State v. Pedersen , 318 Mont. 262 ( 2003 )

No. 02-404
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 315
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LESLIE JAMES PEDERSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, ADC 00-398-2
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vincent van der Hagen, Deputy Public Defender, Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, C. Mark Fowler,
Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade
County Attorney, Great Falls, Montana
Submitted on Briefs: April 4, 2003
Decided: November 18, 2003
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Leslie James Pedersen appeals the District Court’s revocation of his suspended
sentence. We affirm.
ISSUES
¶2 1. At a hearing on the revocation of his suspended sentence, were Pedersen’s due
process rights violated when the District Court denied his request for a continuance and
allowed the State to introduce drug test results, although drug use had not been alleged
before the hearing?
¶3 2. Did the District Court abuse its discretion when it permitted the State to present
evidence during the dispositional phase of the revocation hearing?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On October 22, 2001, Pedersen pled guilty to Criminal Possession of Dangerous
Drugs, a felony, § 45-9-102, MCA (1999), pursuant to a Plea Agreement. The State agreed
to dismiss three felony counts of Accountability for Criminal Sale of Dangerous Drugs, and
to recommend a five-year suspended sentence. The District Court followed the Plea
Agreement, sentencing Pedersen to five years, and suspending all but the thirty-three days
he had already served.
¶5 Among other conditions in the Plea Agreement, Pedersen agreed that he would not
use alcohol; would not use or possess illegal drugs or drug paraphernalia; would not own or
be in control of any firearms or deadly weapons; would submit to random drug and alcohol
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testing; and would obtain a chemical dependency evaluation. These conditions were
incorporated into his sentence when he appeared in District Court on December 7, 2001.
When he signed the rules of his probation on December 10, 2001, Pedersen also agreed that
he would not travel outside of Cascade County without permission, and that he would report
any arrests to his Probation Officer within 72 hours.
¶6 Less than a month later, Pedersen was arrested in Kalispell for misdemeanor assault,
carrying a concealed weapon, misdemeanor theft, and traffic offenses. His Probation Officer
informed the District Court that he believed Pedersen’s behavior was not in accordance with
the terms of the Plea Agreement and rules of probation and that the District Court would be
justified in revoking the suspended sentence.
¶7 On May 13, 2002, the District Court held a hearing at which Pedersen and Probation
Officer Michael Price testified. The District Court found that Pedersen had committed the
alleged violations and revoked his suspended sentence. Pedersen appeals.
STANDARD OF REVIEW
¶8 When asked to revoke probation or a suspended sentence, the issue before the District
Court is whether it “is reasonably satisfied that the conduct of the probationer has not been
what he agreed it would be if he were given liberty.” State v. Senn, 2003 MT 52, ¶ 19, 314
Mont. 348, ¶ 19, 66 P.3d 288, ¶ 19, quoting State v. Averill, 2001 MT 161, ¶ 22, 306 Mont.
106, ¶ 22, 30 P.3d 1059, ¶ 22. We review the District Court’s decision to revoke a
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suspended sentence to determine if it was supported by a preponderance of the evidence, and
if so, whether the District Court abused its discretion. Senn, ¶ 19.
DISCUSSION
ISSUE ONE
¶9 At a hearing on the revocation of his suspended sentence, were Pedersen’s due
process rights violated when the District Court denied his request for a continuance and
allowed the State to introduce drug test results, although drug use had not been alleged
before the hearing?
¶10 In his violation report, Pedersen’s Probation Officer alleged that Pedersen violated
four of his probation conditions – travel, alcohol, weapons, and laws. He supplied evidence
of each alleged violation in support of his belief that Pedersen’s suspended sentence should
be revoked. He stated that Pedersen was pulled over by a police officer while driving outside
of his district without permission, and that the officer found him in possession of brass
knuckles. He further advised that Pedersen was arrested and charged with Possession of a
Concealed Weapon, Assault, Theft, No Insurance, and a Red Light violation, and that
Pedersen blew a .043 on a Breathalyzer test.
¶11 At the hearing, Pedersen admitted he left Cascade County without permission and
with no good excuse. He also admitted drinking beer, and that he knew at the time that it
was a probation violation. He asserted his Fifth Amendment right to remain silent on the
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accusations of weapons possession and whether he had obeyed all laws, since charges were
still pending from the Kalispell arrest.
¶12 Price testified about the violations he alleged in his report and stated that Pedersen did
not contact him within 72 hours of his arrest, as required by the terms of his probation. Price
also brought up the results of drug tests he had administered to Pedersen since the time of
the Kalispell arrest. Pedersen objected, claiming that he had not been informed of the test
results and that he was not given notice that they would be entered into evidence. He
requested a continuance to examine the results. The District Court overruled his objection
and denied the request for a continuance.
¶13 Price then testified that Pedersen tested positive for methamphetamine after being
arrested again on March 26, 2002. He added that Pedersen failed another drug test
administered a week prior to the revocation hearing, and that, upon Pedersen’s denial that
he was using methamphetamine, Price sent the test to the Pre-Release Center, which
confirmed the positive result. He testified that Pedersen had had additional probation
violations, including drug use, possession of drug paraphernalia, and leaving Cascade County
without permission on other occasions, and that Pedersen also had charges pending against
him in Lewis and Clark County.
¶14 On recall, Pedersen admitted he had a drug problem, and that he had not gotten a
chemical dependency evaluation as required under his probation agreement. He also
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admitted using methamphetamine since his sentencing, but insisted the test results were
wrong because he had not used the drug before each test.
¶15 The District Court found that Pedersen had violated the conditions as set forth in the
violation report. It did not make a finding of fact regarding Pedersen’s alleged drug use.
¶16 Pedersen argues that because he was unaware that the State would present any drug
test results, and because he was denied the opportunity to challenge these results, he was
denied his due process rights. The State argues that Pedersen was on actual notice that he
had been given the two drug tests and failed to request the results, and that he failed to
demonstrate that pre-hearing disclosure of the results would have affected the District
Court’s disposition. Pedersen replies that drug use was not mentioned as a reason for
revocation in the pre-hearing documents, and he was not on notice that the State would
introduce the drug test evidence; thus, he had no reason to request the results.
¶17 Once a court has determined that a probation violation has occurred, it is within the
court’s discretion to determine an appropriate action in response to the violation. Section 46-
18-203(7), MCA. Barring an abuse of that discretion, this Court will not intervene. Senn,
¶ 19.
¶18 When an offender is brought before a judge on a petition for revocation, the offender
must be advised of the allegations of the petition, the opportunity to appear and present
evidence, the opportunity to question adverse witnesses, and the right to be represented by
counsel. Section 46-18-203(4), MCA (2001). The prosecution must prove that there has
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been a violation of the terms of the suspended sentence by a preponderance of the evidence.
Section 46-18-203(6), MCA (2001). The judge may, at his or her discretion, revoke the
suspended sentence. Section 46-18-203(7)(a)(iii), MCA (2001).
¶19 Pursuant to § 46-18-203(4), MCA, Pedersen was advised of the allegations of the
petition for revocation, presented evidence, questioned the adverse witness, and was
represented by counsel. Pedersen admitted to at least two violations, and the State presented
uncontroverted evidence of two other violations which had been alleged in the pre-hearing
documents; thus, the State met its burden of proving a violation of the suspended sentence
conditions by a preponderance of the evidence, pursuant to § 46-18-203(6), MCA.
¶20 A revocation hearing is not a criminal trial, but rather a hearing to establish whether
or not a probation violation has occurred. “The probationer already stands convicted of a
crime no matter what the grounds for revocation may be, whether it is the commission of
another crime or unauthorized travel.” In re Meidinger (1975), 168 Mont. 7, 15, 539 P.2d
1185, 1190. As such, the revocation hearing is not subject to the Montana Rules of
Evidence. M.R.Evid. 101(c)(3). However, a probation revocation hearing must be
fundamentally fair. Meidinger, 168 Mont. at 15, 539 P.2d at 1190.
¶21 The minimum requirements of due process are extended to sentence revocation
hearings. State v. Nelson (1987), 225 Mont. 215, 218, 731 P.2d 1299, 1302 (citing Gagnon
v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656). If a defendant is not
notified of the State’s intention to use alleged violations against him at a probation revocation
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hearing, it is error for a trial judge to admit those alleged violations into evidence. Nelson,
225 Mont. at 219. However, a District Court’s error may be harmless if its findings do not
rely upon the erroneously admitted evidence. Id.
¶22 In light of Nelson, we conclude that because Pedersen was not notified in advance of
the State’s intention to use the drug violations against him at the revocation hearing, the
District Court erred when it admitted the drug test results. However, we further conclude
the error was harmless. The District Court’s findings do not reference the drug test results,
nor did the District Court rely upon them in revoking Pedersen’s suspended sentence.
Moreover, in light of the abundant evidence demonstrating Pedersen’s violation of the four
probation conditions considered by the Court, we conclude that the District Court did not
abuse its discretion when it revoked Pedersen’s suspended sentence.
ISSUE TWO
¶23 Did the District Court abuse its discretion when it permitted the State to present
evidence during the Dispositional phase of the revocation hearing?
¶24 Pedersen argues that he was entitled to a bifurcated hearing, with the evidentiary and
dispositional phases separated into two distinct proceedings. Pedersen points out that, after
he testified, the District Court announced that it was beginning the dispositional phase of
the hearing and asked the State for its recommendations. At that point, the State called Price
to the stand. Pedersen did not object to Price’s being called, but did object when Price
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offered additional substantive evidence to support the revocation. The District Court
overruled Pedersen’s objections.
¶25 Pedersen claims that revocation proceedings are divided into two discrete phases –
evidentiary and dispositional – and that the only proper time for introducing or rebutting
evidence is during the evidentiary phase of the proceeding. During the dispositional phase
of the hearing, he argues, the District Court should have allowed Price to testify only to his
recommendations for disposition.
¶26 We can find no Montana statutory or common law authority for Pedersen’s contention
that a revocation hearing must be bifurcated. District courts have wide latitude in controlling
courtroom procedure. State v. Snaric (1993), 262 Mont. 62, 69, 862 P.2d 1175, 1179. Thus,
we conclude that the District Court did not abuse its discretion when it allowed the State to
present evidence after it moved into the dispositional phase of the revocation hearing.
CONCLUSION
¶27 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
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/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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