State v. Sullivan, 81-347

Citation642 P.2d 1008,197 Mont. 395
Decision Date25 February 1982
Docket NumberNo. 81-347,81-347
PartiesSTATE of Montana, Plaintiff and Respondent, v. Anthony D. SULLIVAN, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Patrick D. McGee, Butte, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert McCarthy, County Atty., Butte, for plaintiff and respondent.

SHEEHY, Justice.

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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