No. 85-473 

IN THE SUPREME COURT OF THE STATE OF NONTANA 

1986 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDONALD CHARLES WATTS, JR., 

Defendant and Appellant. 

APPEAL FR.OM: District Court of the First Judicial District, 

In and for the County of 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, County Attorney, Helena, Montana 

Carolyn Clemens, Deputy County Attorney, Helena 

- 

Submitted on Briefs: Feb. 20, 1986 

Decided: April 17, 1986 

-, . ,a 1 : i35b 

Filed: 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

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 issues we are called upon to decide are: 

1. Whether defendant's constitutional rights under Art. 

11, 5 24 of the Montana Constitution were violated when the 

State, after filing charges of aggravated kidnapping and 

assault, elected to dismiss those charges and proceed on a 

revocation of parole of defendant'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 and was 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 of his sentence. On April 26, 1985, 

Watts was charged with aggravated kidnapping and misdemeanor 

assault. These charges stemmed from the incidents of the 

evening of March 22, 1985 and the early morning of March 23, 

1985. On that night, Watts was alleged to have intimidated 

Robert McClelland, by holding him against his wil.1 in Watts' 

automobile, and beating him with his fists. 

On May 23, 1985, the State petitioned the District Court 

to revoke Watts' suspended sentence. At the June 6, 1985 
hearing on the revocation petition, Watts moved to dismiss 

the petition for the reason that his rights under Art. 11, §§ 

24 and 26 of the Montana Constitution were 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 suspension of the last ten years 

of Watts' sentence for sexual intercourse without consent. 

The State later dropped the kidnapping and assault charges 

pending against Watts. 

We reject Watts' 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; State v. Oppelt 

(1979), 184 Mont. 48, 601 P.2d 394. A defendant given a 

suspended sentence lives knowing that "a fixed sentence for a 

definite term hangs over him." Roberts v. United States 

(1943), 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Oppelt, 184 
Mont. 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 State need only show Watts failed to live up to 

the requirement that he remain law-abiding. That requirement 

conditioned the suspension of a portion of a sentence, which 

had been imposed only after Watts had been tried, and 

convicted, with all the rights secured to him by our 

constitution attaining in the proceeding. 

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 suspension of 

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. 

_EP- 0 elt, 184 Mont. 48, 601 P.2d 394; State v. Robinson (Mont. 

1980), 61-9 P.2d 813, 37 St.Rep. 1830. The fact that the 

later charges were dropped after the revocation decision does 

not affect the character of the revocation hearing. In State 
v. Ryan (1975), 1-66 Mont. 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 

revocation of his suspended sentence. 

Finally, Watts contends the District Court abused its 

discretion in finding that he had violated the condition that 

he remain law-abiding. In Robinson we noted, " [tlhe inquiry 

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.]ll that is required is that the facts before 

him be such that the judge is reasonably sa.tisfied that the 

conduct of the probationer has not been wha.t he 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 for marijuana Watts was to procure. 
Certainly this evidence is sufficient for the Court to 

find Watts had not remained law-abid-ing. 

The order of the District Court revoking Watts' 

suspended sentence is affirmed. 

/ 

- Justice 

Con 

Justices