No. 86-372 

IN THE SUPREME COURTOF THE STAT& OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKENNETH A. FRIEDMAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

OIBrien & Conrad; James P. O'Brien, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty:General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana 

Filed: 

Submitted on Briefs: Dec. 31, 1986 

Decided: February 19, 1987 

FEB 1 9 1987 

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

the Court. 

Defendant Kenneth Friedman a-ppeals the May 8, 1986, 

order of the Fourth Judicial District Court reinstating his 

original forty year sentence. We affirm. 

In 1982, defendant was convicted on two counts of sexual 

intercourse without consent and one count of aggravated 

assault. Defendant was sentenced to a term of 40 years in 

the Montana State Prison with a dangerous designation. The 

sentence review board modified the sentence to 40 years with 

20 years suspended provided defendant successfully completed 

a sex treatment program in Florida. 

Defendant entered the Florida sex treatment clinic on 

July 11, 1983. A clinic report filed January 10, 1984, noted 

that defendant's response to treatment had been poor and the 

prognosis for change by defendant was poor. A subsequent 

report filed April 10, 1984, recommended defendant be 

returned to Montana as he was not amenable to treatment and 

remained a danger to others. On May 25, 1984, defendant's 

progress was reviewed by the clinic's case review team which 

found defendant had a characterological disorder which 

prevented constructive personality growth. The team 

concluded defendant had shown no progress and should be 

dismissed from the program as further treatment efforts would 

be futile. 

Defendant was discharged from the clinic June 1, 1984, 

and returned to the Montana State Prison. On January 18, 

1985, defendant was informed that his original 40 year 

sentence was reimposed for failure to successfully complete 

the Florida treatment program. Defendant filed a civil 

rights action against prison officials in federal court, and 

also filed at least two petitions for writ of habeas corpus 

with this Court. 
On August 5, 1985, the Missoula Deputy County Attorney 

filed a petition in District Court for revocation of the 

probationary portion of defendant's sentence. On October 24, 

1985, this Court entered an order directing that an 

evidentiary hearing be held in District Court concerning 

possible revocation of the suspended portion of defendant's 

sentence for failure to complete the Florida treatment 

program. 

Hearings were held on the 4th, 18th, and 25th of 

November, 1985, and December 23, 1985. Dr. Ted Shaw, 

director of the treatment program, testified that he took a 

special interest in defendant's case as it was unusual for a 

Jewish person to be involved in a sex offender program. Dr. 

Shaw is also Jewish and was unable to perceive any 

discrimination against defendant. Dr. Shaw further testified 

that the consensus of the staff was that defendant did not 

attempt to participate in his treatment, that complaints had 

been received from Montana about defendant contacting his 

victims, and that he considered defendant to be extremely 

dangerous. 

Jonah Young, a social worker in the treatment program, 

testified that staff members disliked defendant and gave him 

little chance to succeed in the program. Mr. Young further 

testified that defendant was considered to be dishonest by 

other patients because he constantly complained that 

erroneous information was in his file. Mr. Young believed 

that defendant was working hard at following the treatment 

program but had no chance to succeed due to the staff's 

mistrust and open dislike for him. 

Dr. Mark Mozer, a clinical psychologist who evaluated 

defendant at Deer Lodge both prior to and subsequent to 

defendant's involvement in the program, testified that 

defendant showed improvement following his discharge from the 
program. Dr. Mozer believed defendant was taking more 

responsibility for his conduct and rationalizing his crimes 

less than previously. 

Reports from the Florida clinic were introduced into 

evidence and the District Court took the matter under 

consideration. On May 8, 1986, the District Court entered 

its order reinstating defendant's original sentence of 40 

years with a dangerous designation. Defendant appeals the 

order and raises five issues which are fully addressed by the 

following: 

1) Whether defendant's due process rights were 

violated? 

2) Whether the District Court determination to revoke 

the probationary portion of defendant's sentence is supported 

by substantial evidence? 

Defendant contends the State violated his due process 

rights by failing to abide by the procedures set forth for 

parole and probation revocation in Morrissey v. Brewer 

(1972), 408 U.S. 471, 92 S.Ct. 2539, 33 L.Ed.2d 484, and 

Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 

L.Ed.2d 656. Specifically, defendant asserts his right to 

the following was violated: 1) an on-site hearing to 

determine whether probable cause exists to believe conditions 

of parole have been violated; 2) a two step hearing process 

including a subsequent final revocation hearing; 3) a final 

revocation hearing held within a reasonable time. 

Defendant has at all times remained incarcerated which 

distinguishes this case from Morrissey and Gagnon. Defendant 

had substantial time remaining to be served in the Montana 

State Prison after his discharge from the Florida clinic, 

regardless of the outcome of the probation revocation 

proceedings. Defendant's immediate liberty interest was not 

at stake and therefore no on-site preliminary hearing was 
necessary. This Court has previously held no preliminary 

hearing is necessary before commencement of parole or 

probation revocation proceedings where detention is not 

involved. Petition of Meidinger (1975), 168 Mont. 7, 539 

P.2d 1185. 

Having determined that no preliminary hearing was 

necessary, we proceed to consider whether defendant had a 

right to a final revocation hearing within a reasonable time. 

The record shows defendant was discharged from the Florida 

clinic June 1, 1984, and the final revocation hearing 

commenced November 4, 1985. There is no evidence that 

defendant requested a speedy hearing. 

The right to a speedy trial is guaranteed only in 

criminal prosecutions and is not applicable in revocation of 

probation proceedings. State v. Oppelt (1979), 184 Mont. 48, 

601 P.2d 394. Sections 46-23-1013 and 46-23-1024, MCA, 

provide a right to a hearing within a reasonable time after a 

defendant is arrested for violation of probation or parole. 

These statutes are not applicable here for defendant's 

violation of the conditions of probation occurred during his 

incarceration. 

Defendant contends the delay in holding the revocation 

hearing caused him substantial prejudice. Contrary to 

defendant's assertions, the hearing transcript reveals the 

clinicians had excellent recall concerning defendant's stay 

at the clinic. Further, much of the evidence submitted 

consisted of reports drawn during defendant's stay at the 

clinic. We find the delay in holding the revocation hearing 

caused no prejudice to defendant. 

Morrissey, supra, and Gagnon, supra, held that the 

minimum due process requirements for final parole or 

probation revocation hearings include: a) written notice of 

the claimed violations of parole or probation; b) disclosure 
to the parolee or probationer of evidence against him; c) 

opportunity to be heard in person and to present witnesses 

and documentary evidence; d) the right to confront and 

cross-examine adverse witnesses (unless the hearing officer 

finds good cause for not allowing confrontation); e) a 

neutral and detached hearing body; and f) a written statement 

by the factfinders a.s to evidence relied on and the reasons 

for revoking probation or parole. Morrissey, 408 U.S. 489, 

92 S.Ct. 2604, 33 L.Ed.2d 499, Gagnon, 411 U.S. 786, 93 S.Ct. 

1762, 36 L.Ed.2d 664. 

In Petition of Meidinger, supra, this Court found these 

requirements were not inflexible, especially where the 

original sentencing judge revokes probation. 168 Mont. 13, 

539 Mont. 1189. However, in the present case, - all of the 

above requirements were met, plus defendant was assisted by 

court appointed counsel. Defendant's due process rights have 

not been violated in any manner. 

The next issue is whether there is substantial evidence 

supporting the District Court determination to revoke the 

probationary portion of defendant1 s sentence. We find that 

there is. 

Dr. Shaw, director of the Florida clinic, testified that 

defendant was discharged early due to his bad attitude, 

dangerousness, and contacting one of his victims by 

telephone. This testimony was confirmed in a report by 

defendant's personal therapist, Albert Haskell. Defendant 

points to a report by Dr. Rodney Poetter which states 

defendant is amenable to treatment. Defendant conveniently 

overlooks one of Dr. Poetterls conclusions that "at worst, 

[defendant] is an extremely cunning and bright psychopath who 

is concerned simply with manipulating the system so that he 

can 'beat the rap' and avoid further incarceration in a 

standard prison environment." 
Defendant contends he was the victim of circumstances 

and that due to the staff's extreme dislike of him he had no 

chance to succeed in the program. Jonah Young and 

defendant's mother testified similarly. Even given this 

evidence, there is substantial evidence supporting a 

conclusion that defendant's behavior and attitude were 

responsible for his failure in the program. 

Defendant argues the District Court failed to make a 

specific finding that he was not a victim of circumstances as 

required by this Court's order dated October 24, 1985. A 

reading of the transcript and the District Court order 

revoking probation make it clear this issue was thoroughly 

treated. The District Court chose to place the greatest 

weight on the testimony of Dr. Shaw, who had the most 

expertise in the area of treatment of sexual offenders and 

was involved in the staff decisions concerning defendant. 

Dr. Shaw testified that defendant's being Jewish and from 

Montana had no bearing on defendant's failure in the program. 

This Court's order dated October 24, 1985, required the 

District Court to determine whether defendant failed to 

complete the conditions of the modified sentence thereby 

justifying revocation. We find the District Court 

sufficiently examined the circumstances surrounding 

defendant's failure in the program and there is substantial 

evidence supporting the revocation of the probationary 

portion of defendant's sentence. 

Defendant's final contention is that the final hearing 

was premature because he should be allowed to enter another 

sex treatment program. In this Court's order dated June 5, 

1986, we specifically stated defendant had one opportunity to 

meet the sentence conditions. Defendant has failed and is 

not entitled to another treatment program as a matter of 

right. 
The District Court is affi 

We concur: