No. 90-493 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

DONALD GLENN IMLAY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Billy B. Miller, Miller & Cook, 

Great Falls, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, Helena 

Montana; Elizabeth L. Griffing, Assistant Attorney 

General, Helena, Montana; Patrick L. Paul, Cascade 

County Attorney, Great Falls, Montana; Kim Schulke 

Chief Deputy County Attorney, Great Falls, Montana 

Filed: 

Submitted on Briefs: March 28, 1991 

Decided: June 18, 1991 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Following a jury trial, the defendant, Donald Glenn Imlay, was 

convicted in District Court of sexual assault, a felony, in 

violation of 5 45-5-502, MCA. Based on that conviction, he was 

sentenced by the ~istrict Court to five years in the Montana State 

Prison. However, all but 35 days of that sentence were suspended, 

and the defendant was placed on formal probation, under certain 

conditions, including the condition that he enroll in and complete 

a sexual therapy program. When the defendant enrolled in, but was 

unable to complete the sexual therapy program, his suspended 

sentence was revoked and he was ordered imprisoned at the Montana 

State Prison for the remainder of his five-year term. The 

defendant appeals from the District Court's order revoking his 

suspended sentence. We reverse the order of the District Court. 

On appeal, the defendant raises several issues. We find the 

following issue, as restated by this Court, to be controlling: 

Can a criminal defendant, as a condition of a suspended 

sentence, be compelled to admit that he is guilty of the crime of 

which he has been accused and convicted? 

FACTUAL BACKGROUND 

On May 9, 1989, the State of Montana was granted leave to file 

an Information charging the defendant with three counts of sexual 

assault, a felony. On September 5, 1989, that Information was 

amended so that the acts complained of were combined into one 

count. The basis for the Information was the allegation that on 
April 11, 1989, the defendant fondled the vaginal area of a 

seven-year-old girl while she was present at his Great Falls 

grocery store. The Information was based on statements made by the 

girl to her teacher after she arrived at school several hours late. 

This case went to trial on September 11, 1989, and the jury 

returned its verdict on September 13, 1989, finding the defendant 

guilty of the crime charged. 

Prior to sentencing, the usual pre-sentence investigation was 

conducted, including a psychological evaluation of the defendant. 

As a result of that investigation, the District Court found that 

the defendant was a 56-year-old widower who had raised four adult 

children and had an extensive history of full-time employment. He 

had no prior criminal record, nor was there any prior history of 

any complaints of similar conduct by the defendant. 

The psychologist who examined the defendant, as part of the 

pretrial investigation, concluded that he was suffering from posttraumatic stress syndrome and was in a severely depressed state of 

mind. He recommended that the defendant not be incarcerated, but 

that he be involved in a mental health therapeutic program with 

psychiatric work and counseling. 

Based upon its pre-sentence investigation, the District Court 

found that the defendant was not a dangerous person, that his 

offense was an isolated incident, and that it would not be repeated 

in the future. The court also found that the defendant was 
suffering from medical problems, and that incarceration in the 

State Prison was not an appropriate penalty. 

The defendant's sentencing hearing was held on October 17, 

1989. On that same date, the District Court sentenced the 

defendant to five years in the Montana State Prison. However, 

execution of the sentence was suspended, except for the 35 days he 

had already served in the Cascade County Jail. He was placed on 

formal supervised probation under the rules and regulations of the 

Adult Probation and Parole Bureau and was ordered to enroll in a 

sexual therapy program at his own expense, and to continue in that 

program until it was no longer deemed necessary by his therapist. 

The specific sentence provision regarding sexual therapy was as 

follows: 

The defendant is to immediately enroll in a sexual 

therapy program at his own expense and continue said 

program until his therapist deems further counseling and 

therapy unnecessary. The Court would recommend that the 

defendant obtain his therapy at the sexual offender 

treatment program located in Helena, Montana. 

As conditions of his suspended sentence, the defendant was 

also ordered to pay any counseling costs incurred by the victim and 

prohibited from being around children unless another adult was 

present. 

On June 8, 1990, the County Attorney petitioned the District 

Court for revocation of the defendant's suspended sentence for two 

reasons: (1) the State contended that the defendant was not 

gainfully employed; and (2) the State alleged that the defendant 
had not completed the sexual treatment program which was a 

condition of his suspended sentence. 

The defendant denied violating the terms of his suspended 

sentence, and an evidentiary hearing was conducted on August 31, 

1990. At that hearing, the defendant's probation officer, and the 

counselor to whom he had been referred for sexual therapy, 

testified. The defendant also testified on his own behalf. 

The defendant testified that at that time he was living with 

his mother in Absarokee where he had moved following trial because 

he no longer had a business, a job, or any income. 

He had interviewed for and sought work as an electrician, and 

as a custodian, but was unable to satisfy the physical requirements 

for either j ob. He suffered from high blood pressure and 

degenerative joint disease. 

When unable to find employment, the defendant had applied for 

vocational rehabilitation through the State Department of Social 

and Rehabilitation Services. After an independent medical 

examination, he had apparently qualified forthose services and was 

being retrained by SRS to do leather work which he was performing 

at his mother's home. He had sold some of the work and had orders 

for more items which he had been unable to complete. 

He testified that in order to comply with the court's order 

regarding enrollment in a sex offender program he contacted his 

probation officer, who referred him to Mike Sullivan, a counselor 

in Billings, Montana. He scheduled and attended a number of 
counseling sessions, but was finally advised that he did not 

qualify for Sullivan's treatment program because he would not admit 

that he was guilty of the crime of which he had been charged and 

convicted. He then talked to Ron Silvers, the director of the 

sexual offender program in Helena, and was told that he would not 

be admitted to that program either. 

Michael Sullivan testified that he is a licensed clinical 

social worker practicing in Billings, and was director of a program 

known as South Central Treatment Associates. He has a bachelor's 

degree in psychology, a master's degree in associate work, and is 

a licensed social worker in the State of Montana. At the time of 

the defendant's hearing, Sullivan had been involved in the 

treatment of sexual offenders for approximately five years. 

The defendant first saw Mr. Sullivan, by referral from his 

probation officer, on November 20, 1989, and saw him on five 

subsequent occasions over the next six months. Each appointment 

was scheduled by the defendant. The defendant attended every 

scheduled appointment. He was described by Sullivan as pleasant, 

friendly, never angry or abusive, and always punctual. 

Sullivan performed a series of tests on the defendant. There 

were no indications in those tests that the defendant was capable 

of violent conduct. However, from those tests and his contacts 

with the defendant, Sullivan formed the impression that the 

defendant was not amenable to outpatient sexual offender treatment 

because he did not admit that he committed a sexual offense. 
Sullivan testified that the defendant's denial made it impossible 

for him to treat him in their program. He also testified that 

there was no other outpatient sexual therapy program in the State 

of Montana which would treat a sexual offender who denied that he 

was guilty of sexual misconduct. 

He confirmed that after the defendant had been rejected from 

his program, the defendant had sought treatment from Ron Silvers 

at the sexual therapy program in Helena, and that he (Sullivan) had 

been contacted by Silvers to determine why the defendant had been 

unacceptable for the Billings program. 

Sullivan recommended a form of inpatient treatment, which is 

more structured and continuous, because in such a program it is 

more difficult for a patient to maintain defensive postures, such 

as denial. He testified that the only inpatient treatment program 

in the State of Montana was the one at the Montana State Prison. 

Based upon the foregoing evidence, the District Court found 

that the State's complaint about the defendant's lack of employment 

was not well founded. The court found that the defendant was 

making a bona fide effort to maintain employment and was actively 

pursuing vocational rehabilitation. 

However, regarding the State's second basis for its petition 

to revoke the suspended sentence, the court made the following 

conclusion: 

The Court concludes that the defendant has violated the 

condition of his suspended sentence by not enrolling (not 

being amenable to treatment and hence, not acceptable 
into an out-patient treatment program) in a sex offender 

treatment program and said violation was proven by a 

preponderance of the evidence. 

. . . Because the only viable alternative is an inpatient treatment program, the Court concludes that the 

defendant's suspended sentence must be revoked and the 

defendant ordered to serve FIVE (5) years in the Montana 

State Prison with credit for 35 days. 

It is recommended to the Warden of the Prison that the 

defendant not be eligible for parole until he has 

completed the sexual offender treatment program at the 

prison. However, it is also recommended that upon 

completion of the program, the defendant be considered 

for parole. The defendant is designated as a nondangerous offender for parole eligibility purposes. 

The defendant, through his attorney, objected at the time that 

the sentence was revoked on the grounds that the District Court 

was conditioning suspension of the defendant's sentence on an 

admission of guilt, and cited authority to the District Court that 

it could not force the defendant to plead guilty. The issue 

previously stated, therefore, was properly preserved for appeal. 

DISCUSSION 

While the District Court's order revoking the defendant's 

suspended sentence is predicated upon the defendant's failure to 

enroll in a sex offender treatment program, it is clear that the 

defendant's incarceration at the Montana State Prison is directly 

related to his refusal to admit that he committed a crime. The 

defendant made every other effort possible to enroll in and 

complete a sex offender treatment program. He sought a referral 

from his probation officer. He followed up that referral by 
scheduling not one, but six consecutive appointments. He attended 

every appointment in a timely fashion, and other than admitting his 

guilt, cooperated in every manner possible while at those 

appointments. When he was rejected by the counselor with whom he 

had spent six months, he tried to find another sex offender 

treatment program that would admit and treat him, and was rejected 

a second time. Finally, he was advised that there was no 

outpatient sex offender treatment program in Montana that would 

accept him. 

It is clear that the only thing the defendant has failed to 

do is admit that he committed the crime for which he was convicted. 

Whether or not punishment can be augmented because of a defendant's 

refusal to admit guilt, even after he has been convicted, is a 

question on which the federal courts are not in agreement. 

Furthermore, this Court has made contradictory statements in answer 

to that same issue. 

The majority of federal courts of appeal which have addressed 

this issue follow the decision of the United States Court of 

Appeals for the Fifth Circuit in Thomas v. United States, 368 F.2d 

941 (5th Cir. 1966). 

In that case, prior to imposing sentence, the district court 

judge advised the defendant that if he confessed his guilt the 

court would take his confession into consideration in determining 

the length of his sentence, but that if he persisted in his denial 

of guilt, that denial would also be taken into account. Because 
the defendant chose to continue denying guilt, he was sentenced to 

the maximum term permitted by law. That sentence was vacated by 

the Fifth Circuit, based on its conclusion that the alternatives 

presented to the defendant violated his Fifth Amendment right not 

to be a witness against himself. The Court of Appeals acknowledged 

that the defendant had already been convicted, but pointed out: 

It must be remembered that, at the time of his 

allocution, Thomas had not been finally and irrevocably 

adjudged guilty. Still open to him were the processes 

of motion for new trial (including the opportunity to 

discover new evidence), appeal, petition for certiorari, 

and collateral attack. Indeed, appeal is now an integral 

part of the trial system for finally adjudicating the 

guilt or innocence of a defendant. 

The two I1ifsl1 which the district court presented to 

Thomas placed him in a terrible dilemma. If he chose the 

first "if ,I1 he would elect to forego all of the abovenoted post-conviction remedies and to confess to the 

crime of perjury, however remote his prosecution for 

perjury might seem. Moreover, he would abandon the right 

guaranteed by the Fifth Amendment to choose not to be a 

witness against himself, not only as to the crime of 

which he had been convicted, but also as to the crime of 

perjury. His choice of the second llifll was made after 

the warning that the sentence to be imposed would be for 

a longer term than would be imposed if he confessed. 

From the record, it is clear that an ultimatum of a type 

which we cannot ignore or approve confronted Thomas. 

Truly, the district court put Thomas "between the devil 

and the deep blue sea." 

Thomas suffered the consequences for choosing the second 

"ifv1 . . . in the form of a longer prison term. When 

Thomas received harsher punishment than the court would 

have decreed had he waived his Fifth Amendment rights, 

he paid a judicially imposed penalty for exercising his 

constitutionally guaranteed rights. Upon this ground 

alone, we think that his sentence is I1subject to 

collateral attack,I1 and have little doubt as to the 
authority and duty of the district court to vacate the 

sentence. 

Thomas, 368 F.2d at 945-46. In accord with Thomas, are Scott v. 

United States, 419 F. 2d 264 (D.C.Cir. 1969) ; United States v. Laca, 

499 F. 2d 922 (5th Cir. 1974) ; United States v. Wright, 533 F. 2d 214 

(5th Cir. 1976). In Poteet v. Fauver, 517 F. 2d 393 (3d Cir. 1975), 

the United States Court of Appeals for the Third Circuit concluded 

that augmentation of a post-conviction sentence based on refusal 

to admit guilt violated the due process clause of the Fourteenth 

Amendment of the United States Constitution. 

In the past, this Court has given apparent approval to the 

Thomas rule. Although the case of In the Matter of Jones, 176 

Mont. 412, 578 P.2d 1150 (1978), was decided on other grounds, we 

cited with approval the following rule of law in that case: 

While the sentencing judge may take into account his 

belief that the defendant was not candid with the court 

this is to be distinguished from the rule that a sentence 

may not be augmented because a defendant refuses to 

confess or invokes his privilege against selfincrimination. Fox v. State, (1977 Alaska) , 569 P. 2d 1335, 

1338. See: UnitedStatesv. Garcia, (3rd Cir., 1976), 544 F.2d 

681, 685; United States v. Acosta, (5th Cir., 1975), 509 F.2d 

539, cert. denied, 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d 

122 (1975) ; United States v. Rogers, (5th Cir., 1974) , 504 F. 2d 

1079, 1085, cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 

45 L.Ed.2d 693 (1975). 

The only Federal Circuit which appears to have arrived at a 

contrary conclusion is the Ninth Circuit. 

In Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), 

the Ninth Circuit Court of Appeals considered the Thomas decision 

and chose not to follow it. In that case, the defendant was also 
given a stiffer sentence because of his refusal to admit guilt 

after he was convicted, and challenged that sentence as a violation 

of his Constitutional privilege against self-incrimination. 

However, the Ninth Circuit, on balance, placed greater importance 

on the criminal justice system's objective of rehabilitation, than 

on a defendant's continued right to deny guilt. In rejecting the 

Thomas rationale, the Ninth Circuit has stated: 

This case presents a dilemma which every trial judge 

faces at the time of sentence. It is almost axiomatic 

that the first step toward rehabilitation of an offender 

is the offender's recognition that he was at fault. In 

the present state of the criminal law, there is no doubt 

that punishment is still a consideration in the 

imposition of sentence, especially where non-violent or 

economic crimes are involved. But to the extent that 

rehabilitation is the objective, no fault can be found 

of the judge who takes into consideration the extent of 

a defendant's rehabilitation at the time of sentence. 

Gollaher chose to insist upon his innocence. The judge, 

bound by the jury's verdict and apparently also being 

firmly convinced by the evidence that Gollaher was 

guilty, proceeded accordingly. He had before him a man 

unwilling to take the first step toward rehabilitation 

and he imposed sentence accordingly. Gollaherts Fifth 

Amendment rights were not infringed. 

Gollaher, 419 F.2d at 530-31. 

Our prior decision in State v. Donnelly, 47 St.Rep. 1600, 798 

appears in accord with the Ninth Circuit s 

decision in Gollaher. In Donnelly, we were asked to decide whether 

a defendant, who was already imprisoned at the Montana State 

Prison, was denied his right to avoid self-incrimination when he 

was denied parole until he completed a sex offender course at the 
Prison. Interestingly, the evidence in that case was that in order 

to be accepted into the inpatient sexual offender program at the 

Prison, that defendant also had to admit that he committed the 

crime of which he was convicted. (Therefore, if the trial court's 

objective in this case was to obtain treatment for Donald Imlay, 

imprisonment does not appear to be the solution.) At any rate, we 

found that denying probation under those circumstances did not 

violate the defendant's privilege against self-incrimination. Our 

decision appears to have been based on the following conclusion: 

Here, defendant's decision to remain silent is a tactical 

one, not a compelled one. Defense counsel argues that, 

in reality, defendant's testimony is in fact compelled 

since it is a prerequisite for parole. It is possible 

the defendant may be paroled sooner if he admits to 

incest than if he remains silent. However, defendant 

may remain silent if he so chooses, and still possibly 

be paroled at some future date based on good behavior. 

Furthermore, failure to admit to incest will not result 

in certain penalty to defendant, it will only result to 

preserve his current ineligible parole status. In this 

case, the district court ordered that the defendant was 

ineligible for parole until the satisfaction of a condition 

subsequent. The condition subsequent is partially 

satisfied by defendant's successful completion of the 

sexual offender program at Montana State Prison. Failure 

to satisfy this condition subsequent, i.e., failure to 

satisfactorily complete the sex offender program, will 

not result in a penalty, but will merely result in 

defendant's continued ineligibility for parole. 

Donnelly, 47 St.Rep. at 1607-08, 798 P.2d at 96. 

Without debating the merits of the foregoing conclusion from 

Donnell~, it is clear that in this case the defendant is being 

subjected to a penalty that he would not otherwise be subjected to 
if he would simply admit his guilt. That penalty is that he serve 

time in the Montana State Prison. 

Even though the defendant has already been convicted of the 

crime that he denies, our system still provides, as noted in the 

Thomas decision, for opportunities to challenge that conviction. 

For example, the defendant still had the right to challenge his 

conviction, based on newly discovered evidence, or by collateral 

attack. These are important rights guaranteed to every defendant 

under our criminal justice system, but would be rendered 

meaningless if the defendant could be compelled to admit guilt as 

a condition to his continued freedom. Furthermore, while such a 

defendant would be foreclosed from invoking the protection of such 

procedures to establish his innocence, the reliability of an 

admission of guilt under such circumstances would be highly 

suspect. In addition, by admitting guilt in this case, the 

defendant would have to abandon his right guaranteed by the Fifth 

Amendment, not only as to the crime for which he has been 

convicted, but also to the crime of perjury. He testified in his 

own defense during his trial and denied committing the offense with 

which he was charged. 

Under these circumstances, and absent any grant of immunity, 

we believe that the better reasoned decisions are those decisions 

which protect the defendant's constitutional right against 

self-incrimination, and which prohibit augmenting a defendant's 

sentence because he refuses to confess to a crime or invokes his 
privilege against self-incrimination. To the extent that our 

decision in Donnellv is inconsistent with this opinion, that part 

of the Donnellv decision is overruled. 

The sentence of the District Court is vacated and this case 

remanded to the District Court for further proceedings not 

inconsistent with this opinion. 

We Concur: