No. 86-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSFRED ANDREW NELSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark P. Yeshe, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Submitted on Briefs: Nov. 20, 1986 

Decided: January 29, 1987 

Filed: JAN 2 9 1981 

& PS,& 

8 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant, Fred Andrew Nelson, appeals the order of the 

First Judicial District Court, County of Lewis and Clark, 

revoking a four-year suspended sentence. We affirm the 

revocation. 

Defendant has been involved in illegal activities since 

his youth. On February 5, 1981, defendant pled guilty to one 

count of burglary and one count of theft. Sentencing was 

deferred for three months. On June 1, 1981, the trial judge, 

upon motion of the Lewis and Clark County Attorney, revoked 

defendant's deferred sentence and sentenced defendant to ten 

years imprisonment on each count, to be served concurrently. 

The last four years of each term were suspended. 

On July 20, 1983 (following his release from prison), 

defendant was again charged with felony theft. Thereafter, 

the County Attorney filed a petition to revoke defendant's 

four-year suspended sentence. A hearing on the petition was 

set, but defendant failed to appear. Upon his eventual 

arrest, defendant was returned in January of 1985 to Montana 

State Prison as a parole violator. The petition to revoke 

the four-year suspended sentence was dropped. Defendant was 

next discharged from the Montana State Prison in December 

1985. 

On March 13, 1986, defendant was arrested with two other 

individuals and charged with the burglary of The Pop Shoppe 

convenience store in Helena, Montana. A petition to revoke 

the four-year suspended sentence was once again filed on 

April 24, 1986. Hearings were held on the petition May 19, 

May 27 and June 2, 1986. 

Defendant is unable to recall the events preceding his 

arrest. However, at the May 27, 1986, hearing, defendant 
conceded that the State had sufficient, uncontrovertable 

evidence to show that defendant had not been a law-abiding 

citizen. Specifically, a witness identified defendant as one 

of the participants and an accomplice implicated defendant in 

the burglary. The trial judge accepted defendant's 

concession. 

The State then asked the trial judge to revoke 

defendant's suspended sentence and send defendant back to 

Montana State Prison. The State presented no witnesses, but 

asserted that defendant's record mandated such a disposition. 

Defendant presented several witnesses, including defendant's 

former probation officer, a chemical dependency counselor at 

Sunrise Ranch Alcohol Treatment Center and the administrator 

of that facility. Defendant had previously completed Sunrise 

Ranch's chemical dependency treatment program. These 

individuals all testified that defendant's problems with the 

law stem directly from chronic chemical dependency. None of 

the individuals believed defendant ' s best interests would be 

served by a return to Montana State Prison. Each testified 

that defendant would most benefit from long-term placement 

with the Lighthouse Chemical Dependency Program at Galen 

State Hospital. However, Lighthouse no longer provides 

long-term treatment. Concern was also voiced that defendant 

would "run", as the facility is an open one. The matter was 

continued. 

At the June 2, 1986, hearing, defendant's present 

probation officer testified at the judge's request. He also 

concluded that although there was a probability defendant 

would run, placement at Lighthouse would be the most suitable 

disposition. 

The trial judge accepted these recommendations and 

rendered his decision from the bench, stating: 
. . . I am confident that if I put you in the 

penitentiary for the last four years that isn't 

going to do any good either. You are going to be 

just as bad when you get out as you are now, if not 

worse. So that isn't going to help. So we have 

this one last shot, the Lighthouse Program. . . 

. . . You are a relatively young man and it seems 

to me that your difficulty is almost entirely 

derived from your dependency on chemicals, either 

alcohol or drugs, one or the other. If we could 

get you away from that, I think we would have a 

chance to save you. . . What I am trying to do is 

see if I can save a 24 year old man with one last 

shot of a 90 day program at Lighthouse. 

Tr. p. 99, In. 18-23; p. 100, In. 8-13, 20-21. 

An order was issued June 4, 1986, continuing the 

proceeding until defendant could enroll in, attend and 

complete the Lighthouse program. Upon completion of the 

program, defendant was to be returned to court for further 

disposition. Defendant was to remain in the Lewis and Clark 

County jail until June 10, 1986, when he would be transferred 

to the Lighthouse program. 

Defendant became involved in an altercation with a 

jailer at lunch on June 4, 1986. The incident resulted in 

defendant being charged with a misdemeanor, obstructing a 

police officer in the performance of his duties. 

The County Attorney filed a petition June 9, 1986, again 

seeking to revoke defendant's suspended sentence. A hearing 

was held on the petition June 16, 1986. At the start of that 

hearing, the State moved to amend the June 9, 1986, petition 

to incorporate the grounds for revocation set forth in the 

April 24, 1986, petition. The defendant did not object and 

the motion was granted. Tr. p. 114, In. 1-9. 
At the hearing, the State presented evidence of other 

disciplinary actions taken against defendant while he was in 

jail, in addition to various accounts of the June 4 

incident. The trial judge ultimately determined "that 

Defendant was difficult to handle on that day, that he 

profanely insulted the jailer, that force was required to 

control him, but that one of the jailers may have used 

excessive force." Order dated June 18, 1986, p. 3. The 

trial judge then revoked defendant's suspended sentence and 

had him returned to Montana State Prison. 

On appeal, defendant raises two issues: 

1. Did the District Court err in admitting certain 

matters into evidence and in considering those matters in its 

decision to revoke? 

2. Did the District Court err in revoking defendant's 

suspended sentence and sending defendant to the Montana State 

Prison rather than continuing suspension of sentence and 

sending defendant to the Lighthouse Chemical Dependency 

Center? 

Defendant objects to the use of the reports of previous 

disciplinary action taken against him for two reasons: 1) 

they violate the hearsay rule; and 2) he was not given notice 

of the State's intent to admit the reports. The rules of 

evidence do not apply to probation revocation hearings. Rule 

101(c) (3), Mont. R. Evid. Courts in general allow the 

admission of hearsay evidence at sentence revocation 

hearings. "Admissibility of Hearsay Evidence in Probation 

Revocation Hearings", 11 ALR 4th 999 (1982). 

The minimum requirements of due process are extended to 

sentence revocation hearings. Gagnon v. Scarpelli (1973), 

411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. Thus, defendant 

was entitled to notice of all alleged violations leading to 

the petition to revoke. State v. Steffan (1981), 195 Mont. 
395, 398, 636 P.2d 836, 838. Since defendant was not 

notified of the State's intent to use these disciplinary 

reports against him, the trial judge erred in admitting them 

into evidence. However, in his order revoking defendant's 

suspended sentence, the trial judge gave only passing mention 

to those reports. The primary reason for the judge's 

decision was the altercation which occured June 4, 1986. 

When the Court addressed Nelson in open court at 

the time he was going to be allowed to go to 

Lighthouse, the Court advised Nelson that this was 

his last chance. This impressed him not at all as 

was shown by his difficulty in the Lewis and Clark 

County Jail almost directly thereafter. The Court 

had hoped Nelson would take his one last chance. 

It is now clear he is a hopeless case. 

Order of June 18, 1986, p. 4. Defendant is entitled to prior 

notice of the reasons relied on by the trial judge when 

revoking the suspended sentence. Defendant had such notice. 

Therefore, any error is harmless. State v. Steffans, supra. 

Defendant also asserts that the trial judge erred in 

revoking his suspended sentence because the revocation was 

not premised upon the violation of any condition of his 

suspended sentence. Defendant has overlooked the order 

amending the June 9, 1986, petition to revoke to include the 

grounds for revocation set forth in the April 24, 1986, 

petition. Defendant's suspended sentence was revoked because 

defendant conceded, on the basis of his participation in the 

The Pop Shoppe convenience store burglary, that the State 

could prove he had not been a "law-abiding citizen." Thus, 

an implied condition of suspension was violated. The Court's 

most recent order merely changes the disposition imposed 

after revocation of the suspended sentence. It is supported 

by substantial evidence. 

Affirmed.