                                                                                         June 24 2014


                                          DA 13-0349

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 163N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

LENARD JAMES STANG,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 08-0073
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney, Ingrid Rosenquist, Deputy
                        County Attorney, Billings, Montana



                                                   Submitted on Briefs: June 11, 2014
                                                              Decided: June 24, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Lenard J. Stang appeals from the Order and Decision of the Thirteenth Judicial

District Court, Yellowstone County, denying his motion to dismiss the State’s petition to

revoke his suspended sentence. We affirm.

¶3     Stang pleaded guilty in October 2008 to two felonies. The District Court imposed

concurrent sentences of eight years at the Department of Corrections, with four years

suspended. Stang began serving the suspended portion of his sentence in February 2012.

On March 29, 2012, he was arrested in Butte-Silver Bow County on misdemeanor

charges.   Pursuant to § 46-23-1012(2), MCA, his probation officer authorized law

enforcement to detain Stang at the Butte-Silver Bow Detention Center for alleged

violations of his probation, including absconding from supervision and failing to remain

law abiding. Bond was set at $50,000.

¶4     On April 11, 2012, the State filed a petition for revocation in the Yellowstone

County District Court. The District Court issued an arrest warrant the following day. At

that time, Stang was incarcerated in Butte-Silver Bow County. Pursuant to the arrest

warrant, he was brought before the Butte-Silver Bow County Justice Court on April 20.

The court set bail at $20,000 and committed Stang to the Butte-Silver Bow Detention


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Center until such time as he could be transported to Billings. The court ordered that if

Stang posted bail, he should appear before the Yellowstone County District Court within

seven days of his release.

¶5     Stang remained in custody in Butte-Silver Bow County until June 18, 2012, when

he posted bond. On June 20, his probation officer learned that Stang had committed a

theft in Bozeman. The probation officer authorized law enforcement to detain Stang at

the Gallatin County Detention Center for violating his probation. Stang appeared on

June 22 before the Gallatin County Justice Court, which set bond at $50,000.

¶6     The State filed an amended petition for revocation in the Yellowstone County

District Court on June 28, 2012, incorporating both the April probation violations and the

June probation violations. The District Court issued an arrest warrant that same day.

Stang remained in custody in Gallatin County. He was served with the second arrest

warrant on September 10, 2012, and was then transported to Yellowstone County. He

appeared before the Yellowstone County District Court on September 14, at which time

he was served with the amended petition for revocation and supporting documents.

Ultimately, the charges pending in Butte-Silver Bow County were resolved pursuant to a

plea agreement on October 31, 2012, and the charges pending in Gallatin County were

dismissed on December 5, 2012.

¶7     Stang moved to dismiss the State’s petition for revocation on the ground that his

“Constitutional Due Process rights under the State and Federal Constitution[s] were

violated when Stang was not brought before the Court to be advised of the Petition to

Revoke without unnecessary delay as required by Mont. Code Ann. § 46-18-203.” He


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argued that “[t]he facts of this case are akin to” State v. West, 2008 MT 338, 346 Mont.

244, 194 P.3d 683. In West, this Court refused to consider a statutory-based challenge to

the delay in bringing a probationer before the court pursuant to § 46-18-203(4), MCA.

West, ¶ 22.     However, exercising plain error review, the Court considered the

probationer’s   constitutional   argument     and    held   that   “the   execution       of   a

probation-violation warrant without unreasonable delay is one of the due process

protections accorded defendants in the context of probation-revocation proceedings.”

West, ¶ 27. In evaluating whether the delay violates due process, a court must consider

the totality of the circumstances, including the length of the delay, the reasons for the

delay, the State’s diligence in attempting to serve the warrant, any conduct of the

probationer that frustrated or impeded service of the warrant, whether the probationer’s

whereabouts were known or readily ascertainable, and any actual prejudice suffered by

the probationer as a result of the delay (such as prejudice to his ability to defend against

the petition). West, ¶¶ 34-35.

¶8     Stang argued that the State had failed to execute the arrest warrants issued by the

District Court in a timely manner and, as a result, that he had not been brought before the

District Court without unreasonable delay. He noted that he was in the State’s custody

when the warrants were issued, and he argued that there was “no plausible explanation”

for the State’s failure to execute the warrants sooner. Stang further argued that the

alleged constitutional violation was presumptively prejudicial and, as such, that he did

not need to show actual prejudice. Nevertheless, at the hearing on his motion, Stang

testified that he had suffered anxiety and lost opportunities due to his incarceration.


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¶9     In denying Stang’s motion to dismiss, the District Court concluded that the delay

in bringing him before the court did not amount to an infringement of his due process

rights. The court determined that Stang had not suffered any prejudice to his ability to

defend against the petition. Moreover, while acknowledging that he had been in the

State’s custody during the vast majority of the delay, the court reasoned that Stang had

prolonged the delay by his own actions, particularly his failure to self-report to the court

within seven days of posting bond in Butte-Silver Bow County.

¶10    The case proceeded to a revocation hearing on March 12, 2013, at which Stang

admitted to violating certain conditions of his probation. The District Court resentenced

him to concurrent sentences of four years at the Montana State Prison, with one year

suspended.

¶11    On appeal, Stang maintains that the delay “violate[d] his rights to due process

under the State and Federal Constitution[s].” He contends that the State provided no

reasonable explanation for the delay and that the District Court failed to consider his

testimony about anxiety and lost opportunities. Alternatively, he reiterates his theory that

the alleged constitutional violation was presumptively prejudicial. The State responds

that Stang’s conduct of getting arrested in Bozeman, after being released on bail, caused

part of the delay and that Stang has failed to show that he was prejudiced by the delay.

¶12    We review questions of constitutional law de novo and findings of fact for clear

error. State v. Covington, 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43. Due process

is flexible and calls for such procedural protections as the particular situation demands.

West, ¶ 32. Among the factors relevant to a due process claim under West is whether the


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probationer suffered “actual” prejudice. West, ¶ 34. Thus, Stang’s argument premised on

presumptive prejudice is misplaced. As for actual prejudice, the District Court found that

Stang had failed to demonstrate the delay prejudiced his ability to defend against the

petition. Stang has not shown this determination to be in error. He asserts that he

experienced anxiety and lost opportunities; however, it appears from the District Court’s

order that the court did not find this claim to be particularly credible. We defer to such

assessments. Ditton v. Motor Vehicle Div., 2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d

1268. Finally, there is no evidence of bad faith on the part of the State, and the record

supports the District Court’s finding that Stang’s conduct was a factor in the delay.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court did not err in denying Stang’s motion to dismiss.

¶14    Affirmed.


                                                 /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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