DA 08-0349

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 276

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ADAM LeDEAU, JR.

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Custer, Cause No. DC 02-47

Honorable Gary L. Day, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Tammy Hinderman, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant

Attorney General, Helena, Montana

Submitted on Briefs: March 18, 2009

Decided: August 18, 2009

Filed:

__________________________________________

Clerk

Justice John Warner delivered the Opinion of the Court.

August 18 2009
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¶1 Adam LeDeau pled guilty to sexual assault in the Sixteenth Judicial District Court,

Custer County. He was sentenced to the Department ofCorrectionsfor 15 years with all but

five years suspended. LeDeau wasreleased on parole a few months before he discharged the

unsuspended portion of hissentence. Shortly after hisrelease, LeDeau admitted to violating

the conditions of his parole and it was revoked.

¶2 The District Court also revoked the suspended portion of LeDeau’s sentence and then 

committed him to the custody of the Department of Corrections for ten years with five years 

suspended. LeDeau appeals raising the following two issues:

¶3 1. Was LeDeau’s constitutional right to be free from double jeopardy violated when

his parole and his suspended sentence were revoked based on the same conduct?

¶4 2. Did the District Court exceed its statutory authority when it revoked LeDeau’s

suspended sentence before he started serving the suspended portion of his sentence?

BACKGROUND

¶5 In early 2004, LeDeau pled guilty to sexual assault in violation of §§ 45-5-502(1) and

-502(3), MCA. The District Court sentenced him to the Department of Corrections for 15

years with all but five suspended.

1

 LeDeau was released on parole October 30, 2007. While 

on parole, LeDeau was fired from his job and failed to inform his parole officer, failed to 

inform the Yellowstone County Sheriff’s Department of his employment change, had 

unapproved contact with his 17-year-old daughter, began living with his girlfriend and 
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allowed histhen 18-year-old daughter to stay with himperiodically, and wassuspended from

sex offender treatment.

¶6 LeDeau’s parole officer filed a report of violation with the Board of Pardons and

Parole in December 2007. LeDeau admitted to the alleged violations. The parole board

revoked his parole in January 2008. He was sent to WarmSpringsto serve the remainder of

the unsuspended portion of his sentence, which would discharge in March 2008.

¶7 In February 2008, before he began serving the suspended portion of hissentence, the

State petitioned to revoke LeDeau’s suspended sentence alleging the same violationsused to

revoke his parole.

¶8 LeDeau denied the alleged violations of his suspended sentence. On the day of the

hearing, LeDeau filed a motion to dismiss the petition. He argued his suspended sentence

could not be revoked before he had begun serving it, that revocation was barred by collateral

estoppel and the doctrine ofseparation of powers, and that hisright to effective assistance of

counsel had been violated when he previously admitted the alleged violations becausehedid

not have counsel during the parole revocation proceedings. The motion was briefed. The

District Court denied the motion to dismiss.

¶9 The District Court based its determination that LeDeau had violated the terms of his

suspended sentence, in part, on his previous admission ofthe alleged violations. TheDistrict

1 While it is difficult to tell from the District Court Judgment, it is assumed LeDeau was initially

sentenced to the Department of Corrections to be imprisoned. This ambiguity is not raised as an

issue on appeal.
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Court sentenced LeDeau to the Department ofCorrectionsfor ten years with five suspended,

with a strong recommendation that he be placed in a pre-release program

.2

STANDARDS OF REVIEW

¶10 We exercise plenary review over questions of constitutional law, including those

related to double jeopardy claims. State v. Martinez, 2008 MT 233, ¶ 16, 344 Mont. 394,

188 P.3d 1034 (citing State v. Smith, 2000 MT 57, ¶ 13, 299 Mont. 6, 997 P.2d 768). This

Court may review claimed errors implicating a criminal defendant’s fundamental

constitutional rights, even if no contemporaneous objection is made, when failure to do so

may result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of

the proceedings, or compromise the integrity of the judicial process. State v. Taylor, 2009

MT 161, ¶ 11, 350 Mont. 447, 208 P.3d 422.

¶11 The issue of whether a district court has acted within its statutory authority in

revoking a suspended sentence presents a question of law over which we exercise plenary

review. Martinez, ¶ 16 (citing State v. Van Haele, 2005 MT 153, ¶ 22, 327 Mont. 400, 114

P.3d 225). When we review a district court’s decision under this standard, we inquire

whether its conclusions of law are correct. Martinez, ¶ 16 (citing State v. Anderson, 2008

MT 116, ¶ 18, 342 Mont. 485, 182 P.3d 80).

DISCUSSION

2 The District Court Judgment does not state whether LeDeau is committed to the Department of

Corrections for placement in an appropriate facility or program or sentenced to Montana State
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¶12 Issue 1: Was LeDeau’s constitutional right to be free from double jeopardy violated 

when his parole and his suspended sentence were revoked based on the same conduct?

¶13 LeDeau argues, for the first time on appeal, that revoking both his parole and his

suspended sentence based on the same conduct subjected him to double jeopardy.

¶14 Generally, thisCourt will not hear issuesraised for the first time on appeal. However,

we may invoke plain error review when constitutional rights are at issue. In re J.D.L., 2008

MT 445, ¶ 6, 348 Mont. 1, 199 P.3d 805. We invoke plain error review sparingly and on a

case by case basis. State v. Lacey, 2009 MT 62, ¶ 74, 349 Mont. 371, 204 P.3d 1192 (citing

State v. English, 2006 MT 177, ¶ 66, 333 Mont. 23, 140 P.3d 454).

¶15 Parole is a privilege and not a right. The state may offer parole subject to such

conditions asit considers most conducive to accomplish the desired purpose. McDermott v.

McDonald, 2001 MT 89, ¶ 19, 305 Mont. 166, 24 P.3d 200. If the parole board determines

that parole conditions are not met, the board has the authority to revoke the parole. Section

46-23-1023, MCA. Revocation of parole does not constitute punishment for purposes of

double jeopardy. See Christofferson v. State, 272 Mont. 518, 520-21, 901 P.2d 588, 589

(1995) (finding district court did not err in denying petition for post-conviction relief, which

stemmed from revocation of parole and probation).

¶16 A suspended sentence may be imposed by a judge. Section 46-18-201(2), MCA. The

suspended portion ofthe sentence may be made subject to conditions. Section 46-18-201(4),

MCA. Upon a showing of probable cause that the offender has violated any condition of a

Prison. As with the initial judgment, this ambiguity is not raised as an issue on appeal.
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suspended sentence, the sentencing court may revoke the suspended sentence. Section 46-

18-203, MCA.

¶17 A revocation proceeding is not a criminal adjudication, does not require proof of a

criminal offense, does not impose punishment for any new offense, and is an act in the

performance ofthe duty ofsupervision of an offender. Double Jeopardy is not applicable to

revocation ofsuspended sentences. State v. Oppelt, 184 Mont. 48, 53-54, 601 P.2d 394, 398

(1978) (citing State v. Eckley, 579 P.2d 291, 293 (Or. App. 1978)); State v. Brister, 2002MT

13, ¶ 24, 308 Mont. 154, 41 P.3d 314; State v. Lange, 237 Mont. 486, 489, 775 P.2d 213,215

(1989); State v. Walker, ¶ 12, 2001 MT 170, 306 Mont. 159, 30 P.3d 1099.

¶18 Not conducting a complete review of LeDeau’s claimthat he wassubjected to double

jeopardy will not result in a manifest miscarriage of justice, leave unsettled the fundamental

fairness of the proceedings, or compromise the integrity ofthe judicial process. We decline

to further consider LeDeau’s double jeopardy claim.

¶19 Issue 2: Did the District Court exceed its statutory authority when it revoked

LeDeau’s suspended sentence before he started serving the suspended portion of his

sentence?

¶20 LeDeau contendsthe District Court lacked statutory authority to revokehissuspended

sentence before he began serving it because § 46-18-203(2), MCA, providesthat apetition to

revoke may be filed “during the period of suspension or deferral.”

¶21 In interpreting § 46-18-203(2), MCA, we have held that a District Court has the

statutory authority to revoke a suspended sentence before the defendant actually begins
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serving the suspended sentence. State v. Morrison, 2008 MT 16, ¶ 17, 341 Mont. 147, 176

P.3d 1027 (upholding State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982)); Matter of

Ratzlaff, 172 Mont. 439, 564 P.2d 1312 (1977). Since thisCourt’sinterpretation ofthe effect

of § 46-18-203(2), MCA, has been in existence for over 30 years, and the legislature is

presumed to know how the Court has interpreted its statutes, we presume the legislature

approves of our interpretation of the statute to the effect that a district court may revoke a

suspended sentence before a defendant begins serving it. State v. Kirkbride, 2008 MT 178,

¶ 21, 343 Mont. 409, 185 P.3d 340; Sampson v. Natl. Farmers Union Prop. & Cas. Co.,

2006 MT 241, ¶ 20, 333 Mont. 541, 144 P.3d 797.

¶22 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ MIKE McGRATH

/S/ BRIAN MORRIS

/S/ JIM RICE

Justice Jim Nelson concurs and dissents.

¶23 I concur as to Issue 1 since the issue is being raised for the first time on appeal; I,

likewise, would not engage in discretionary plain-error review. I dissent from the Court’s

decision on Issue 2 for the same reasons I dissented in State v. Morrison, 2008 MT 16, ¶¶ 20-

32, 341 Mont. 147, 176 P.3d 1027 (Nelson, J., dissenting).

¶24 I concur and dissent.
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/S/ JAMES C. NELSON