DA 18

- 0619



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 20 MT 208N

ST ATE OF MONTANA,

Plaintiff and Appellee,
v. MICHAEL PAUL FURBUSH,

Defendant and Appellant.

APPEAL FROM: Di strict Court of the Twentieth Judicial District,

In and For the County

of Lake, Cause No. DC 16

- 408 Honorable Deborah K im Christopher, Presiding Judge
COUNSEL OF RECORD:

For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana For Appellee : Timothy C. Fox, Montana Attorney General , Brad Fjeldheim, Assistant At torney General , Helena, Montana Steven Eschenbacher, Lake County At torney, Pol son, Montana

Submitted on Briefs: July 29, 2020

Decided: August 18, 2020 Filed:

__________________________________________ Clerk 

# r--6ta•--df 08/18/2020

Case Number: DA 18-06192

Justice Ingrid Gustafson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in th is Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant, Michael Paul Furbush (Furbush), appeals the August 2 3, 2018 order of the Twentieth Judicial District Court , La ke County, denying his motion to withdraw his guilty plea and the District Court’s Judgment of September 13, 2018 , revo kin g his suspended sentence. We affirm. ¶3 Furbush entered into a written Ac knowledgment of Rights and Plea Agreement in which he agreed to plead guilty. On November 16, 2017 , during the change of plea hearing, Furbush plead ed guilty to felony theft 1 and the District Court accepted his guilty plea

. 2 On February 8, 2018 , Furbu sh was sentenced to a 5
- year Department of Corrections (DOC)

1 Atthe plea change hearing the fo llo wing exchange occurred between Furbush and his counsel: [DEFENSE COUNSEL ]: Is ittrue that on or about February 1 and February 9 th , 2016, in Lake Count y, M ontana, yo u purposely or knowingly obtained or exerted unauthorized control

over property

that belonged to Richard Krogstad that had the value of more than $1500? [THE DEFENDA

NT]: Yes
2 The District Court pronounced at the hearing: “I accept the defendant’s plea of guilt y and find [Furbush] guilt y of

t heft, a fe lo ny.” Upon thi s pronouncement fro m the District Court, Furbush did not obj ect or do anything to advise the court he did not plead guilt y, but rather had entered a no co nt e st plea. Further, Furbush did not raise the issue at sentencing and fo llo wing is suance of the court’s wri

tten judgment , which specifically s tated Furbush was convicted “by plea of guilt y to the offe nse of THEF T , ” he did not seek any correction of

the wri tten j udgment.3

commitment, with all but 114 days of time served suspended and was given credit for time served for those 114 days. On February 21, 2018 , the State filed a petition to revoke Furbush’s sentence , and Furbush was arrested. Thereafter, Furbush moved to continue the adjudication hearing four ti mes between March and July 2018 . The District Court granted the continuances

. At the hearing on Furbush’s second continuance, the District Court rel e ased Furbush but ordered him to immediately report to Montana Chemical Dependency Center ( MCDC )

. After r elease , Furbush did not report to MCDC, but r ather was arrested in Billings in June 2018. Following this, DOC filed an addendum to the report of violation asserting two additional violations. ¶4 On August 6, 2018 , Furbush filed a motion to withdraw his plea. 3 The District Court denied the motion. Following the adjudication hearing on September 6, 2018, the District Court found sufficient evidence to revoke Furbush’s suspended sentence and then imposed a 5
- year DOC commitment. ¶5 Furbush now appeals denial of his motion to withdraw his plea , asserting he entered
a no - contest plea and that he did not understand the ramifications of it. We review a District Court’s grant or denial of a motion to withdraw a guilty plea de novo. State v. Zunick, 2014 MT 239, ¶ 1 0, 376 Mont. 293, 339 P.3d 1228
. From our review of the record , the District Court did not err in denying Furbush’s motion to withdraw his plea. F urbush, working with his counsel, sought out and entered into a written plea agreement in which

3 In the motion, Furbush asserted he had previously entered a no contest plea. The record does not support this characterization. While Furbush indicated he would rather the plea be a no con test plea, he entered a plea agreement which provided he wo uld plead guilt y and he then, in fact, plead ed guil

ty to the felony

thef t charge.4

he agreed to plead guilty. Furbush was well aware of the direct consequences of the plea , and there was no evidence of any threats , coercion , or improper promises

. H e informed the District Court he believed the plea agreement was in his best interest. At his plea
c hange hearing, he plead ed guilty to the felony theft offense , admitted every element of the offense , and he received the benefit of his bargain

—a 5
- year sentence that suspended all time not previously served . We agree with the State ; the record does not s upport Furbush’s attempt to now characterize the nature of his plea as a no contest plea. The record supports the District Court’s conclusion he entered a guilty plea made knowingly and voluntarily. ¶6 Furbush also asserts the District Court “erred when it revoked Furbush’s suspended sentence based almost entirely on testimony that violates the right to confrontation

. ” (Emphasis added.) M ore particularly, Furbush asserts it was improper for the District Court to rely on the testimony of probation officer Devon McCrae to revoke Furbush’s suspended sentence as McCrae lacked personal knowledge of Furbush’s conduct and only testified as to what was related to him by other officers . Furbush contends this violat ed his right to confrontation. ¶7 We review a court’ s revocation of a suspended sentence for an abuse of discretion

. State v. Cook

, 2012 MT 34, ¶ 12, 364 Mont. 161, 272 P.3d 50. At the adjudication hearing of September 6, 2018, Furbush admitted various violations of the conditions of his suspended sentenc e. H e admitted travel violations

—traveling to Billings without permission on February 8, 2018 , and again on May 24, 2018 , when he was supposed to be reporting to MCDC

—and that he failed to report at least a couple of times. Furbush also5

admitted he had been charged with driving on a suspended license and without insurance. 4 “A single violation of the terms and conditions of a sentence is sufficient to support a court’s revocation of that sentence. ” Cook, ¶ 23. T he State was not required to produce evi dence corroborating Furbush’s admissions. F rom Furbush’s admissions alone, the District Court did not err in revoking his suspended sentence. 5 ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, wh ich provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶9 Affirmed

. /S/ INGRID GUSTAFSON We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE

4 In a more general

manner, when questioned by h is counsel

at the adj udicat io n hearing, Furbush admitted overall vio lation o f his probat io n: [DEFENSE COUNSEL]: So yo u heard [the probation offi c er’ s ] testimo ny about yo u needed to sign up and yo u could have done a transfer. Wo uld yo u like to explain to the Court

-- rather than going vio lat io n by vio lat io n, would yo u like to tell the Court why yo u’ ve had so me struggles on probation and what yo u would like to see happen with y

our case? [FURBUSH]: Fi

rst, I can't change what has happened. If I was more educated with what I was suppose [sic] to do, of c ourse I probably would have gone along wi th everyt hing I was suppose [sic] to. And I wo uld like to see myself, yo u know, correcting my mistakes and learning fro m them . 5 As such, iti s unnecessary to consider Furbush’s right to confrontation arguments and we decline to do so now

.