No. 84-513 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

.-. 

CLIFFORD EDWARD MONT&TH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Christian, McCurdy & Wold, Polson, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

John R. Frederick, County Attorney, Polson, 

Montana 

Submitted on Briefs: April 4, 1985 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant appeals 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 report and 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 defendant was 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 "hot wired" a 1979 Ford pickup truck from 

a car lot on April 30, 1983, placed a false temporary sticker 

in the window, 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 Las Vegas on 

May 18, 1383. This was Monteith's first felony offense, but 

he had a history of lesser crimes involving mischief, alcohol 

and drugs. Although he had been confined in jails and treatment programs, he had never been to prison. 

Monteith's probateion officer, 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 officer," payment of attorney fees and restitution. Alsbury also 
recommended (as Monteith 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 apparently pled guilty pursuant to a plea bargain with the 

State of North Dakota and agreed to completion of an alcoholism treatment program at the North Dakota State Hospital. 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--defendant changed his residence without obtaining permission 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 on March 20, 1984, based upon the 

report of violations submitted by Alsbury. Monteith first 

reappeared in District Court in Lake County on July 25, 1984, 

following arrest on a warrant filed March 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 the proceedings. 

At the second hearing 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 he 
had been living at his residence in North Dakota and that he 

called the probation officer about five times, but he was 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 trouble with alcohol or 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 residence without 

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 that Monteith was not charged with. Either alleged 

violation occurred after the October incident. 

The court, noting defendant's denial of violation of 

Rule #2 which "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 #6 and #13 at the hearing August 8, 1984. 

Yet the probation officer testified tha-t he had violated "the 

duty to report," not changing residence as claimed in the 

report. The court order revoking the suspension of sentence 
found that defendant had violated "the conditions of his 

probation as alleged in the report of violation prepared and 

filed by his probation officer herein." 

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, thus binding Montana to waive 

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 offenses were pending in North 

Dakota. The State further contends that defendant was afforded due process in excess of the provision in that North 

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 the defendant 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 a 
probation violation. The statute provides that before the 

supervising state initiates a retaking by notifying the compact administrator, it must hold a hearing 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 in North Dakota, of which the District Court in Lake 

County had no transcript, involved extradition and not an 

opportunity to know or counter any allegations.) 

The record before the Di.strict Court failed to indicate 

whether Montana or North Dakota initiated the retaking of 

defendant. The court, however, had. notice that the violations occurred in North Dakota with the knowled.ge of a North 

Dakota probation officer. The Montana probation officer left 

unclear in his report, upon which the court based its order, 

whether or not the retaking was at the recommendation of 

North Dakota. 

Based upon this record, we cannot rea.ch the 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), 408 U. S. 

471, 92 S.Ct. 2593, 33 L.Ed.2d 484. At the evidentiary 

hearing, the District Court should be presented with a better 
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. 

Issue No. 2: Effect - of out-of-state plea 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 court had notice of a guilty plea as 

part of a plea bargain. The court also had notice from 

testimony of probation officer Alsbury that Monteith 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 that he had violated the terms and conditions of his probation. 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 the disposition. 

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 

the violations. 

Although the admissions would. support revocation, 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 procedures did 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 

in North Dakota through the interstate compact? 

Remanded for an evid.entiary hearing. 

We concur: 

Chief Justice