                                           No. 02-099

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 316N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DONALD WYMER CIHURA,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Sixth Judicial District,
                     In and for the County of Park,
                     The Honorable Wm. Nels Swandal, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Chad Wright, Appellate Defender Office, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Tara Depuy, Park County Attorney, Livingston, Montana


                                               Submitted on Briefs: December 5, 2002

                                                         Decided: December 17, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2    Appellant Donald Cihura appeals from the order of the Sixth

Judicial District Court, Park County, which revoked his suspended

sentence following probation violations and sentenced him to three

years in the Montana State Prison.                We affirm.

¶3    The sole issue on appeal is whether the District Court abused

its discretion when it revoked Cihura’s suspended sentence and

sentenced him to three years in the Montana State Prison.

                                     BACKGROUND

¶4    On October 28, 1999, Cihura pled guilty to misdemeanor partner

or family member assault.             Cihura entered the plea as part of a
plea arrangement where the State agreed to reduce the charges from

felony assault to misdemeanor partner or family member assault so

long as Cihura reported to his attorney on a weekly basis.                         In

December of 1999, Cihura’s attorney notified the District Court

that he had not spoken with Cihura since November 17, 1999.

Therefore,      the   State     withdrew        from   the   plea   arrangement   and

reinstated the original charge of felony assault.

¶5    On May 30, 2000, Cihura pled guilty to felony assault.                      The


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District Court sentenced Cihura to four years in the Montana State

Prison, all suspended with conditions.           As a condition to the

suspended sentence, the District Court placed Cihura under the

supervision of the Montana Department of Corrections and Human

Services regarding such things as “residency, travel, reporting,

[and] full time employment.”     Following the imposition of sentence,

Cihura and his wife moved to California with the approval of his

probation officer, Suzann Fladager.

¶6   Approximately one year later, Cihura contacted Fladager with a

request to move to Oregon.     Fladager filed the necessary paperwork

with Oregon but Oregon denied the request.               Fladager notified

Cihura of the denial and informed him that he could not move to

Oregon as planned.      Cihura disregarded Fladager’s warning.           In

February of 2001, Fladager contacted Cihura and instructed him “to

return to Montana immediately.       If you do not return to Montana

within 10 days of receipt of this letter . . . a warrant will be

issued for your arrest and you will be extradited back to Montana

to   face   Probation   Revocation       proceedings.”      Again,   Cihura

disregarded Fladager’s warning.
¶7   On March 6, 2001, Fladager filed a report of violation with

the District Court.     The report outlined Cihura’s failure to obtain

permission for a change of residence and failure to report to

Fladager as directed.    On March 7, 2001, the State filed a petition

to revoke Cihura’s suspended sentence.        The District Court issued a

bench warrant for Cihura’s arrest and law enforcement officers

subsequently arrested Cihura in June of 2001 in Lincoln, Nebraska.



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¶8    On August 20, 2001, the District Court held a hearing on the

State’s petition to revoke.    Thereafter, the District Court revoked

Cihura’s suspended sentence and sentenced Cihura to the Montana

Department of Corrections for a period of three years.

¶9    Following this Court’s decision in State v. Giddings, 2001 MT

76, 305 Mont. 74, 29 P.3d 475, the State filed a second petition to

revoke Cihura’s suspended sentence.        On December 17, 2001, the

District Court held a hearing on the State’s second petition.

Again, the District Court determined that the State proved by a

preponderance of the evidence that Cihura violated the terms of his

suspended sentence.   The District Court revoked Cihura’s suspended

sentence and sentenced him to the Montana Department of Corrections

for a period of three years.      Cihura appeals from the District

Court’s order of revocation.
                        STANDARD OF REVIEW

¶10   We review a district court’s decision to revoke a suspended

sentence to determine whether the court abused its discretion and

whether the court’s decision was supported by a preponderance of

the evidence in favor of the State.        State v. Shockley, 2001 MT

180, ¶ 8, 306 Mont. 196, ¶ 8, 31 P.3d 350, ¶ 8.

                              DISCUSSION

¶11   Did the District Court abuse its discretion when it revoked

Cihura’s suspended sentence and sentenced him to three years in the

Montana State Prison?

¶12   Section 46-18-203(6), MCA, provides that at a hearing for the

revocation of a suspended sentence “the prosecution shall prove, by



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a preponderance of the evidence, that there has been a violation of

the terms and conditions of the suspended or deferred sentence.”

As indicated above, the District Court imposed, in part, the

following sentence for Cihura’s felony assault conviction:

           The defendant shall serve four years at Montana
      State Prison, all suspended on the following terms and
      conditions:

            A.   Defendant shall be placed under supervision of

      the Montana Department of Corrections and Human Services,

      subject to all the administrative rules and regulations

      of said agency, including but not limited to residency,

      travel, reporting, full time employment, warrantless

      search, testing of his breath and bodily fluids, obeying

      of all laws and specifically including having no guns,

      firearms or ammunition in his possession.
The State’s second petition to revoke Cihura’s suspended sentence

alleged that Cihura violated Montana State Rule Number 1, requiring

permission to change a place of residence, and Montana State Rule

Number 4, requiring a defendant to report to a probation officer as

directed.

¶13   At the December 17, 2001, hearing, Fladager testified that

Cihura requested a move to Oregon in January of 2001.      Fladager

filed the necessary paperwork with Oregon but Oregon denied the

request.     Fladager notified Cihura of this denial but Cihura

disregarded her admonition and moved to Medford, Oregon.    Fladager

testified that Cihura followed through with this move despite the

fact that “he didn’t have Oregon’s permission to be living there at



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that time.   He certainly didn’t have my permission to be living

there.”   Further, Fladager testified that upon learning of Cihura’s

move, she instructed Cihura to report to Montana by March 6, 2001.

 Cihura did not report to Montana as instructed and failed to

maintain any contact with Fladager after March 6, 2001.

¶14   Cihura denied the allegations contained in the second petition

but did not present any evidence at the December 17, 2001, hearing.

 Based on the foregoing, we conclude that the State proved, by a

preponderance of the evidence, that Cihura violated the terms and

conditions of his suspended sentence.      Therefore, the District

Court did not err when it revoked the same.
¶15   Section 46-18-203(7)(a), MCA, provides:

           If the judge finds that the offender has violated
      the terms and conditions of the suspended or deferred
      sentence, the judge may:

           (1)   continue the suspended or deferred sentence
                 without a change in conditions;

           (2)   continue the suspended sentence with modified
                 or additional terms and conditions;

           (3)   revoke the suspension of sentence and require
                 the offender to serve either the sentence
                 imposed or any lesser sentence; or

           (4)   if the sentence was deferred, impose any
                 sentence that might have been originally
                 imposed.

Cihura maintains that:

      The inquiry at any probation revocation hearing is
      whether the purposes of rehabilitation are being
      achieved, and whether, by virtue of subsequent criminal
      conduct or evidence that the defendant’s behavior was not
      in compliance with the rules and objectives of his
      probation, the purposes of probation are best served by
      continued liberty or by incarceration.



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Cihura contends that his wife’s chronic health problems compelled

the move to Oregon and Nebraska.       Therefore, Cihura concludes that

“the district court should have realized that incarceration was not

the most beneficial option for this type of minor violation.        The

district court abused its discretion when it did not consider other

options which would have allowed Cihura to remain at liberty.”

¶16   On appeal, this Court will only review sentences for their

legality.    State v. Baisch, 1998 MT 12, ¶ 15, 287 Mont. 191, ¶ 15,

953 P.2d 1070, ¶ 15.        We will not review sentences for mere

inequity or disparity.    Baisch, ¶ 15.     Any arguments regarding the

fairness or equity of a sentence should be referred to this Court’s

Sentence Review Division.    Baisch, ¶ 15.
¶17   Essentially, Cihura’s arguments regarding the propriety of the

sentence following revocation consist entirely of fairness issues.

 Cihura has not asserted that the District Court illegally imposed

the three year sentence.    Further, a sentence is not illegal when

it is within the parameters provided by statute.         State v. Brown,

1999 MT 31, ¶ 8, 293 Mont. 268, ¶ 8, 975 P.2d 321, ¶ 8.         Section

46-18-203(7)(a), MCA, expressly authorized the District Court to

impose the sentence that it did.       Accordingly, we conclude that the

District Court did not abuse its discretion when it imposed the

three year sentence.

¶18   Affirmed.


                                              /S/ JIM REGNIER

We Concur:


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/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ JIM RICE




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