                               83-332
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1984



STATE OF MONTANA,
               Plaintiff and Respondent,
     -vs-

BRUCE KENNEDY,
               Defendant and Appellant.




APPEAL FROM:    District Court of the Twelfth Judicial District,
                In and for the County of Blaine,
                The Honorable Chan Ettien, Judge presiding.

COUNSEL OF RECORD:

     For Appellant:
               Andrew M. Small, Billings, Montana


     For Respondent :
               Hon. Mike Greely, Attorney General, Helena, Montana
               Donald Ranstrom, County Attorney, Chinook, Montana



                               Submitted on Briefs:   ~ p r i l5, 1984

                                           ~ecided: ~ u g u s t22, 1984




                              Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d                t h e Opinion          of
the Court.


          Appellant,          Kennedy,            appeals        from       an     order         of     the

District         Court,      Blaine     County,           amending          the     conditions of

p r o b a t i o n f o r one of a p p e l l a n t ' s       two f e l o n y c o n v i c t i o n s ,       to

i n c l u d e a t h i r t y day p r i s o n s e n t e n c e .         This order followed a

hearing       on     the      State's            petition        to    revoke          a    suspended

s e n t e n c e on one c o n v i c t i o n and a d e f e r r e d s e n t e n c e on t h e

other.       The s e n t e n c e was s t a y e d p e n d i n g t h i s a p p e a l .

         On May 27,           1 9 8 2 , judgment was e n t e r e d i n t h e c a s e o f

The S t a t e o f Montana v . B r u c e Kennedy, w h e r e i n Kennedy p l e d

guilty      to     the     c h a r g e of        burglary     in      violation            of    section

45-6-201(1),         MCA.       The c o u r t e n t e r e d i t s judgment d e f e r r i n g

imposition of             t h e s e n t e n c e f o r a p e r i o d of            two y e a r s .        On

March 8 , 1 9 8 3 , judgment was e n t e r e d i n a n o t h e r c a u s e w h e r e i n

Kennedy      entered         a plea         of    g u i l t y t o a c h a r g e of              theft    in

violation        section 45-6-301(2)(a),                    MCA.        The t h e f t t o which

Kennedy e n t e r e d a g u i l t y p l e a d i d n o t o c c u r d u r i n g t h e t i m e

he    was     on    probation          for            entering        the    guilty             plea     to

b u r g l a r y , b u t n e a r l y s e v e n months p r i o r t o t h e May 1982 p l e a

of   guilty.         The c o u r t a t t h a t            time     imposed         a   sentence          of

five years          in    t h e Montana           State Prison,             a l l of        which was

s u s p e n d e d f o r a p e r i o d o f t h r e e y e a r s b e g i n n i n g on t h e d a t e

of   e n t r y of    judgment.          A p p e l l a n t was p l a c e d           on s u p e r v i s e d

probation        f o r both periods               ordered        above.           Both      sentences

required           that      Kennedy             be     subject        to        the       rules        and

r e g u l a t i o n s o f t h e Community C o r r e c t i o n s B u r e a u ,              a l l orders

of   t h e c o u r t and       the    restrictions            set o u t i n the standard

p a r o l e and p r o b a t i o n c o n t r a c t o f       t h e Montana D e p a r t m e n t o f

Institutions.              On May 1 0 ,           1983,    a r e p o r t of         v i o l a t i o n was
filed       with       the    District           Court      by     appellant's          probation
o f f i c e r , a l l e g i n g v i o l a t i o n s of t h e c o n d i t i o n s of p r o b a t i o n .
A h e a r i n g was h e l d on May 1 3 , 1 9 8 3 , w h e r e Kennedy r e q u e s t e d

c o u n s e l r e g a r d i n g a p e t i t i o n f o r r e v o c a t i o n which was f i l e d
by t h e S t a t e .      The m a t t e r was c o n t i n u e d u n t i l May 24,                1983,
when Kennedy a p p e a r e d w i t h c o u n s e l .
          A h e a r i n g was h e l d       on t h e p e t i t i o n f o r r e v o c a t i o n on

May 2 4 ,     1983.       The p e t i t i o n a l l e g e d v i o l a t i o n s o f two r u l e s
of p r o b a t i o n and o n e v i o l a t i o n o f t h e c o u r t c o n d i t i o n No.                   2

i n t h e t h e f t charge.             The a p p e l l a n t d e n i e d t h e a l l e g a t i o n s
a s t o t h e v i o l a t i o n of Rule 1 and a d m i t t e d t h e a l l e g a t i o n s

pertaining          to    the     violations          of     Rule     5 of      the probation
contract        and v i o l a t i o n s     of    court       c o n d i t i o n No.     2    in       the
t h e f t charge.
          Three      issues       are     presented           by    appellant.              We    have

combined t h e f o l l o w i n g i n t o two i s s u e s a s i n c l u s i v e o f t h e
t h r e e s e t f o r t h by t h e a p p e l l a n t :
                                                                                                  I
                                                                                                  J   ' 2;
          (1) Whether           t h e a p p e l l a n t ' s r i g h t t o due p r o c e s s were                 "
v i o l a t e d when h e was o r d e r e d t o g o f o r w a r d w i t h h i s e v i d e n c e

i n m i t i g a t i o n e v e n t h o u g h t h e S t a t e had o f f e r e d no e v i d e n c e
and had n o t c a r r i e d i t s b u r d e n o f p r o o f               i n s u p p o r t of        its

a l l e g a t i o n s i n i t s p e t i t i o n of       r e v o c a t i o n o f s u s p e n d e d and
deferred sentences.

          ( 2 ) I n o r d e r t o best a c h i e v e r e h a b i l i t a t i o n ,          whether
r e v o c a t i o n of a s e n t e n c e s h o u l d r e q u i r e a d e t e r m i n a t i o n t h a t
t h e defendant cannot avoid a n t i s o c i a l behavior r a t h e r than a

t e c h n i c a l f a i l u r e t o comply w i t h t h e r u l e s o f p r o b a t i o n .
          The f i r s t i s s u e i s n o t o n l y d i s p o s i t i v e ,           b u t is t h e
only     issue      that      applies       to     the     f a c t s of     t h i s case.             The
s e c o n d i s s u e need n o t be d i s c u s s e d .
         A p p e l l a n t a r g u e s t h a t he was d e p r i v e d of d u e p r o c e s s

because t h e t r i a l c o u r t , without t h e S t a t e p r e s e n t i n g proof

of t h e p r o b a t i o n v i o l a t i o n , d i r e c t e d a p p e l l a n t t o g o forward

with     proof            that      he     did     not     violate           the    conditions          of

probation.                W do n o t b e l i e v e t h a t t h i s
                           e                                                  i s what     the t r i a l

court did or intended.                      Furthermore t h e record j u s t i f i e s t h e

procedure taken,                  and w e d o n o t f i n d           it n e c e s s a r y t o v a c a t e

t h e o r d e r and remand f o r f u r t h e r h e a r i n g .

         We        have         reviewed         the     record        and     transcript            which

reveal        t h a t a r e v o c a t i o n h e a r i n g was h e l d              in the District

Court,        with        the     appellant        and     his    counsel          present.           Both

a p p e l l a n t and h i s c o u n s e l a c k n o w l e d g e t h a t t h e y had r e c e i v e d

t h e p e t i t i o n f o r r e v o c a t i o n and w e r e f a m i l i a r w i t h i t .

         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 s h e r i f f ' s      o f f i c e during a c e r t a i n period of

time.         To     that        charge,      the      appellant          stated:        "Not    true.''

Therefore,           on      that    ground,           the a p p e l l a n t appeared           t o have

d e n i e d t h e same.

         The         court        next     considered            the       allegation           of     the

petition           that          covered      the       last     written           monthly       report

s u b m i t t e d by t h e a p p e l l a n t , which was d a t e d O c t o b e r 5 ,                  1982

and     the     last        t i m e a p p e l l a n t appeared before h i s p r o b a t i o n
o f f i c e r was December 7 ,                1982.        The h e a r i n g t h a t t o o k p l a c e

was     on     May         24,     1983.          Looking        to     the     position        of     the

a p p e l l a n t a s t o t h e charge of                 f a i l i n g t o make a p p e a r a n c e s ,

we    find      the        following occurred                between          the court         and    the

appellant:
             "THE COURT: 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 a plan of restitution, all

as contained in his conditions of probation.                       The appellant
admitted he had not done 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 admissions by 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 State was 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
               revocation are 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 is denied.
               "MR. RANSTROM:   That was with regard to
               the allegation that he was to go directly
               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

a p p e l l a n . t l s due   process       rights    were     not    violated.          The

D i s t r i c t Court's order          of    imprisonment       for   t h i r t y days    is

upheld.




We c o n c u r :



  "bk&J.
Chief J u s t i c e
                         Wd\




Justices


 Mr.   J u s t i c e Daniel J. Shea d i s s e n t s , and w i l l f i l e a w r i t t e n

 dissent later.
