State v. Tirey

• Decision Date: 08 February 2011
• Docket Number: No. DA 09–0522.,DA 09–0522.
• Citation: 247 P.3d 701,358 Mont. 510
• Parties: STATE of Montana, Plaintiff and Appellee,v.Roland Dee TIREY, Defendant and Appellant.
• Court: Montana Supreme Court

358 Mont. 510

247 P.3d 701

STATE of Montana, Plaintiff and Appellee,

v.Roland Dee TIREY, Defendant and Appellant.

No. DA 09–0522.

Supreme Court of Montana.

Submitted on Briefs Sept. 8, 2010.Decided Dec. 30, 2010.As Amended on Rehearing Feb. 8, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant Attorney General; Helena, Montana, Ed Corrigan, Flathead County Attorney; Kalispell, Montana.Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

[358 Mont. 511] ¶ 1 Roland Tirey (Tirey) appeals from the 2009 Order of Revocation and Judgment of the Eleventh Judicial District Court, Flathead County.

¶ 2 We remand for further proceedings consistent with this opinion.

¶ 3 On appeal, Tirey raises the following issues:

¶ 4 1. Did the District Court abuse its discretion in revoking Tirey's probation?

¶ 5 2. Did the District Court act outside statutory parameters in incorporating 13 probation conditions into Tirey's sentence?

¶ 6 3. Did the District Court act outside statutory parameters in designating Tirey a Level II Sexual Offender?

¶ 7 4. Did the District Court act outside statutory parameters by failing to expressly state the reason why it did not credit Tirey's time spent on probation?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 Tirey sexually assaulted a young woman multiple times in 1996. He pled guilty to felony sexual assault that same year. In 1997, Tirey was sentenced to 50 years in Montana State Prison with 25 years suspended.

¶ 9 Tirey was instructed to register as a Sexual Offender, but the court did not specify a tier level. Tirey was paroled in 2004. His parole was revoked in 2005 and he returned to prison to complete the unsuspended portion of his sentence. On April 15, 2008, the Department of Corrections designated Tirey a Level I Sexual Offender in anticipation of discharge. He was released to serve the suspended portion of his sentence on November 10, 2008.

¶ 10 Tirey's probation officer, Sandra Fairbank (Fairbank), met with him on November 12, 2008 to explain the terms of his parole. Tirey was required to, among other things, (1) get a job right away, (2) report to his probation officer weekly, and (3) get into sexual offender treatment in two weeks.

¶ 11 Tirey claims that after November 12, 2008, he attempted to reach Certified Sexual Offender Treatment Specialist, Lindsay Clodfelter (Clodfelter). He claims that he had trouble contacting Clodfelter and reaching her office because he was unaware of the location and did not have directions. Fairbank reminded Tirey that he needed to be in treatment in two weeks and that he would need to start a formal job search if he had not found a job in a few days.

¶ 12 Tirey missed his scheduled sexual offender treatment appointments on November 20, 2008 and November 25, 2008. Fairbank then put Tirey on 72 hour hold. At this time, Fairbank gave Tirey job log forms which he needed to begin filling out. Also during that time, Fairbank spoke with Clodfelter and looked at other supervision options for Tirey. Tirey was released from custody on November 29, 2008, and was instructed to report to his probation officer as soon as possible.

¶ 13 Tirey did not report to Fairbank until December 2, 2008. At that time, he had not completed any job logs and claimed to have an appointment with Clodfelter. Tirey did not attend his appointment. Clodfelter then classified Tirey as non-compliant with the sexual offender treatment program.

¶ 14 On December 3, 2008, Tirey did not appear for his weekly appointment with Fairbank. She called him and he claimed that he was in a job interview and would make it back to town if he could. Tirey alleges that he ran out of gas outside of town and left a message with Fairbank. Fairbank started looking for Tirey. Tirey also called Clodfelter and told her that he needed to come into her office or he would be thrown in jail. Clodfelter scheduled an appointment for noon that day. Fairbank arrested Tirey when he arrived at Clodfelter's office.

¶ 15 Tirey offers a number of excuses for violating his probation, including that he ran out of gas, job logs were too difficult to complete, his lack of medication was making him feel sick, Clodfelter had not called him back for a few days, and a job interview prevented him from getting to a meeting.

¶ 16 The county attorney filed a petition for revocation of Tirey's probation. Fairbank filed an affidavit in support of modifying the conditions of Tirey's suspended sentence and heightening his sexual offender status to Level II.

¶ 17 The District Court found that Tirey had violated conditions of his parole by failing to (1) complete required job logs, (2) report to his probation officer as directed, and (3) comply with all recommendations for outpatient sexual offender treatment.

¶ 18 On July 24, 2009, the District Court revoked Tirey's probation and sentenced him to 25 years at Montana State Prison with seven years suspended. Tirey was not given any credit for time served on probation. The District Court also designated Tirey as a Level II Sexual Offender and ordered that 13 probation conditions be integrated into his current suspended sentence conditions.

STANDARD OF REVIEW

¶ 19 We review a district court's revocation of a suspended sentence for abuse of discretion. State v. Rudolph, 2005 MT 41, ¶ 9, 326 Mont. 132, 107 P.3d 496. We review a criminal sentence for legality only, that is, whether the sentence falls within the statutory parameters. State v. Kotwicki, 2007 MT 17, ¶ 5, 335 Mont. 344, 151 P.3d 892.

DISCUSSION

¶ 20 1. Did the District Court abuse its discretion in revoking Tirey's probation?

¶ 21 Where the judge finds that the offender has violated the terms and conditions of the suspended sentence, the judge has the authority to revoke the suspended sentence. Rudolph, ¶ 13. A single violation of the terms and conditions of a sentence is sufficient to support a court's revocation of that sentence. Id. In State v. Senn, 2003 MT 52, ¶ 23, 314 Mont. 348, 66 P.3d 288, we upheld the revocation of a suspended sentence where defendant failed to meet personally with his probation officer as required. Defendant offered numerous excuses including that he had to go to the hospital and did not receive contact letters. Id. at ¶ 21. We affirmed the district court's revocation of Senn's suspension and return to incarceration because Senn's explanation of his health, poverty, and “good faith” effort to comply with probation were insufficient to excuse Senn's violation of a term of probation. Id. at ¶ 24.

¶ 22 In the case before us, the District Court appropriately revoked Tirey's suspension because he violated the conditions of his probation in three ways. Tirey failed to report to his probation officer, submit job logs, and begin sexual offender treatment. Tirey contends that his failure to meet the conditions of his parole was out of his control and largely the fault of his probation officer who he argues made unreasonable demands. Tirey relies on State v. Lee, 2001 MT 176, ¶ 21, 306 Mont. 173, 31 P.3d 998, and argues that his probation violations were not a product of his willfulness; therefore, he is entitled to an evaluation of alternatives to incarceration.

¶ 23 In Lee, defendant's suspended sentence was conditioned on completing a sexual offender treatment program while incarcerated. Id. at ¶ 5. Lee spent over three of his five years of incarceration on a wait list for the various levels of the sexual offender program. Id. at ¶ 6. His treatment was further delayed by a sit down strike. Id. Despite substantial delays, Lee completed phase one and nearly phase two (the final phase), of sexual offender treatment by his release date. Id. We found that when the circumstances are such that failure to complete a condition of probation is solely the fault of the State, due process requires the trial court to consider adequate alternatives to incarceration. Id. ¶ 23.

¶ 24 Unlike Lee, Tirey's failure to comply with probation conditions is not anyone's fault but his own. Tirey's excuses are similar to those offered by the defendant in Senn. Regarding his December 3, 2008 appointment with Fairbank, Tirey claims that he had insufficient gas to reach the appointment even though he chose to stop at a job interview on his way into town that morning. Tirey alleges that he did not attend treatment because he was unable to find Clodfelter's office. Finally, Tirey's contention that the job log requirement was unreasonable does not establish that the requirement was impossible; thus his failure to complete and turn in job logs was his own fault. Tirey also argues that his poverty and the extreme weather conditions contributed to his noncompliance. However, none of Tirey's excuses establish, as the defendant did in Lee, that his noncompliance was not of his own volition. Indeed, the District Court noted a particular frustration with Tirey's unwillingness to accept responsibility for any of his violations. Because we conclude that evidence supports the District Court's determination that Tirey willfully violated conditions of his probation, the District Court did not abuse its discretion in revoking Tirey's suspended sentence.

¶ 25 2. Did the District Court act outside statutory parameters in incorporating 13 probation conditions into Tirey's sentence?

¶ 26 The law in effect at the time an offense is committed controls as to the possible sentence for the offense, as well as the revocation of that sentence. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, 113 P.3d 297. Tirey committed his offense in 1996. Therefore, the 1995 MCA is the applicable statute. Section 46–18–203(7)(c), MCA (1995), states that the court may “revoke the suspension of sentence and require the defendant to serve either the sentence imposed or any lesser sentence[.]” Id.

¶ 27 In...