No. 05-031 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 170

STATE OF MONTANA, Plaintiff and Respondent,

v. CYNTHIA BOULTON, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighth Judici al District, In and For the County of Cascade, Cause No. BDC 99-464, Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD: For Appellant: Vince van der Hagen, Public Defender, Great Falls, Montana For Respondent: Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney Gene ral, Helena, Montana Brant S. Light, County Attorney, Great Falls, Montana

Submitted on Briefs: October 5, 2005 Decided: July 25, 2006

Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Cynthia Boulton (Boulton) appeal s from the order of the Eighth Judicial District Court revoking her two-year defe rred sentence, and sentencing her to the Department of Corrections for three years with one year suspended. We affirm. ¶2 We consider the following issues on appeal: ¶3 (1) Do §§ 46-14-311 an d -312, MCA (2001), addressing mental disease and defect in sentencing, appl y to revocation proceedings? ¶4 (2) Did the District Court err in revoking Boulton’s deferred sentence? BACKGROUND ¶5 Boulton was charged with fra udulently obtaining dangerous drugs in November of 1999. Thereafter, Boulton pl ed guilty to the charge and received a two-year deferred sentence. As conditions of her deferred sentence, the cour t required that Boulton be placed under the supervision of the adult pr obation and parole bureau, not use alcohol, complete 100 hours of community service, and pay $35.00 in fines to the District Court. ¶6 Boulton failed to satisfy the conditions of her probation. After a court-approved move to Spokane, Washington, she did not meet her probation officer on a monthly basis, did not complete, or even begi n, her community service work, and failed to pay her fine. Consequently, the Cas cade County Attorney petitioned the District Court to revoke Boulton’s deferred sentence on May 15, 2003, and a bench wa rrant issued for Boulton’s arrest. The Kalispell Police Department arrest ed an intoxicated Boulton outside a casino on May 26, 2004.3 ¶7 Following a defense motion for a confid ential mental examination, which was granted, the District Court he ld an evidentiary and dispositio nal hearing to consider the petition to revoke Boulton’s deferred sentence. Boulton admitted to several violations, but denied others. At the he aring, the court heard evidence from Boulton’s psychiatrist, Dr. Michael Scolatti, regarding Boulton’s mental co ndition. Scolatti st ated that Boulton suffered from, among other thin gs, bipolar disorder, border line personality disorder, and posttraumatic stress disorder. As a result of these disorders, Scolatti recommended that Boulton be placed in a structured setting, and confirmed that the State’s proposal to place Boulton in Connection Correctio ns, followed by either ISP or pre-release, would meet her needs. Scolatti did not believe that Boulto n’s mental disorders warranted placement in the state mental hospital. ¶8 At the hearing, and critical for our purpos e today, Boulton argued that, pursuant to §§ 46-14-311 and -312, MCA (2001), she suffered from a mental disease and defect which rendered her unable to conform her beha vior to the requirements of the law, thus requiring, despite her violations, continua tion of her probationary sentence, with intensive supervision. The Stat e disagreed, arguing that the pl ain language of the statutes made them inapplicable in revocation proc eedings. After a spirited discussion, the District Court concluded that the statutes did not apply, but also note d that, in any event, Boulton was not suffering from a mental disease or defect affecting her ability to conform to the law. Thereafte r, the court revoked Boulton’s deferred sentence, and sentenced her to a three-year commitment to the Department of Corrections with one year suspended.4 ¶9 Boulton appeals. STANDARDS OF REVIEW ¶10 “The standard for revocation of probati on is whether the judge is reasonably satisfied that the conduct of the probationer has not been what he agre ed it would be if he were given liberty.” State v. Averill , 2001 MT 161, ¶ 22, 306 Mont. 106, ¶ 22, 30 P.3d 1059, ¶ 22. We review a district court’s decision to revoke a deferred sentence to determine whether the court abused its discretion. State v. Welling , 2002 MT 308, ¶¶ 5, 8, 313 Mont. 67, ¶¶ 5, 8, 59 P. 3d 1146, ¶¶ 5, 8. Finally, we a review a district court’s conclusions of law de novo , to determine whethe r they are correct. State v. Ray , 2003 MT 171, ¶ 34, 316 Mont. 354, ¶ 34, 71 P.3d 1247, ¶ 34. DISCUSSION 1. Do §§ 46-14-311 and -3 12, MCA (2001), addressing ment al disease and defect in sentencing, apply to revocation proceedings? ¶11 As she did in the District Court, Boulton asserts that her probation violations were the result of her mental illnesses. As su ch, she argues that he r commitment to the Department of Corrections was inappropriate pursuant to §§ 46-14-311 and -312, MCA (2001). 1 The State argues that these provisions do not apply to revocation proceedings, but, instead, apply only to the original senten cing for the convicted offense—in this case, fraudulently obtaini ng dangerous drugs.

1 We note that although Boulton argues th at §§ 46-14-311 an d -312, MCA (2001), apply in a revocation setting, she ultimately sought a probationary sentence and ISP following revocation, a senten ce inconsistent with § 46-14- 312, MCA, which requires a court to commit an offender to the custody of the Department of Public Health and Human Services if it finds th e offender’s acts result from me ntal disease or defect.5 ¶12 When interpreting and applying a statute, the role of the c ourts is to “ascertain the intent of the Legislature.” Friends of the Wild Swan v. DNRC , 2005 MT 351, ¶ 13, 330 Mont. 186, ¶ 13, 127 P. 3d 394, ¶ 13; citing McCormick v. Brevig , 2004 MT 179, ¶ 40, 322 Mont. 112, ¶ 40, 96 P.3d 697, ¶ 40. If possibl e, the intent of the Legislature is to be determined from the plain language of the statute. McCormick , ¶ 40. If the intent can be determined from the plain language of a stat ute, a court “may not go further and apply any other means of interpretation.” McCormick , ¶ 40. ¶13 Section 46-14-311, MCA ( 2001), reads as follows: Consideration of mental diseas e or defect in sentencing. Whenever a defendant is convicted on a verdict of guilty or a plea of guilty or nolo contendere and claims that at the time of the commission of the offense of which convicted the defendant was su ffering from a mental disease or defect that rendered the defendant unable to appreciate the criminality of the defenda nt’s behavior or to conform the defendant’s behavior to the requirements of law, th e sentencing court shall consider any relevant evidence presented at the tria l and shall require additional evidence as it considers necessary for the dete rmination of the issue, including examination of the defendant and a repor t of the examinati on as provided in 46-14-202 and 46-14-206. [Emphasis added.] Section 46-14-312, MCA (2001) , reads in pertinent part: Sentence to be imposed. (1) If the court fi nds that the defendant at the time of the commissi on of the offense of wh ich the defendant was convicted did not suffer from a mental diseas e or defect as described in 46- 14-311, the court shall sentence the defendant as provi ded in Title 46, chapter 18. (2) If the court finds that th e defendant at the time of the commission of the offense suffered fro m a mental disease or defect as described in 46-14-311, any mandator y minimum sentence prescribed by law for the offense need not appl y and the court shall sentence the defendant to be committed to the custody of the dir ector of the department of public health and human services. . . . The authority of the court with6 regard to sentencing is th e same as authorized in T itle 46, chapter 18, if the treatment of the individual and the protectio n of the public are provided for. [Emphasis added.] ¶14 An examination of these statutes’ plai n language shows that they allow a defendant to assert at sentencing that, at the time the convicted offense was committed, he or she suffered from a mental disease or def ect. Thus, upon a homicide conviction, the defendant may assert that he or she suffered from mental disease or defect at the time of the killing. Likewise, upon conviction for fraudulently obtaining dangerous drugs, the defendant may assert that the drugs were fraudulently obtained while he or she suffered from a mental disease or defect. The intent of those statutes is to allow the defendant to show that he is not culpable for the crime for which he has been convicted, and as a result, should be committed to DPHHS rather than receive a prison term. Importantly, these statutes do not mention revocation proceedings. Consistent therewith, the revocation statute, § 46-18-203, MCA (2001), does not mention the mental disease and defect statutes. ¶15 In addition to being inconsistent with the plain language of §§ 46-14-311, 46-14- 312, and 46-18-203, MCA, Boulton’s argument is contrary to the nature of probation and the revocation process. Proba tion is an act of grace by a sentencing court, intended to give the offender a chance to rehab ilitate outside the prison setting. See State v. Robinson (1980), 190 Mont. 145, 148, 619 P.2d 813, 814 (“[t]he District Court’s initial decision to place Robinson on probatio n was a decision to forego complete denial of liberty in favor of a period of restricted and conditional lib erty in hopes that the defendant’s freedom7 would best serve the purpo ses of rehabilitation”); State v. Kern (1985), 212 Mont. 385, 388, 695 P.2d 1300, 1301; State v. Rogers (1989), 239 Mont. 327, 329, 779 P.2d 927, 929. As such, when a petition to revoke probation is before a district court, the facts presented “need not establish guilt beyond a reasonable doubt.” Robinson , 190 Mont. at 148, 619 P.2d at 815. In fact, the defendant’s mental state is not necessarily an issue when the court determin es the existence of a probation violation. Averill , ¶¶ 24-26. Instead, the question in a revocation proceeding is “whether the purposes of rehabilitation are being achieved, and whether, by virtue of subsequent criminal conduct or evidence that the defendant’s behavior was not in co mpliance with the rules and objectives of his probation, the purposes of probation are best served by continued liberty or by incarceration.” Robinson , 190 Mont. at 148, 619 P.2d at 815; Averill , ¶ 25. As such, it is generally irrelevant whether a probation violation may have been committed while suffering a mental disease or defect; if the conditions of probation have been violated, probation can be revoked. ¶16 For these reasons, revocation proceedings are generally considered “civil” in nature—“the action to revoke his previously suspended sentence is not a criminal adjudication.” State v. Watts (1986), 221 Mont. 104, 106, 717 P.2d 24, 25. Indeed, the term “offense,” used in §§ 46-14-311, and -312, MCA (2 001), by definition does not include probation vi olations. “Offense” is defined in T itle 46 as “a viol ation of any penal statute of this state or any ordinance of its political subdivisio ns,” § 46-1-202(15), MCA (2001), and does not include a probation violation in this context, since conditions of a8 deferred or suspended sentence are not penal statutes or ordinances. See Watts , 221 Mont. at 107, 717 P.2d at 26 (“[c]learly the Di strict Court can revoke the suspen sion of a sentence, without that revocation constitu ting punishment for a new offense”); see also State ex. rel. Great Falls Tribune v. District Court (1989), 238 Mont. 310, 316-17, 777 P.2d 345, 348-49. As such, th e clear application of the mental disease statutes to criminal proceedings further undermin es Boulton’s argument that those statutes apply in revocation proceedings. ¶17 These conclusions do not mean that evidence of mental disease or defect is always irrelevant and inadmissible in a revocation pr oceeding. Pursuant to § 46-18-203, MCA (2001), when presented with ev idence that a defendant serv ing a deferred or suspended sentence has violated conditions of probati on, a court may (a) continue the deferred sentence without change, or (b) “impose any se ntence that might have been originally imposed.” See § 46-18-203(7), MCA (2001). Thus, by its plain language, the revocation statute contemplates that probation violati ons may not warrant sentence revocation or imposition of a prison sentence. A mental disease or defect may constitute a circumstance where fundamental fairness might lead a court to continue or re-impose a probationary sentence. Section 46-18-203(7), MCA (2001), provides significant discretion to the sentencing court, which would include the ability to order mental evaluations and consider the impact of a de fendant’s mental condition. Thus, while the alternative sentencing procedures of §§ 46-14-311 and -312, MCA (2001), are not9 applicable in revocation proceedings, evid ence of mental disease and defect can appropriately be considered by the revoking court. ¶18 From our review of the statutes, as we ll as the purposes of probation and revocation, we conclude that §§ 46-14-311 and -312, MC A (2001), do not apply in revocation proceedings. Therefore, we affirm the District Court’s ruling. 2. Did the District Court err in revoking Boulton’s deferred sentence? ¶19 As noted above, we review a district cour t’s decision to revoke a deferred sentence for abuse of discretion. Welling , ¶ 8. A court abuses its discretion when it “acts arbitrarily without employmen t of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Citizen Advocates for a Livable Mi ssoula v. City Council, 2006 MT 47, ¶ 18, 331 Mont. 269, ¶ 18, 130 P.3d 1259, ¶ 18; citing State v. Riggs , 2005 MT 124, ¶ 18, 327 Mo nt. 196, ¶ 18, 113 P.3d 281, ¶ 18. Here, Boulton pleaded true to multiple probation violations, a nd the court concluded that the evidence of Boulton’s mental disorders did not warrant her placement in the state mental hospital. This conclusion was consistent with the tes timony of Boulton’s psychi atrist. Our review of the record herein permits no conclusion that the District Court abused its discretion in revoking Boulton’s sentence. ¶20 Affirmed.

/S/ JIM RICE10 We concur: /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ BRIAN MORRIS