State v. Triplett

• Decision Date: 28 October 2008
• Docket Number: No. DA 07-0492.,DA 07-0492.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Robert TRIPLETT, Defendant and Appellant.
• Court: Montana Supreme Court

195 P.3d 819

2008 MT 360

STATE of Montana, Plaintiff and Appellee, v. Robert TRIPLETT, Defendant and Appellant.

No. DA 07-0492.

Supreme Court of Montana.

Submitted on Briefs July 30, 2008.

Decided October 28, 2008.

For Appellant: Robin Amber Meguire, Attorney at Law; Great Falls, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana, Scott Herring, Dawson County Attorney, Glendive, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Robert Triplett (Triplett) appeals an order of the Seventh Judicial District Court, Dawson County, revoking Triplett's suspended sentence imposed by the Sentence Review Division for the offense of sexual intercourse without consent, and sentencing Triplett to forty years in Montana State Prison (MSP) with twenty years suspended.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did delays between the answer hearing and the evidentiary hearing deny Triplett due process of law in his probation revocation proceeding?

¶ 4 2. Did the District Court unlawfully expand Triplett's sentence upon revocation of his suspended sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On June 22, 2005, the State filed an Information charging Triplett with three counts of sexual intercourse without consent, felonies. The charges were based on Triplett, who was twenty-seven, having sexual intercourse with a fifteen year old girl. Triplett entered into a plea agreement with the State and pled guilty to one count of sexual intercourse without consent in exchange for the State dismissing the other two counts. On February 27, 2006, the District Court sentenced Triplett to MSP for twelve years with four years suspended. Triplett was made ineligible for parole until he completed Phase I and II of the Sex Offender Treatment Program. The court also imposed other conditions upon his suspended sentence.

¶ 6 Triplett then petitioned the Sentence Review Division for review of the District Court's sentence. After a hearing on May 5, 2006, the Sentence Review Division amended Triplett's sentence, imposing a forty-year sentence, all of which was suspended upon specific conditions. On June 8, 2006, the District Court issued an Amended Judgment and Commitment reflecting the Sentence Review Division's action. Triplett was released.

¶ 7 On September 28, 2006, the State filed a Petition for Revocation of Suspended Sentence. The petition alleged Triplett had violated the conditions of his suspension, including: listing an incorrect address on his Sexual and Violent Offender Registration; having contact with the victim on several occasions; failing to successfully complete outpatient sexual offender treatment; failing to keep his probation officer apprised of his current address; having contact with a fourteen-year-old female without adult supervision; and failing to make payments on his court-assessed fines and fees and other financial obligations.

¶ 8 The District Court issued a bench warrant and Triplett was arrested on October 2, 2006. On October 17, 2006, Triplett made an initial appearance and the court informed Triplett of the allegations in the petition and of his rights. On October 24, 2006, the court conducted an answer hearing, wherein Triplett denied each allegation of the petition. Triplett's counsel requested at least three to four weeks in which to prepare for an evidentiary hearing. Based on the parties' schedules and the court's calendar, the court then set an evidentiary hearing for December 22, 2006. On December 8, 2006, citing difficulties with interviewing witnesses, defense counsel moved to continue the hearing until January 2007, and the court rescheduled the hearing for January 9, 2007. On January 8, 2007, the parties filed a joint motion to continue the evidentiary hearing, based on unavailability of witnesses. The District Court granted the motion and continued the hearing "[t]o a date agreed by counsel."

¶ 9 On March 6, 2007, Triplett filed a pro se motion titled Request for Electronic Monitoring. However, his motion also indicated that Triplett had hired private counsel, who was "investigating the case and ... trying to get up to speed." On March 26, 2007, the court scheduled a hearing for April 6, 2007, for purposes of the evidentiary hearing on the petition and to address Triplett's motion for electronic monitoring. On April 6, the parties appeared for the hearing and the State moved to continue the hearing because the State had learned the previous day that the probation and parole officer had taken medical leave. The court thus continued the hearing until April 20, 2007. On April 19, 2007, Triplett filed a pro se motion requesting appointment of new counsel. The following day, both parties appeared before the court and Triplett stated he and his attorney had resolved their differences and he was ready to proceed.

¶ 10 The parties advised the court they had reached an agreement for adjudication and recommended disposition. Pursuant to the agreement, Triplett answered "true" to some of the alleged violations of his sentence conditions in exchange for the State's agreement to request dismissal of other allegations and to recommend the court impose "the sentence it originally imposed, which was twelve years with the four suspended."

¶ 11 Based on his admissions, the court found Triplett did "violate the terms of the suspended portion of his previously imposed sentence." The District Court indicated it had not decided whether it would follow the terms of the plea agreement and scheduled a dispositional hearing for May 1, 2007. At the May 1, 2007 hearing, the court asked the State for its sentencing recommendation and, consistent with the plea agreement, the State recommended that Triplett be sentenced to "the original sentence," or twelve years with four suspended, with no possibility of parole until after completion of Phase I and II of the Sexual Offender Treatment Program. Counsel for Triplett concurred. The court then took a recess to review the sentencing statutes. Stating that it saw nothing in the statutes giving it authority to overturn the Amended Judgment and Commitment of the Sentence Review Division, the court sentenced Triplett to forty years in MSP with twenty years suspended. Triplett received credit for 595 days prior time served in prison and in jail during the revocation proceedings.

¶ 12 Triplett appeals from the District Court's Order Revoking Suspended Sentence and Imposing Sentence.

STANDARD OF REVIEW

¶ 13 This Court's review of questions regarding constitutional law is plenary. State v. LaFreniere, 2008 MT 99, ¶ 7, 342 Mont. 309, ¶ 7, 180 P.3d 1161, ¶ 7. More specifically, plenary review is applied to whether a court violated a probationer's constitutional right of due process. State v. Finley, 2003 MT 239, ¶ 10, 317 Mont. 268, ¶ 10, 77 P.3d 193, ¶ 10. Likewise, the interpretation and construction of a statute is a matter of law and we review whether the district court interpreted and applied a statute correctly de novo. See State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, ¶ 10, 179 P.3d 534, ¶ 10; State v. Clark, 2006 MT 313, ¶ 7, 335 Mont. 39, ¶ 7, 149 P.3d 551, ¶ 7.

DISCUSSION

¶ 14 Did delays between the answer hearing and the evidentiary hearing deny Triplett due process of law in his probation revocation proceeding?

¶ 15 Citing the "without unreasonable delay" language within § 46-18-203(4), MCA, Triplett argues the District Court "unduly delayed [his] final revocation hearing" in violation of this statute, "resulting in prejudice to his liberty interests and associated due process rights." The State counters, stating Triplett "failed to prove that the district court denied him due process" and "failed to establish that he was in any way prejudiced by the delay between the answer hearing and the evidentiary hearing." Both parties concede, and the record indicates, there were various delays between the answer hearing and the final evidentiary hearing. The disagreement arises, however, over whether there were "undue" delays that rise to the level of a due process violation and, if so, whether those delays prejudiced Triplett.

¶ 16 The due process rights of a probationer in a revocation proceeding are different from those afforded a defendant in a criminal proceeding. We have explained:

The revocation hearing is not a criminal trial but a summary hearing to establish a violation of the conditions of the prisoner's probation. The probationer already stands convicted of a crime no matter what the grounds for the revocation may be, whether it is the commission of another crime or unauthorized travel.

State v. Kingery, 239 Mont. 160, 165, 779 P.2d 495, 498 (1989) (citing Petition of Meidinger, 168 Mont. 7, 15, 539 P.2d 1185, 1190 (1975)). Further, the constitutional right to a speedy trial does not apply to a revocation of probation proceeding. State v. Oppelt, 184 Mont. 48, 56, 601 P.2d 394, 399 (1979). However, because a probationer's liberty interests are at stake in this type of proceeding, "the minimum requirements of due process are extended to sentence revocation hearings." State v. Pedersen, 2003 MT 315, ¶ 21, 318 Mont. 262, ¶ 21, 80 P.3d 79, ¶ 21 (2003); State v. Nelson, 225 Mont. 215, 218, 731 P.2d 1299, 1302 (1987).

¶ 17 Due process protections for a revocation hearing are codified in § 46-18-203, MCA, which provides, in pertinent part:

(4) Without unnecessary delay, the offender must be brought before the judge, and the offender must be advised of:

(a) the allegations of the petition (b) the opportunity to appear and to present evidence in the offender's own behalf;

(c) the opportunity to question adverse witnesses; and

(d) the right to be represented by counsel at the revocation hearing

...

(5) A hearing is required before a suspended or deferred sentence can be revoked or the terms or conditions of the sentence can be modified

...