DA 16-0357

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 283

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JAMIE MICHELLE KOON,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. ADC 2007-08

Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad M. Wright, Chief Appellate Defender, James Reavis, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant

Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Lisa Leckie, Deputy

County Attorney, Helena, Montana

Submitted on Briefs: September 27, 2017

 Decided: November 20, 2017

Filed:

__________________________________________

Clerk

11/20/2017

Case Number: DA 16-0357
2

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Jamie Michelle Koon appeals from the District Court’s Order on Defendant’s 

Motion to Dismiss dated April 9, 2015. We affirm and remand for correction of the 

sentence.

¶2 We restate the issues on appeal as follows:

Issue One: Whether the District Court erred in dismissing Koon’s motion to 

dismiss the petition to revoke her suspended sentence on the ground that there had 

been a four-year delay in executing the arrest warrant.

Issue Two: Whether the District Court’s written judgment should be amended to 

conform to the oral pronouncement of sentence.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On February 21, 2007, Koon pleaded guilty to felony issuing a bad check in 

violation of §§ 45-6-316 and 45-2-101, MCA. The District Court in Lewis and Clark 

County sentenced her to four years in prison with all but thirty days suspended. That 

sentence was to run consecutively to a sentence Koon was then serving in Colorado, and 

was subject to conditions including supervision by the Montana Department of 

Corrections and payment of restitution. She was extradited to Colorado.

¶4 On April 13, 2009, the State filed a petition to revoke Koon’s suspended sentence. 

A supporting affidavit from a probation officer stated that Koon had discharged her 

Colorado sentence on October 16, 2008, but had not communicated with her supervising 

probation officer in Montana. Koon’s whereabouts were unknown to Montana 
3

authorities, and on April 14, 2009, the District Court issued a “Montana only” warrant for 

her arrest.1

¶5 Koon was convicted of another offense in Colorado in 2009 and spent the next 

four years dealing with her new sentence there, being paroled and revoked several times. 

In June 2009 Koon wrote a letter to the Clerk of the District Court in Lewis and Clark 

County asking to be returned to Montana to serve her 2007 sentence. Nothing occurred 

as a result of that letter, and Koon discharged her Colorado sentences on April 12, 2013. 

¶6 Koon returned to Montana at some point and on November 11, 2013, was stopped 

for a traffic violation in Fort Benton. She was arrested on the April 2009 “Montana only” 

warrant. On November 14, 2013, Koon appeared on the April 2009 petition to revoke her 

Montana 2007 suspended sentence. She was released on her own recognizance and 

ordered to report to her probation officer.

¶7 Koon moved to dismiss the petition to revoke the 2007 suspended sentence, 

contending that the State failed to bring her to court without unnecessary delay in 

violation of her right to due process.

¶8 The District Court denied Koon’s motion to dismiss, holding that the requirement 

of § 46-18-203(4), MCA, that an arrested offender must be brought before a judge 

“without unnecessary delay” applies to the offender’s initial appearance after arrest, 

citing State v. Edmundson, 2014 MT 12, 373 Mont. 338, 317 P.3d 169. The District 

Court determined that Koon’s appearance in court within three days of her November 

 

1 A “Montana only” warrant is a case management tool that allows prosecutors and law 

enforcement administrators to limit the geographical area where a warrant should be served. It 

provides notice that extradition from another state will not be sought.
4

2013 arrest satisfied the statute. The District Court further concluded that there is no 

statutory requirement that an arrest warrant be served without unnecessary delay on an 

offender who is incarcerated in another state.

¶9 Koon also argued that issuing a “Montana only” arrest warrant while she was 

incarcerated in Colorado violated her due process rights. She contended that after she 

served her Colorado sentence she could no longer ask the Montana court to set her 

sentence in this State to run concurrently with her sentence in Colorado. In addition, she 

alleged that she had a “failing memory,” making it difficult for her to recall past events. 

The District Court applied State v. West, 2008 MT 338, 346 Mont. 244, 194 P.3d 683 to 

determine whether there was a violation of due process. As provided in West, the District 

Court examined the “totality of the circumstances.” 

¶10 The court considered the four-year time between the 2009 arrest warrant and 

Koon’s arrest in 2013; the fact that her location was unknown when the warrant was 

issued; and the fact that Koon was subsequently arrested and incarcerated in Colorado 

under a sentence that was not discharged until 2013.

¶11 The District Court determined that the extradition statutes do not impose a duty on 

a state to seek the return of a prisoner from another state for purposes of a revocation 

proceeding. The District Court determined that Koon had “no right to demand a hearing 

or extradition to Montana” and that her 2009 letter to the Clerk of the Court “triggered no 

requirement” that she be extradited. The court determined that even if Koon had been 

returned to Montana during her period of incarceration or supervision in Colorado, she 

had no right to receive a concurrent sentence to whatever sentence she was serving in 
5

Colorado. In addition, her original 2007 Montana sentence was specifically consecutive

to her Colorado sentences, materially decreasing the likelihood that she would have 

received a concurrent sentence in any event. In light of all these factors, the District 

Court determined that Koon had not suffered a deprivation of due process. 

¶12 The District Court ultimately held a hearing upon the petition to revoke Koon’s 

2007 suspended sentence and determined that she had violated the terms of the sentence. 

The District Court nevertheless sentenced her to the same term of three years, and 

suspended the entire term. 

¶13 Koon appeals.

STANDARD OF REVIEW

¶14 This Court exercises plenary review of issues of constitutional law. West, ¶ 13. 

This Court reviews a district court’s imposition of a criminal sentence for legality only. 

State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717. This Court reviews a 

district court’s interpretation of a statute as an issue of law, to determine whether the 

interpretation is correct. West, ¶ 13. 

DISCUSSION

¶15 Issue One: Whether the District Court erred in dismissing Koon’s motion to 

dismiss the petition to revoke her suspended sentence on the ground that there had 

been a four-year delay in executing the arrest warrant.

¶16 In 2008 this Court established that “execution of a probation violation warrant 

without unreasonable delay is one of the due process protections afforded defendants,” 

based upon the due process guarantee of Article II, Section 17 of the Montana 

Constitution. West, ¶ 27. The concept of due process does not have a static definition, 
6

but generally expresses a requirement of fundamental fairness. State v. Graves, 2015 MT 

262, ¶ 21, 381 Mont. 37, 355 P.3d 769; Edmundson, ¶ 17. A probation revocation 

proceeding is civil, and the offender is not entitled to the full range of constitutional 

protections available to a person first charged with a crime. Edmundson, ¶ 16. Probation 

revocation deprives an individual not of absolute liberty, but only of the “conditional 

liberty” that depends upon adherence to established parole restrictions. West, ¶ 36. A

charged defendant’s rights to a speedy trial do not apply in the context of a probation 

revocation. Edmundson, ¶ 16. 

¶17 Assessing the due process implications of a particular revocation proceeding 

requires a flexible approach that provides the procedural protections that the particular 

case demands. West, ¶ 32. Due process is “ultimately measured by the fundamental 

fairness of the proceeding,” Edmundson, ¶ 17, and requires “an appraisal of the totality of 

the facts in a given case.” West, ¶ 32. The reviewing court should consider the delay in 

serving the warrant; the State’s diligence; the reasons for the delay; the conduct of the 

probationer; whether the State knows the location of the probationer; and any actual 

prejudice that resulted. This list is not exclusive. West, ¶ 34. 

¶18 The Dissent opines that “any straight-up application of the West factors to the 

undisputed facts of this case does not bode well for the State.” Dissent, ¶ 35. However, 

the West opinion clearly emphasizes the “flexible” nature of the due process analysis in 

revocation proceedings, appraising the “totality of facts in a given case.” West, ¶ 32. 

Quoting the United States Supreme Court, “That which may, in one setting constitute a 

denial of fundamental fairness . . . may, in other circumstances and in light of other 
7

considerations fall short of such denial.” West, ¶ 32 (citing County of Sacramento v. 

Lewis, 523 U.S. 833, 850, 118 S. Ct. 1708, 1719 (1998)). 

¶19 It is established that the time between issuance and execution of an arrest warrant 

for a probation violation is but one factor for consideration and is “not alone dispositive.” 

West, ¶ 34. In West, for example, this Court held that a twenty-six-month delay in 

executing a probation violation warrant, during which the defendant was in State custody, 

did not amount to a “per se due process violation.” West, ¶ 33. The District Court in this 

case properly applied West, considering the totality of the circumstances, to determine 

that Koon suffered no violation of due process. The District Court considered the 

four-year lapse between issuance and execution of the warrant; the fact that Koon was 

serving a sentence for offenses in Colorado for most of that time; and that securing 

Koon’s presence for executing the warrant would require initiation of an extradition 

proceeding. 

¶20 The conduct of the probationer is also an important factor in the resolution of this 

case. Koon notes that while in custody in Colorado she wrote a letter to the Clerk of the 

Court in Lewis and Clark County expressing a desire to return to Montana to deal with 

the revocation warrant. However, it is difficult to determine how she was prejudiced 

upon review of these facts. When she finally discharged her Colorado sentence and 

returned to Montana in 2013, she did not seek a resolution of her situation. While 

obviously aware that the warrant had been issued, she did not notify her probation officer 

that she had returned as the conditions of her prior sentence required. Thus, her presence 

in Montana and the outstanding warrant for her arrest came to light only after she was 
8

stopped for a traffic offense. Koon’s conduct indicates a desire to evade service of the 

warrant and an intent to avoid the requirements of her probation. West, ¶ 34. 

¶21 While Koon argues that she was prejudiced by not being able to argue that her 

Montana-revoked probation should be served concurrently with her Colorado sentence, 

her original Montana sentence was specifically imposed as consecutive to the Colorado 

sentence. Koon has not demonstrated any likelihood that she would have received a 

concurrent sentence upon revocation in Montana, and she had no statutory entitlement to 

a concurrent sentence. Section 46-18-401, MCA. We also decline to ascribe any 

material prejudice to Koon’s unsupported suggestion that she could forget the facts of 

past events.

¶22 We affirm the District Court’s decision to deny Koon’s motion to dismiss the 

revocation petition.

¶23 Issue Two: Whether the District Court’s written judgment should be amended to 

conform to the oral pronouncement of sentence.

¶24 Koon contends that during sentencing the District Court stated that probation 

supervision fees would be waived because of her inability to pay. The State concedes 

that the final written disposition failed to reflect the waiver of supervision fees and should 

be corrected. The written disposition must conform to the pronouncement of the sentence 

in open court. Kroll, ¶ 15. 

¶25 Therefore, we remand to the District Court so that the final disposition of Koon’s 

sentence may be amended to waive supervision fees. 
9

CONCLUSION

¶26 The District Court is affirmed. This matter is remanded for correction of the final 

disposition to reflect that Koon is not required to pay supervision fees for probation.

/S/ MIKE McGRATH

We Concur: 

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

Justice Laurie McKinnon, concurring. 

¶27 These proceedings are controlled by our decision in West. In my opinion, 

however, West fails to adequately account for the obligations and responsibilities of a 

probationer; particularly, the requirement fundamental to conditional release that a 

probationer report to his or her probation officer. Probation is a “conditional privilege 

previously granted by the State as a matter of grace.” State v. Maynard, 2010 MT 115, 

¶ 28, 356 Mont. 333, 233 P.3d 331, quoting State v. Haagenson, 2010 MT 95, ¶ 17, 356 

Mont. 177, 232 P.3d 367. 

¶28 In West, the record established the defendant had been incarcerated and under 

State supervision during the entire period of time the arrest warrant remained 

outstanding. West, ¶ 7. Likely as a consequence, the Court’s enumeration of “factors” to 
10

be considered in assessing “unreasonable delay” focused on the State’s reasons for not 

bringing a probationer to court when the probationer was being held under state authority

and unable to report. West, ¶¶ 34-35. Implicit to the West analysis was the fact that West 

was unable to comply with conditions of probation due to his incarceration in another 

Montana detention facility, thus implicating due process and fairness considerations and a 

demand that the State justify its actions. Arguably, West was not conditionally released

when he was incarcerated during the time the warrant remained outstanding. 

¶29 In contrast, when a probationer is released, even intermittently, and does not report 

and abide by the rules of probation, the State’s issuance of a probation-violation warrant 

should not shift the inquiry away from the probationer’s underlying obligation to report. 

To place the burden on the State to justify its failure to execute the arrest warrant not only 

distorts the fundamental nature and purpose of probation, but also relieves the 

probationer of her obligation to report. In my opinion, a straightforward application of 

the West factors, as the Dissent urges, fails to account for the circumstances present 

here—where there were intermittent periods while Koon was on parole and after she had 

completed her Colorado sentence when she could have addressed her reporting 

obligations, but nonetheless chose to disregard those obligations. 

¶30 Although this Court stated in West that the prohibition against unreasonable delay 

“contemplates a case-by-case analysis, not hard-and-fast rules” the Court set forth 

“several factors,” precisely six, which “must [be] consider[ed] in making a determination 

of reasonableness.” West, ¶¶ 33-34 (quotation omitted and emphasis added). Focusing 

on the State’s actions, the West factors are: (1) the length of delay between the State’s 
11

issuance and execution of the warrant; (2) the State’s diligence in attempting to serve the 

warrant; (3) the reasons for the State’s delay in executing the warrant; (4) the conduct of 

the probationer in frustrating the State’s actions to execute the warrant; (5) whether the 

State knew of the probationer’s whereabouts; and (6) any prejudice to the probationer 

caused by the State’s delay in executing the warrant. West, ¶ 34. In my opinion, West is 

inadequate to address the present circumstances. Here, the focus should not be on the 

State’s actions where Koon had opportunities to report, was required by her conditions of 

probation to report, and failed to report. West falls short in its analysis by focusing the 

inquiry on the State’s actions, giving little regard to the underlying nature of a revocation 

proceeding and the fundamental requirement of the probationer’s obligation to report.

¶31 Pursuant to West, the risk of having a revocation proceeding dismissed for failing 

to timely execute an arrest warrant falls entirely on the State regardless of whether the 

probationer, who in the first instance has the obligation to report, was able to report. 

Here, Koon failed to report when she discharged her Colorado sentence in April 2013 and 

thereafter relocated to Montana. Koon, on numerous occasions, failed to keep her 

probation officer informed of her whereabouts. Koon was also released on parole 

intermittently and failed to report. The inquiry pursuant to West remains focused only on 

the State’s actions, without due consideration of the probationary context of the 

proceedings and the probationer’s obligation to report. The failure of a probationer to 

report when able to do so nowhere informs the West inquiry or is otherwise set forth as a 

factor to be considered. 
12

¶32 It is well-established that a probationer has a due process guarantee protected by 

Article II, Section 17 of the Montana Constitution, which ensures that the execution of a 

probation-violation warrant occurs without unreasonable delay. West, ¶¶ 26-27. Despite 

its acknowledgment that due process is a “flexible” concept, West, ¶ 33, I am concerned 

that West has distorted the nature of a revocation proceeding and the State’s obligations. 

In the context of a probationer who had the ability to report but chose not to do so, West’s 

six-factor test is inadequate to address the question of whether there has been 

“unreasonable delay” in executing a warrant. While the West factors may inform the 

inquiry when a probationer is incarcerated for the entire period the warrant remains 

outstanding, West fails to adequately articulate considerations which pertain to the 

underlying nature of a revocation proceeding and which also consider the probationer’s 

obligation to report. 

¶33 I would revisit West and its underlying analysis. I otherwise concur in the result 

reached by the Court.

/S/ LAURIE McKINNON

Justice Dirk M. Sandefur, dissenting. 

¶34 I dissent. In 2008, for better or worse, in the manifest absence of any recognized 

uniform criteria for objective assessment of the demands of constitutional due process in 

the face of the State’s lack of diligence in the execution of arrest warrants issued on 

probation violations, this Court extended and built on the United States Supreme Court’s 
13

traditional four-factor Sixth Amendment speedy trial test from Barker v. Wingo, 407 U.S. 

514, 530, 92 S. Ct. 2182, 2192 (1972) (the length of delay, the reason for delay, the 

defendant’s actual desire for speedy trial, and resulting prejudice to defendant), to craft a 

new, six-factor Montana Constitutional due process analog for assessing unreasonable 

State delay in executing on probation violation warrants. State v. West, 2008 MT 338, 

¶¶ 22-36, 346 Mont. 244, 194 P.3d 683 (adopting a six-factor totality of the 

circumstances balancing test: length of delay, State diligence in attempting to arrest 

defendant, whether defendant impeded arrest, whether defendant’s whereabouts were 

known or readily ascertainable to State, reasons for State delay, and degree of resulting 

prejudice to defendant). The Court jumped onto this slippery slope despite its express 

recognition that the fundamental right to a speedy trial, guaranteed by the United States 

and Montana Constitutions, does not apply to probation revocation proceedings. 

¶35 Any straight up application of the West factors to the undisputed facts of this case 

does not bode well for the State. Three of them—the length of the delay, the State’s 

diligence in executing on the warrant, and whether the defendant’s whereabouts 

were known or reasonably ascertainable—all weigh heavily against the State. Two of 

them—resulting prejudice and defendant impedance of State efforts—weigh moderately 

against the State. Only one of them—the reason for the State delay—weighs moderately 

in the State’s favor. 

¶36 Four years and seven months—1,672 days—passed before the State arrested the 

defendant. The State, not the issuing court, unilaterally deemed the warrant a “Montana 

only” warrant. At all times pertinent, the State was well aware, or reasonably should 
14

have been on any diligent effort, of the defendant’s whereabouts. When it filed its 

probation revocation petition and obtained an arrest warrant, the State was aware that the 

defendant was then in Colorado under the preeminent supervision of the State of 

Colorado as the State expressly based its revocation petition on the defendant’s failure to 

timely report to her Colorado probation officer. A week later, the State became aware 

that the defendant was in the custody of the State of Colorado where she thereafter 

remained in continuous Colorado custody or supervision until April 2013. 

¶37 When the State wants to treat a Montana case as a serious matter, it does not put a 

Montana arrest warrant into the national or interstate criminal justice information 

databases and then declare the warrant to other jurisdictions as “Montana only.” This 

practice merely subjects the defendant and other jurisdictions to a costly, burdensome, 

and recurring catch-and-release exercise. Rather, it puts an unrestricted Montana warrant 

into the criminal justice information system and, upon notification of an arrest of a 

Montana fugitive in another jurisdiction, immediately places an interstate detainer on the 

fugitive forcing the other state to “hold” the defendant for extradition back to Montana 

upon the conclusion of proceedings in that state. The State did neither here. Why? 

Because it did not view the case as important enough to pay for the cost of transporting 

the defendant back to Montana. 

¶38 Compounding matters for purposes of the West analysis, Koon, by formal 

Montana court filing while in Colorado custody in June 2009, affirmatively requested 

that Montana place an interstate detainer on her for the purpose of facilitating her 

extradition back to Montana to promptly resolve this matter upon conclusion of her 
15

Colorado incarceration. Despite awareness of the request, Montana prosecutorial and 

probation officials simply ignored Koon’s request and allowed the “Montana only” 

warrant to continue to pend without further action or attention. Three years later, while 

still on probation in Colorado, Koon called the Montana prosecutor’s office, expressed 

her desire to return to Montana, and requested information and assistance from Montana 

officials in getting Colorado and Montana to approve an interstate transfer that would 

allow Montana officials to supervise the balance of her Colorado probation in Montana in 

conjunction with her concurrent Montana probation, thereby allowing Koon to 

voluntarily return to Montana at no cost to the State to resolve this matter. In a 

classically ridiculous, bureaucratic Catch-22, which neither the State nor the Court make 

any attempt to defend, Colorado refused to approve an interstate transfer due to the 

pendency of the Montana warrant, a warrant that was neither important enough for 

Montana to extradite on or to quash to allow the defendant to return at her expense to 

resolve this matter. Why? Because the State did not have to and did not care enough 

about the case to do so. After fully discharging her Colorado probation, Koon returned to 

Montana, enrolled her children in high school in Great Falls, obtained gainful 

employment, and was working two jobs at the same time to make ends meet when she 

was stopped for a traffic offense and arrested and jailed on the almost five-year-old 

Montana warrant. 

¶39 As to the West prejudice factor, Koon made no showing that she suffered any 

prejudice to the evidentiary merits of her case as a result of the almost five-year delay. 

However, it is undisputed that the State arrested and jailed her on an almost five-year-old 
16

warrant issued not on any new criminal conduct but, rather, issued merely on a by then 

long-resolved failure to timely report to her Colorado probation officer. Given its 

manifest disregard for this case until Koon literally fell into the State’s net after almost 

five years, it is disingenuous at best for the State to now assert that it had any compelling 

law enforcement interest in this case sufficient to offset the inherently prejudicial nature 

of Koon’s arrest, incarceration, related loss of employment, and family disruption. While 

Koon is at least partially responsible for this prejudice due to her failure to surrender to 

authorities on her return to Montana, the primary focus of the West test is on the 

reasonableness and effect of the State’s efforts to arrest a probation violator. Even on 

balance with Koon’s failure to surrender herself after returning to Montana, the State’s 

utter disregard for this case significantly undercuts any assertion that its usually 

compelling interest in law enforcement justifies the inherent prejudicial nature of Koon’s 

arrest, incarceration, associated loss of employment, and family disruption in a case the 

State could not care less about. Under these extraordinary circumstances, the West

prejudice factor weighs moderately against the State. 

¶40 West next focuses on whether and to what extent, if any, the defendant impeded 

the State’s efforts to arrest her. Again, while Koon is certainly responsible for failing to 

surrender to authorities on returning to Montana, any assertion that she impeded the 

State’s non-existent efforts to arrest her is ridiculous. The inconvenient fact is that the 

State made absolutely no effort to arrest Koon before she fortuitously fell into its hands 

on an unrelated traffic stop. Even liberally construed in the State’s favor, the West

warrant-impedance factor at best balances evenly between the State and the defendant. 
17

¶41 The only West factor that even remotely weighs in favor of the State is the reason 

for the delay. The State’s only justification for its utter disregard for Koon’s fundamental 

liberty interest, and concomitant due process right to be free from infringement thereof 

except pursuant to a fundamentally fair process of law, is the approximate $1,800 cost of 

extraditing her back to Montana from Colorado. Though a valid reason as far as it goes, 

it is highly doubtful that a single member of Montana’s judicial, prosecutorial, law 

enforcement, gubernatorial, or legislative communities would, if at all candid, find an 

$1,800 savings to be a compelling justification for the arrest and jailing of any one of 

them or a family member under similar circumstances. While not particularly compelling 

under the totality of the circumstances, the West reason-for-delay factor must nonetheless 

still weigh moderately in favor of the State. Regardless of the fact that due process is 

flexible and that no single factor is dispositive, the West criteria clearly balance out 

against the State, thus necessitating a finding of unreasonable delay in arresting Koon 

under the totality of the circumstances. 

¶42 The State does not challenge on appeal the continued validity of the West test. 

The Court’s opinion is conspicuously void of any particularized consideration and careful 

balancing of all of the West factors. The Court instead narrowly focuses on the District 

Court’s obviously correct—but not due-process-dispositive—conclusions of law that 

fugitives have no right to be extradited, the State has no duty to extradite fugitives, and 

that the defendant had no right to a concurrent dispositional sentence on her revocation 

even if promptly arrested. Merely noting that due process is flexible, recognizing that no 

single West factor is dispositive, and then focusing solely on considerations favorable to 
18

the State is hardly the type of careful balancing demanded by West and other balancing 

tests adopted by this Court. If we are of the view that our adoption of the West test was 

either improvident from the outset or has not proven out on experience, then we should 

straight up say so and discard it. If not, we should require the same particularized 

elemental consideration and careful balancing under the totality of the circumstances that 

West demands and then let the chips fall where they may regardless of whether we like 

the result in a particular case. I dissent. 

/S/ DIRK M. SANDEFUR

Justice Jim Rice joins in the dissenting Opinion of Justice Sandefur. 

/S/ JIM RICE