth (1969), 209 Va. 760, 167 S.E.2d 343; see also, Trueblood Longknife v. United States (9th Cir. 1967), 381 F.2d 17, cert. den. 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987.
What comes out of these cases is the strong public policy that if a person convicted of a crime, and granted a period of probation as part of the sentence, should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation, the court has the power to revoke or change the order of probation, both during the period of probation, and before the period of probation commences. James v. United States (5th Cir. 1944), 140 F.2d 392, 394.
We hold, therefore, that the language of section 46-18-203, MCA, does not prohibit revocation of probation before the defendant actually begins serving the suspended sentence. Wright v. United States, supra, 315 A.2d at 841, 842.
Under the second issue, Sullivan contends that at the time his suspended sentence was revoked, he had violated only the conditions of his parole set by the Board of Pardons, and that only the sentencing court could set the conditions for the revocation of his suspension.
The State answers this contention by pointing to Ratzlaff, supra, 172 Mont. 439, 564 P.2d 1312, where this Court held that in the absence of conditions ordered by the sentencing court, the conditions of parole imposed by the Board of Pardons are the conditions of a suspended sentence. In Ratzlaff, we pointed out the dual nature of conditions imposed by the Board of Pardons in that their regulations with respect to conditions of parole apply also to suspensions of sentence, and that these regulations applied in the absence of conditions imposed by a court. 172 Mont. at 444, 564 P.2d at 1315. Moreover, in this case, the sentencing court, on October 28, 1977, in imposing the 10 year imprisonment with five years suspended, expressly directed "that at all times when Defendant is not under the jurisdiction of the warden of the Montana State Prison he shall be under the supervision of the State Board of...
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...of probation for conduct occurring after entry of order of probation but before service of probation begins); State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982) (revocation of probation for violation occurring before commencement of probation term but after imposition of sentence); Lee ......
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