No. 96-050 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

STATE OFMONTANA,

Plaintiff and Respondent,
v. STEVE HARDY,

Defendant andAppellant.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Deer Lodge, The Honorable Ted Mimer, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: July 18, 1996 Decided: October 22, 1996Justice 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 onappeal is whether the District Court erred when it denied Hardy's petition for post-conviction relief. FACTUAL BACKGROUND In 1989, Steven D.Hardy wascharged byinformation with seven counts of burglary. Pursuant to aplea agreement, hepled 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, 'IMontana 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 anaffidavit submitted in this proceeding, Robbins stated that headvised 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

2assault on a police officer. Prior to his sentencing hearing,

however, hewasagain arrested andcharged with aggravated assault. Utah probation officials subsequently informed the State of Montana that they were nolonger 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 abench warrant and apetition 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 heset 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 heshall not receive credit for his "street time" (the two years hespent onprobation in Utah). In November 1994, Hardy filed apetition for post-conviction relief. On December 14, 1995, the District Court denied the

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

order. DISCUSSION Did the District Court err whenit denied Hardy's petition for post-conviction relief? The standard of review of adistrict 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. CarbonCotrnlyv.Union ReserveCoalCo. (1995), 271 Mont. 459, 469, 898P.2d 680, 686. Onappeal, Hardy contends that the District Court erred when it denied his petition for post-conviction relief. Heclaims that the revocation of his probation was invalid, and that, therefore, his probation should nowbereinstated. Specifically, heasserts that the revocation of his probation was invalid for the following three reasons: (1) he was denied apreliminary on-site hearing; (2) Dave Robbins, his Montana probation officer, assured him that his probation would not berevoked 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. THEDENIAL OFAPRELIMINARY ON-SITE HEARING After Utah officials refused to continue the supervision of Hardy's probation, hewas extradited and returned to Montana for

4his probation revocation hearing. Prior to his return, however, he

was denied apreliminary on-site hearing. Heasserts that this denial violated his rights pursuant to (1) the DueProcess Clause of the Fourteenth Amendment of the United States Constitution, and (2) § 46-23-1103, MCA. Wewill address both of these alleged violations separately. A. DUEPROCESS In Morrisseyv.Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d484, the U.S. Supreme Court held that aparolee's liberty involves significant values entitled to the protection of the due process clause of the Fourteenth Amendment; andthat 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), 411U.S. 778, 93 S. Ct. 1756, 36L. Ed. 2d656, the U.S. Supreme Court extended and applied the principles announced in Morrisseyto probation revocation proceedings. In Statev.Howell (1986), 222 Mont. 136, 720 P.2d 1174, we analyzed the due process requirements established by Morrisseyand Gagnonin the context of aMontana probation revocation proceeding. Howell wasaMontana 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 apreliminary on-site hearing

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

Werejected his claim, and held that he "was not deprived of a liberty interest bythe failure of the authorities to provide for him apreliminary oron-site hearing." Howell 222Mont. at 140, 720 P.2d at 1177. Webased our holding onour determination that: [Tlhe purpose of the on-site preliminary hearing andthe eventual full-blown hearing onrevocation is to provide dueprocess to the parolee, rindtoprotect hisliberty 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. Hewas at the time under arrest in Idaho by reason of acharge against him for assault. His transfer by the Idaho authorities to the Montana authorities while hewas 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. Hewas serving that sentence at the time the Montana revocation proceedings were initiated. At the time he
was extradited to Montana, hewasdetained 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

6revocation proceedings in Montana. Accordingly, a preliminary

hearing was not required. Wehold that the District Court wascorrect when it concluded that the failure to conduct apreliminary on-site hearing did not violate Hardy's due process rights pursuant to the Fourteenth Amendment. B. RIGHTS PURSUANTTO546-23-1103, MCA Section 46-23-1103, MCA, provides asfollows: (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 areasonable time unless such hearing is waived by the

. probationer. Following termination of anysuch hearing, the appropriate officer or officers of this state shall, as soon as practicable, report to the sending state, furnish acopy of the hearing record, and makerecommendations regarding the disposition to bemade of the

. probationer bythe sending state

. . Whenthe language of astatute is plain and unambiguous, the statute speaks for itself and no further interpretation is required. InreEsiareofLangendo~f (1993), 262Mont. 123, 125, 863 P.2d 434, 436. The language of § 46-23-1103(2), MCA, plainly and unambiguously requires apreliminary on-site hearing. Despite the statute's clear mandate, Hardy wasdenied ahearing, andhis rights pursuant to the statute were, in fact, violated. The District court, therefore, erred in 1992when it did not require anon-sitehearing prior to Hardy's return to Montana. However, for reasons

that follow, the District Court's failure to require apreliminary 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 beaffirmed. SeeRule 61, M.R.Civ.P. Ourholding today should not beinterpreted asdiminishing 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 apreliminary on-site hearing. Preliminary on-site hearings are necessary to allow aprobationer to contest the reasons for the revocation of his or her probation, andto develop arecord whenthe evidence is fresh andwhen it is readily available. For example, in Fisherv.Gist (1979), 182 Mont. 124, 594 P.2d 1140, weheld that the failure to provide Fisher with apreliminary on-site hearing violated his rights pursuant to 546-23-1103, MCA. Fisher wasaMontana 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. Wedetermined that Fisher should have received a preliminary on-site hearing because,

8[hle was told that hewas charged with two violations,

both of which he contested and should have been the subject of aprobable cause hearing in Seattle where he could have hadthe opportunity to present witnesses and, perhaps, refute the allegations. Fisher, 182Mont. at 128, 594 P.2d at 1142. In this case, however, apreliminary on-site hearing would have contributed nothing to adetermination 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. Hehad, 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 anyother finding. Based onthe facts of this case, the failure to provide Hardy with a preliminary on-site hearing did not prejudice his substantial rights. Accordingly, wehold that the District Court
was correct when it concluded that Hardy is not entitled to post-conviction relief.

2. ASSURANCESFROMHIS PROBATION OFFICER After his arrests in Utah, Hardy faced three felony charges. Ultimately, however, he pled- no contest to three misdemeanor
9charges 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 onthose assurances, his probation should not have been revoked. Dave Robbins, however, contended that he did not make any unconditional assurances or guarantees; rather, hespoke generally about the State of Montana's procedures. In his affidavit, Robbins stated:I informed

.Hardy that our general policy wasthat if amisdemeanor crime wascommitted andthe supervising state agreed to continue supervision that no revocation proceeding is initiated

. . [tlhat decisions regarding the filing of aPetition 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 andconclusions are based onan 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 andthe State of Utah. Finally, Hardy knowingly, voluntarily, andwith the assistance of counsel entered into a no contest plea agreement which included the following language: I know andunderstand the nature andthe elements of the charges pending against me
. . . no one has made any promises or threats to induce meto plead guilty or no contest. Myplea of guilty ornocontest today is myown voluntary decision.

10We 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 onthose representations, was correct.

3. TKEDENIAL OFCREDIT FOR"STREET TIME" Whenthe 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 546-18-201, MCA,which states in relevant part: 14) If any restrictions or conditions imposed under subsection (1)(a)or (1)(b) areviolated, the court shall consider anyelapsed time andeither expressly allow part or all of it as acredit 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 anexpress provision of Hardy's sentence. Thereasons for the sentence, therefore, include the reasons for the denial of credit for "street time." 11TheDistrict Court adequately considered §46-18-201, MCA,and

sufficiently stated its reasons when it denied Hardy credit for his "street time." Accordingly, wehold that the District Court was correct when it concluded that Hardy was not arbitrarily denied credit for his "street time." Wehold 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 Jstiq'e
Weconcur:

Justices

12

### October 22,1996
CERTIFICATEOFSERVICE IherebycertifythatthefollowingcertifiedorderwassentbyUnitedStates mail,prepaid,tothe followingnamed: JeffreyT.Retu Rachel Clark,Intern Montana DefenderProject School ofLaw UniversityofMontana Missoula, MT59812 EdBeaudette Anaconda-Deer

LodgeCounty

Attorney 800South Main Anaconda,

MT59711-2999 Hon.Joseph

P.Mazurek,A.G. JohnPaulson,

Assistant 215N.Sanders Helena,MT59620

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA BY:&- Deputy