DA 18-0499

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 278

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

SCOTT STEVEN FJELSTED,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and For the County of Chouteau, Cause No. DC-16-09

Honorable Daniel A. Boucher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant 

Attorney General, Helena, Montana

Stephen A. Gannon, Chouteau County Attorney, Fort Benton, Montana

Submitted on Briefs: September 9, 2020

 Decided: November 4, 2020

Filed:

__________________________________________

Clerk

cir-641.—if

11/04/2020

Case Number: DA 18-0499
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Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Scott Steven Fjelstad appeals a Twelfth Judicial District Court order revoking his 

deferred sentence for criminal endangerment. We affirm.

¶2 We address the following issue on appeal:

Whether the District Court abused its discretion when it revoked Fjelstad’s

deferred sentence after he failed to report to his probation officer for five 

months.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In August 2016, Fjelstad was charged with felony driving under the influence.1 He 

pleaded guilty to an amended charge of criminal endangerment, a felony, in violation of 

§ 45-5-207, MCA (2015), in March 2017. His sentencing hearing took place in May 2017. 

The District Court sentenced him to five years to the Department of Corrections (DOC), 

with all time suspended, and imposed all standard conditions of probation. 

¶4 Fjelstad remained compliant with the terms of his suspended sentence through 

October 31, 2017. In April 2018, the State filed a petition to revoke his sentence. The

petition alleged that Fjelstad violated four conditions of his suspended sentence, including 

absconding; failing to follow the directions of the chemical dependency evaluator; failing 

to pay fees; and testing positive for methamphetamine and amphetamine. Fjelstad denied 

the violations and the District Court held an evidentiary hearing in June 2018. The court 

 

1 Some of the District Court documents and Appellant’s opening brief spell Appellant’s last name 

“Fjelsted,” but the District Court judgment spells his name “Fjelstad.” The Department of

Correction’s website also spells his name “Fjelstad,” and lists “Fjelsted” as a name he is also 

known as. We will refer to the Appellant as “Fjelstad.”
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heard testimony from Tomeka Williams, Fjelstad’s probation officer, and Cheryl Basta, his

chemical dependency counselor.

¶5 At the hearing, Williams testified that Fjelstad signed the rules of probation, which 

required him to report to her as directed. He was initially required to report once a month; 

however, after he committed violations at the end of August and beginning of September, 

he was required to report and conduct urinalysis (UA) tests more often. Williams testified 

that Fjelstad’s last contact with probation and parole was October 31, 2017. After that, 

Williams was not able to reach him. She called Fjelstad on November 29, 2017, 

December 21, 2017, and January 1, 2018, and she left messages instructing him to call her. 

In addition to phone calls, Williams sent a letter to the address Fjelstad provided to the 

probation office. However, the letter was returned because Fjelstad had not provided a unit 

number. Williams testified that she called Basta, but Basta could not contact Fjelstad

either. Williams acknowledged that she did not try to go to Fjelstad’s home, even though 

it was 0.3 miles from her office, but testified she did not do so because she did not have a 

unit number. She also did not attempt to contact Fjelstad’s landlord because she did not 

have the landlord’s name and number at that time, but she did admit to having a billing 

address. Williams did not remember whether she had contacted Fjelstad’s employer. On 

January 1, 2018, Williams requested a warrant be issued for Fjelstad. After Fjelstad was 

arrested in April 2018, he told Williams somebody had come into his residence and stolen 

his phone, but that he had since rectified the situation.
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¶6 Basta testified she conducted a chemical dependency evaluation on Fjelstad in 

June 2017 and determined he needed treatment, which he entered into with Basta. One of 

Fjelstad’s treatment requirements was to comply with random UA tests. In 

September 2017, Basta learned Fjelstad tested positive for methamphetamine and 

amphetamine in a test administered by probation and parole, and she requested he provide 

another sample for a UA test. He refused. Basta eventually terminated him from treatment 

because he failed to show up for two appointments without rescheduling and did not 

respond to a text message and letter she sent to him. Fjelstad told Basta that his phone had 

been stolen but he had or was getting another phone. He provided another number for her

to contact him. 

¶7 The District Court found the State met its burden of proving by a preponderance of 

the evidence that Fjelstad committed the violations alleged in the State’s petition to revoke,

including the violation of absconding. The only non-compliance violation was the 

absconding violation. At sentencing, the court stated, “It is possible that this officer did 

not do all that she could have. But Mr. Fjelstad has a burden upon him. . . . You have to 

keep in contact with the probation officer and tell them that your phone is stolen. Beyond 

that, you did not report.” The court imposed a five-year commitment to the DOC with 

two years suspended and credited Fjelstad for time served. The Court explained it was 

imposing the sentence because Fjelstad failed to maintain compliance during his time on 

probation, including drug use, failing to pay fines, and absconding supervision.
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STANDARD OF REVIEW

¶8 A trial court’s statutory interpretation is a question of law this Court reviews for 

correctness. State v. Duong, 2015 MT 70, ¶ 11, 378 Mont. 345, 343 P.3d 1218. When the 

issue presented is whether the district court had authority to take a specific action, the 

question is one of law and subject to de novo review. State v. Graves, 2015 MT 262, ¶ 12, 

381 Mont. 37, 355 P.3d 769. However, “we review a district court’s decision to revoke a 

suspended or deferred sentence to determine whether the district court’s decision was 

supported by a preponderance of the evidence in favor of the State, and if it was, whether 

the court abused its discretion.” State v. Goff, 2011 MT 6, ¶ 13, 359 Mont. 107, 

247 P.3d 715. A district court abuses its discretion when it acts arbitrarily without 

employment of conscientious judgment or exceeds the bounds of reason, resulting in 

substantial injustice. State v. Weldele, 2003 MT 117, ¶ 72, 315 Mont. 452, 69 P.3d 1162.

DISCUSSION

¶9 Whether the District Court abused its discretion when it revoked Fjelstad’s deferred 

sentence after he failed to report to his probation officer for five months. 

¶10 In 2015, the Montana Legislature enacted Senate Bill 224, establishing the 

Commission on Sentencing in order to address prison overcrowding, high recidivism of 

first-time criminal offenders, and the growing impact of substance abuse on people in the 

state’s criminal justice system. State v. Oropeza, 2020 MT 16, ¶ 3, 398 Mont. 379, 

456 P.3d 1023. One of the initiatives proposed by the Commission was Senate Bill 59, 

which required the DOC to adopt, maintain, and implement the policy known as the 
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Montana Incentives and Interventions Grid for Adult Probation & Parole (MIIG) to guide 

supervision of offenders. Oropeza, ¶ 4 (citation omitted). 

¶11 The MIIG provides guidelines for probation and parole officers that create 

consistency with incentives and interventions for offenders. Oropeza, ¶ 5. The MIIG 

incentivizes positive behaviors and provides guidance on intervention responses when an 

offender violates a condition of their probation or parole. Oropeza, ¶ 5. The MIIG also 

separates condition violations into two categories: compliance and non-compliance. 

Oropeza, ¶ 6 (citing § 46-18-203(7)-(12), MCA). Most violations are categorized as 

compliance violations and cannot result in an automatic revocation of a deferred or 

suspended sentence but must be addressed utilizing the MIIG procedures. 

Section 46-18-203(8)(a), MCA. However, non-compliance violations, including 

absconding, can result in a direct revocation and are not subject to the MIIG procedures. 

Section 46-18-203(7)(a)(iii), MCA. 

¶12 Fjelstad maintains that he merely failed to report, a compliance violation, but did 

not abscond. He argues that the District Court erroneously revoked his suspended sentence 

for this compliance violation that should have been addressed through MIIG procedures. 

We disagree and conclude the State met its burden of proving Fjelstad absconded. 

¶13 Section 46-18-203(11)(a), MCA, defines “absconding” as an “offender deliberately 

mak[ing] the offender’s whereabouts unknown to a probation and parole officer or fail[ing]

to report for the purposes of avoiding supervision, and reasonable efforts by the probation 

and parole officer to locate the offender have been unsuccessful.” In other words, to bypass 

the MIIG and proceed directly to revocation of a defendant’s suspended sentence, the State 
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is required to prove that the defendant (1) deliberately made their whereabouts unknown 

to a probation and parole officer or failed to report for the purposes of avoiding supervision, 

and (2) that reasonable efforts by the probation and parole officer to locate the offender 

were unsuccessful. Section 46-18-203(11)(a), MCA. Fjelstad argues that the State met 

neither requirement. 

Failure to report for purposes of avoiding supervision

¶14 When determining whether an offender “deliberately” made his whereabouts 

unknown or failed to report “for the purposes of avoiding supervision” under 

§ 46-18-203(11)(a), a court can infer the defendant’s state of mind from the defendant’s 

actions or lack of actions. See State v. Sage, 221 Mont. 192, 199, 717 P.2d 1096, 

1100 (1986) (stating the jury can infer the defendant’s mental state from the defendant’s 

actions and the circumstances involved). Additionally, in Oropeza, we held that evidence 

Oropeza knew he was supposed to report, was directed to report, and failed to report for 

over three months was “beyond adequate to” make a finding that he failed to report for the 

purpose of avoiding supervision. Oropeza, ¶ 18. Similar to Oropeza, Fjelstad was required 

to report at least monthly, if not more, and he failed to do so for over five months. Fjelstad 

did not report from November 2017 through March 2018, even though he was instructed 

to report when initially placed on probation and his probation officer left him messages 

warning him that he needed to report. Fjelstad also failed to include his unit number in his 

address, which resulted in the letter being returned to Williams. These facts are sufficient 

for a District Court to conclude Fjelstad deliberately made his whereabouts unknown and 

failed to report for the purpose of avoiding supervision.
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¶15 Fjelstad argues that an important distinction exists between Oropeza and his case in 

that Oropeza ignored two direct communications from his current and past probation 

officers instructing Oropeza to report the following day. Fjelstad maintains that Oropeza’s 

willful disobedience of two direct orders from probation officers was sufficient to 

demonstrate a “purpose of avoiding supervision.” In contrast, Fjelstad contends he never 

received any direct communication from the probation office because his phone was stolen 

and the letter was returned. Thus, Fjelstad maintains that his conduct does not amount to 

a purposeful avoidance of supervision. We do not find this argument persuasive, nor do 

we find the distinction between the facts in Oropeza and here significant. The reason 

Fjelstad did not receive any direct communications from Williams was because Fjelstad, 

himself, failed to provide her a complete address and updated phone number. It is a 

defendant’s responsibility to provide correct contact information to the probation office. 

Fjelstad signed the rules of probation form, acknowledging that he was to report monthly, 

and his failure to do so for over five months supports a finding that Fjelstad made his 

“whereabouts unknown or failed to report for the purpose of avoiding supervision.” 

Reasonable Efforts

¶16 The State is also required to prove that the probation officer made 

“reasonable efforts” to locate the defendant. Section 46-18-203(11)(a), MCA. In Oropeza, 

we held that a probation officer made reasonable efforts to contact Oropeza when: the 

officer told Oropeza that he needed to contact the officer the next day; the officer visited 

Oropeza’s residence at least twice and called Oropeza’s place of employment multiple 

times; another probation officer personally advised Oropeza to report after seeing him in a 
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grocery store; and Oropeza’s probation officer contacted Oropeza’s girlfriend by phone 

and told her the officer needed to speak with Oropeza. Oropeza, ¶ 19. Fjelstad maintains 

that Williams’ efforts stand in stark contrast to those of the probation officer in Oropeza

and that Williams’s phone calls were not sufficient because his phone was stolen. Again, 

we disagree. 

¶17 While Williams acknowledged that she never tried to locate Fjelstad by going to his 

address, nor did she attempt to locate him by asking his landlord about his whereabouts, 

we nonetheless conclude that Williams’s efforts were reasonable. While the District Court 

was correct in its observation that Williams may not have done “all that she could have,” 

§ 46-18-203(11)(a), MCA, does not require a probation officer to do everything in their

power to locate a probationer. Rather, the statute requires “reasonable efforts.” Williams 

called Fjelstad and left messages with him multiple times. With the exception of Fjelstad’s

statements to Williams and Basta that his phone was stolen, there is no other evidence in 

the record supporting this claim. Furthermore, even if Fjelstad’s phone was stolen, he still 

had an obligation to report when scheduled and to notify his probation officer if his phone 

number changed. Williams also sent a letter, but it was returned because Fjelstad did not 

provide his unit number. Fjelstad similarly had an obligation to provide a correct address 

to Williams. Finally, Williams called Basta who said she was also unable to contact 

Fjelstad. William’s efforts to contact Fjelstad by calling him multiple times, sending a 

letter, and contacting his chemical dependency counselor were adequate and reasonable. 
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CONCLUSION

¶18 The District Court did not abuse its discretion in determining Fjelstad absconded, a 

non-compliance violation of his probation conditions, and Williams was not required to 

exhaust MIIG procedures prior to initiating revocation proceedings against Fjelstad. The 

District Court’s conclusion is supported by sufficient evidence that Fjelstad failed to report 

for the purpose of avoiding supervision, and the probation officer made reasonable efforts 

to contact Fjelstad. 

¶19 Affirmed.

/S/ LAURIE McKINNON

We Concur: 

/S/ MIKE McGRATH

/S/ JAMES JEREMIAH SHEA

/S/ INGRID GUSTAFSON

/S/ JIM RICE