DA 06 - 0471 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 289
ST ATE OF MONTANA, Plaintiff and Appellee, v. JACK GRIFFIN, Defendant and Appellant.
APPEAL FROM: District Court of theSecond Judicial District, In and For the County

of Butte/Silver Bow, Cause No. DC
- 98 - 26, Honorable John W. Whelan, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jack Griffin, pro se, Billings, Montana For Appellee : Honorable Mike McGrath, Attorney General, Mark W. Mattio li, Assistant Attorney

General, Helena, Montana Robert M. McCarthy, County A ttorney, Butte, Montana Submitted on Briefs: October 10, 2007 Decided: November 6, 2007 Filed:

___________________________________ _______ Clerk November 6 20072

Justice W. William Leaphart delivered the Opinion of the Court. ¶1 Jack Griffin pled guilty to a charge of f elony incest, and was sentenced to thirty years in the Montana State Prison, with fifteenyears suspended. Griffin signed a Request to Amend Conditions of Probation Supervision, consenting that his probation could be modified to include participation in the Intensive Supervision Program ( ISP )
. The District Court approved his request and entered an Order Modifying the Conditions of Supervision. He subsequently filed a motion to set aside the District Court’s order, which was denied. He now appeals the District Court’s denial of that motion. We affirm. ¶2 We restate the issue as follows: ¶3 Did the District Court err in denying Griffin’s motion to set aside the order modifying the conditions of his probation? BACKGROUND ¶4 Defendant Jack Griffin pled guilty to a charge of felony incest f or having sexual intercourse with his minor daughter and was convicted on June 26, 1998. The District Court c lassified Griffin as a Le vel IIIs ex offender and sentenced him to MontanaS tate Prison for a period of thirty years, with fifteen

years suspended. One of the conditions of his sentence stated that “ [ t] he Defendant shall be under the supervision and control of the Montana Office of Adult Probation and Parole during the entire period of the suspended sentence including at least mo nthly personal reports to his parole/probation officer. The Defendant shall abide by all the rules and conditions of that office ” (emphasis added). This same condition appeared in the pretrial agreement which Griffin himself signed.3

¶5 After servingseven and a half years of his sentence, Griffin was released from the custody of Montana State Prison and was placed under the supervi sion of the Department of Corrections (“the Department”). He wanted to be placed in Billings, though he had no existing ties to the community there. Griffin met with Laura McKee, a probation officer of the Department of Corrections Adult Probation and Parole Bureau in Billings
. McKee recommended that Griffin complete ISP when he was released from prison “to assist him in reentering the community.” M cKee recommended that Griffin’s conditions of probation supervision be modified to include ISP because he was a Level III sex offender who had “no ties to [ the] c ommunity and no job or treatment set up.” S he found that “[h]e warrants a higher level of supervision than standard probation provides.” ¶6 Griffin signed a formal request to modify the conditions of his p robation to include ISP. The Deputy County Attorney then moved the court to modify the conditions of Griffin’s probation as requested, pursuant to § 46 - 23 - 1011(4), MCA (2005). Se veral days later, the Dis trict Court approved the motionand entered ano rder modifying the conditions of Griffin’s supervision
. The District Court’s order specifically noted that Griffin agreed to the conditions in writing. ¶7 A day after the District Court’s order was issued, Griffin mo ved to have the order set aside. His attorney withdrew this motion the following day, upon learning that Griffin had consented to the modification. Later, he spoke with Griffin, and Griffin claimed that his probationo fficer had coerced him to sign the request for modification. Griffin’s atto rney then renewed the motion to set aside the District Court’s order modifying the conditions of Griffin’s probation
.4

¶8 The District Court denied the renewed motion to set aside, finding that Griffin had consented to the request to modify the conditions. Th e District Court also found that there was “no evidence from the Defendant that his agreement to the Request for Modification was coerced or the result of duress.” Rather, the District Court found, Griffin himself “indicate[d] that he signed such document s o he could be supervised in Billings, Montana.” ¶9 The c ourt concluded that it had the authority to modify the conditions of Griffin’s probation pursuant to § 46 - 23 - 1011(4) , MCA , which provides “ a judge may modify or add any condition of probation or susp ension of sentence at any time
. ”F inally, the District Court concluded, the requirement to complete ISP did not change Griffin’s original conditions of probation, but me rely subjected him to greater scrutiny. This appeal ensued. STANDARD OF REVIEW ¶10 A district court’s decision to grant or deny a post- trial motion is discretionary. State v. Sheehan , 2005 MT 305, ¶ 18, 329 Mont. 417, ¶ 18, 124 P.3d 1119, ¶ 18. We review such rulings in criminal cases for abuse of discretion. Sheehan , ¶ 18. The burden of demonstrating abuse of discretion is on the party seeking reversal of the district court’s ruling. Sheehan , ¶ 18. DISCUSSION ¶11 Did th e District Court err in de nying Griffin’s motion to set aside th e or der modifying the conditions of his p robation ?5

¶12 Griffin argues that the District Court’s order constituted a modification of his sentence , and as such, violate d his constitutional rights. Specifically, Griffin claims that the District Court lacked the authority to modify his s entence eight years after it w as is sued, and that the ISP requirement violates ex post facto principles because it increased his punishment. ¶13 In response, theS tate argues the District Court’s order simp ly changed the conditions of Griffin’s supervision on probation
. The State maintains the c ourt had the authority to modify the conditions of Griffin’s probation pursuant to § 46 - 23 - 101 1 (4), MCA. Because the c ourt’s order did not change the length , term , or substanceo f Griffin’s sentence, the State claims that the modificationdoes not impli cate constitutional concerns. We agree. ¶14 A. Did the District Court have authority to modify the conditions of Griffin’s probationpursuant to § 46 - 23 - 101 1 (4) , MCA? ¶15 Section 46 - 23 - 101 1 (4) , MCA, gives judges the authority to “modify or add any condition of probation or suspension of sentence at any time. ” At the time Griffin was sentenced, § 46 - 23 - 1011(4) , MCA(199 8 ) , only permitted judges to modify conditions of probation
. In 2001, the statute was amended to permit judges to “modify or add” to the condition s of probation. Se ction 46 - 23 - 1011(4), MCA, cmnt (2001). The Le gislature specifically intended that the section be applied retroactively to offenders currently in the D epartment ’s custody. Section 46
- 23 - 1011(4), MCA, cmnt (2001). Even if the provision had not been made retroactive, under the terms of § 46 - 23 - 1011(4), MCA (199 8 ), at the6

time Griffin was sentenced, the District Court still h ad the authority to modifythe conditions of Griffin’s suspended sentence. ¶16 B. Did the District Court’s order constitute a modification of Griffin’s punishment, in violation of the ex post facto , double jeopardy, and due process clauses of the Montana Constitution ? ¶17 Not every modification of the conditions of a suspended sentence will implicate ex post f actoc oncerns. T h e touchstone of the ex post f actoanalysis in this context is whether an offender’s sentence has been changed in a punitive sense. State v. Mount, 2003 MT 275, ¶ 89, 317 Mont. 481, ¶ 89, 78 P.3d 829, ¶ 89 ( adopting the intents
- effects test to determine wh ether laws are punitive or non -punitive)
. The mo dification of an offender’s conditions of probationmust b e distinguished from amodification of an offender’s sentence itself. ¶18 It is conceivable that some applications of § 46 - 23 - 1011(4) , MCA, may violate ex post f actoprinciples. If, for example, a district court added months or years to a defendant’s sentence under the color of § 46 - 23 - 1011(4), M CA, that would clearly violate the constitutional prohibition against ex post factol aws. Mont. Const. art . II, § 31 . ¶19 Although the District Court’s order modified the condition of Griffin’s supervision pursuant to § 46 - 23 - 1011(4), MCA, it did not modify his punishment. We conclude that the District Court’s order simply clarified the conditions of Griffin’s probation, and did not change his original sentence. A s discussed in mo re detail below, Griffin’s participation in ISP was contemplated by the original conditions of his suspended7

sentence. F urther, the ISP program is not punitive in nature, and reinforces (rather than changes) the original conditions of Griffin’s suspended sentence. B ecause Griffin’s sentence itself has not been modified, it is unnecessary for us to reach his ex post facto , double jeopardy , and due processclaims. ¶20 1
. Was ISP contemplated as one of the original conditions of Griffin’s suspended sentence? ¶21 As one of the conditions of his suspended sentence, the District Court ordered Griffin to “abide by all the rules and conditions of [the Department of Corrections].” Section 46 - 23 - 1002(3) , MCA (1998) , provides that the Department may “ adopt rules for the conduct of persons placed on parole or probation, except that the department may not make any rule conflicting with conditions of parole imposed by the board or conditions of probation imp osed by a court. ” As we recognized in Therriault, I SPi s a permissible exercise of the Department’s authority under § 46 - 23 - 1002(3), MCA, so long as none of the ISP rules conflict with the offender’s court- ordered conditions of probation. State v. Therriault, 2000 MT 286, ¶¶ 46 - 47, 302 Mont. 189, ¶¶ 46 - 47, 14 P.3d 444, ¶¶ 46
- 47. ¶22 At the time of Griffin’s sentencing, ISP was used by the Department as one of the rehabilitationprograms for high
- risk offenders like Griffin. While the District Court did not specifically require Griffin to com plete ISP in its original conditions, it required him to abide by all the rules and conditionso f the Department’s probationprogram . O ne of the conditions that the Department attached to Griffin’s probationin Billings w as the requirement to completeI SP. Thus, we agree with the District Court’s finding that ISP was contemplated as one of the original conditions of Griffin’s suspended sentence.8

¶23 2
. D oes the requirement to successfully complete ISP changeGriffin’s orig inal sentence? ¶24 The District Court’s order modifies the conditions of Griffin ’s probationb y intensifying hisl evel of supervision. H owever, the requirement to complete ISP is not punitive and does not change the terms of Griffin’s original sentence. ¶25 The D epartment first developed I SPin Billings in 1987. S ince then, it has been available as an alternative to imprisonment for felony offenders requiring a higher level of supervision. The program is open to offenders on inmate status, as well as to those on paroleo r probations tatus. The stated purpose of the ISP is to provide “offenders who need a structured environment, counseling, and supervision” with “a specialized form of adult probation
. . . using a heightened level of supervision, monitoring devic es and close scheduling.” Therriault, ¶¶ 41 - 42. ISP is a “community
-based” programwhich allows offenders to “live at home [and] hold or seek jobs.” Therriault, ¶¶ 41 - 42. ¶26 In Therriault, we explicitly rejected the notion that I SP was punitive in nature, and held that participation in the program could not change an offender’s status from probationer to inmate. Therriault, ¶¶ 38 - 47. We specifically held that the rules and regulations of ISP may not conflict with the terms of adistrict court’s sentence . T herriault, ¶¶ 46 - 47. Rather, ISP is merely a “specialized form of adult probation and parole supervision” which places the offender under greater scrutiny, but still requires him to abide by all the original conditions of his probation. Therriault, ¶¶ 41 , 47. ¶27 Thus, theD epartment’s recommendation that Griffin complete ISP does not change the terms of

his original sentence . T o the contrary, the District Court included a9

number of restrictive conditions on Griffin’s suspended sentence. The District Court prohibited Griffin fromc ontact with children under the age of eighteen ; f rom using or possess ing pornographic material, alcoholic beverages or drugs; f rom entering any establishments where alco hol is the primary item of sale; and from using or possessin g any firearms. F urther, the c ourt ordered Griffin to seek and maintain full
- time employment; to submit to random drug testing; to enroll in a chemic al dependency treatment program; and to successfully complete a sex offender treatment

program under the supervision of the Department . I SP will provide Griffin with the resources and tools he needs to comply with theseoriginal conditions of his suspended sentence. ¶28 We agree with the District Court’s conclusion that the ISP requirement simply requires Griff

in to “abide by the original conditions of probation
. . . subject to greater scrutiny
. ” ISP was contemplated as one of the original conditions of Griffin’s suspended sentence, and the requirements of ISP do not change the conditions of the District Court ’s sentence. Because the District Court’s order does not modify Griffin’s punishment, h e has not suffered any due process, double jeopardy, or ex post factoviolations. A s a result, it is unnecessary to reach theother issues he raises on appeal
. ¶29 Final ly, we must address Griffin’s claim that he was coerced into signing the request to modify thec onditions of his probation
. Griffinh as failed to produce any evidence to support his claim that he signed the request under duress. Thus , we cannot conclude that the District Court abused its discretion in denying his motion.10 CONCLUSION ¶30 In conclusion, we hold that the District Court did not abuse its discretion in denying Griffin’s motion to set aside the order modifying the conditions of his probation
. The D istrict Court had the authority to modify the conditions of Griffin’s probation pursuant to § 46 - 23 - 1011(4) , MCA. The original conditions of Griffin’s suspended sentence contemplated the possibility of his participation in ISP. Griffin’s participation inthe ISP program ensure shis compliance with each of the conditions imposed by the District Court in his s entence. The c ourt’s order does not modify the substance of Griffin’s punishment, and as a result, does not implicate ex post facto , double jeopardy , or due processc oncerns. On appeal, Griffin bears the burden of proof in demonstrating that the District Court has abused its discretion. H ere, he has failed to meet that burden of proof. Thus, we affirm the District Court’s order denying Griffin’s motion to set aside the order modifying the conditions of his probation
.
/S/ W. WILLIAM LEAPHART We concur: /S/ KARLA M. GRAY /S/ PATRICIA COTTER /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS