No. 12845 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - DONALD E. RYAN, Defendant and Appellant.

Appeal from: District Court of theThirteenth Judicial District, Honorable RobertWilson, Judge presiding. Counsel of Record: For Appellant: MichaelWhalen argued, Billings, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz argued, Assistant Attorney General,

Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana

Submitted: March 

### 7, 1975 Decided : 

### ARR

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Filed: 

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# !$nMr. Justice Frank I. Haswell delivered the Opinion of the Court.
On July 27, 1973, Donald E. Ryan pleaded guilty to three counts of grand larceny in the district court, Yellowstone County. The court deferred imposition of sentence for one year, placing defendant on probation under the supervision of the StateBoard of Pardons. One of the terms of the probation, accepted by defendant as a condition of the sentence deferral, was a requirement that:

### "3. The defendant shallconduct himself ina law abiding manner and shallnot violate any law of the United States or of the State of Montana or the ordinance of any cityor town during said term

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On July 

### 8, 1974, petition was filed forrevocation of the deferral order; the grounds forrevocation were that defendant allegedly stolea typewriter from a bus terminal inBillings. On the same day, an Information was filedwhich charged defendant with theft (a felony), alleging the same act contained in the petition for revocation. Following arraignment and defendant's plea of not guilty, trialwas set for September 16, 1974. A hearing on the petition for revocation was set for July 12, 1974. On that date, defendant moved for a continuance until after the trial on the criminal charge or, in the alternative, fordismissal of the criminal charge with prejudice. The grounds for the motion were stated as: 

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# ** That the identical factswith which he is charged in the Petition forRevocation are alleged in the Information charging him with the crime for which he 

### isyet to stand trialand his guilt or innocence has not yet been determined and torequire 

### him to go tohearing atthis time upon the Petition for Revocation would effectively deprive him of his constitutional rights toremain silent as to the facts inthe felony case pending against him inCause No. 9335, and in effectwould amount to subjectinghim to doublejeopardy ifhe were required to testify as tothe facts atthis time and then subsequently appear in a trialbefore a jury in Cause No. 9335. In addition tothat itwould put the Court ina position whereby he could be convicted on the present factual situationwithout thebenefit of a jury trial, and ata time when a criminal charge has in fact been filedupon the same set of facts."The motion was denied and the hearing proceeded with the stare's presentation of witnesses to the alleged crime. These witnesses were cross-examined by defense counsel, but defendant did not take the stand inhis own defensenor present any evidence. Defendant was found inviolation of the conditions of his probation and was subsequently sentenced toterms of ten years on each of the three prior counts. The sentenceswere tobe served concurrently. Following revocation and sentencing, the new criminal charge was dismissed on the county attorney's motion. ~efendant's appeal from thejudgment raises a single issue: Should the revocation hearing have been continued until after trialof the criminal charge or, in the alternative, should the criminal charge have been dismissedwith prejudice? Defendant contends he was denied due process by being forced to electbetween either exercising hisright toremain silent (risking possible revocation of his deferred sentence) orwaiving that right (risking possible self-incrimination on the criminal charge, yet tobe tried). He argues the state's only motive for compelling this electionby holding the revocation hearing first,

was tocoerce him into taking the stand. If he had done so, he would have been available for cross-examination which could be used by the stateasa discovery technique, Although this argument 

### israised for the first time before this Court, otherjurisdictions have been presented with similar issues. For recent examples see: People v. Carr, (Colo.1974), 524 P.2d 301; Gonsalves v. Howard, (R.I.1974), 324 A.2d 338; People

v. Cruz, 14Ill.App.3d 513, 302 N.E.2d 702. The most complete discussion on these issues can be found in these three related opinions: Flint v. Howard, 110 R.I.223, 291 A.2d 625, cert,den. 409 U.S. 1078, 

### 93 Sect. 694, 34 L ed 2d 667; Flint v. Mullen, 372 F.Supp. 213 (D.R.I. 1974), reversed inFlint v, Mullen, 499 F.2d 100 (1st Cir. 1974). These cases hold that due process 

### isnot violated by holdinga revocation hearing prior to trialof a criminal charged based

on the same facts alleged as grounds for the revocation. In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L ed 2d 711, 729, the United States Supreme Court decided a question similar to the constitutional challenge raised in the instant case. There defendant was tried before a jury which decided both the question of guilt or innocence, aswell as the question of sentence, if guilty. Defendant alleged violation of due process arising from the necessity of choosingwhether toremain silent (risking a harsher sentence) orwaiving that right (risking possible selfincrimination). Recognizing defendant's predicament, the Court said: "The criminal process, like the rest of the legal system, 

### isreplete with situations requiring 'the making of difficultjudgments' as towhich course to follow. McMann v. Richardson, 397 U.S., at769, 25 L Ed 2d at772. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Under the facts of McGautha no constitutional violation was found. Here, as inMcGautha, defendant was presented with a strategic choice--silence, which he claims contributed tothe revocation of his deferred sentence, or speaking out atthe risk of possible self-incrimination on the substantive criminal charge. The choice of whether or not towaive his right toremain silentwas one which defendant necessarily would have tomake, sooner or later. His position atthe revocation hearing and atthe trialwould be substantially similar, maintaininghis innocence of the alleged theft of the typewriter. The constitutionalvalidity of requiring earlier disclosure of certain defenseswas upheld by the United States Supreme Court inWilliams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L ed 2d 446. It has alsobeen upheld by this Court. Stateex rel. Sikora v. District Court, 154Mont. 241, 462 P.2d 897. We hold that the earlier choice as toexercise of the right toremain silent, under the facts of this case, 

### isnot repugnant toeither United States or Montana constitutional provisions.The thrust of the authorities cited isplain. A defendant, in the course of defense, must necessarily make a number of hard decisions many of which bear on the exercise or waiver of constitutional rights. Often, 

### as here, the choice 

### is a difficult one. However, it does not follow that such choices cannot be constitutionally required. 

### In findingno violation of due process requirements we have not discussed thejury trialand double jeopardy issues raised by defendant inhis motion forcontinuance in the district court. On appeal defend an^ cited no authorityin support of these challenges, and treatment of these issues in thebriefs and oral argument was cursory. Wenote that a revocation hearing 

### isjust that--- a hearing, not a trial. Its function 

### is to determine whether ornot the terms of probation have been violated. Trialby jury on the criminal charge is stillassured. We find no mentin defendant's constitutional challenges. The judgment of the district court 

### is affirmed.

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