No. DA 06-0032

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 296N

_____________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. DANIEL MARK BARNHART, Defendant and Appellant.

_____________________________________

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, Cause No. CDC-95-340, The Honorable Kenneth R. Neill, Presiding Judge.

COUNSEL OF RECORD: For Appellant: Meghan Lulf Sutton, Attorney at Law, Great Falls, Montana For Respondent: Hon. Mike McGrath, Attorney Gene ral; John Paulson, A ssistant Attorney General, Helena, Montana Brant S. Light, County Attorney, Great Falls, Montana

_____________________________________ Submitted on Briefs: October 25, 2006 Decided: November 14, 2006 Filed:

____________________________________________ ClerkJustice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number, and disposition sh all be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Daniel Barnhart (Barnhart) appeals from the District Court’s Order for the Eighth Judicial District, Cascade County, denying Barnhart’s motion to dismiss the petition to revoke his suspended sentence. We affirm. ¶3 The State charged Barnha rt with felony sexual assault against a seven-year-old girl on August 11, 1995. Barnhart entered a plea of guilty pursuant to a plea agreement on February 13, 1996. The Dist rict Court sentenced Barnhart on May 31, 1996, to twenty years at the Montana State Prison, with five years suspended. This Court reversed Barnhart’s sentence on July 23 , 1997, and remanded the case to the District Court for resentencing. State v. Barnhart , 283 Mont. 518, 942 P.2d 718 (1997). ¶4 On remand, the District Court sentenced Ba rnhart to a term of twenty years at Montana State Prison (MSP), with eight year s suspended. The court ordered that

Barnhart would not be eligible for parole until he ha d completed Phases I and II of the state prison’s sex offender treatment program. The District Court further ordered that Barnhart be subject to seve ral conditions during any period of suspen sion, including the

2requirements that he obtain a sex offender evaluation, follow all recommendations of the evaluator, and enroll in sex offender treatment at the Montana State Prison. ¶5 The State filed a petition on January 31, 2005 , to revoke Barnhart’s suspended sentence based upon a report of violation f iled by Barnhart’s proba tion officer. The report alleged that the Department of Correc tion had terminated Barnhart from Phase II

of the Montana State Prison’s sex offender tr eatment program for his failure to comply with his treatment plan. The report further alleged that Barnhart had discharged his sentence from MSP on October 3, 2001, without comple ting Phase II. The report

continued that Barnhart had been transferre d to Wyoming to serve a sentence there and that he did not underg o any extensive sex offender treatm ent within the Wyoming prison system. The report stated that Barnhart was scheduled to discharge his Wyoming sentence on March 5, 2005. The District Cour t issued a warrant for Barnhart’s arrest. ¶6 The State arrested Barnhart upon his discharge from Wyoming State Prison and transported him to the Cascade County Dete ntion Center. Barnha rt, proceeding pro se, filed a motion to dismiss the petition for revoc ation on March 30, 2 005, arguing that the completion of Phase II of th e sex offender treatment pr ogram was a condition of his eligibility for parole and not a condition of his suspended sentence, and thus his failure to complete Phase II could not serve as the basi s for revoking his suspended sentence. The

District Court denied consider ation of Barnhart’s pro se mo tion based on the fact that Barnhart was represented by counsel at that time. ¶7 Barnhart, still proceeding pro se, then file d a petition for writ of habeas corpus in this Court on April 5, 2005. We issued an order on May 11, 2005, denying Barnhart’s

3petition. We based our denial first on the fact that Bar nhart was represented by counsel and thus he had no right to file pro se plea dings. We further reasoned that Barnhart was properly subjected to revocation of his su spended sentence based on his failure to complete a sex offender treatment progr am while incarcerated even though the requirement of sex offender treatment had been imposed as a condition of parole eligibility and not as a condition of probation. ¶8 On April 18, 2005, before we had issued our order deny ing Barnhart’s petition for writ of habeas corpus, Barnhart, now through counsel, filed another motion in District Court to dismiss the petition for revocation of his suspended sentence. This new motion argued that completing Phase II was a condition of Barnhart’s parole eligibility and not a condition of his suspended sentence. Barnhart stipulated that he had not completed Phase II of the sex offender treatment program. Th e District Court deni ed Barnhart’s motion and he appealed. ¶9 Barnhart argues on appeal that the Dist rict Court abused its discretion when it

denied his motion to dismiss and predicated the revocation of his suspended sentence upon the violation of the condition of parole eligibility and not upon a cond ition of his suspended sentence. The State counters that the District Court properly analyzed the completion of the sex offender treatment program as a cond ition of Barnhart’s suspended sentence, and not as a conditio n of his parole eligibility. ¶10 We generally review a distri ct court's decision to revoke a suspended sentence to

determine whether the court abused its disc retion and whether the court's decision was supported by a preponderan ce of the evidence in favor of the State. State v. Nelson , 1998

4MT 227, ¶ 16, 291 Mont. 15, ¶ 16, 966 P.2d 133, ¶ 16. Wh ere the issue is whether a court followed statutory requirements applicab le to revocation of a suspended sentence, the question raised is a matter of law, and our review is plenary. Nelson , ¶ 16. ¶11 Barnhart discharged from MSP without having fulfilled all the conditions imposed at sentencing, including the co mpletion of Phases I and II of the sex offender treatment program. A district court may impose rest rictions, conditions, and limitations reasonably related to the objectives of rehabilita tion and the protection of society. See §§ 46-18-101, 46-18-202, MCA; State v. Black , 245 Mont. 39, 46-47, 798 P. 2d 530, 534-35 (1990). In fact, the State may revoke a suspended sent ence before a defendant actually begins serving the suspended sentence. State v. Sullivan , 197 Mont. 395, 642 P.2d 1008 (1982). ¶12 Section 46-18-203, MCA, sets forth th e statutory criteria for revocation of suspended or deferred sentences. The Stat e must prove by a preponderance of the

evidence that a defendant has violated the terms and conditions of a suspended sentence. Section 46-18-203(6), MCA. He re, Barnhart stipulated that he had not completed Phase II of the sex offender treatment program. Barnhart’s stipulation contrasts with the

situation in Nelson , where the district court made no finding that the defendant had violated the terms and conditions of his suspe nded sentence. Thus, th e State satisfied its

burden that Barnhart had viol ated the terms and conditions of a suspended sentence. ¶13 Section 46-18-203, MCA, further provides in pertinent part that if the court finds

that the defendant ha s violated the terms and conditions of a suspended sentence, the court has three options, including revoking the suspended sentence. Section 46-18- 203(7)(a), MCA. The District Court did not abuse its disc retion in determining that

5Barnhart had to complete the sex offender tr eatment program as it re lates both to his need

for rehabilitation and to societ y's need for protection. Th e court possessed authority to revoke Barnhart’s suspended sentence because he failed to complete the sex offender program while he was incarcerated at M SP. Section 46-18-203(7)(a), MCA. ¶14 It is appropriate to decide this case pur suant to our Order of February 11, 2003, amending Section I.3 of our 1996 Internal Operating Rule s providing for memorandum opinions. It is manifest on the face of the briefs and record before us that Barnhart’s appeal lacks merit. Settled Montana law clea rly controls the legal issues presented and the District Court correctly in terpreted these legal issues. ¶15 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ JOHN WARNER

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