                                                                                           September 1 2015


                                          DA 13-0855
                                                                                           Case Number: DA 13-0855

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 262



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

STEVEN CRAIG GRAVES,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-95-11634
                        Honorable Robert L. Deschamps III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Anna S. Felton, Law Offices of Anna Felton, PLLC; Libby, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General; Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney; Missoula, Montana



                                                    Submitted on Briefs: June 10, 2015
                                                               Decided: September 1, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Steven Craig Graves appeals from the judgment of the Fourth Judicial District

Court, Missoula County, sentencing him to ten years in Montana State Prison. We affirm

in part, reverse in part, and remand for further proceedings.

¶2     The issues on appeal are:

       1. Did the District Court err by revoking Graves’ suspended sentence before the
          suspended portion of his sentence began?

       2. Was Graves required to sign his conditions of probation before he was subject
          to those conditions?

       3. Did the District Court err in denying admission of Graves’ out-of-state court
          records?

       4. When revoking a 1995 sentence to the Department of Corrections, could the
          District Court impose a sentence to Montana State Prison?

       5. Did the District Court err by denying Graves credit for time served while he
          was incarcerated in Oregon after the petition to revoke his suspended sentence
          had been filed but prior to transfer to Montana?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     In 1995, Graves pled guilty to forgery and bail jumping in the Fourth Judicial

District Court and was sentenced to twenty years with the Department of Corrections

(DOC) with ten years suspended. The District Court’s sentence made Graves subject to

various conditions during the suspended portion of the sentence. Relevant to the issues

on appeal, the District Court imposed the following condition:

       [D]uring the period of suspension of this sentence the Defendant shall
       remain under the jurisdiction of this Court and of the Department of
       Corrections and Human Services, Adult Parole and Probation Bureau of the
       State of Montana, and the Defendant shall be and is subject to all the rules
       and regulations of said department. In the event the Defendant breaches

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      any of the rules of said department or violates any laws of this State or any
      other states or the Federal Government, he shall be subject to immediate
      arrest and thereupon brought before this Court to determine if this Court
      should revoke the suspension of this sentence as in the judgment of this
      Court which will then seem proper, lawful and just[.]

Any violation of the conditions would result in revocation of the suspended sentence.

¶4    In January 1996, while awaiting transfer to Montana State Prison (MSP), Graves

escaped from the Mineral County Jail. A warrant was immediately issued for his arrest

on the charge of escape. In March 1997, a governor’s warrant was issued to extradite

Graves from Bellingham, Washington, where he was being held on the charge of

possessing a stolen firearm, and a detainer was placed on him pursuant to the Interstate

Agreement on Detainers, § 46-31-101 et seq., MCA. Graves filed final disposition

paperwork on the detainer, which required Montana to bring him to trial within 180 days.

See § 46-31-101 art. III(1), MCA. The State failed to bring Graves to trial within 180

days, so the escape charge was dismissed with prejudice, § 46-31-101 art. III(4), MCA,

and the governor’s warrant was apparently treated as quashed.        The State made no

attempt to return Graves to Montana over the next 14 years.

¶5    In October 2011, the Adult Probation and Parole Bureau learned that Graves was

serving a supervisory sentence in Oregon. A criminal records check revealed that Graves

had been arrested and convicted of multiple felonies and misdemeanors since his 1996

escape. On October 13, 2011, Probation and Parole Officer Kathleen Beccari executed

an affidavit in support of a petition to revoke Graves’ suspended sentence. On the same

day, a deputy district attorney in Oregon filed a fugitive information which stated that

Graves was a fugitive from his 1995 forgery conviction and that Montana would extradite

                                            3
Graves. Graves was apparently arrested on the fugitive information filed in Oregon,

though the record is not clear on that point.

¶6     On December 8, 2011, the State filed a petition to revoke Graves’ suspended

sentence with Officer Beccari’s affidavit attached.        The affidavit stated that Graves

escaped from Mineral County jail in 1996 and had been “on the run” since that time. The

affidavit then laid out the basis for the revocation petition:

                ALLEGED VIOLATION(S)/SUPPORTING EVIDENCE

       1. REPORTING: I will personally report to a Probation/Parole Officer as
       directed. I will submit written monthly reports on forms provided. I will
       make myself available to Probation/Parole Officers as requested.

       ALLEGED VIOLATION: Since his escape from Mineral County jail on or
       about January 17, 1996 Mr. Graves has not reported to any authority in the
       Montana Department of Corrections. His whereabouts was [sic] unknown
       until he was recently found to be on supervision in Oregon.

                            ADJUSTMENT TO SUPERVISION

       A recent criminal history check on this Defendant indicated he has been
       arrested and convicted of multiple charges, both Misdemeanor and Felony,
       over the past fifteen years.

A bench warrant was issued on December 12, 2011, on the basis of the revocation

petition.

¶7     At the revocation hearing, Graves testified that he did not know he was on

probation or that he was required to report to a probation officer. Graves testified that

“you’re not on probation until you go down there, sit in front of a probation officer, and

go through all the regulations and sign in on probation.” Graves testified that he was

arrested in Washington shortly after escaping from the Mineral County jail and was either


                                                4
incarcerated or under supervision for most, if not all, of the time between his 1997 arrest

in Washington and the State’s petition to revoke his suspended sentence in 2011.

Graves’ attorney pointed out that, despite the fact that Graves could have easily been

located at any time in those 14 years, the State took no action and never attempted to

inform him that he was considered a probationer or have him sign a copy of the

conditions of probation.

¶8     At the hearing, Graves’ attorney attempted to admit various exhibits from out of

state to prove that the State knew where Graves was during the 14 years between his

1997 arrest in Washington and the 2011 petition to revoke his suspended sentence. The

State objected to the admission of the exhibits into evidence on the basis of relevance,

and then because they were not properly authenticated. Graves’ attorney argued that the

Rules of Evidence do not apply at a revocation hearing. Ultimately, the District Court

only admitted documents from Montana authorities. The District Court stated: “[W]hat I

can’t tell is what [the state of] Washington did or what developed from that point

forward. So those are the ones I’ll accept, the Montana documents.”

¶9     Graves admitted at the hearing that he had escaped and been convicted of several

crimes since his escape. Graves’ defense to the revocation was that he had no notice that

he was considered a probationer in Montana or was required to report. When asked about

returning to Montana while being on probation in another state (Oregon), Graves stated,

“[I]f I was notified, I would have came [to Montana] and turned myself in. If they said I

was on probation here, I would have turned myself in.” Graves stated that he believed



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the state of Montana had dropped all charges against him since they had taken no action

in the 14 years since the escape charge was dismissed.

¶10    At the conclusion of the revocation hearing, the District Court announced:

       I am going to find that he is in violation of the sentence that was imposed
       by my predecessor back in 1995.
                                      .      .      .

       I’m going to find, plainly, that you’re in violation of the 10-year suspended
       sentence.

The court did not explain how Graves had violated the conditions of his suspended

sentence at the revocation hearing, but at a later sentencing hearing the District Court

orally pronounced a sentence of ten years commitment to MSP with 172 days credit for

time served and stated:

       The reasons for the sentence are, sir, you are indeed a career criminal.
       You’ve committed numerous felonies during the suspended time. You
       have absconded. You’ve escaped. You failed to report. And I don’t think
       you can claim all your troubles on the State of Montana.

The written judgment, dated November 4, 2013, announced the same sentence and gave

the reason for the judgment as:

       The Defendant is a career criminal with numerous felonies. While
       Defendant was on a suspended sentence he absconded/escaped and the
       Defendant cannot blame the State of Montana for all of his problems.

¶11    Graves appeals the District Court’s judgment.

                              STANDARDS OF REVIEW

¶12    The standard for revocation of probation is whether the trial judge is reasonably

satisfied that the conduct of the probationer has not been what he agreed it would be if he

were given liberty. This Court reviews a district court’s revocation of probation for an

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abuse of discretion. State v. Lundquist, 251 Mont. 329, 331, 825 P.2d 204, 205 (1992)

(citing State v. Robinson, 190 Mont. 145, 148-49, 619 P.2d 813, 815 (1980)). However,

when the issue presented is whether the district court had authority to take a specific

action, the question is one of law and our review is de novo.            State v. Stiffarm,

2011 MT 9, ¶ 8, 359 Mont. 116, 250 P.3d 300.

                                      DISCUSSION

¶13    1. Did the District Court err by revoking Graves’ suspended sentence before the
       suspended portion of his sentence began?

¶14    Graves argues that the District Court erred when it determined Graves violated the

conditions of his suspended sentence because he never began the suspended portion of

his sentence. In Stiffarm, we determined that the District Court could not revoke a

suspended sentence before the period of suspension began because the revocation statute

stated that petitions to revoke must be filed “during the period of suspension or deferral.”

Stiffarm, ¶ 13 (emphasis in original) (quoting § 46-18-203(2), MCA (2009)).            The

Legislature responded to that decision and amended the statute in 2011 to state that a

petition to revoke may be filed “either before the period of suspension . . . or during the

period of suspension.” Section 46-18-203(2), MCA (2011); 2011 Mont. Laws ch. 230,

§ 1. The amendment was expressly made retroactive. 2011 Mont. Laws ch. 230, § 3.

¶15    The statute thus allows for a suspended sentence to be revoked for violations of

the conditions of suspension before the period of suspension has begun.            Graves’

argument that he could not have violated the terms of his suspended sentence because the

suspended sentence had not yet begun has no merit.


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¶16    2. Was Graves required to sign his conditions of probation before he was subject
       to those conditions?

¶17    Graves argues that he had a Fourteenth Amendment due-process right to be

notified of the conditions of his probation before he became subject to them.

Specifically, Graves points out that § 46-23-1011(2), MCA, requires that “[a] copy of the

conditions of probation must be signed by the probationer.” Graves was never given a

copy of the conditions of probation or asked to sign them because he escaped shortly

after sentencing.   He argues that, under these facts, it would be a violation of his

due-process rights to revoke his suspended sentence for failure to report to a probation

officer. We disagree.

¶18    If Graves did not receive due process by being specifically apprised of the

conditions of his probation in writing and then signing a copy of the conditions, it was

not because he was denied due process so much as he declined due process by escaping

before he had the opportunity to review and sign the conditions. Graves acknowledged

that he did not think it was okay for him to escape from the Mineral County jail when he

did. When asked if, after his escape, Graves considered whether he should report to

somebody that he was “out on the streets,” he answered candidly, “[W]hy would I escape

and then want to turn myself in to DOC? That doesn’t make any sense.” Fair point.

However, just as it made no sense to Graves that he should turn himself in after escaping,

it makes even less sense that he should be allowed to benefit from his escape by claiming

ignorance of the terms of his probation. Graves may not have signed the conditions of

his probation, but he is nonetheless the author of his own misfortune.


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¶19    3. Did the District Court err in denying admission of Graves’ out-of-state court
       records?

¶20    The day before the revocation hearing, Graves told the District Court that he

wished to present an argument regarding credit for good time, which his attorney refused

to make. The District Court accordingly allowed Graves to make those arguments on his

own behalf, in addition to any arguments by Graves’ attorney. The court told Graves at

the start of the revocation hearing that it “would let [Graves] put in whatever he thought

he needed to preserve the record so, if things go badly for him today, he’s got some

record on appeal.” However, the District Court then refused to admit seven documents

introduced by Graves’ attorney. The State objected to the documents’ admission based

on relevance and later for lack of proper authentication. The documents included letters

addressed to the Mineral County Attorney originating from the state of Washington and

certified mail receipts for the same. At one point, the District Court suggested that

Graves should have called the Mineral County Attorney to authenticate the documents or

testify to their contents. Graves argues that the District Court violated his Fourteenth

Amendment due-process rights by refusing to admit the documentary evidence from out

of state at the revocation hearing.

¶21    Although the phrase “due process” is not precisely defined, “the phrase expresses

the requirement of ‘fundamental fairness.’” Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18,

24, 101 S. Ct. 2153, 2158 (1981).       The minimum due process requirements for a

probation revocation hearing are:

       (1) written notice of the claimed probation violation; (2) disclosure of the
       evidence against the defendant; (3) the opportunity to be heard in person

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       and present testimonial and documentary evidence; (4) the right to confront
       and cross-examine adverse witnesses; (5) a neutral arbiter; and (6) a written
       statement of the evidence relied upon by the arbiter and the reason for
       revoking probation.

State v. Finley, 2003 MT 239, ¶ 31, 317 Mont. 268, 77 P.3d 193 (citing Gagnon v.

Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973)). The rules of evidence do

not apply at a probation revocation hearing. M. R. Evid. 101(c)(3); State v. Pedersen,

2003 MT 315, ¶ 20, 318 Mont. 262, 80 P.3d 79.

¶22    Graves argues that the District Court’s representation that he could admit whatever

documents he wished and subsequent refusal to admit various documents violated his

due-process rights. Graves argues that he relied on the District Court’s assurances that he

could present whatever he thought he needed, and that he would have secured sufficient

witnesses or other evidence to authenticate the documents he sought to admit were it not

for the District Court’s assurances. Graves claims the documents would have allowed

him to establish that the State knew he was in custody or under supervision for most of

the 15 years after he escaped and yet took no action to inform him of the DOC’s

conditions of probation or that he was expected to follow them.

¶23    The State points out that the District Court’s assurances were made only in

relation to Graves’ argument about good time. The transcript reveals that the District

Court told Graves, “I’ll let you put whatever you think you need to put in the record,

whether [your attorney] thinks it’s meritorious or not, so at least it’s part of the record.”

The State argues that the only reason the District Court told Graves he could put

whatever he wished into the record was to address Graves’ good-time argument. The


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exhibits Graves complains about on appeal, however, were not introduced by Graves

himself, but by his attorney, and had nothing to do with good time. Therefore, according

to the State, Graves could not have relied on the District Court’s assurances because

those assurances related only to the issue of good time, and the documents the District

Court rejected had nothing to do with his argument about good time.

¶24    While the State is correct that the District Court’s assurances were given in

relation to Graves’ argument about good time, the refusal to admit the out-of-state

records was nonetheless a due-process violation. In Gagnon, the U.S. Supreme Court

held that minimum due-process requirements for a probation revocation proceeding

require that the probationer be given the “opportunity . . . to present . . . documentary

evidence.” Gagnon, 411 U.S. at 786, 93 S. Ct. at 1762. The Gagnon Court drew that

requirement from Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972), which held

that “the process should be flexible enough to consider evidence including letters,

affidavits, and other material that would not be admissible in an adversary criminal trial.”

Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604.

¶25    Both federal and state courts have found admission of similar, unauthenticated

documents in revocation proceedings was proper when presented by the prosecution.

See, e.g., United States v. Miller, 514 F.2d 41 (9th Cir. 1975) (holding that

unauthenticated state court records were admissible); United States v. Pattman, 535 F.2d

1062 (8th Cir. 1976) (holding that a police report was sufficiently reliable to admit

without the officer’s testimony because the report contained the probationer’s name

and an accurate physical description of him); United States v. Bell, 785 F.2d 640

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(8th Cir. 1986) (holding that a lab report on drug test results was admissible without

authentication); State v. Johnson, 190 P.3d 455 (Or. Ct. App. 2008) (holding that a

defendant’s probation file was admissible); State v. Anderson, 945 P.2d 1147 (Wash. Ct.

App. 1997) (holding that drug test results and an explanatory letter were admissible

without authentication). Generally, the limitations courts place on the admissibility of

documentary evidence in revocation proceedings arise solely out of concern for a

defendant’s Sixth Amendment confrontation rights, which was not the case here.

¶26   The State did not initially object that the documents were not authenticated.

Instead, the State objected to admission of an arrest warrant from Mineral County for

Graves’ escape on grounds of relevance, and the District Court raised concerns about

authentication. The District Court eventually admitted all of the documents originating in

Montana, but refused to admit any documents from Washington, including a postal

receipt for registered mail.    The State objected to the admission of all of Graves’

proffered documents on the basis of foundation, and Graves’ counsel offered to have

Graves lay a foundation.       The District Court appears to have refused to admit the

documents from Washington because they did not conclusively establish that authorities

in Montana—particularly the Mineral County Attorney—received the documents in

question.

¶27   Whether the documents conclusively establish that Montana authorities did or did

not receive information about Graves’ whereabouts after his escape goes to the weight of

the evidence, not its admissibility. Given that the records would have been admissible if

the State had presented them, they likewise should have been admitted when offered by

                                            12
the defendant. However, the documents related to Graves’ defense that he was not

required to report, and we have already rejected his argument that he was not required to

report for the reasons discussed at ¶¶ 17-18. The exclusion of these documents does not

alter our analysis in that regard. Thus, the District Court’s error in refusing to admit the

out-of-state documents was harmless.

¶28    4. When revoking a 1995 sentence to the Department of Corrections, could the
       District Court impose a sentence to Montana State Prison?

¶29    Graves’ original sentence was a twenty-year commitment to the DOC with ten

years suspended. When revoking the suspended portion of the sentence, the District

Court here sentenced Graves to ten years in MSP. Graves argues that he must be

sentenced under the sentencing statute in effect at the time he committed the underlying

offense. Graves’ forgery and bail-jumping offenses were committed in 1995 or 1996, so

the 1995 sentencing statute applies. State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220,

113 P.3d 297 (“[A] person has the right to be sentenced under the statutes which are in

effect at the time of the offense.”). We addressed this same issue in Tracy, and noted that

the 1995 sentencing statute provided:

       If the court finds that the defendant has violated the terms and conditions of
       the suspended or deferred sentence, the court may:
                                        .     .       .

       (c) revoke the suspension of sentence and require the defendant to serve
       either the sentence imposed or any lesser sentence; . . .

Tracy, ¶ 17 (citing § 46-18-203(7)(c), MCA (1995)). We held that a sentence to MSP is

not the same or a lesser sentence than a commitment to the DOC. Tracy, ¶ 18. Thus, we

held that upon revocation, the district court violates constitutional ex post facto principles

                                             13
if it sentences a defendant whose crime was committed while the 1995 version of the

sentencing statute was in effect to MSP when the original sentence was a commitment to

the DOC. Tracy, ¶ 20. Under such circumstances, the sentence must be vacated and

remanded to the district court.

¶30    The State concedes that Tracy controls here and that the sentence must be vacated.

We therefore vacate Graves’ sentence and remand to the District Court to amend the

judgment     to   “either   the   sentence        imposed   or   any   lesser   sentence.”

Section 46-18-203(7)(c), MCA (1995).

¶31    5. Did the District Court err by denying Graves credit for time served while he
       was incarcerated in Oregon after the petition to revoke his suspended sentence
       had been filed but prior to transfer to Montana?

¶32    Graves argues that he should have been given credit for time served while he was

incarcerated in Oregon after the Montana warrant was issued on December 12, 2011.

“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.”

Pedersen, ¶ 17. Section 46-18-201(4), MCA (1995), provides that “[c]redit . . . must be

allowed for jail or home arrest time already served.” A defendant is entitled to credit for

time served only “if the incarceration was directly related to the offense for which

the sentence is imposed.” State v. Henderson, 2008 MT 230, ¶ 9, 344 Mont. 371,

188 P.3d 1011.

¶33    Graves argues that his sentence in Oregon was for a probation violation,

specifically for being a fugitive from justice in Montana. He argues that the time he

                                             14
spent incarcerated in Oregon was directly related to the suspended sentence revocation

for which he was sentenced in this case, and thus that he should have gotten credit for

time served in Oregon starting from the date of his arrest on the Montana warrant.

Moreover, Graves argues that the sentencing judge in Oregon ordered Graves’ Oregon

sentence to run concurrent to his Montana sentence, and he was released to Montana on

December 12, 2011, but Montana failed to extradite him until May 8, 2013.

¶34   The record appears to support Graves’ contentions. The fugitive information filed

in Oregon is dated October 13, 2011.        An Oregon Circuit Court judgment dated

November 18, 2011, sentenced Graves to 24 months incarceration to be served

concurrent with the case at issue here, Graves’ 1995 forgery conviction. A motion to

dismiss and judgment of dismissal from the same court, dated December 12, 2011,

dismisses the fugitive information and states “DEFENDANT RELEASED TO APPEAR

IN MISSOULA, MT.” The warrant from Montana was dated the same day as the Oregon

court’s order releasing Graves to Montana: December 12, 2011. Graves, however, was

not extradited until May 8, 2013. He was incarcerated in Oregon for the entirety of the

17 months between the court order releasing him to Montana and his transfer to Montana.

¶35   Graves was available to Montana on December 12, 2011, the date the Oregon

court released him to Montana authorities and the Montana warrant was issued. Nothing

in the record explains why the State waited 17 months after the warrant was issued in this

case to extradite Graves. It appears, however, that the State could have extradited Graves

at any time after Oregon released him to appear in Missoula, and he would have received

credit for time served as soon as he was extradited. Thus, how much credit Graves would

                                           15
receive for time served depended only on when Montana extradited him. Due process

requires that the State execute an arrest warrant without unreasonable delay, given the

unique facts of each case, including when the subject of the warrant is incarcerated. State

v. West, 2008 MT 338, ¶ 33, 346 Mont. 244, 194 P.3d 683. Graves should not be

penalized for the State’s failure to timely execute the arrest warrant and extradite Graves.

On remand, Graves should be given credit for time served from the date Oregon released

him to appear in Missoula: December 12, 2011.

                                     CONCLUSION

¶36    The petition to revoke Graves’ suspended sentence was properly filed before the

period of suspension began. Graves was not denied due process by not reviewing and

signing the conditions of his probation, and the District Court’s refusal to admit the

documents related to that defense was harmless.        The District Court’s judgment is

affirmed as to those issues. The District Court erred in sentencing Graves to MSP rather

than the DOC and in failing to give Graves credit for time served while he was

incarcerated awaiting extradition to Montana. Graves’ sentence is therefore vacated, and

the matter is remanded to the District Court to amend the judgment consistent with this

Opinion.

                                                 /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE


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