83-332 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsBRUCE KENNEDY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Blaine, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Andrew M. Small, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald Ranstrom, County Attorney, Chinook, Montana 

Submitted on Briefs: ~pril 5, 1984 

~ecided: ~ugust 22, 1984 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant, Kennedy, appeals from an order of the 

District Court, Blaine County, amending the conditions of 

probation for one of appellant's two felony convictions, to 

include a thirty day prison sentence. This order followed a 

hearing on the State's petition to revoke a suspended 

sentence on one conviction and a deferred sentence on the 

other. The sentence was stayed pending this appeal. 

On May 27, 1982, judgment was entered in the case of 

The State of Montana v. Bruce Kennedy, wherein Kennedy pled 

guilty to the charge of burglary in violation of section 

45-6-201(1), MCA. The court entered its judgment deferring 

imposition of the sentence for a period of two years. On 

March 8, 1983, judgment was entered in another cause wherein 

Kennedy entered a plea of guilty to a charge of theft in 

violation section 45-6-301(2)(a), MCA. The theft to which 

Kennedy entered a guilty plea did not occur during the time 

he was on probation for entering the guilty plea to 

burglary, but nearly seven months prior to the May 1982 plea 

of guilty. The court at that time imposed a sentence of 

five years in the Montana State Prison, all of which was 

suspended for a period of three years beginning on the date 

of entry of judgment. Appellant was placed on supervised 

probation for both periods ordered above. Both sentences 

required that Kennedy be subject to the rules and 

regulations of the Community Corrections Bureau, all orders 

of the court and the restrictions set out in the standard 

parole and probation contract of the Montana Department of 

Institutions. On May 10, 1983, a report of violation was 
filed with the District Court by appellant's probation 

officer, alleging violations of the conditions of probation. 

A hearing was held on May 13, 1983, where Kennedy requested 

counsel regarding a petition for revocation which was filed 

by the State. The matter was continued until May 24, 1983, 

when Kennedy appeared with counsel. 

A hearing was held on the petition for revocation on 

May 24, 1983. The petition alleged violations of two rules 

of probation and one violation of the court condition No. 2 

in the theft charge. The appellant denied the allegations 

as to the violation of Rule 1 and admitted the allegations 

pertaining to the violations of Rule 5 of the probation 

contract and violations of court condition No. 2 in the 

theft charge. 

Three issues are presented by appellant. We have 

combined the following into two issues as inclusive of the 

three set forth by the appellant: IJ ' 2; 

(1) Whether the appellant's right to due process were " 

violated when he was ordered to go forward with his evidence 

in mitigation even though the State had offered no evidence 

and had not carried its burden of proof in support of its 

allegations in its petition of revocation of suspended and 

deferred sentences. 

(2) In order to best achieve rehabilitation, whether 

revocation of a sentence should require a determination that 

the defendant cannot avoid antisocial behavior rather than a 

technical failure to comply with the rules of probation. 

The first issue is not only dispositive, but is the 

only issue that applies to the facts of this case. The 

second issue need not be discussed. 
Appellant argues that he was deprived of due process 

because the trial court, without the State presenting proof 

of the probation violation, directed appellant to go forward 

with proof that he did not violate the conditions of 

probation. We do not believe that this is what the trial 

court did or intended. Furthermore the record justifies the 

procedure taken, and we do not find it necessary to vacate 

the order and remand for further hearing. 

We have reviewed the record and transcript which 

reveal that a revocation hearing was held in the District 

Court, with the appellant and his counsel present. Both 

appellant and his counsel acknowledge that they had received 

the petition for revocation and were familiar with it. 

The court asked appellant how he responded to the 

charge in the petition that he failed to make himself 

available to the probation officer, failed to inform the 

officer of his whereabouts, and had not contacted the 

officer or the sheriff's office during a certain period of 

time. To that charge, the appellant stated: "Not true.'' 

Therefore, on that ground, the appellant appeared to have 

denied the same. 

The court next considered the allegation of the 

petition that covered the last written monthly report 

submitted by the appellant, which was dated October 5, 1982 

and the last time appellant appeared before his probation 

officer was December 7, 1982. The hearing that took place 

was on May 24, 1983. Looking to the position of the 

appellant as to the charge of failing to make appearances, 

we find the following occurred between the court and the 

appellant: 
"THE COURT: The last personal appearance 

before his probation officer was December 

7, 1982. Is that admitted or denied? 

"MR. SMALL [counsel for appellant] : 

Pursuant to the terms of the order and 

the conditions of probation and parole 

agreement, that is correct. 

"THE COURT: OK. And that he has not 

appeared before Mr. Matkin [the 

supervising probation officer] since 

December 7, 1982. Does he deny or admit 

that? 

''A. [by appellant]: I admit that, Your 

Honor. " 

The court then asked whether the appellant admitted or 

denied the charge that he had made no contribution to the 

Western Bank (the victim of the second offense) for 

restitution, and had not consulted with the probation 

officer with regard to setting up a plan of restitution, all 

as contained in his conditions of probation. The appellant 

admitted he had not done so. 

Thereafter, the court asked if the appellant had 

anything to say in mitigation of his admissions. Counsel 

for the appellant said "Yes, they have a substantial amount 

of testimony to put on." The parties then agreed to 

proceed. Counsel for the appellant asked if the State was 

to present its case with regard to the petition. At that 

point the court stated that in view of the admissions by the 

appellant, there was no reason for the State to submit 

evidence. Counsel for the appellant then pointed out the 

only reason for asking, was that if the State was not going 

to put on its evidence he would like to call the probation 

officer. The court advised him he could call anyone he 

wished. The appellant then proceeded to call various 

witnesses, starting with the probation officer . 
The transcript of these hearings show that an 

agreement was reached between the court, appellant's counsel 

and the county attorney that the admissions on the part of 

the appellant as to the allegations in the petition for 

revocation went to both files, that is two different cases, 

with the denial to apply only to one allegation in both 

files. Subsequently, the following took place. 

"THE COURT: You may call anybody you 

wish. Incidentally, will counsel agree 

that these admissions, the petition for 

revocation are the same in each file, and 

that the admissions go to each file? 

"MR. RANSTROM [counsel for the 

plaintiff]: That's correct, Your Honor. 

My understanding is that the only three 

allegations contained therein, that the 

first one was denied, but the other two 

admitted, in substance? 

"MR. SMALL [counsel for appellant] : 

That's correct, Your Honor. On the 

initial, the first allegation, Your 

Honor, my statement was that as the 

petition reads, it is denied. 

"MR. RANSTROM: That was with regard to 

the allegation that he was to go directly 

to the approved program and shall report 

to the probation and the parole officer 

or other designated person, make himself 

available. 

"THE COURT: At line 17 Rule 1 starting 

with the rule-- 

"MR. RANSTROM: That's correct. 

"THE COURT: And that is denied by the 

defendant? 

"MR. SMALL: Correct, Your Honor. 

"THE COURT: Do you wish to put the 

testimony at this time on that? 

"MR. SMALL: Yes, Your Honor. We would 

like to. 

"THE COURT: Very well. You may 

proceed. " 
On the basis of this record, we conclude that 

appellan.tls due process rights were not violated. The 

District Court's order of imprisonment for thirty days is 

upheld. 

We concur: 

Chief 

"bk&J. 

Justice Wd\ 

Justices 

Mr. Justice Daniel J. Shea dissents, and will file a written 

dissent later.