No. 85-473 INTHE SUPREME COURT OF THE STATE OF NONTANA 1986

THE STATE OF MONTANA, Plaintiff and Respondent,



### -vsDONALD CHARLES WATTS, JR., Defendant andAppellant.

APPEAL FR.OM: District Court of theFirstJudicialDistrict, Inand fortheCountyof Lewis & Clark, The Honorable Henry Loble, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Barbara Claassen, Asst. Atty. General, Helena Mike McGrath, CountyAttorney, Helena, Montana Carolyn Clemens, Deputy CountyAttorney, Helena

- Submittedon Briefs: Feb. 20, 1986 Decided: April 17, 1986

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ClerkMr. Justice William E. Hunt, Sr., delivered the Opinion of theCourt.

Charles Watts, Jr. appeals the order of the District Court of the First Judicial District revoking Watts' previously suspended sentence arising from an earlier guilty plea to the felony offense of sexual intercourse without consent. Affirmed.. The issueswe are calledupon to decide are: 

### 1. Whether defendant's constitutional rights under Art. 11, 5 24 of the Montana Constitutionwere violated when the State, after filing charges of aggravated kidnapping and assault, elected to dismiss those charges and proceed on a revocationofparole ofdefendant's suspended sentence. 2. Whether the District Court arbitrarily and capriciously concluded that defendant's suspended sentence should be revoked. In August 1981, Watts pled guilty to felony sexual intercourse without consent andwas sentenced to 20 years in Montana State Prison with ten years suspended. One condition for the suspension was that Watts remain a law-abiding citizen during the term ofhis sentence. On April 26, 1985, Watts was charged with aggravated kidnapping andmisdemeanor assault. These charges stemmed from the incidents of the evening ofMarch 22, 1985 and the early morning of March 23, 1985. On that night,Watts was alleged to have intimidated Robert McClelland, by holding him againsthiswil.1 inWatts' automobile,andbeating him with his fists. OnMay 23,1985,the Statepetitioned the DistrictCourt to revoke Watts' suspended sentence. At the June 6, 1985hearing on the revocation petition, Watts moved to dismiss thepetition for the reason thathis rights underArt. 11, §§ 24 and 26 of the Montana Constitutionwere violated. Those sections guarantee respectively the rights of the accused in criminal proceedings and the right to trial by jury. Watts contended to the District Court, and now contends to this Court, that because the State had filed an information against him, criminal proceedings against him had been initiated. Once instituted, these criminal proceedings give rise to the rights under Art. 11, 

### 5s 24 and 26. The State should not be allowed to circumvent these constitutional guarantees,argues Watts, by filing a petition to revoke his suspended sentence. The District Court rejected Watts' argument and refused to dismiss the petition. On August 13, 1985 that court revoked the suspensionof the last ten years of Watts' sentence for sexual intercourse without consent. The State later dropped the kidnapping and assault charges pending againstWatts. We rejectWatts' claims that his Montana constitutional right to jury trial and his rights as an accused have been violated. Watts would have us combine into one action two completely separate proceedings against him. Certainly the State, by filing an information charging kidnapping and assault, instituted criminal proceedings against him. However, the action to revoke his previously suspended sentence is not a criminal adjudication. State v. Robinson (Mont. 1980), 619 P.2d 813, 37 St.Rep. 1830; Statev. Oppelt (1979), 184 Mont. 48, 601 P.2d 394. A defendant given a suspended sentence livesknowing that "a fixed sentence fora definite term hangs over him." Roberts v. United States

(1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Oppelt, 184Mont. 48, 601 P.2d 394. Suspension of sentence is a discretionary act of grace by a district court. Sectton 46-18-201, MCA; Oppelt, 184 Mont. 48, 601 P.2d 394. In contrast to the proof required to convict Matts on the information charged, in order to revoke his suspended sentence the Stateneed only show Watts failed to live up to the requirement thathe remain law-abiding. That requirement conditioned the suspension of aportion of a sentence, which had been imposed only after Watts had been tried, and convicted, with all the rights secured to him by our constitutionattaining in theproceeding. Watts essentially argues that the State, in order to punish him for the alleged new offenses of kidnapping and assaul-t, chose to proceed through the revocation hearing instead of through full trial. This argument fails to take into account that as a convicted felon, his liberty was already conditioned by the requirements of the original sentencing court. Watts1 argument that the State punished him without trial for a new offense by imposing a sentence which already had been pronounced against 

### him, equates a suspended sentence with no sentence at all. Clearly the District Court can revoke the suspensionof

a sentence, without that revocation constituting punishment for a new offense. Oppelt, 184 Mont. 48, 601 P.2d 394. Rather, revocation of a suspended sentence indicates a determination by the court that the purposes of rehabilitation are not being served 

### by the suspension. 0 elt, 184Mont. 48, 601P.2d 394; Statev. Robinson (Mont. _EP- 1980), 61-9P.2d 813, 37 St.Rep. 1830. The fact that the later charges were dropped after the revocation decisiondoes not affect the characterof the revocationhearing. In State

### v. Ryan (1975),1-66Mont. 419, 533 P.2d 

### 1076,we noted the difference between a revocation hearing and a criminal trial stemming from the same conduct. The revocation hearing focuses on whether terms conditioning the suspended sentence have been violated. Trial focuses on violation of statutes pertaining to the new charges. Ryan, 166 Mont. at 1079. Watts' constitutiona1 rights were not violated by the revocationofhis suspended sentence. Finally, Watts contends the District Court abused its discretion in finding thathe had violated the conditionthat he remain law-abiding. In Robinsonwe noted, 

### "[tlheinquiry at any probation revocation hearing is whether the purposes of rehabilitation are being achieved, and whether by virtue of 

# . . . evidence that the defendant's behavior was not in compliance with the rules and objectives of [defendant's] probation, the purposes of probation are best served by continued liberty or by incarcerati.on." State v. Robinson

(Mont. 1980), 619 P.2d 813, 815, 37 St.Rep. 1830, 1833. Furthermore, "[a.]llthat is required is that the facts before him be such that the judge is reasonably sa.tisfiedthat the conduct of the probationer has not been wha.the agreed it would be 

### if he were given liberty. Robinson, 619 P.2d at 815. 

### The evidence presented at the revoca.tion hearing included testimony by two witnesses that Watts had beaten McClelland and had held the terrified McClelland in a car owned and driven by F?atts. Watts ad.mitted.that his car displayed expired and fictitious license plates. Testimony indicated Watts had accepted money from McClelland as the purchase price formarijuana Wattswas toprocure.Certainly this evidence is sufficient for the Court to findWatts had not remained law-abid-ing. The order of the District Court revoking Watts' suspended sentence is affirmed. 

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Justices