NO. 94-373

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

v.

TERENCE PONDER,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert M. Kampfer, Attorney at Law,

Great Falls, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Cregg W. Coughlin, Assistant Attorney

General, Helena, Montana

Filed:

Submitted on Briefs: December 1, 1994

Decided: December 22, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant Terence Ponder was charged in the District Court for

the Eighth Judicial District in Cascade County with two counts of

sexual intercourse without consent, in violation of § 45-5-503, MCA

(1991). Pursuant to a written plea agreement, Ponder pled guilty

to one count of sexual intercourse without consent. He was

sentenced to 10 years in prison with all time, except 40 days, of

the sentence suspended, and was given 40 days credit for time

served. On February 18, 1994, the State filed a petition to revoke

Ponder's suspended sentence and alleged that he violated its

conditions. Following an April 4, 1994, evidentiary hearing, the

District Court ordered that Ponder's suspended sentence be revoked

and ordered him to serve the full term of his original sentence.

Ponder appeals. We affirm the judgment of the District Court.

The following issue is presented on appeal:

Did the District Court err when it revoked Ponder's suspended

sentence and ordered him to serve the full term of his original

sentence?

FACTUAL BACKGROUND

On November 26, 1991, Ponder was charged with two counts of

sexual intercourse without consent. On December 17, 1991, he pled

not guilty to both counts.

On December 4, 1992, Ponder filed a written plea agreement

with the District Court in which he agreed to plead guilty to one

count of sexual intercourse without consent and in which the State

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agreed to dismiss the other count. The District Court accepted his

plea and granted the State's motion to dismiss the second count.

On June 9, 1993, Ponder was sentenced to 10 years in the

Montana State Prison, with all time, except 40 days, suspended.

The court also ordered that Ponder serve 40 days in the Cascade

County Jail, but he was given credit for 40 days already served.

The District Court ordered that Ponder abide by conditions of his

suspended sentence, which included requirements that he obtain a

chemical dependency evaluation at his own expense; that he attend

and complete a sexual offender treatment program at his own

expense; and that he pay restitution for counseling expenses for

the victim.

Judy Reimann, Ponder's probation officer, filed an affidavit

on February 8, 1994, in which she stated that she believed he had

violated the terms of his probation. The State filed a petition on

February 18, 1994, in which it requested that his suspended

sentence be revoked. An evidentiary hearing was held on April 4,

1994.

Ponder, Judy Reimann, and Ron Silvers, Ponder's therapist, all

testified at the evidentiary hearing. Silvers testified that

participants in the sexual offender treatment program must adhere

to strict guidelines, which include attendance and participation in

all required meetings, and completion of required homework

assignments. Silvers testified that Ponder was dealing with issues

such as denial, avoidance, and minimization of the crime, but that

he had an excessive number of absences from the program. Silvers

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testified that Ponder was terminated from the program for lack of

attendance, lack of group participation, failure to turn in

assignments, and failure to pay Silvers' bill. However, Silvers

testified that no one had ever been terminated from the program

based solely on a failure to pay.

Reimann testified that Ponder's termination from Silvers'

program is significant because, without therapy, he is a greater

risk to r-e-offend. Reimann recommended prison as an alternative if

Ponder did not continue counseling.

Ponder testified that he lost employment because he missed

work while taking time off to travel to Helena to attend sexual

offender counseling, and that he was having financial difficulties.

He admitted that he missed several meetings at the sexual offender

treatment program.

On April 5, 1994, the District Court found that Ponder had

violated the condition of his suspended sentence which required him

to attend and complete the sexual offender treatment program with

Ron Silvers. The District Court found that three unexcused

absences from the sexual offender treatment program would, in and

of itself, justify revocation. On April 5, 1994, the District

Court revoked Ponder's suspended sentence and sentenced him to

10 years in prison, with credit for time served. The District

Court also ordered that if it is determined that Ponder is not a

suitable candidate for serving his sentence in a community-based

program, he must complete the sex offender treatment program at the

Montana State Prison before he is eligible for parole.

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DISCUSSION

Did the District Court err when it revoked Ponder's suspended

sentence and ordered him to serve the full term of his original

sentence?

We review a district court's revocation of a suspended

sentence for an abuse of discretion. State v. Lundquist ( 19 92 ) , 2 5 1

Mont. 329, 331, 825 P.Zd 204, 206 (citing Statev.Robinson (1980), 190

Mont. 145, 149, 619 P.2d 813, 815).

Section 46-23-1013(2), MCA, gives a district court authority

to revoke a suspended sentence based on a violation of its

conditions. That section provides in part that " [il f the violation

is established, the court may . . revoke the . . suspension of

sentence . . .II Section 46-23-1013(2), MCA. After a hearing,

the District Court found that Ponder had violated the terms of his

suspended sentence. That finding was supported by substantial

evidence, and therefore, it was within the District court ' s

discretion to revoke the suspended sentence.

"A defendant given a suspended sentence lives knowing that 'a

fixed sentence for a definite term hangs over him."' State v. Watts

(1986), 221 Mont. 104, 106, 717 P.2d 24, 26 (citing Robertsv. United

states (1943), 320 U.S. 264, 64 S. Ct. 113, 88 L. Ed. 41). We have

held that a district court has the power to suspend a sentence or

to revoke a suspended sentence, and that the decision to revoke a

suspended sentence "cancels a prior act of grace and is within the

court's discretion." St&v. Rogers (1989), 239 Mont. 327, 329, 719

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P.2d 927, 929 (citing Statev. Kern (1984), 212 Mont. 385, 388, 695

P.2d 1300, 1301).

We have affirmed the revocation of a suspended sentence based

on a defendant's failure to complete a sexual offender treatment

program. SeeState Y. Strangeland (1988), 233 Mont. 230, 758 P.2d 776;

Statev. Friedman (1987), 225 Mont. 373, 732 P.2d 1322.

Ponder contends that the reason his suspended sentence was

revoked was because of his indigency, which was beyond his control.

He argues that he was unable to pay for counseling because he

lacked the financial resources to do so, and that travel to the

counseling sessions became difficult because he no longer owned a

car. For these reasons, he argues that the revocation of his

suspended sentence was an abuse of discretion, and that the

District Court should have considered other, less severe, measures.

We have held that "[tlhe standard for revocation . . . is

whether the judge is reasonably satisfied that the conduct of the

probationer has not been what he agreed it would be if he were

given liberty." Lundquist, 825 P.2d at 206 (citing Robinson, 619 P.2d

at 815). In this case, in its April 5, 1994, findings of fact, the

District Court found that Ponder had numerous unexcused absences

from his mandatory sexual offender treatment program and that this

indicated that Ponder "is not admitting responsibility for his

crime, and is not amenable to outpatient treatment." The District

Court also found that Ponder's unexcused absences were part of the

reason he was expelled from the treatment program.

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We conclude that the District Court's findings are supported

by substantial evidence and that it did not abuse its discretion

when it revoked Ponder's suspended sentence.

The judgment of the District Court is affirmed.

Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

We concur: