No. 84-513 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,

.-. CLIFFORD EDWARD MONT&TH, Defendantand Appellant.

APPEAL FROM: DistrictCourtof the TwentiethJudicial District, In and for the Countyof Lake, TheHonorableJack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Christian, McCurdy & Wold, Polson, Montana

For Respondent: Mike Greely, AttorneyGeneral, Helena, Montana John R. Frederick, CountyAttorney, Polson, Montana

Submittedon Briefs: April4, 1985

ClerkMr. Chief Justice J. A. Turnagedelivered the Opinion of the Court.Defendantappeals the order entered August 13, 1984, in the Fourth Judicial District, Lake County, revoking the suspension of his sentence entered on July 13, 1983. The order reinstated an eight-year sentence with three years suspended based upon the reportand testimony of defendant's Montana probation officer on alleged violations of the conditions of suspension of the sentence while defendant was in North Dakota. We remand for an evidentiary hearing. The record raises the question of whether defendantwas afforded procedural protection due under the interstate compact on the supervision of out-of-state probationers and parolees. Sections 46-23-1101 through 46-23-1106,MCA. Clifford Edward Monteith entered a plea of guilty to felony theft on June 22, 1983, as part of a negotiated plea agreement. He had "hotwired" a 1979 Ford pickup truck from

a car lot onApril 30, 1983,placed a false temporary sticker in thewindow, and used the truck. From a tip, the authorities located the truck in the area and issued a warrant for his arrest on May 2, 1983. He was arrested in LasVegas on May 18, 1383. This was Monteith's first felony offense,but he had a history of lesser crimes involvingmischief,alcohol and drugs. Although he had been confined in jails and treatment programs,he had neverbeen toprison. Monteith's probateionofficer,Ron Alsbury, recommended

a suspended ten-year sentence conditional upon completion of ninety days served in the Lake County jail, no drinking, "alcohol counseling as deemed appropriate by probation offi

### cer,"payment of attorney fees

### and restitution. Alsbury alsorecommended (asMonteith wished) that the defendant return to his residence in North Dakota, seek employment, and have his probation transferred to the State of North Dakota. Monteith went to North Dakota under the interstate compact on supervision of probation and parole. On October 1, 1983, he was arrested for driving under the influence of alcohol,escape from lawful custody,and no driver's license. He apparentlypled guilty pursuant to aplea bargain with the State of North Dakota and agreed to completion of an alcoholism treatmentprogram at theNorth Dakota StateHospital. He completed the program on December 1, 1983, and was released to his residence. Alsbury filed a probation violation report March 14, 1984, alleging three rule infractions: (1) Rule $2--defendantchanged his residence without obtainingpermission from his probation officer; (2) Rule #6--defendant consumed alcoholic beverages; and (3) Rule #13--defendant disobeyed the law as evidenced by his guilty pleas to the misdemeanor offenses. The Lake County attorney petitioned for a revocation of the suspension of sentence onMarch 20, 1984,based upon the report of violations submitted by Alsbury. Monteith first reappeared inDistrict Court in Lake County on July 25, 1984, following arrest on a warrant filedMarch 21, 1984,on charges of violating conditions of probation and absconding from probation supervision. He said he had three hearings in North Dakota, but counsel offered no evidence as to the nature of theproceedings. At the secondhearing in Lake County on August 1, 1984, Monteith under questioning from the court denied the allegation that he had changed his residence. He claimed that hehad been living at his residence inNorth Dakota and that he called theprobation officer about five times,but hewas not in twice and too busy to talk three times. He admitted to consuming intoxicants but denied through counsel "at this time" the allegation that he had disobeyed the law as represented by his guilty plea. The court referred the case to the original sentencing judge because of defendant's denial of the allegations. On August 8, 1984, the sentencing judge called probation officer Alsbury who under cross-examination admitted knowledge of a plea bargain in North Dakota, Monteith's completion of the alcohol treatment program and no further record of troublewith alcoholor the law. Alsbury indicated that the State of North Dakota represented to Monteith that there would be no recommendation of violation if he met the conditions of the plea bargain. Monteith was charged with violation of Rule #2 relating to change of residencewithout permission; however, Alsbury in testimony apparently recommended revocation of the suspended sentence for violation of

a duty to report to the North Dakota probation officer, a violation thatMonteith was not chargedwith. Either alleged violation occurred after the October incident. The court, noting defendant's denial of violation of Rule #2which "provides that you shall not change your place of residence without first obtaining permission from your supervising officer" (i.e., absconding from probation supervision), however, based the revocation on the admissions to violations of Rules #6and #13 at the hearing August 8, 1984. Yet the probation officer testified tha-the had violated "the duty to report," not changing residence as claimed in the report. The court order revoking the suspensionof sentence

### found that defendant had violated "the conditions of his probation as alleged in the report of violationprepared and filedby hisprobation officerherein." We consider the following issues raised by appellant: 1. Did failure to provide a preliminary on-site hea-ring in North Dakota violate defendant's Fourteenth Amendment right to due process? 2. 

### Did the North Dakota plea bargain involve the consent of Montana authorities,thusbinding Montana towaive violations of Rules #6 

### and #13, consuming alcohol and disobeying the laws,as cause for revocation? 3. Did sufficient evidence support the revocation of defendant's suspended sentence? Issue No. 1: Failure - 

### to provide on-site hearing. The State contends that 46-23-1102(3), MCA, applied here and allowed Montana to retake the defendant upon its own initiative without formality; all legal requirements for extradition were expressly waived by the statute,provided that no criminal charges or suspected offenseswere pending in North Dakota. The State further contends that defendant was afforded due process in excess of the provision in thatNorth Dakota provided him an extradition hearing. (The District Court in Lake County did not have a transcript record of the three hearings in North Dakota when revoking the sentence.) Defendant, the State claims, did not demonstrate any North Dakota involvement in the decision to retake thedefendant to Montana. Appellant's position is that S 

### 46-23-1103,MCA, applies where a probationer is supervised pursuant to the interstate compact and the supervising state believes that the sending state should consider retaking or reincarcerating for aprobation violation. The statute provides that before the supervising state initiates a retaking by notifying the compact administrator, itmust hold ahearing in accordance with the act within a reasonable time unless the hearing is waived. The probationer has the right at this hearing to notice in writing of the allegations and. the purpose to determine probable cause for revocation; opportunity before the hearing to get assistance; right to confront and examine those making a.llegations;and opportunity to admit, deny or explain and offer proof of contentions. Section 46-23-1105, MCA. At the end of the hearing the appropriate officers shall report to the sending state, furnish a copy of the hearing record and recommend a disposition. (The three hearings inNorth Dakota,of which the DistrictCourt in Lake County had no transcript, involved extradition and not an opportunity to knowor counterany allegations.) The recordbefore theDi.strictCourt failed to indicate whether Montana or North Dakota initiated the retaking of defendant. The court, however, had.notice that the violations occurred inNorth Dakotawith the knowled.geof a North Dakotaprobation officer. TheMontana probation officer left unclear in his report,upon which the courtbased its order, whether or not the retaking was at the recommendation of North Dakota. Based upon this record, we cannot rea.chthe issue of whether defendant's Fourteenth Amendment right to due process

was violated by a failure to provide an on-site hearing in North Dakota pursuant to Fisher v. Crist (1979), 182 Mont. 124, 594 P.2d 1140,and Morrissey v. Brewer (1972),408U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. At the evidentiary hearing, the District Court should be presented with abetter

### record on what compliance there was with the provisions for interstate supervision of probationers and parolees. Sections 46-23-1101 through 46-23-11-06,MCA. IssueNo. 2: 

### Effect 

### - of out-of-stateplea bargain. The court ordered the revocation based upon the offenses subject to a 

### guilty plea as sufficient despite denial of the violation of failure to report (or changing residence, without permission, whichever the State is claiming). Through Alsbury's testimony, the courthad notice of a guilty plea as part of a 

### plea bargain. The court also had notice from testimony of probation officerAlsbury thatMonteith had been party to some form of bargain relating to his North Dakota pleas which may have been a plea bargain consented to by Montana authorities. There was no record of the North Dakota plea bargain other than testimony which does not adequately clarify what occurred. The court found by defendant's admissions to the underlying offenses thathe had violated the terms and conditions ofhisprobation. On remand-,the court should consider evidence on the plea bargain to determine its existence and details, including possible agreement of Montana authorities to its terms. If the North Dakota offenses are the basis for the revocation and have not been,by plea bargain,waived by Montana authorities as cause for revocation, the record should more accurately and completely document the charges and thedisposition. Issue No. 3: 

### Sufficient evidence - 

### to support revocation. Alsbury, the probation officer,recommended revocation not based upon the offenses involved in a guilty plea in October 1983 but upon either the failure to report or changing residence without permission from the supervising

### officer. The court, however, found that the October offenses supported revocation, based upon defendant's admissions to theviolations. Although the admissionswould.supportrevocation,there remain unresolved issues of fact which may affect the decision: (1) 

### Did the State of North Dakota notify Montana to retake the defendant? (2) What proceduresdid the State of Montana follow to retake the defendant under the interstate compact on supervision of probationers, S§ 

### 46-23-1101 through 46-23-1106, MCA? (3) 

### Did. the probation 0fficia.l~ in Montana agree to honor a successful completion of the terms of a guilty plea inNorth Dakota through the interstate compact? Remanded for an evid.entiaryhearing.

We concur: Chief Justice