No. 12845 

IN THE 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 the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record : 

For Appellant : 

Michael Whalen 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 - 9 19E 

Filed: -9 !$n 
Mr. 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 State Board 

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 shall conduct himself in a law 

abiding manner and shall not violate any law of the 

United States or of the State of Montana or the 

ordinance of any city or town during said term * * *. 'I 

On July 8, 1974, petition was filed for revocation of the 

deferral order; the grounds for revocation were that defendant 

allegedly stole a typewriter from a bus terminal in Billings. On 

the same day, an Information was filed which 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, trial was 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, for dismissal of the criminal charge with prejudice. The grounds for the 

motion were stated as: 

"* * * That the identical facts with which he is 

charged in the Petition for Revocation are alleged 

in the Information charging him with the crime for 

which he is yet to stand trial and his guilt or innocence has not yet been determined and to require him to 

go to hearing at this time upon the Petition for Revocation 

would effectively deprive him of his constitutional rights 

to remain silent as to the facts in the felony case pending 

against him in Cause No. 9335, and in effect would amount 

to subjecting him to double jeopardy if he were required to 

testify as to the facts at this time and then subsequently 

appear in a trial before a jury in Cause No. 9335. In addition to that it would put the Court in a position whereby 

he could be convicted on the present factual situation without the benefit of a jury trial, and at a time when a criminal 

charge has in fact been filed upon 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 in his own defense nor present any evidence. 

Defendant was found in violation of the conditions of his 

probation and was subsequently sentenced to terms of ten years on 

each of the three prior counts. The sentences were to be served 

concurrently. Following revocation and sentencing, the new criminal 

charge was dismissed on the county attorney's motion. 

~efendant's appeal from the judgment raises a single issue: 

Should the revocation hearing have been continued until after 

trial of the criminal charge or, in the alternative, should the 

criminal charge have been dismissed with prejudice? 

Defendant contends he was denied due process by being forced 

to elect between either exercising his right to remain silent 

(risking possible revocation of his deferred sentence) or waiving 

that right (risking possible self-incrimination on the criminal 

charge, yet to be tried). He argues the state's only motive for 

compelling this election by holding the revocation hearing first, 

was to coerce him into taking the stand. If he had done so, he 

would have been available for cross-examination which could be used 

by the state as a discovery technique, 

Although this argument is raised for the first time before 

this Court, other jurisdictions 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, 14 Ill.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 in Flint v, Mullen, 499 F.2d 100 (1st Cir. 

1974). These cases hold that due process is not violated by holding 
a revocation hearing prior to trial of 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, as well as the question of sentence, 

if guilty. Defendant alleged violation of due process arising 

from the necessity of choosingwhether to remain silent (risking a 

harsher sentence) or waiving that right (risking possible selfincrimination). Recognizing defendant's predicament, the Court 

said: 

"The criminal process, like the rest of the 

legal system, is replete with situations requiring 

'the making of difficult judgments' as to which course 

to follow. McMann v. Richardson, 397 U.S., at 769, 

25 L Ed 2d at 772. 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 in McGautha, defendant was presented with a strategic 

choice--silence, which he claims contributed to the revocation of 

his deferred sentence, or speaking out at the risk of possible 

self-incrimination on the substantive criminal charge. The choice 

of whether or not to waive his right to remain silent was one which 

defendant necessarily would have to make, sooner or later. His 

position at the revocation hearing and at the trial would be substantially similar, maintaining his innocence of the alleged theft 

of the typewriter. The constitutional validity of requiring earlier 

disclosure of certain defenses was upheld by the United States 

Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 

26 L ed 2d 446. It has also been upheld by this Court. State ex 

rel. Sikora v. District Court, 154 Mont. 241, 462 P.2d 897. We 

hold that the earlier choice as to exercise of the right to remain 

silent, under the facts of this case, is not repugnant to either 

United States or Montana constitutional provisions. 
The thrust of the authorities cited is plain. 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 finding no violation of due process requirements we have 

not discussed the jury trial and double jeopardy issues raised 

by defendant in his motion for continuance in the district court. 

On appeal defend an^ cited no authority in support of these challenges, 

and treatment of these issues in the briefs and oral argument was 

cursory. We note that a revocation hearing is just that--- a 

hearing, not a trial. Its function is to determine whether or not 

the terms of probation have been violated. Trial by jury on the 

criminal charge is still assured. We find no mentin defendant's 

constitutional challenges. 

The judgment of the district court is affirmed. 

i 

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