No. 95-143 INTHESUPREME

COIJRTOFTHESTATEOFMONTANA 1995

STATEOFMONTANA,

Plaintiff and Respondent,

-vs- DONALDMARTIN,

Defendant andAppellant.

APPEALFROM: District Court of the Thirteenth Judicial District,

In andfor the County of Yellowstone, TheHonorable Russell G. Fagg, Judge presiding.

COUNSELOFRECORD:

For Appellant: Kelly J. Varnes; Hendrickson, Everson, Noenning & Woodward, Billings, Montana

For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Ass't Attorney General, Helena, Montana

Submitted onBriefs: June 29, 1995 Decided: July 25, 1995Justice Karla M. Gray delivered the Opinion of the Court.

Donald Martin (Martin) appeals from the Judgment and Commitment entered by the Thirteenth Judicial District Court, Yellowstone County, on its Order Revoking Suspended Sentence. We affirm.Martin pled guilty to the offense of felony assault in November of 1993. TheDistrict Court sentenced himto five years' imprisonment in the Montana State Prison, suspended the entirety, andplaced him onprobation oncertain terms and conditions. The State of Montana (State) subsequently petitioned for revocation of the suspended sentence. After a hearing on the petition, the District Court found that Martin had violated the terms and conditions of his probation and revoked the suspended sentence. The court resentenced Martin on the original assault conviction, committing him to the director of the Department of Corrections andHumanServices (Department), pursuant to §46-14- 312, MCA,for placement in acommunity-based program or facility or

aState correctional institution for five years. Martin appeals.

Did the District Court abuse its discretion in revoking Martin's suspended sentence? Uponthe filing of apetition for revocation showing probable

cause that the defendant has violated a condition of asuspended sentence, a district court may set a hearing on revocation. Section 46-18-203(l), MCA. TheState has the burden of proving a violation by a preponderance of the evidence. Section 46-l&?- 203(6), MCA. If the court finds that the defendant violated the 2terms and conditions of the suspended sentence, the court has a

range of options, including revoking the suspended sentence and requiring the defendant to serve the original sentence imposed or any lesser sentence. Section 46-18-203(7), MCA. The decision to revoke asuspended sentence cancels aprior act of grace and is a matter within the district court's discretion. State v. Kern (1984), 212Mont. 385, 388, 695 P.2d 1300, 1301. Thecourt need only find the existence of aviolation of a term or condition of the suspended sentence; all that is necessary is that the court bereasonably satisfied from the facts of record that the probationer's conduct "has not been what he agreed it would be if hewere given liberty." State v. Lundquist (1992), 251Mont. 329, 331, 825P.2d 204, 206 (citation omitted); § 46-18-203(7), MCA. Our standard of review is whether the district court abused its discretion. Lundquist, 825P.2d at 206. Atthe time the petition to revoke Martin's suspended sentence

wasfiled, Martin hadbeencharged with--and convicted of--a number of misdemeanor offenses committed in Billings onMay7andJuly 3, 1994; the offenses included obstructing, driving without adriver's license, DUI, andnovehicle insurance. Later that year, hewent to Great Falls with the permission of his probation officer and, while there, wasarrested andcharged with felony assault. At the revocation hearing, Martin's probation officer testified to the convictions onthe Billings charges; Martin did not dispute those convictions. The probation officer also testified that the Great Falls charge against Martin had been

3dismissed.

The District Court found that the Billings convictions violated State Rule #8, acondition of Martin's suspended sentence requiring that he comply with all federal and State laws. The uncontroverted evidence supports the court's finding. Martin argues that there wasinsufficient evidence to support the revocation because his probation officer stated, after the Billings convictions, that he did not consider those convictions serious enough to warrant apetition for revocation. Indeed, the probation officer sotestified at the hearing. Hetestified, in addition, that it wasthe Great Falls arrest that prompted him to seekthe revocation andagreed that the Great Falls charge hadbeen dismissed. Martin's argument of insufficient evidence to support the revocation is premised on the dismissal of the Great Falls charge which had prompted the probation officer to seek the revocation. Martin's argument is unpersuasive in light of the Billings convictions. That those convictions did not cause the probation officer to seek revocation does not equate to an absence of sufficient evidence to support the District Court's finding that Martin violated the condition requiring him to obey the law. Indeed, as set forth above, the convictions are undisputed and, under both § 46-18-203, MCA, and Lundauist, they constitute a sufficient basis for revocation. Thus, we conclude that the District Court did not abuse its discretion in revoking Martin's suspended sentence.

4Did the District Court err in referencing §46-14-312,

MCA,in resentencing Martin? At the revocation hearing, Martin's probation officer testified to his concerns over Martin's mental condition. He stated his beliefs that Martin needed help mentally and the only wayMartin could receive that help would bein aninstitution; that way, according to the probation officer, the director of the Department could haveMartin evaluated at WarmSprings. Martin did not object to the testimony. The District Court agreed with the probation officer's assessment, stating that it was in Martin's best interest to be evaluated at WarmSprings in order that appropriate help could be provided to him. The court's Judgment and Commitment ordered Martin committed to the director of the Department pursuant to § 46-14-312, MCA,for placement for aterm of five years. Martin appeals, asserting that reliance on §46-14-312, MCA,renders the sentence unlawful. The State argues that, absent objection to the probation officer's testimony, Martin waived his right to appeal this issue under §46-20-104(2), MCA. While the State is correct that the failure to object ordinarily would preclude our review, we have created alimited exception regarding review of asentence alleged to be illegal or exceeding statutory mandates. See State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997. Weapply that exception here. Section 46-14-312, MCA,to which the District Court referred in its Judgment andCommitment, relates to sentencing adefendant 5whoclaims that, at the time of the offense of which convicted, he

was suffering from amental disease or defect. See §§46-14-311 and 46-14-312, MCA. Martin did not raise such a claim here; the probation officer merely expressed concerns regarding Martin's mental condition during the revocation hearing. That testimony did not relate to Martin's mental condition at the time of the Mayand July, 1994, offenses upon which the revocation ultimately was premised or at the time of the original assault offense; in any event, the probation officer's testimony does not provide a sufficient basis for adetermination of mental disease or defect. Asaresult, it is clear that the District Court erred in referring to §46-14-312, MCA,in its Judgment andCommitment. Weconclude that the statutory reference must bestricken from the Judgment and Commitment. Pursuant to §46-20-701(l), MCA,however, wedonot reverse a court based on error unless the error wasprejudicial. Oncethe Judgment and Commitment is modified to delete the reference to § 46-14-312, MCA, Martin essentially is left with the five-year sentence originally imposed for the felony assault conviction, with credit for time served and discretion in the Department director regarding his placement. Such a sentence is authorized under §46-18-203, MCA,which permits adistrict court--on revocation--to reimpose the original sentence or any lesser sentence. Moreover, it is clear that this Court maymodify ajudgment from which appeal is taken, rather than reversing and remanding for further proceedings. See § 46-20-

6703(l), MCA. Weconclude that, under the District Court's Judgment

and Commitment as modified by this Court, Martin has not established prejudice affecting his substantial rights so as to require reversal. The District Court's Judgment and Commitment is modified to strike the reference to §46-14-312, MCA,and is affirmed in all other respects. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the SupremeCourt andby areport of its result to Montana LawWeek, State Reporter andWest Publishing Company.