No. 81-347 INTHE SUPNME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . ANTHONY D. SULLIVAN, Defendant and Appellant.

Appeal from: DistrictCourt of the Second JudicialDistrict, Inand for the County of SilverBow 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: 

### fkbl2

## 5

# 1982Mr. JusticeJohn C. Sheehy delivered the Opinion of the Court. Anthony D. Sullivan appeals from an order of the ~istrict Court, Second Judicial District, SilverBow County, revoking

a previously suspended sentence. On August 20, 1975, Sullivanwas charged with burglary and afterhis consultationwith court-appointed counsel, Sullivan entered a plea of guilty tothe charge on October

A judgment of conviction

### was entered, and theDistrict Court deferred his sentence for three years and placed Sullivan on probation. Sullivan's record indicates thathe was twice placed on probation, and hisprobation has been twice revoked. He has been paroled three times, and three timeshisparole has ended infailure. In each instance, the revocation or reimprisonment of Sullivanwas due tohis violation of one

or the other of two conditions of his release: (1)abstention from alcohol, and (2) submission toalcohol treatment and counseling. The following tableof events gives an outline of Sullivan's record following conviction: October 7, 1975 Defendant pled guilty tocharge of burglary; judgment of conviction; sentence deferred for three years; defendant on probation. August 19, 1977 Hearing on petition torevoke deferred sentence on probation violations; court deferred imposition of sentence for additional threeyears; defendant ordered toreturn toalcohol treatment centers atGalen and Kellogg, Idaho; thereafter toreport toprobation officer inButte. October 18, 1977 Defendant arrested for breaking into home of his former wife. October 28, 1977 Court sentenced defendant on the original burglary conviction toten

### years in prison, with five years suspended. Defendant to be under supervision of Butte office of Board of Pardonswhen he is not in prison. October 2, 1978 Defendantparoled to Helena. June 1979 Defendant returned to prison on parole revocation. February 1, 1980 Defendantparoled upon condition that he complete certain alcohol treatment programs. June 18, 1980 Defendantreturned to prison on parole revocation. February 24, 1981 Defendantparoled 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 nextmorning. 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 Pardonswhere 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 imprisonmentwith the last five years suspended, The record is not clear as to the date when Sullivanwould make the transition fromparole 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 influencedby our decision in Crist v. Segna (1981) I Mont. 

### - 

## , 622P.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 Sullivanwas technically on parole at the time that his suspended sentencewas revoked because he had not yet passed the transition date fromparole to suspended sentence time. Section 46-18-203, MCA, authorizes the original sentencing judgewho 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 sentencebegins.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 defendantbegan serving his suspended sentence. In that case the defendant had been sentenced to 25 years imprisonment for robbery. The final 10years 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 proceedingswere instituted. At the same time a petition for the revocation of his 10year suspended sentencewas 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 sentencemay be revoked before the defendant actually begins serving probation. Other courts addressing the issue have held that a suspension of sentencemay 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 (5thCir. 1974), 503 F.2d 940;United States



### ex rel. Sole v. Rundle (3dCir. 1971), 435 F.2d 721; Com.



### v. Wendowski (1980), 278 Pa. Super. Ct. 453, 420A.2d 628; Hart 

### v. Florida (Fla. 1978), 364 So.2d 544; Statev. Morris

(1977),98 Idaho 328, 563 P.2d 52;Brown v. Com. (Ky. 19771, 564 S.W.2d 21; Parrishv. Ault (1976),237 Ga. 401, 228 S.E.2d 808;Wright v. United States (D.C. 1974), 315A.2d 839;Martin v. State (Fla.Dist. Ct. App. 1971), 243 So.2d189; Coffey v. Commonwealth (1969), 209 Va. 760, 167 ~.~.2d 343; see also, Trueblood Longknife v. United States (9th Cir. 1967), 381F.2d 17, cert.den. 390 U.S. 926, 88 S.Ct. 859, 19L.Ed.2d 987. What comes outof these cases is the strong public policy that if a person convicted of a crime, and granted a period of probation aspart of the sentence, should commit offenses of such nature as todemonstrate tothe court that he isunworthy of probation, the courthas thepower torevoke

or change the order of probation, both during the period of probation, and before theperiod of probation commences. James v. United States (5thCir. 1944), 140F.2d 392, 394. Wehold, therefore, that the language of section 46-18-203, MCA, does not prohibit revocation of probation before thedefendant actuallybegins serving the suspended sentence. Wright v. United States, supra; 315 A.2d at841, 842. Under the second issue, Sullivan contends that at the timehis suspended sentencewas revoked, he had violated only the conditions of hisparole set by the Board of Pardons, and that only the sentencingcourt could set the conditions for the revocation of his suspension. The Stateanswers this contention by pointing to Ratzlaff, supra, 172llont. 439, 564 P.2d 1312, where this Court held that inthe 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 inthat their regulations with respect toconditions of parole apply also to suspensions of sentence, and that these regulations applied inthe

### absence of conditions imposed by a court. 172Mont. at 444, 564 P.2d at 1315. Moreover, in this case, the sentencing court, on October 28, 1977, in imposing the 10year imprisonment with fiveyears suspended, expressly directed "that at all timeswhen Defendant is not under the jurisdiction of the warden of the Montana State Prison he shall be under the supervision of the StateBoard 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 releaseonparole and onprobation. Sullivan on appeal relies on language in the conditions that state "onparole youmust 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 Sullivanwas not under the jurisdiction of thewarden, 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 itwould be "vindictive"to condition probation on abstinence if the judgeknew the defendant was a chronic alcoholic subject to an irresistible compulsion to drink toexcess. In Oyler, the Idaho court also stated that a judgewho discovers that it is impossible for a probationer to abstain fromdrink may revoke the probation if in his judgment the overriding purpose of probation, that is rehabilitation, cannotbe achieved without the condition of abstention. 436 P.2d at 713. Montana's 1972 constitution mandates that laws for the punishment of crime shallbe founded on the principles of prevention and reformation. Art. 11, S 28, 1972Mont. Const. The District Court's power to impose conditions during the period of a deferred or suspended sentence is directed to what is "considerednecessary 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 grantwould 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 convictionprobably 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 formerwife. 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 footingwith the necessity to provide rehabilitation for the convicted person.

### We seeno merit in Sullivan's contention that prohibiting his use of alcoholwas an unreasonable or illegal condition to his probation or parole. Sobotav. Williard (1967)

### , 247 Or. 151, 427 P.2d 758, 759. Sullivan next contendshe was deprived of due process in connectionwith the revocation hearing onApril 27, 1981. His contention isbased chiefly upon the claim that District JudgeArnold Olsen was biased because he called a witness in connection with the revocation hearing. The DistrictCourt called Raymond Redferm of the Montana Alcoholism Services Center at Galen to the stand to resolve

a conflict in the evidence. Twopolice 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 theprogram the followingmorning. The sheriff testified that to his knowledge the defendantwould have been admitted to the alcoholic treatmentprogram at Galen after he had completed detoxification. Sullivan testified that hewalked away from Galen themorning after his admittance because the hospital refused to admit him to its alcohol treatmentprogram. At thispoint the district judge announced his intention to ascertain whether Sullivan had indeed been refused admission to the program. Redfern testified thatpatients brought to the hospital ordinarily spend three days in the detoxification ward and

are thenbrought to an evaluation clinic several times before a decision ismade to admit them. Redfern also testified that Sullivandid not complete the firstphase of theprogram, detoxification. Sullivan contends thatby 

### calling a witness in the manner indicated, the district judgebecame 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

ownmotion may callwitnesses to testify. Rule 614(a), M.R.Evid. ; sections 3-1-111 (6) and 3-1-402(3),MCA. In Statev. Hart (1981), -Mont

# . - 

### , 625 P.2d 21, 26, 38 St-Rep.133, 137,we held that the trial court's act of calling its ownwitness to verify the testimony of a prosecuting witness was neither an abuse of discretion by the trial courtnor

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 letterwritten by District Judge Olsen to the warden of the penitentary respecting the total amount of jail time which should be credited against Sullivan's sentencewas prejudicial. The evidence indicates, however, that the letterwas 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 factwe 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 aswas done onAugust 19, 1977. The contention does not affect the DistrictCourt's power to revoke Sullivan's sentence in the circumstances

### appearing here, and sowe will not consider the issue as validly raised. The conviction and first deferment of impositionof 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 impositionon August 19, 1977. The order of the District Court revoking Sullivan's suspended sentence is affirmed.

### -1

Justice We Concur: