### 83-332 INTHE SUPREME COURTOF 

### THE STATEOF MONTANA 1984

STATEOF MONTANA, Plaintiff and Respondent,



### -vsBRUCEKENNEDY, DefendantandAppellant.

APPEAL FROM: 

### DistrictCourt

### of the Twelfth JudicialDistrict, Inand for the County

### of Blaine, TheHonorable ChanEttien,Judgepresiding.

COUNSEL OF 

### RECORD:

ForAppellant: AndrewM. 

### Small, Billings,Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena,Montana Donald Ranstrom, CountyAttorney,Chinook,Montana

Submittedon Briefs: ~pril 5, 1984 ~ecided:~ugust 22, 1984

ClerkMr. 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 thirtyday 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 sentencewas stayedpending thisappeal. On May 27, 1982, judgment was entered in the case of The Stateof 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 itsjudgment deferring imposition of the sentence for a period of two years. On March 8, 1983,judgment was entered inanother causewherein 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 guiltyplea did not occur during the time he was on probation for entering the guilty plea to burglary, but nearly sevenmonths prior totheMay 1982plea 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, allorders 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 wasfiled with the District Court by appellant's probation officer, allegingviolations of theconditionsof 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 untilMay 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 thecourt condition No. 2 in the theft charge. The appellant denied the allegations

as tothe violation of Rule 1and admitted the allegations pertaining to the violations of Rule 5 of the probation contract and violations of court condition No. 2 in the theftcharge. Three issues are presented by appellant. We have combined the following into two issues as inclusive of the three set forthby theappellant:

IJ'2; (1)Whether the appellant's right todue processwere 

## " violatedwhen hewas ordered togo forward withhisevidence inmitigation even though the Statehad 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 requirea determinationthat thedefendantcannot avoid antisocialbehavior rather than a technical failuretocomply with the rulesof probation. The first issue is not only dispositive, but is the only issue that applies to the facts of this case. The second issueneed notbe discussed.Appellant argues that he was deprived of due process because the trial court, without the Statepresenting proof of theprobationviolation, directed appellanttogo forward with proof that he did not violate the conditions of probation. We do not believe that this is what the trial courtdid 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 appellantand hiscounsel acknowledge thattheyhad received thepetition forrevocation 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 asto the charge of failing tomake appearances,
we find the following occurred between the court and the appellant:

### "THECOURT: 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 aplan of restitution, all

as contained in his conditions of probation. The appellant admitted he had notdone 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 admissionsby 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 Statewas 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 revocationare 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 isdenied. "MR. RANSTROM: That was with regard to the allegation thathewas to godirectly 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:


### "bk&J. 

# Wd\ Chief Justice

Justices

Mr. JusticeDanielJ. Sheadissents, andwillfilea written dissentlater.