No. 90-032 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCLARENCE CHAMPAGNE, - '73 CJ I - . 

_... - I

3 

I ! p3 Defendant and Appellant. o r. /. 

0 TV C cn 

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APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson, Thompson & Sessions, Billings, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Elizabeth L. 

Griffing, Asst. Atty. General, Helena, Montana 

Harold Hanser, County Attorney; Teresa O'Connor, 

Deputy County Attorney, Billings, Montana 

Filed: 

Submitted on Briefs: September 6, 1990 

Decided : October 23, 1990 

Clerk 
Justice John Conway Harrism delivered the Opinion of the Court. 

The District Court of the Thirteenth Judicial District, 

Yellowstone County, revoked defendant's suspended sentence to five 

years in the Montana State Prison. Defendant appeals this order. 

We affirm. 

The issue before this Court for review is whether the 

defendant was denied due process of the law. 

On December 29, 1988, Clarence Champagne, defendant, was 

charged by information with the offense of conspiracy as defined 

by 5 45-4-102, MCA. On May 9, 1989, Champagne entered a plea of 

guilty to the offense, and on June 27, 1989, he was sentenced to 

the Montana State Prison. The sentence was completely suspended 

on a special condition that he abide by the rules of the Intensive 

Supervision Program. 

On or about October 3, 1989, a Petition for Revocation of 

Suspended Sentence was filed. A hearing was set on the petition 

for October 17, 1989. On October 17, 1989, defendant appeared with 

counsel and admitted the truth of the allegations contained in the 

petition. Based on the evidence presented, the District Court 

found that the defendant violated the terms of his suspended 

sentence. The District Court set pronouncement of judgment for 

November 14, 1989. 

On November 14 1989, defendant appeared with counsel and, 

after hearing testimony, the District Court continued the 
sentencing until November 21, 1989. On November 21, 1989, the 

District Court revoked defendant's suspended sentence, and ordered 

him to serve a term of five years in the Montana State Prison. 

From this order revoking defendant's suspended sentence defendant 

now appeals. We affirm the District Court's revocation of 

defendant's suspended sentence. 

The facts are as follows: 

On the morning of December 25, 1988, defendant and two other 

men were involved in the robbery of a Kwik Way convenience store 

in Billings, Montana. Defendant was the driver of the car used by 

the three men and remained in the car during the robbery. 

Defendant was charged with, and plead guilty to, conspiracy. 

Prior to sentencing, the District Court reviewed defendant's 

presentence report which reflected a history of drug and alcohol 

abuse. The District Court then sentenced Champagne to a five year 

term in the Montana State Prison. The sentence was suspended on 

the usual conditions of probation. Under these conditions 

defendant was not to drink any intoxicating liquor or use any 

narcotic or dangerous drugs without a doctor's prescription and to 

conduct himself in a law abiding manner. In addition, defendant 

was to abide by the rules of the Intensive Supervision Program, 

which is an intensive out-patient program. Defendant was expressly 

told that any violation of the rules of the Intensive Supervision 

Program could result in the revocation of his suspended sentence. 

On October 4, 1989, a petition for revocation of the order 
suspending the sentence was filed with the District Court. A 

report from Randy Gowen, defendant's probation officer, was 

attached to the petition and outlined the reasons supporting 

revocation of the suspended sentence. In the report, the probation 

officer stated that in the late evening hours of September 16, 

1989, defendant assaulted his girlfriend outside of a SuperAmerica convenience store. Witnesses stated that he pulled her 

hair, twisted her arm and dragged her on the ground until defendant 

had her on the east side of the building, where he continued to 

punch and kick her while she lay on the ground. At that time 

defendant began stomping on her head and quit only when he heard 

the police approaching. 

On October 17, 1989, a hearing was held before the District 

Court on the revocation petition. At this hearing the defendant 

admitted to the truth of all the allegations contained in the 

petition. In particular, the defendant admitted that he did 

violate Intensive Supervision Rules Nos. 1, 9, and 14; and Court 

Rules Nos. 1 and 3. With respect to the above rules, the District 

Court found the defendant to have violated the following: 

Intensive Supervision Rule No. 1 in that defendant on 

September 16, 1989, was out of his residence without permission of 

his supervising officer. 

Intensive Supervision Rule No. 9 and Court Rule No. 1 in that 

the defendant indicated that on the evening of September 16, 1989, 

he had consumed a handful of pills and was drinking alcohol. 
Intensive Supervision Rule No. 14 and Court Rule No. 3 in that 

the defendant on September 16, 1989, violently attacked and 

assaulted his girlfriend beside a convenience store. Her injuries 

required that she be placed in the hospital overnight for 

observation. She received many cuts, scratches, contusions and 

hematomas as a result of the attack. 

Pronouncement of judgment was set for November 14, 1989. 

At the November 14 hearing, defendant again admitted the truth 

of the allegations contained in the petition. Defendant also 

testified that he had voluntarily tried to obtain treatment for his 

alcohol and drug abuse problems but was denied that opportunity by 

those in the Intensive supervision Program. The State called no 

witnesses. The District Court deferred the sentencing hearing for 

one week until November 21, 1989. 

At the commencement of the hearing on November 21, 1989, the 

District Court noted that defendant's probation officer, Mr. Gowen, 

had not testified at the November 14 hearing but was now present 

and could be called by the State as a witness. Over objection of 

defense counsel, Mr. Gowen was allowed to testify. 

Gowen testified that defendant had requested residential 

treatment but was denied residential treatment because he had 

already been through a number of residential treatment programs 

from which he had not ostensibly benefitted. Defendant himself 

verified that he had attended at least four residential treatment 

centers in the towns of Glasgow, Hazelton, Sheridan and Galen. 
After the November 21 hearing the District Court issued its 

written order revoking defendant's suspended sentence. 

Additional facts will be presented as necessary. 

The issue is whether defendant was denied due process of the 

law. 

Defendant claims that the District Court's decision to revoke 

his suspended sentence was based on improper ex parte communication 

between the probation officer and the District Court which occurred 

during the week the November 14 sentencing hearing was deferred. 

Defendant argues that this ex parte communication violated his 

rights to due process. At the November 21 sentencing hearing, Mr. 

Gowen was examined and testified regarding his communication with 

the District Court. 

Q. [By defense counsel] Is it fair to say 

that you and members of your office were 

disturbed that Mr. Champagne did not have his 

suspended sentence revoked last week? 

A. [By Mr. Gowen] Surprised. 

Q. It was your understanding that his 

suspended sentence had not been revoked; is 

that correct? 

A. I did not think he had his sentence 

revoked, but that the action was still 

pending, and that I was to come to court and 

give this version of the story. 

Q. Was that something you learned from what 

happened last Tuesday, or something you 

learned from discussing the matter with Judge 

Fillner between last Tuesday and now? 

A. I believe I discussed the case with you 

that very same day, and with other people in 

my office, then later with Judge Fillner. 
Q. And you and other members of your office 

have had ex parte communications with the 

Court with regard to this matter? 

A. Ex parte, meaning what? 

Q. Meaning by yourself. 

A. Just you and the Judge. I discussed it 

briefly with Judge Fillner. 

Q. Were counsel for either party present? 

A. No. I had talked to you early last week 

about the same matter and my feelings. 

Mr. Thompson: Nothing further. 

Our inquiry is whether the admitted ex parte communication 

between Gowen and the District Court was designed to I1influence 

judicial actionI1, thereby denying appellant due process. 

The record before us on review is wanting of objective 

evidence which establishes that Gowen1s private discussion with 

the District Court was "designed to influence1' the ~istrict Court's 

revocation of defendant's suspended sentence. ~uring cross exam, 

defense counsel had the opportunity to inquire of Gowen the 

specific details of Gowen1s ex parte communication with the 

District Judge, but did not do so. Such inquiry on crossexamination could have elicited what statements Gowen made to the 

District Judge, and the purpose Gowen had in making the ex parte 

communication. Rather, defense counsel only established that the 

communication between Gowen and the District Court was, in fact, 

private or ex parte. 

Because the record fails to disclose any material evidence 
that the ex parte communication of Gowen with the District Judge 

was intended to or did influence the court in revoking appellant's 

suspended sentence, we hold that defendant was not denied due 

process and affirm the District Court in revoking defendant's 

suspended sentence. 

Defendant next contends that the hearing on November 14 

resulted in a final order that denied revocation of the suspended 

sentence. Defendant further contends that the District Court 

cannot, at a later date, revise this final order based on ex parte 

communications. We find that defendant's characterization of the 

November 14 hearing is incorrect. 

On November 14, the District Court stated that it would give 

defendant 'lone more chance1' but then tempered this statement by 

deferring the revocation hearing until November 21. It appears 

from the record that the November 14 hearing was deferred so that 

the evidence and testimony presented could be reviewed together 

with testimony from Gowen regarding defendant's statement in court 

that he was prevented by his supervising officer from attending a 

mental health center. 

Indeed, on November 21, Gowen's testimony was allowed solely 

to rebut defendant's earlier testimony that defendant was denied 

voluntary residential treatment by those at the ~ntensive 

Supervision Program. We further find that no order was signed at 

the conclusion of the November 14, 1989 hearing. One week 

intervened while this hearing to revoke the suspended sentence was 
deferred. At the close of the November 21, 1989 hearing, the 

District Court signed a final order revoking the suspended 

sentence. This order was based on substantial evidence contained 

in the record on appeal. We find that the record on appeal is 

replete with substantial evidence to support the revocation of the 

suspended sentence. We hold that the District Court did not deny 

defendant his right to due process by revoking his five year 

suspended sentence. The District Court's order is affirmed. 

pL L~~L

Justi e 

Justices 

Justice Diane G. Barz did not participate. 
Justice John C. Sheehy, concurring: 

The record fails to show what influence, if any, the ex parte 

communication before the November 21 hearing of Gowan had on the 

district judge. For that reason, I agree with the Opinion. 

I suppose in this work-a-day world of handling and sentencing 

convicted criminals, out-of-court contacts between judges and their 

probation officers are bound to occur. When the appearance arises, 

as in this case, that such a contact occurred which may have swayed 

the Court to change its mind, the gloss of fairness in the system, 

as perceived by the defendant, dissipates. I suggest to all of the 

judiciary that pre-sentence reports in writing, with access thereto 

for all counsel, without oral amplification except in open court, 

is by far the better way to proceed.