DA 06 - 0262 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 16 ST ATE OF MONTANA, Plaintiff and Appellee, v. JOSEPH CURTIS MORRISON, Defendant and Appellant. APPEAL FROM: District Co urt of the Sixteenth Judicial District,

In and For the County

of Rosebud, Cause No. DC - 2004 - 14 Honorable Joe L. Hegel, Presiding Judge COUNSEL OF RECORD:

For Appellant: William F. Hooks, Attorney at Law, Helena, Montana For Appellee : Honorable Mike M cGrath, Attorney General; Mark W. Mattio li, Assistant Attorney

General, Helena, Montana Michael B. Hay

worth, County

Attorney, Forsy

th , Montana Submitted on Briefs: June 6, 2007 Decided: January

22, 2008 Filed:

_______________________ ___________________ Clerk January 22 20082

Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Joseph Curtis M orrison (Morrison) appeals from the order of the Sixteenth Judicial District Court, Rosebud County, revoking his suspended sentence. We affirm. ¶2 Weaddress the following issue: ¶3 Did the District Court have jurisdiction to consider and grant the State’s petition to revoke Morrison’s five - year suspended sentence prior to Morrison beginning to serve the five - year suspended sentence?

FACTUAL AND PROCEDURAL BACKGROUND ¶4 On January 10, 2005, Morrison entered a plea agreement whereby he ple d guilty to driving undertheinfluence of alcohol, his fourth or subsequent offense, a felony, in violation of § 61 - 8 - 401, MCA. The District Court sentenced Morrison to the Montana Department of Corrections(DOC) f or thirteen months followed by a consecutive, suspended sentence totheM ontana State Prison(MSP) f or five yearswith conditions . As a part of Morrison’s thirteen - month sentence he w as tob e“ screened for place ment at the Warm Springs Addictions Treatment & Change Program ‘ WATCh’ by the Department of Corrections ” and upon successful completion of WATCh, or a chemical dependency treatment program determined by the DOC, the remainder of his thirteen month sentencew as tobe suspended. ¶5 On August 19, 2005, Morrison filed a pro se motion for an order suspending the balance of his thirteen - mo nth sentence because he had completed anIntensive Treatment Program Unit (ITU). The State initially opposed the motion becaus e the ITU program is3

not as intensive as the WATCh program. H owever, the parties eventually stipulated that Morrison had successfully com pleted a qualifying chemical dependency treatment program. A s a result, the remaining seven months of Morrison ’s thirteen - month incarceration were suspended , and he was released from MS P. A s a condition of his release, Morrison was instructed to “[r]eport in person to John Uden, Miles City Probation and Parole, on November 14, 2005.” Morrison did not c ontact Officer Uden. On December 5, 2005, the County Attorney filed a petition to revoke Morrison’s suspended sentenceo n the basis of his failure to satisfy the “reporting”c ondition of his suspended sentence . ¶6 At the revocation hearing, Morrisonmoved to dismiss the petition, contending that, pursuant to § 67 - 8 - 731, MCA, the remainder of the thirteen - month sentence was not a “suspended sentence” but rather a probationary period that could not be revoked by filing a petition to revoke a suspended sentence. 1 Morrison also argued that the petition to revokew as untimely filed pursuant to § 46 - 18 - 203, MCA, because ino rder to revoke the five - year suspended sentence the petition must b e “filed during the period of suspension.” In sum, M orrison contended that thec ourt should dismiss the State’s petition as erroneously filed . ¶7 In defense of its petition , the Statec larified that it sought to revoke only the five year suspended sentenceand not the remainder of the thirteen - month sentence . TheState alsoargued that the thirteen - month sentence and the five - year suspended sentence “stacked” together, allowing for revocation of the five - year suspended sentence based on 1 Morrison has not renewed this argument on appeal.4

a violation occurring while Morrison served the remainder of histhirteen - month sentence on probation . The District Court agreed with the State. F irst, the court concluded that there was no difference between a probationary period and a suspended sentenceand, c onsequently, the remainder of the thirteen - month sentence was a “suspended sentence” that could be revoked. Morrison hasnot challenge d this conclusiono n appeal. Second, the court concluded

that the thirteen - month and five - year suspended sentence s“ stacked ,” such that the court could properly hear the petition to revokethef ive - year suspended sentenc e based

o naviolation occurring during the thirteen - month sentence . Accordingly, the court denied Morrison’s motion to dismiss the petition. ¶8 At the conclusion of the hearing, thecourt determined that Morrison had “violated the condition of probation and suspended sentences” for “both the 13 - month and the five year” sentences. Subsequently, the court revoked both the remainder of Morrison’s thirteen - month sentence and his five - year sentence, committing him to the DOC for “five years and one month[.]” Morrison appealsthe revocation of his f ive - year suspended sentence. STANDARD OF REVIEW ¶9 We review a district court’s decision to revoke a defendant’s suspended sentence to determine if there was an abuse of discretion . State v. Osborne , 2007 MT 217, ¶ 8, 339 Mont. 45, ¶ 8, 167 P.3d 405 , ¶ 8. Where the issue is whether the court had authority to take a specific action, the question is one of law , and our review is plenary. State v. Richardson , 2000 MT 72, ¶ 8, 299 Mont. 102, ¶ 8, 997 P.2d 786, ¶ 8.5 DIS CUSSION ¶10 As a preliminary matter , we address Morrison’s argument that the State has raise d a new theory on appeal and that “[f]or this reason alone, the Court should reject the [State’s] argument.” W e deemi ssues which are presented for the first time on appeal to be untimely and wil l not consider them. State v. Adgerson , 2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12 . “A party may not raise new arguments or change its legal theory on appeal because it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.” Adgerson , ¶ 12 . ¶11 The State argues on appeal that “Morrison was serving a single sentence for a single offense, which became an entirely suspended sentence when Morriso n was placed on probation.” The State contends that the “suspended terms have to merge” in order to encourage rehabilitation and avoid the absurd result of permitting a “probationer to violate at the end of the 13 - month DOC commitment without risking poss ible revocation of the remaining five - year (or less) suspended sentence.” M orrison repliesthat the State’s argument that the suspended sentences “merge ”into a “single sentence” is a new theoryo n appeal because at the revocation hearing the St ate arguedthat Morrison had two separate sentences , albeit “stacking” together. Essentially, Morrison’s changei n theory complaint s tems from the St ate’s assertion of “stacking” two sentences inthe D istrict C ourt

versus the State’s assertion of one “merge d” sentence on appeal. ¶12 However , whether using the “stacked” or “merge d”theory, the underlying premise of the State’s argument is the same: that a violation occurring during the thirteen - month sentence provide s ab asis for revoking the five - year suspended sentence even though the6

violation occurred prior to commencement of that part of the sentence . Accordingly, the difference between the “merge” and “stack” theories is de minimusand does not merit complete rejection of the State’s argument on appeal. Moreover, whether we consider the thirteen - month sentence and five - year sentence as separate and consecutive or as a combined s entence, they arise out of the same sentencing order for the same underlying offense , and therefore , the jurisdictional issue Morrison raises on appeal remains and must be addressed. ¶13 Did th e District Court have ju risdiction to consider and grant th e State’s petition tor evoke Mo rrison’s five -year su sp ended sentence prior toM orrison beginning to serve the five -year suspended sentence? ¶14 M orrison argues that the District Court did not have jurisdiction 2to revoke his five - year suspended sentence prior to commencement o f that portion of his sentence. Although acknowledging our holdings to the contrary in State v. Sullivan , 197 Mont. 395, 64 2 P.2d 10 08 (1982), and Matter of Ratzlaff, 172 Mont. 439, 564 P.2d 1312 (1977), Morrison notes the language of § 46 - 18 - 203 (2) , MCA, referencing the filing of a revocation petition “during the period of suspension or deferral,” and asserts that the 1983 am endment to this statute now prohibits a di strict c ourt from revokingasuspended sentence unless the petition is filed a fter the period of suspension has begun. Morrison assertsthat , a s a result of the 1983 amendment, our prior decisions are no longer va lid authority. 2 While Morrison argues that the District Court was without jurisdiction to entertain the petition to revoke hi s sentence, we note that the court had personal jurisdiction over Morrison and had general subject matter jurisdiction over revocation petitions. Although § 46 - 18 - 203, MCA, uses the term “jurisdiction,” Morrison’s argument is more properly framed as a challenge to the court’s statutory authority to revoke Morrison’s sentence.7

¶15 In Sullivan , the defendant’s suspended sentence was revoked while he was on parole from his prison sentence and before he had begun serving the suspended portion of his sentence. Sullivan , 197 Mont. at 399, 642 P.2d at 1010. In approvingo f the prior revocation of Sullivan’s suspended sentence, we relied on our previous decision in Ratzlaff , which we determined answered Sullivan’s contention “in spirit if not factually[.]” Sullivan , 197 Mont. at 400, 642 P.2d at 1010. In Ratzlaff , the defendant was sentenced to tw enty - five years inM SP with ten years suspended. Ratzlaff was released on parole after serving approximately three years in prison and subsequently violated the conditions of his release. A s a result, the district court revoke d his ten - year suspended sentence for violations of both probationary and parole conditions, Ratzlaff , 172 Mont. at 441, 564 P.2d at 1313 , and he petitioned this Court for post - conviction relief . We denied the petition, and a s we later explained in Sullivan , our decision in Ratzlaff was based on the“necessary implication that a suspended sentence may be revoked before the defendant actually begins serving probation.” Sullivan , 197 Mont. at 4 00, 642 P.2d at 1010 . We further explained that: What comes out o f these cases is the strong public policy that if a person convicted of a crime, and granted a period of probation as part of the sentence, should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation, the court has the power to revoke or change the order of probation both during the period of probation , and before the period of probation commences. Sullivan , 197 Mont . at 401, 642 P.2d at 1011. ¶16 W ereaffirmed Sullivan in Christofferson v. State , 2 72 Mont. 518, 90 1 P.2d 588 (1995) . There , the district court revoked the defendant’s suspended sentence while he8

was still on parole and prior to the beginning of his suspended sentence. W e stated that “a suspension of sentence may be revoked for acts of a probationer a fter sentence is imposed but before the probationer actually begins serving the suspended sentence.” Christofferson , 272 Mont. at 521, 901 P.2d at 589. Then , in State v. Vallier, 2000 MT 225, 301 Mont. 228, 8 P.3d 112, we extended the Sullivan h olding to incarcerated persons , concluding that where an individual has not met the terms and conditions of his suspended sentence, such as completion of a sexual offender treatment program while incarcerated, the suspended sentence may be revoked, even before the individual actually begins serving the suspended sentence. Vallier, ¶¶ 9, 13. ¶17 Section 46 - 18 - 20 3, MCA, provides , in pertinent part: (1) Upon the filling of a petition for revocation showing probable cause that the offender has violated any condition of as entence or any condition of a deferred imposition of sentence the judge may issue an order for a h e aring on revocation.

. . . . (2) The petition for

arevocation must b e filed with the sentencing court during the period of suspension or deferral. Expiration of the period of suspension or deferral after the petition is filed does not deprive the court of its jurisdi ction to rule on the petition. Prior to1 983 , the language in subsection (2) of § 46 - 18 - 203, MCA, did not exist a s a separate subsection . Rather , § 46 - 18 - 203, MCA (1981), read in pertinent part that: A judge, ma gistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46 - 18 - 201 or his successor is authoriz ed, during the period of the suspended sentence or deferred imposition of sentence, in his discretion, to revoke the suspension or impose sentence and order the person committed. [Emphasis added.]9

The 1983 amendment deleted the above - em phasized language f

rom this paragraph and placed similar language under the new subsection (2). Introduced as Senate Bill 409, the amendment was passed by the 1983 Session without contention. The bill was filed at the request of the Department of Justice and testimony from an Assistant Attorney General indicated that the amendment was a reaction to this Court’s decision in Felix v. Mohler, 195 Mont. 391, 636 P.2d 830 (1981). In Felix , this Court , applying § 46 - 18 - 203, MCA (1981), h eld that a district court’s jurisdiction to revoke a suspended sentence or a deferred sentence only extended “through the running of the suspended or deferred sentence, regardless of whether a petition for revocation [had] been filed prior to the termination of the suspended or deferred sentence.” Felix , 195 Mont. at 394, 636 P.2d at 832. According to the testimony before the Senate Judiciary Committee, Felix effectively gave probationers serving a suspended or deferred sentence “ a carte blanche to violate the conditions of their probation at anytime during the final days of their probation because the court [would] be unable to hold a hearing on the petition” prior to expiration of the probation, “even if a petition to revoke [was] filed during the period of suspension or deferral.” T he additio n of language within new subsection (2) of the statute addressed this problem by clarifying that the court could act upon a petition to revoke “ even after the period of suspension or deferral [had] run. . . . ” Thus, the 1983 amendment had noi mpact upon the prior decisions addressing a court’s authorityto revoke a suspended or deferred sentence upon apetition filed priorto the commencement of asuspended or deferred sentence , and decisions thereafter have continued to apply this10

rule . C ontrary to Morrison’s contention, Sullivan and the seo ther cases remain good law and support thisinterpretation of § 46 - 18 - 203 (2) , MCA. ¶18 Here, Morrison’s five - year suspended sentence was revoked pursuant to a petition filed prior to commencement of thats entence and whil e he wass tills erving the remainder of his thirteen - month DUI sentence. Pursuant to § 46 - 18 - 203, MCA, and as explained in Sullivan , Christofferson , and Vallier, the District Court had authorityto revoke Morrison’s five - year suspended sentence p rior to the start of that sentencewhen a petition for revocation asserting a violation of condition wasfiled. The State filed such a petition to revoke Morrison’s five - year suspended sentence based on his failure to report to his supervising officer while completing his thirteen - month sentence on probation . The District Court held a revocation hearing , heard testimony from Officer Uden, as well as Morrison, and determined that Morrison understood the condition to report to Officer Uden but failed to do so. M orrison does not allege that this finding was an abuse of discretion or is unsupported by the evidence, onlythat the District Court lacked authority to revoke his suspended sentence. A s explained herein, the District Court had such authoritypursuant to § 4 6 - 18 - 203, MCA . ¶19 Affirmed . /S/ JIM RICE We concur: /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART2

Justice James C. Nelson dissents. ¶20 I dissent from the Court’s decision. M orrison wa s originally sentenced on March 7, 2005 , for felony D UI committed on or about February 19, 2004. That being the case, the 2003 versi on of the code applies. State v. Oie , 2007 MT 328, ¶ 10, 340 Mont. 205, ¶ 10, ___ P.3d ___, ¶ 10 (citing State v. Muhammad, 2002 MT 47, ¶ 24, 309 Mont. 1, ¶ 24, 43 P.3d 318, ¶

2 4 (“the law in effect at the time of the crime controls as to the possible sentence.”)). A s the Court points out at ¶ 4, as to Count I , the DUI count, the trial court imposed the following sentence: Defendant is committe d to the Montana Department of C orrections for a term of thirteen (13) months , in addition to a consecutive, suspended commitment to Montana State Prison for a term of five (5) years. The Defendant shall be screened for placement at the Warm Springs Addictions Treatment & Change Program “WATCh” by the Department of Corrections. Upon successful completion of the “WAT Ch” program, or chemical dependancy [sic] treatment program placement determined by the Department of Corrections, the balance of the sentence is suspended. ¶21 Morrison was rel eased from prison on November 10, 2005, to begin serving the probationary period of his 13 - month commitment to DOC. The State filed its petition to revoke on December 5, 2005. M orrison’s counsel mo ved to dismiss the petition on the basis that under §46 - 1 8 - 203, MCA

—quoted by the Court at ¶ 17

—the petition must be filed during the suspended portion of the sentence. M orrison argued that heh ad not yet served his full 13 - month sentence, and that sentence was not suspended. Rather , h e was still serving his p robationary sentence. In response , the prosecutor made clear that the State sought revoc ation of the five - year DOC sentence, not what was left of the13 - month sentence. Specifically, the prosecutor stated:3

[W]e’ re not asking for revocation of the 13 months. W e're actually asking for revocation of the five - year DOC s entence. A nd as I recall the sentences, they stack. A nd when there is a violation during the first one, there is case law where you can revoke both the firs t and the second. We're really - - we're not messing around with the 13 - month sentence. W e're really just looking at the five years here . ¶22 The trial court denied Morrison’s motion to dismiss, stating that it c onsidered Morrison to be serving a suspended sentence, that the 13 - mo nth and fi ve - year sentences “stack,” “and that the State is not asking that the balance of the 13 - month be suspended, but only the succeeding five - year sentence.” ¶23 With that background, I first address the Court’ determination at ¶¶ 10 - 12 that the State did not change its theory on appeal. I conclude that it did so. It was clear that at the District Court both the prosecutor and the trial judge considered the 13 - month probationary sentence and the five - year DOC sentence to be separate

—the second “stacked” upon the f

irst. ¶24 On appeal, however, the State totally abandons the prosecutor’s theory of separate sentences and, instead, advances the theory that Morrison was serving a single sentence, the suspended portion of which commenced when Morrison was placed on probation . According to the State

—and without citation to any authority whatsoever

— “Morrison was serving a single sentence for a single offense, which became an entirely suspended sentence when Morrison was placed on probation.” 1

1 The State then goes on to solicitously argue that this sort of sentence was“ ordained” by § 61 - 8 - 731(1)(a) and

(b) “the purpose of which is to encourage treatment.” The State play s fast and loose with this Court. The State argued quite the opposite in State v. Damon , 2005 MT 218, 328 Mont. 276, 119 P.3d1194 , when this argument was made by the defendant. SeeAppellant’s opening brief, pp. 1 9 - 21, and the State’s reply brief ,4

¶25 The Court glosses over this c hangein theory concluding that the prosecutor’s theory in the trial court and the State’s theory on appeal amount to the same argument. Opinion, ¶ 12. While that may be a convenient way to save the State’s case, there is a very important difference in the tw o theories. Under the prosecutor’s theory

—that there are separate “stacked” sentences

—the trial court would not have had authority to revoke Morrison’s sentence because under § 46 - 18 - 203(2), MCA, the petition to revoke had to be filed “during the period o f suspension.” It is undisputed from the record before us that Morrison’s five - year suspended sentence had not yet begun to run. H e was still serving the probationary portion of his 13 - month commitment. However, under the State’s newly devised appeal th eory, the 13 - month probationary period and the five - year suspended sentence were not “stacked” but were simply one long sentence. With the result, of course, that the petition was filed “during” the suspended portion of the sentence in compliance with § 46 - 18 - 203(2), MCA. ¶26 I would not address the State’s appeal argument for two reasons. F irst, as noted, the State changed its theory on appeal in violation of the very rule cited by the Court at ¶ 10, from State v. Adgerson , 2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12, and the legion of cases that follow this rule. See State v. Price , 2007 MT 269, ¶ 14, 339 Mont. 399, ¶ 14, 171 P.3d 293, ¶ 14; State v. Vaughn , 2007 MT 164, ¶ 44, 338 Mont. 97, ¶ 44, 164 P.3d 873, ¶ 44, cert. denied, ___ U.S. ___, 1 28 S. Ct. 719 (2007); State v. Malkuch , 2007 MT 60, ¶ 17, 336 Mont. 219, ¶ 17, 154 P.3d 558, ¶ 17; State v. H arlson , pp. 2 4 - 27, in Cause No . 04 - 294. More to the point, this Court rejected the now proffered “treatment” theory. Damon , ¶¶ 34 - 41; Damon , ¶¶ 65 - 88 (Nelson, J. , dissenting).5

2006 MT 312, ¶ 19, 335 Mont. 25, ¶ 19, 150 P.3d 349, ¶ 19; State v. Buck, 2006 MT 81, ¶ 109, 331 Mont. 517, ¶ 109, 134 P.3d 53, ¶ 109; State v. Wetzel, 2005 MT 154, ¶ 13, 327 Mont. 413, ¶ 13, 114 P.3d 269, ¶ 13; State v. McCaslin , 2004 MT 212, ¶ 49, 322 Mont. 350, ¶ 49, 96 P.3d 722, ¶ 49; State v. Minez , 2003 MT 344, ¶ 19, 318 Mont. 478, ¶ 19, 82 P.3d 1, ¶ 19; State v. Ely , 2003 MT 140, ¶ 9, 316 Mont. 169, ¶ 9, 69 P.3d 1189, ¶ 9; State v. Martinez , 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17; State v. Shook, 2002 MT 347, ¶ 19, 313 Mont. 347, ¶ 19, 67 P.3d 863, ¶ 19, cert. denied, 540 U.S. 815, 124 S. Ct. 67 (2003); State v. Courvi lle , 2002 MT 330, ¶ 5, 313 Mont. 218, ¶ 5, 61 P.3d 749, ¶ 5. S econd, the State cites no authority whatsoever for its newly created “one sentence” theory. The State bears the burden of supporting with authority its arguments on appeal just as a defendant does. State v. Anderson , 1999 MT 60, ¶¶ 21, 25, 293 Mont. 490, ¶¶ 21, 25, 977 P.2d 983, ¶¶ 21, 25 (this Court declined to address the State’s argument regarding a warrantless search because the State failed to cite to any legal authority in support of itsargument). Our decision here effectively establishes a double standard for parties who change theories on appeal and who fail to cite authority for an appellate argument. Adefendant gets hammered if he or she does it, but the State gets away with it. ¶27 Finally, I disagree with the Court’s re - affirmance of State v. Sullivan , 197 Mont. 395, 642 P.2d 1008 (1982) ; Matter of Ratzlaff , 172 Mont. 439, 564 P.2d 1312 (1977); Christofferson v. State , 272 Mont. 518, 901 P.2d 588 (1995); and State v. Vallier, 2000 M T 225, 301 Mont. 228, 8 P.3d 112 .6

¶28 Morrisonc orrectlyp oints out that Ratzlaff

and Sullivan involved a different version of § 46 - 18 - 203, MCA, which stated, in relevant part, that the sentencing judge who had imposed the suspended sentence had the authority to revoke that suspension “during the p eriod of the suspended sentence .” In deciding Sullivan, this Courtwrongly relied on Ratzlaff

t o hold that by necessary implication a suspended sentence may be revoked bef

ore the defendant actually beginss erving probation. Sullivan , 197 Mont. at 400 - 01, 642 P.2d at 1010 - 11. ¶29 The same statutory language was at issue in Felix v. Mohler, 195 Mont. 3 91, 636 P.2d 830 (1981), which , however, presented a slightly different situation. In Felix , the petition was filed before the suspension ran out , but the hearing was not held during the period of suspension. Felix , 195 Mont. at 392, 636 P.2d at 831. In the case sub judice , the State argues that it was this case that prompted the Legislature to amend § 46 - 18 - 203, MCA, in 1 983. ¶30 For whatever reason, the Le gislature amended § 46 - 18 - 203, MCA, in 1983, and deleted the statutory requirement that the hearing

b e held during the period of the suspended sentence and , instead, inserted a new provision which required that the petition to revoke be filed

d uring the period of suspended sentence. Morrison ar gues that a plain reading of this current

s tatute requires that the petition be filed during the period of suspension . That is , o f course , p recisely what the statutory language mandates . Accordingly , M orrison contends that the former trilogy of case s— Ratzlaff, Sullivan and Mohler

—is no longer val id interpretational authority for the current version of the statute. He is correct.7

¶31 Furthermore, C hristofferson, a pro secasedecided in 1 995 long after § 46 - 18 - 203, MCA, had been amended, uncritically relied on Sullivan . Christofferson , 272 Mont. at 521, 901 P.2d at 589. A nd, in Vallier, the defendant , relying on Sullivan and Christofferson , c onc eded that the district court could revoke his suspended sentence before it actually began . Vallier, ¶ 9. The interpretational issue here was neither raised nor addressed in either case. Morrison does not make such a concession . I conclude that we decided Christofferson and Vallier wrongly, and I would overrule both decisions. ¶32 For the foregoing reasons I dissent. /S/ JAMES C. NELSON