No. 96-050 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

STEVE HARDY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Ted Mimer, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeffrey T. Rem, Attorney at Law, Rachel A. Clark, 

Intern, Montana Defender Project, School of 

Law, University of Missoula, Missoula, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

John Paulson, Assistant Attorney General, 

Helena, Montana 

Edward G. Beaudette, Anaconda-Deer Lodge 

County Attorney, Anaconda, Montana 

Filed: 

Submitted on Briefs: July 18, 1996 

Decided: October 22, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The petitioner, Steven D. Hardy, filed a petition for 

post-conviction relief in the District Court of the Third Judicial 

District in Deer Lodge County. The District Court denied the 

petition. Hardy appeals from that decision. We affirm the 

judgment of the District Court. 

The issue on appeal is whether the District Court erred when 

it denied Hardy's petition for post-conviction relief. 

FACTUAL BACKGROUND 

In 1989, Steven D. Hardy was charged by information with seven 

counts of burglary. Pursuant to a plea agreement, he pled guilty 

to four of those counts. The District Court sentenced him to four 

concurrent terms of ten years in prison, with nine years suspended. 

In 1990, he was released on probation to serve the suspended 

portion of his sentence; and pursuant to §§ 46-23-1101 to -1106, 

MCA, the "Interstate Compact, 'I Montana authorities transferred the 

supervision of his probation to the State of Utah. 

In 1991, Hardy was arrested in Utah, and charged with two 

counts of felony assault. At that time, he contacted David 

Robbins, his Montana probation officer. In an affidavit submitted 

in this proceeding, Robbins stated that he advised Hardy that the 

State of Montana's general policy is that probation revocation 

proceedings are not initiated if the crimes are misdemeanors and 

the supervising state agrees to continue supervision. Hardy 

ultimately pled no contest to two reduced charges of misdemeanor 

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assault on a police officer. Prior to his sentencing hearing, 

however, he was again arrested and charged with aggravated assault. 

Utah probation officials subsequently informed the State of Montana 

that they were no longer willing to supervise Hardy's probation. 

Based on the assault convictions and the State of Utah's 

refusal to continue the supervision of Hardy's probation, the 

Deputy County Attorney for Deer Lodge County, Montana, filed an 

application for a bench warrant and a petition to revoke Hardy's 

suspended sentence. Attached to the petition were documents 

regarding the Utah criminal proceedings, and an interstate case 

report in which the Utah Department of Corrections requested that 

Montana extradite Hardy after adjudication of the Utah charges. 

Hardy was sentenced in Utah, and subsequently returned to Montana 

for his probation revocation hearing. 

Prior to the probation revocation hearing, the District Court 

received and filed letters from Hardy in which he set forth facts 

which corroborated his guilty pleas to the Utah charges. Then, at 

the April 1992 probation revocation hearing, Hardy appeared, with 

counsel, and admitted the allegations in the State's petition. 

The District Court: (1) revoked the suspended portion of 

Hardy's sentence; (2) sentenced him to four concurrent terms of 

nine years; and (3) ordered that he shall not receive credit for 

his "street time" (the two years he spent on probation in Utah). 

In November 1994, Hardy filed a petition for post-conviction 

relief. On December 14, 1995, the District Court denied the 

3 
petition, and entered its findings of fact, conclusions of law, and 

order. 

DISCUSSION 

Did the District Court err when it denied Hardy's petition for 

post-conviction relief? 

The standard of review of a district court's findings of fact 

is whether they are clearly erroneous. Dairies v. Knight (1995) , 269 

Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a 

district court ' s conclusions of law is whether the court's 

interpretation of the law is correct. Carbon Cotrnly v. Union Reserve Coal Co. 

(1995), 271 Mont. 459, 469, 898 P.2d 680, 686. 

On appeal, Hardy contends that the District Court erred when 

it denied his petition for post-conviction relief. He claims that 

the revocation of his probation was invalid, and that, therefore, 

his probation should now be reinstated. Specifically, he asserts 

that the revocation of his probation was invalid for the following 

three reasons: (1) he was denied a preliminary on-site hearing; 

(2) Dave Robbins, his Montana probation officer, assured him that 

his probation would not be revoked for misdemeanor convictions; and 

(3) the District Court arbitrarily denied him credit for his 

"street time" when it failed to sufficiently set forth, in the 

record, its reasons for the denial. 

1. THE DENIAL OF A PRELIMINARY ON-SITE HEARING 

After Utah officials refused to continue the supervision of 

Hardy's probation, he was extradited and returned to Montana for 

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his probation revocation hearing. Prior to his return, however, he 

was denied a preliminary on-site hearing. He asserts that this 

denial violated his rights pursuant to (1) the Due Process Clause 

of the Fourteenth Amendment of the United States Constitution, and 

(2) § 46-23-1103, MCA. We will address both of these alleged 

violations separately. 

A. DUE PROCESS 

In Morrisseyv. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33 

L. Ed. 2d 484, the U.S. Supreme Court held that a parolee's liberty 

involves significant values entitled to the protection of the due 

process clause of the Fourteenth Amendment; and that termination of 

that liberty requires an informal hearing to insure that the 

finding of a parole violation is based on sufficient facts to 

support the revocation. In Gagnonv. Scarpelli (1973), 411 U.S. 778, 93 

S. Ct. 1756, 36 L. Ed. 2d 656, the U.S. Supreme Court extended and 

applied the principles announced in Morrissey to probation revocation 

proceedings. 

In State v. Howell (1986), 222 Mont. 136, 720 P.2d 1174, we 

analyzed the due process requirements established by Morrissey and 

Gagnon in the context of a Montana probation revocation proceeding. 

Howell was a Montana probationer under supervision in Idaho when he 

was arrested and jailed for assault. A petition to revoke 

probation was filed, and he was returned to Montana. He later 

claimed that the failure to conduct a preliminary on-site hearing 

5 
in Idaho denied him due process as required by Morrissey and Gagnon. 

We rejected his claim, and held that he "was not deprived of a 

liberty interest by the failure of the authorities to provide for 

him a preliminary or on-site hearing." Howell 222 Mont. at 140, 720 

P.2d at 1177. We based our holding on our determination that: 

[Tlhe purpose of the on-site preliminary hearing and the 

eventual full-blown hearing on revocation is to provide 

due process to the parolee, rind to protect his liberty interest at the 

time. In this case, Howell did not have a liberty 

interest at the time of the proceedings against him for 

the revocation of his parole. He was at the time under 

arrest in Idaho by reason of a charge against him for 

assault. His transfer by the Idaho authorities to the 

Montana authorities while he was still under arrest did 

not deprive him of any liberty interest since his 

detention by the Idaho authorities was at all times 

lawful. 

Howell, 222 Mont. at 139-40, 720 P.2d at 1176. 

Hardy was charged with three offenses in Utah. He entered 

pleas of no contest, was convicted of each charge, and was 

sentenced accordingly. He was serving that sentence at the time 

the Montana revocation proceedings were initiated. At the time he 

was extradited to Montana, he was detained in the Salt Lake County 

Jail, pursuant to his one-year sentence for the Utah convictions. 

Nothing in the record suggests that he was or would have been 

released from jail in Utah had it not been for his extradition and 

transfer to Montana authorities. Based on our prior holding in 

Howell, therefore, Hardy's right to due process was not infringed 

upon by his extradition to Montana and the commencement of the 

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revocation proceedings in Montana. Accordingly, a preliminary 

hearing was not required. 

We hold that the District Court was correct when it concluded 

that the failure to conduct a preliminary on-site hearing did not 

violate Hardy's due process rights pursuant to the Fourteenth 

Amendment. 

B. RIGHTS PURSUANT TO 5 46-23-1103, MCA 

Section 46-23-1103, MCA, provides as follows: 

(1) Where supervision of a . probationer is being 

administered pursuant to the interstate compact for the 

supervision of . . . probationers, the appropriate 

judicial or administrative authorities in this state 

shall notify the compact administrator of the sending 

state whenever in their view consideration should be 

given to retaking or reincarceration for a . 

probation violation. 

(2) Prior to the giving of any such notification, 

a hearing shall be held in accordance with this part 

within a reasonable time unless such hearing is waived by 

the . probationer. Following termination of any such 

hearing, the appropriate officer or officers of this 

state shall, as soon as practicable, report to the 

sending state, furnish a copy of the hearing record, and 

make recommendations regarding the disposition to be made 

of the . probationer by the sending state . . 

When the language of a statute is plain and unambiguous, the 

statute speaks for itself and no further interpretation is 

required. InreEsiareofLangendo~f (1993), 262 Mont. 123, 125, 863 P.2d 

434, 436. The language of § 46-23-1103(2), MCA, plainly and 

unambiguously requires a preliminary on-site hearing. Despite the 

statute's clear mandate, Hardy was denied a hearing, and his rights 

pursuant to the statute were, in fact, violated. The District 

court, therefore, erred in 1992 when it did not require an on-site 
hearing prior to Hardy's return to Montana. However, for reasons 

that follow, the District Court's failure to require a preliminary 

on-site hearing was not prejudicial to Hardy's rights, and 

therefore, did not constitute reversible error. See § 46-20-701(l), 

MCA. For that reason, the District Court's refusal to grant 

post-conviction relief on the ground that Hardy was denied a 

preliminary on-site hearing in contravention of § 46-23-1103(2), 

MCA, must be affirmed. See Rule 61, M.R.Civ.P. 

Our holding today should not be interpreted as diminishing the 

importance of § 46-23-1103(2), MCA. In fact, most probation 

revocation proceedings initiated pursuant to 55 46-23-1101 to 

-1106, MCA, the "Interstate Compact," will require a preliminary 

on-site hearing. Preliminary on-site hearings are necessary to 

allow a probationer to contest the reasons for the revocation of 

his or her probation, and to develop a record when the evidence is 

fresh and when it is readily available. 

For example, in Fisherv. Gist (1979), 182 Mont. 124, 594 P.2d 

1140, we held that the failure to provide Fisher with a preliminary 

on-site hearing violated his rights pursuant to 5 46-23-1103, MCA. 

Fisher was a Montana probationer under the supervision of the State 

of Washington. Montana authorities sought to revoke his probation 

based on: (1) his failure to report to his Washington probation 

officer; and (2) his failure to cooperate with the Seattle Indian 

Alcohol Program. We determined that Fisher should have received a 

preliminary on-site hearing because, 

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[hle was told that he was charged with two violations, 

both of which he contested and should have been the 

subject of a probable cause hearing in Seattle where he 

could have had the opportunity to present witnesses and, 

perhaps, refute the allegations. 

Fisher, 182 Mont. at 128, 594 P.2d at 1142. 

In this case, however, a preliminary on-site hearing would 

have contributed nothing to a determination of whether Hardy had 

violated the terms of his probation. Unlike Fisher, Hardy's 

probation violations (which were the basis for revocation) were not 

disputed, and probable cause for the initiation of revocation 

proceedings clearly existed. Essential to our holding is the fact 

that Hardy plednocontest to three offenses in Utah. Additionally, he 

wrote letters to the District Court which corroborated his guilt; 

and, during his probation revocation hearing, he admitted the 

allegations in the State's petition. He had, as evidenced by his 

i-l0 contest pleas and admissions, indisputably violated the 

conditions of his probation, and a preliminary on-site hearing 

could not have led to any other finding. 

Based on the facts of this case, the failure to provide Hardy 

with a preliminary on-site hearing did not prejudice his 

substantial rights. Accordingly, we hold that the District Court 

was correct when it concluded that Hardy is not entitled to 

post-conviction relief. 

2. ASSURANCES FROM HIS PROBATION OFFICER 

After his arrests in Utah, Hardy faced three felony charges. 

Ultimately, however, he pled- no contest to three misdemeanor 

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charges and avoided felony convictions. Hardy asserts that Dave 

Robbins, his Montana probation officer, assured him that his 

probation would not be revoked for misdemeanor convictions. He 

contends that, based on those assurances, his probation should not 

have been revoked. 

Dave Robbins, however, contended that he did not make any 

unconditional assurances or guarantees; rather, he spoke generally 

about the State of Montana's procedures. In his affidavit, Robbins 

stated: 

I informed . Hardy that our general policy was that 

if a misdemeanor crime was committed and the supervising 

state agreed to continue supervision that no revocation 

proceeding is initiated . . [tlhat decisions regarding 

the filing of a Petition for Revocation are within the 

exclusive discretion of the county attorney and my 

responsibility is only to report infractions and make 

recommendations. 

The District Court's findings and conclusions are based on an 

acceptance of Robbins' version of his conversations with Hardy and 

his Utah attorney. 

Furthermore, Montana officials did not participate in the plea 

negotiations between Hardy and the State of Utah. Finally, Hardy 

knowingly, voluntarily, and with the assistance of counsel entered 

into a no contest plea agreement which included the following 

language: 

I know and understand the nature and the elements of the 

charges pending against me . . . no one has made any 

promises or threats to induce me to plead guilty or no 

contest. My plea of guilty or no contest today is my own 

voluntary decision. 

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We conclude that the District Court's findings regarding 

Robbins' representations to Hardy were not clearly erroneous, and 

that the District Court's conclusion that the State was not 

estopped from proceeding with revocation proceedings based on those 

representations, was correct. 

3. TKE DENIAL OF CREDIT FOR "STREET TIME" 

When the District Court sentenced Hardy, it denied him credit 

for his "street time" (the two years he spent in Utah on 

probation). Hardy asserts that the District Court arbitrarily 

denied him credit for his "street time" when it failed to 

sufficiently set forth its reasons for the denial in the record. 

Specifically, he alleges that the District Court did not comply 

with 5 46-18-201, MCA, which states in relevant part: 

14) If any restrictions or conditions imposed under 

subsection (1) (a) or (1) (b) are violated, the court shall 

consider any elapsed time and either expressly allow part 

or all of it as a credit against the sentence or reject 

all or part as a credit. The court shall state its 

reasons in the order . . . 

The record, however, does not support Hardy's contention. In 

its amended judgment, the District Court stated: 

7) That the reasons for this sentence are the 

Defendant's age, past record of numerous convictions, the 

Defendant's inability to stay out of trouble when not 

incarcerated, and the serious nature of the crimes 

committed in Utah and the four (4) underlying Burglary 

charges on which the defendant was convicted in this 

Court. 

The denial of credit for "street time" is an express provision of 

Hardy's sentence. The reasons for the sentence, therefore, include 

the reasons for the denial of credit for "street time." 

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The District Court adequately considered § 46-18-201, MCA, and 

sufficiently stated its reasons when it denied Hardy credit for his 

"street time." Accordingly, we hold that the District Court was 

correct when it concluded that Hardy was not arbitrarily denied 

credit for his "street time." 

We hold that the District Court's findings of fact were not 

clearly erroneous, and that its conclusions of law were correct. 

Accordingly, the judgment of the District Court is affirmed. 

7 J stiq'e 

We concur: 

Justices 

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October 22, 1996 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Jeffrey T. Retu 

Rachel Clark, Intern 

Montana Defender Project 

School of Law 

University of Montana 

Missoula, MT 59812 

Ed Beaudette 

Anaconda-Deer Lodge County Attorney 

800 South Main 

Anaconda, MT 59711-2999 

Hon. Joseph P. Mazurek, A. G. 

John Paulson, Assistant 

215 N. Sanders 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: &- 

Deputy