No. 13774 INTHE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaintiff and Respondent,

TONY M. KNAPP, Defendant and Appellant.

Appeal from: DistrictCourt of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant: Schulz, Davis and Warren, Dillon, Montana John Warren argued, Dillon, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, F4ontana Daniel Kernmis argued, Missoula, Montana W. G. Gilbert, 111, argued, County Attorney, Dillon,

Montana

Submitted: September 29, 1977

Filed: '

. . -. 

# 6~,--, lerkMr. JusticeDaniel J. Shea delivered the Opinion of the Court:

Defendant appeals from an order of the District Court, Beaverhead County, revoking a deferred imposition of sentence for failure tomake regular reports to a probation officer, and sentencing the defendant totwo concurrent 10-year terms inprison for two counts of robbery. On appeal defendant alleges the districtjudge abused his discretionwhen he revoked defendant's deferred imposition of sentence. He claims thejudge was unduly influenced by public opinion when he revoked, thathe mistook the defendant for another defendant being sentenced the same day in the same court, that thejudge misunderstood the offenses involved inthe defendant's own case, and that he based his decision on insufficient evidence. Because of the apparent confusion as to the crimes involved, which confusion may have existedbefore the revocation order,



### we are compelled to set aside the revocation and sentencing. We findno merit in defendant's other allegations of abuse of discretion. Defendant was charged with two counts of robbery and one count of burglary by Information filedMarch 13, 1975. He pled guilty to the two robbery counts on arraignment May 20, 1975. The court dismissed the burglary count on motion of the county attorney. OnJune 17, 1975, the court imposed a three year deferred imposition of sentence on both counts of robbery. As

a condition of the deferred imposition, the court required defendant toabideby the rules and regulation~ of the StateBoard of Pardons. One of the rules required defendant tomake monthly reports to a parole officer.Defendant reported regularly to a parole officer from June 17, 1975 toJune 15, 1976, but then failed to report for the next four months, atwhich point the probation department issued a report of violation .and issued an arrestwarrant. Defendant was arrested February 

### 28, 1977, and appeared with counselMarch 10, 1977, ata hearing on the state's motion to revoke the defendant's deferred imposition of sentence. The probation officer testified to the failure tomake monthly reports and hisviolation report was admitted in evidence. Defendant did not explainhis failure to report. After granting the motion to revoke, the districtjudge commented that he was "subject tountold criticism" forhis original decision todefer the defendant'

### s imposition of sentence. Although he commented on the two counts of robbery before he revoked the deferred sentence, almost immediately after the order of revocation he sentenced defendant to sixmonths in jail and a 

### $500 fine for misdemeanor theft, and 

### 10years in prison for felony theft. Counsel for defendant pointed out to thejudge that the offenses to which the defendant had pled guiltywere two counts of robbery. Atthat point thejudge reexamined the Information charging the defendant, and sentenced him to 10 years on felony theft and 10years on burglary. Counsel for defendant again corrected thejudge as to the offenses involved, and thejudge imposed a sentence of 10years inprison

on each count of robbery, the terms torun concurrently. We do not agree with defendant's contention that thejudge

was unduly influenced by public opinion. Hiscomment that he had been "subjected tountold 

### criticism" by imposing the originalsentencewas made inthe permissible context that thejudge originallyhad confidence indefendant but defendant had not upheld that;confidence. Such comment isnot necessarily

an indication of passion orprejudice as defendant asserts. In Commonwealth ex rel. Hendrickson v. Myers, 182 Pa.Super. 169, 126A.2d 485, 488 (1956), the reviewing court stated in a similar situation: '"Judge ~oyer's remarks

# * *

# * were characteristically phrased in terms of almost personal concern that relator had not seen fitto profitby the prior consideration given him by thejuvenile courtprobation. We cannot believe that there was any element of

# ** * or unfairness present in hismind. It1 The same 

### is true in the instant case. Here, the trialjudge

as much as statedhe had confidence indefendant and compassion forhiswife and child, but defendant did not uphold his confidence. Furthermore, the evidence clearly showed 

### a violation of the probation conditions. Defendant admitted he agreed to follow the rules and regulations of the parole board, one of which required regular reports to a probation officer. Montana Administrative Code 

### 55 20-3.10(18)-S10150; 20-3.10(6)-S10060 (1)(f)

# . Section 95-3305, R.C.M. 1947, provides that failure to abide by a condition of probation 

### is grounds for revocation of probation. A failure to report is sufficient grounds for revocation. People v. McCaster, 19 111.App.3d 824, 313 N.E.2d 308,309 (1974); Moore v. State, 0kla.Cr. 1971, 489 

### P.2d 1359, 1360.While revoking solely m that ground should be sparingly used, here there was an 8 month period between defendant's failure to report and ultimate arrest. Moreover, atthe hearinghe did not explain his failure to report, nor his conduct during those 

### 8 months. One of the reasons for requiring a report is tohave atleast some idea of what defendant had been doing during the interimperiod. The probation officehad no idea. In fact, it didnot even know where he was during that time. Section 95-2206(1), 

### R.C.M. 1947, gives the court discretion torevoke a deferred sentence and we cannot say that discretion

was abused under the above facts. Even though 

### a districtcourt has the discretionary power torevoke a deferred sentence, that discretionmust be exercised in such manner that the sentencingjudge knows who the defendant 

### is and the charges upon which the state 

### is seeking tohave a sentence imposed. Inthe present casewe cannot say with any certainty that the districtjudge before he revoked the deferred sentence, knew defendant had pled guilty only to two counts of robbery. Here, immediately after thejudge revoked the deferred sentence, he sentenced the defendant for misdemeanor theft and felony theft. For misdemeanor theft he sentenced defendant to the maximum, 

### 6 months inthe county jail and a $500 fine. For felony thefthe sentenced defendant to 10years inprison. Defendant was never convicted of misdemeanor theft. A charge of felony theft, filed alongwith the robbery charges, was dismissed. It was only aftera prolonged discussion between defense counsel, the prosecutor, and thejudge that thejudge realized the only charges before the courtwere 2 counts of robbery. Defendant

was then sentenced to 10years on each count of robbery, the sentences torun concurrently. -5-Although the record does not revealwhat was inthe judge's mind before he revoked the deferred sentence, we can only speculate as towhether hismistaken impression that defendant had been convicted of felony theft and misdemeanor theft influenced his decision to revoke the deferred sentence. Since defendant had been convicted of neither, the order of revocation, and consequently, the sentencing, must be setaside. Incorrect ormisunderstood information regarding a defendant may be grounds forvacating a sentence imposed upon him on the basis of that information. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L ed 1690,1693 (1948); United States ex rel. Jackson v. Myers, 374 F.2d 707 (3rd Cir. 1967); United States v. Weston, 448 F.2d 626 (9th Cir. 1971);United Statesv. Espinoza, 481F.2d 553 (5th Cir. 1973); Statev. Gowin, 

### 97 Idaho 146, 540 P.2d 808*(1975). InTownsend the sentencing court considered two dismissed charges against the defendant and two charges of which the defendant had been acquitted. On settingaside the sentence and remanding for resentencing, the United States Supreme Court stated: 

# "***We arenot atliberty toassume that items given such emphasis by the sentencing court, did not influence the sentence which the prisoner 

### isnow serving. "We believe that on the record before us, it is evident that thisuncounseled defendant was either overreached by the prosecution's submission of misinformation to the court orwas prejudiced by the court's own misreading of the record. 

# ** * Consequently

# * ** this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, 

### is inconsistent with due process of law, and such a conviction cannot stand." 92 L ed 1693."We recognize that counsel was not present inTownsend, but

was present in the instant case, and the initialhearing in this case was a revocation hearing, as opposed to a sentencing hearing. However, not much could be done here by counsel to correct an erroneous impression in thejudge's mind that could have existedbefore his revocation order. The information did not come out until after the revocation order. Surely a defendant can be prejudiced as much by mistaken assumptions concerning his criminal background when a deferred sentence 

### is revoked, ashe can when he is sentenced, In United States v. Weston, supra, the court stated: "In Townsend v. Burke

# * ** the Supreme Court made it clear that a sentence cannot be predicated on false information. 

# *** A rational penal system must have some concern for the probable accuracy of the informational imputs in the sentencing process

# ."448 F.2d 634. InRyan 

### v. Crist, Mont

# . ,563 P.2d 1145, 34 St,Rep. 342 (1977), this Court held the sentencing court to rigorous standards with regard to the use of information before the court ina presentence report. Rigorous standards are equally

as important when the trialcourt 

### ispassing upon the state's motion to revoke a deferred or suspended sentence. We hold the trialjudge must have, and the record must reflect that he has, substantially correct information concerning the defendant before he can affect a defendant's substantial rights by entering an order of revocation. The order of revocation and sentence is set aside and the cause 

### is remanded for furtherhearing on the state's petition torevoke.We Concur:.

* -L'- 6 :A ,.; $ ,'. Chief Mtice Y

Justices.