No. 81-347 

IN THE SUPNME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ANTHONY D. SULLIVAN, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow 

Honorable Arnold Olsen, Judge presiding 

Counsel of Record: 

For Appellant: 

Patrick D. McGee, Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert McCarthy, County Attorney, Butte, Montana 

Submitted on briefs: October 29, 1981 

Decided: February 25, 1982 

Filed: fkbl 2 5 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Anthony D. Sullivan appeals from an order of the ~istrict 

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 

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 

April 27, 1981 

Defendant again arrested for drinking. 

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) I 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. 1978), 364 So.2d 544; State v. Morris 

(1977), 98 Idaho 328, 563 P.2d 52; Brown v. Com. (Ky. 19771, 

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 ~.~.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 llont. 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 Pardons and Parole, Butte, 

local office." Thus the District Court made the defendant 

subject to any supervisory conditions that the Board of 

Pardons saw fit to impose in overseeing the defendant's 

conditional release on parole and on probation. 

Sullivan on appeal relies on language in the conditions 

that state "on parole you must have regular alcohol counseling" 

as not applying to probation. The argument is specious. At 

all times from the beginning of his conviction, the District 

Court has imposed as a condition for his deferred imposition 

of sentence, and now for his suspended sentence, that he 

avoid alcohol. The District Court, by making express 

direction that when Sullivan was not under the jurisdiction 

of the warden, he would be under the jurisdiction of the 

Butte parole officer, indicates the court's intent that 

whatever the conditions of Sullivan's freedom from imprisonment, 

during the term of his probation he could not use alcohol. 

We therefore find no merit in defendant's second issue. 

Sullivan's third issue involves his contention that it 

is "vindictive" to require him, an acknowledged alcoholic, 

to refrain from drinking as a condition of his probation or 

parole. Sullivan relies on State v. Oyler (1968), 92 Idaho 

43, 436 P.2d 709, wherein the Idaho Supreme Court stated 

that it would be "vindictive" to condition probation on 

abstinence if the judge knew the defendant was a chronic 

alcoholic subject to an irresistible compulsion to drink to 
excess. In Oyler, the Idaho court also stated that a 

judge who discovers that it is impossible for a probationer 

to abstain from drink may revoke the probation if in his 

judgment the overriding purpose of probation, that is 

rehabilitation, cannot be achieved without the condition of 

abstention. 436 P.2d at 713. 

Montana's 1972 constitution mandates that laws for the 

punishment of crime shall be founded on the principles of 

prevention and reformation. Art. 11, S 28, 1972 Mont. 

Const. The District Court's power to impose conditions during 

the period of a deferred or suspended sentence is directed 

to what is "considered necessary for rehabilitation or for 

the protection of society. " Section 46-18-201 (1) (a) (ix) , 

MCA. If a person convicted of crime because of addiction to 

alcohol or a character disorder is unable to control his 

drinking of alcohol to excess, he has no right constitutionally 

or statutorily to be released from imprisonment on parole, 

or on suspension, free from limitations respecting his use 

of alcohol. Such a grant would not aid in his rehabilitation 

nor would it be conducive to the protection of society. 

Sullivan's case is the best example: his original burglary 

conviction probably involved the use of alcohol to excess, 

and at least once on parole, under the influence of alcohol, 

he broke into the home of his former wife. His history 

makes clear that he should either spend the remainder of his 

term in prison or abide by any condition of his parole that 

prohibits his use of alcohol. When authorities consider 

parole or probation for a person convicted of crime, the 

necessity to protect society stands on at least equal 

footing with the necessity to provide rehabilitation for the 

convicted person. 
We see no merit in Sullivan's contention that prohibiting 

his use of alcohol was an unreasonable or illegal condition 

to his probation or parole. Sobota v. Williard (1967) , 247 

Or. 151, 427 P.2d 758, 759. 

Sullivan next contends he was deprived of due process 

in connection with the revocation hearing on April 27, 1981. 

His contention is based chiefly upon the claim that District 

Judge Arnold Olsen was biased because he called a witness in 

connection with the revocation hearing. 

The District Court called Raymond Redferm of the Montana 

Alcoholism Services Center at Galen to the stand to resolve 

a conflict in the evidence. Two police officers had testified 

that Sullivan had been transported to Galen to be placed in 

the alcohol treatment center there and that Sullivan had 

walked away from the program the following morning. The 

sheriff testified that to his knowledge the defendant would 

have been admitted to the alcoholic treatment program at 

Galen after he had completed detoxification. Sullivan 

testified that he walked away from Galen the morning after 

his admittance because the hospital refused to admit him to 

its alcohol treatment program. At this point the district 

judge announced his intention to ascertain whether Sullivan 

had indeed been refused admission to the program. 

Redfern testified that patients brought to the hospital 

ordinarily spend three days in the detoxification ward and 

are then brought to an evaluation clinic several times 

before a decision is made to admit them. Redfern also 

testified that Sullivan did not complete the first phase of 

the program, detoxification. 

Sullivan contends that by calling a witness in the 

manner indicated, the district judge became a "prosecutor" 
and an "adversary" which deprived him of due process at the 

revocation hearing. 

There is no merit to this contention. A court on its 

own motion may call witnesses to testify. Rule 614(a), 

M.R.Evid. ; sections 3-1-111 (6) and 3-1-402 (3), MCA. In 

State v. Hart (1981), - Mont . - , 625 P.2d 21, 26, 38 

St-Rep. 133, 137, we held that the trial court's act of 

calling its own witness to verify the testimony of a prosecuting 

witness was neither an abuse of discretion by the trial court nor 

a denial of defendant's right to a fair trial. 

Moreover, Sullivan failed to object to the calling of 

Redfern as required by Rule 614(c), M.R.Evid. He may not 

now assert such error on appeal. State v. Bier (1979), - 

Mont. - , 591 P.2d 1115, 1119, 36 St.Rep. 466, 471; State 

v, Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631, 632-633. 

Sullivan also contends that a letter written by District 

Judge Olsen to the warden of the penitentary respecting the 

total amount of jail time which should be credited against 

Sullivan's sentence was prejudicial. The evidence indicates, 

however, that the letter was written at defendant's instigation, 

and that Sullivan himself was later complimentary to the 

judge, thanking him for his efforts on his behalf. Again we 

find no prejudice on the part of the district judge in this 

regard. In fact we do not see how the letter played any 

part in the decision of the district judge to revoke Sullivan's 

suspended sentence. 

Sullivan's final contention is that the District Court 

had no jurisdiction to defer imposition of his sentence a 

second time as was done on August 19, 1977. 

The contention does not affect the District Court's 

power to revoke Sullivan's sentence in the circumstances 
appearing here, and so we will not consider the issue as 

validly raised. The conviction and first deferment of 

imposition of sentence occurred on October 7, 1975. The 

District Court sentenced the defendant to 10 years with 5 

years suspended on October 28, 1977. This was within the 3 

year period first set on October 7, 1975, by the court for 

the deferment of the imposition of his sentence. Under this 

situ.ation, the District Court could not be held in error for 

imposing an additional 3 years of deferred imposition on 

August 19, 1977. 

The order of the District Court revoking Sullivan's 

suspended sentence is affirmed. 

-1 

Justice 

We Concur: