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No, 13344 I N THE SUPREME C U T O THE STATE O M N A A OR F F OTN 1976

T E STATE O M N A A H F OTN, P l a i n t i f f and Respondent,
-VS

Defendant and Appellant,

R N L GENE EMMETT, O AD

Appeal from:

D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Honorable L. C , Gulbrandson, Judge p r e s i d i n g .

Counsel of Record: For Appellant : Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s , Montana D. Frank Kampfe argued, B i l l i n g s , Montana For Respondent : Hone Robert L, Woodahl, Attorney General, Helena, Montana John F. North argued, A s s i s t a n t Attorney General, Helena, Montana Richard A, Simonton, County Attorney, argued, Glendive, Montana

Submitted: Decided : Filed :

October 13, 1976

DEC 18

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M r . J u s t i c e Frank'I.Haswel1 d e l i v e r e d t h e Opinion of t h e Court.
Defendant Ronald Emmett appeals from an order of t h e d i s t r i c t c o u r t , Dawson County, revoking h i s d e f e r r e d imposition of sentence and sentencing Emmett t o two and one-half years i n Montana S t a t e Prison. On March 24, 1975 defendant Emmett was charged with felony possession of marijuana i n v i o l a t i o n of s e c t i o n 54-133, R.C.M. 1947. That same day he pled g u i l t y and t h e c o u r t ordered imposi-

t i o n of sentence d e f e r r e d f o r t h r e e years provided defendant complied with a number of conditions during t h a t period. After

compliance with t h e conditions f o r t h r e e y e a r s , t h e charges would be dismissed. O September 30, 1975 Emmett's probation o f f i c e r reported n t o t h e county a t t o r n e y a l l e g e d v i o l a t i o n s of conditions of Emmett's deferred sentence. The county a t t o r n e y i n t u r n p e t i -

tioned t h e c o u r t t o revoke t h e d e f e r r a l and impose sentence of f i v e years i n prison. Other v i o l a t i o n s subsequent t o t h e f i l i n g

of t h i s f i r s t p e t i t i o n were a l l e g e d p r i o r t o t h e hearing. Hearing was held December 23, 1975. The c o u r t found

Emmett v i o l a t e d t h e terms of h i s d e f e r r e d sentence, revoked t h e d e f e r r a l , and sentenced him t o two and one-half years i n Montana S t a t e Prison with c r e d i t f o r t h i r t y days previously served i n t h e Dawson Cbunty j a i l . The i s s u e s a r e : (1) Did t h e d i s t r i c t c o u r t have a u t h o r i t y t o revoke t h e

d e f e r r e d sentence and impose sentence? (2) Was t h e r e s u f f i c i e n t evidence t o f i n d defendant

v i o l a t e d t h e conditions of h i s d e f e r r e d sentence and t o warrant imposing t h e two and one-half year p r i s o n sentence?

Defendant's argument on t h e f i r s t i s s u e i s t h a t t h e d i s t r i c t c o u r t had relinquished i t s j u r i s d i c t i o n t o t h e Board of Pardons by i t s o r d e r of March 24, 1975, d e f e r r i n g imposition of sentence. Condition 10 of t h a t o r d e r reads:

"10) The Defendant i s placed under t h e supervision and c o n t r o l of t h e S t a t e Board of Pardons and i s t o abide by t h e i r r u l e s and regulations". Defendant r e l i e s on t h e language of t h e l a s t paragraph of s e c t i o n 95-2206, R.C.M. 1947, which reads:

"Any judge who has suspended t h e execution of a sentence o r d e f e r r e d t h e imposition of a sentence of imprisonment under t h i s s e c t i o n , o r h i s successor, i s authorized t h e r e a f t e r , i n h i s d i s c r e t i o n , during t h e period of such suspended sentence o r d e f e r r e d imposition of sentence t o revoke such suspension o r impose sentence and order such person committed, o r may, i n h i s d i s c r e t i o n , order t h e p r i s o n e r placed under t h e j u r i s d i c t i o n of t h e s t a t e board of pardons a s provided by law, o r r e t a i n such j u r i s d i c t i o n with t h i s c o u r t . P r i o r t o t h e revocation of an o r d e r suspending o r d e f e r r i n g t h e imposition of sentence, t h e person a f f e c t e d s h a l l be given a hearing." (Emphasis supplied.) The t r i a l judge followed t h e provisions of s e c t i o n 952206, R.C.M. 1947.

H e deferred sentence.

Condition 10 of t h e

c o u r t ' s o r d e r placed E m m e t t under t h e supervision of a probation o f f i c e r , and t h e r u l e s and r e g u l a t i o n s of t h e Board of Pardons. T h e r e a f t e r t h e c o u r t held a hearing, found Emmett had v i o l a t e d t h e c o n d i t i o n s , and i n i t s d i s c r e t i o n imposed sentence of i m prisonment. Any u n c e r t a i n t y was eliminated by t h e c o u r t ' s remarks t o defendant when he d e f e r r e d imposition of sentence t o t h e e f f e c t t h a t i f defendant d i d not abide by t h e conditions of d e f e r r a l , t h e c o u r t would impose a sentence of imprisonment and by t h e following provision of t h e c o u r t ' s order of March 24:

" I T IS FURTHER ORDERED, ADJUDGED AND DECREED t h a t i f t h e Defendant f a i l s t o comply with any of t h e above c o n d i t i o n s a bench warrant of a r r e s t w i l l be i s s u e d , t h e Defendant apprehended and t h e s a i d Defendant w i l l be required t o appear before t h i s Court f o r f u r t h e r proceedings

."

Defendant's argument on t h e second i s s u e i s t h a t t h e r e was no c r e d i b l e evidence of a v i o l a t i o n of t h e c o n d i t i o n s of t h e d e f e r r e d sentence. Additionally, he argues t h e evidence sentence

presented d i d n o t warrant t h e imposition of a prison

and he was "violated1' because t h e p a r o l e o f f i c e r and county a t t o r n e y believed he had a bad a t t i t u d e . I n support of i t s o r d e r imposing sentence t h e c o u r t made t h e s e findings of f a c t : "1) The Court hereby f i n d s from t h e testimony and t h e admission of t h e Defendant t h a t while on probation he was i n t h e Jordan ';Hotel, Lulhaven Bar, Glendive Moose Club and Beer Jug, a l l of which places s e r v e i n t o x i c a t i n g l i q u o r s . "2) That September 8 , 1975, h e was present a t t h e scene of aggravated a s s a u l t upon p o l i c e o f f i c e r s and t h a t he joined i n t h e y e l l i n g and encouraged o t h e r s t o 'do a good j o b ' . "3) The testimony of witnesses and admission of t h e Defendant i n d i c a t e s t h a t he shouted o b s c e n i t i e s o r p r o f a n i t i e s a t a P o l i c e Department d i s p a t c h e r while i n c a r c e r a t e d i n t h e Dawson County j a i l on A p r i l 6 , 1975. "4) That Condition #2 of t h e Court's p r i o r judgment was v i o l a t e d i n t h a t t h e Defendant f a i l e d t o reimburse Dawson County f o r t h e c o s t s of h i s j a i l i n c a r c e r a t i o n o r attorney's fees.

"5) That t h e evidence and admission of t h e Defendant i n d i c a t e s he pleaded g u i l t y t o a charge of r e c k l e s s d r i v i n g while on probation, t h a t he was involved i n an a c c i d e n t , and t h a t l i q u o r was found i n h i s v e h i c l e .
"6) That t h e Defendant admitted he f o r f e i t e d bond f o r speeding while on probation. "That t h e admission of t h e Defendant and t h e evidence a t t h e hearing, a s s e t f o r t h above, a r e v i o l a t i o n s of t h e terms and conditions of t h e defendant's probation."

There is no real conflict as to the underlying facts. Condition 5 of defendant's deferred sentence was that he "not frequent any place where intoxicating liquor or beer is sold." Emmett admitted going into the Jordan Hotel dance

hall one night to attend a dance where drinks could be brought in from the bar in another room. He testified he did not have any intoxicants and he had permission from his probation officer. The probation officer testified against Emmett but did not deny this statement. Emmett admitted going into the Lulhaven Bar to tell another man he could come to work for Emmett's employer. Defendant admitted he had been at the Moose Club one night to attend a wedding dance but that he was not drinking. He testified he Went into the Beer Jug on a Sunday afternoon and had a sandwich and a 7-Up soft drink at the 1unch:counter. Condition 7 was: "The Defendant shall conduct himself in a . law abiding manner and shall not violate any law of the United States or of the State of Montana or the ordinance of any city or town during said term." At the wed,dingdance at the Moose Club 'an altercation broke out involving several police officers and a number of young people. Subsequently Emmett testified for the defense of two young men charged with assault against the police officers. He admitted being in the crowd and shouting encouragement, but also testified that he prevented another young man from hitting an officer and that he left early. Emmett was required to serve thirty days in jail as a condition of deferment. He admitted that once during that time

he shouted obscenities at the female police dispatcher when his meal was a couple of hours late.

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Emmett t e s t i f i e d he received a r e c k l e s s d r i v i n g c i t a t i o n when he and a f r i e n d saw each o t h e r on a s t r e e t and attempted t o p u l l t h e i r c a r s alongside each o t h e r r e s u l t i n g i n a s e r i o u s collision. He claimed t h e empty b o t t l e s and l i q u o r found i n

h i s c a r a t t h a t time were probably l e f t from when a f r i e n d borrowed his car. He admitted receiving a speeding c i t a t i o n and f o r f e i t i n g

bond on another occasion. Conditions 2 and 3 were " t h e Defendant pay h i s own c o s t s of i n c a r c e r a t i o n including board a t t h e r a t e of $3.00 per day" f o r t h e t h i r t y days served i n j a i l and t h a t " t h e Defendant w i t h i n a reasonable time, reimburse Dawson County f o r t h e f e e s charged by h i s c o u r t appointed attorney". He t e s t i f i e d he consulted

h i s c o u r t appointed a t t o r n e y on t h r e e occasions concerning t h i s and concluded he had t o pay w i t h i n t h e t h r e e years of h i s d e f e r r e d sentence unless he was asked t o pay sooner, which he was.not.

Defendant argues t h a t h i s probation o f f i c e r ' s negative f e e l i n g s towards him and h i s views on t h e marijuana laws a r e t h e r e a l source of h i s d i f f i c u l t y . He argues t h a t over t h e n i n e

month period t h e probation o f f i c e r should have admonished him f o r h i s v i s i t s t o t h e b a r s and should have requested t h e ordered payments be made t o t h e county before charging him with v i o l a t i o n s f o r t h e s e shortcomings. The s t a t e argues t h e evidence was s u f f i c i e n t t o support t h e c o u r t ' s f i n d i n g t h a t Emmett v i o l a t e d t h e conditions imposed by t h e c o u r t and t h a t although none of t h e s e a c t s s i n g l y need lead t o a revocation of t h e d e f e r r e d sentence, t h e i r cumulative e f f e c t i n d i c a t e s a contempt f o r t h e c o u r t ' s o r d e r , t h e r u l e s and r e g u l a t i o n s of t h e Board of Pardons, and t h e laws of t h e s t a t e of Montana.

Although p a r t of t h e evidence supporting some of t h e a l l e g e d i n d i v i d u a l v i o l a t i o n s i s questionable, we f i n d t h e r e was s u b s t a n t i a l evidence t o support t h e d i s t r i c t c o u r t ' s conc l u s i o n t h a t Emmett v i o l a t e d t h e terms of h i s deferred sentence. Defendant f u r t h e r argues t h a t h i s a c t s do n o t warrant a sentence of imprisonment i n t h e Montana S t a t e Prison f o r two and one-half years. However t h a t may be, t h e sentence i s

f o r conviction of a felony f o r which t h e s t a t u t e provides a p o s s i b l e sentence of imprisonment n o t t o exceed f i v e years. Section 54-133(c), R.C.M. 1947. W hold t h e sentence l e g a l and e W leave t o t h e Sentence e

t h e c o u r t acted w i t h i n i t s d i s c r e t i o n .

Review Division a review of t h e e q u i t i e s of t h e sentence. Accordingly, t h e judgment i s affirmed.

Justice

.JudgeC/ s i t t i n g f o r J u s t i c e Wesley C a s t l e s .



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