                                                                                             April 29 2008


                                          DA 07-0567

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2008 MT 150N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RONALD FRANCIS MARTIN, JR.,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 2005-024
                        Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robin A. Meguire, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        George H. Corn, Ravalli County Attorney; William Fulbright, Deputy
                        County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: April 24, 2008

                                                               Decided: April 29, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     This is an appeal by Ronald Francis Martin (“Martin”) from the District Court’s

August 29, 2007 Judgment on Revocation of Deferred Imposition of Sentence. Martin

had been convicted of one count of felony criminal endangerment and two counts of

misdemeanor partner or family member assault in July 2005. Imposition of sentence was

deferred for a period of three years and Martin was placed on supervised probation. In

June 2007, the State petitioned to revoke Martin’s deferred sentence, alleging that he had

violated certain terms and conditions of his sentence prohibiting his consumption of

alcohol, and because he had committed the offense of partner assault against his live-in

girlfriend (hereinafter “the girlfriend”).

¶3     An adjudicatory hearing was held on July 11, 2007. During the hearing, Martin

withdrew his denial that he consumed alcohol and replaced it with an admission. The

revocation hearing proceeded, however, with respect to the partner assault charge.

¶4     During her testimony, Martin’s girlfriend recanted the story that she had told the

investigating officers at the time of the assault. When the investigating officer was called

to testify in rebuttal to the girlfriend’s testimony, he not only testified as to what the

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girlfriend told him about the incident, but he also testified, over the objection of Martin’s

counsel, as to what the girlfriend’s nine-year-old daughter had told him. Following this

testimony, Martin’s counsel requested that all of the daughter’s statements be stricken.

This motion was subsequently overruled by the court.

¶5     On appeal, Martin raises the sole issue of whether the District Court erred in

revoking his probation by reason of the court’s admission of the hearsay testimony of his

girlfriend’s daughter. Martin argues that his right to confront and cross-examine adverse

witnesses was violated. He cites State v. Kingery, 239 Mont. 160, 165, 779 P.2d 494, 498

(1989).

¶6     In answer, the State contends that Martin does not appeal the revocation of his

sentence based on his admission that he consumed alcohol, but, rather, grounds his appeal

solely in the confrontation/cross-examination argument. Therefore, the State maintains,

regardless of the merits of Martin’s arguments on appeal as to the partner assault

violation, his revocation must stand. We agree with the State.

¶7     We addressed a similar situation in State v. Megard, 2004 MT 67, 320 Mont. 323,

87 P.3d 448. In that case, Megard argued that the district court violated his rights to due

process by admitting telephonic testimony at the hearing on a petition to revoke his

suspended sentence. The district court determined that Megard admitted to violating

three drug and alcohol conditions and that, in addition, in-court testimony established that

Megard failed to provide a urine sample upon request and assaulted another inmate at the

Lincoln County Detention Center (“LCDC”). Megard, ¶¶ 3-9. On appeal, Megard did

not challenge the in-court testimony establishing his failure to provide a urine sample, but

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rather, challenged only the telephonic testimony supporting the allegation that he

assaulted another inmate at the LCDC.

¶8    We determined that even where there is actual error in admitting evidence in a

revocation hearing, that error can be harmless when abundant evidence is admitted

without error demonstrating violations of conditions which are sufficient to support a

revocation. Megard, ¶ 28 (citing State v. Pedersen, 2003 MT 315, ¶¶ 21-22, 318 Mont.

262, ¶¶ 21-22, 80 P.3d 79, ¶¶ 21-22).

¶9    Here, even if we assume for purposes of this Opinion, that the court erred in

admitting the hearsay testimony of Martin’s girlfriend’s daughter on the partner assault

charge, Martin has not established—and cannot establish—prejudice, inasmuch as he

admitted violating the alcohol condition of his deferred sentence. Megard, ¶ 29.

¶10   So long as the probationer is found to have violated one or more conditions of his

probation, the judge may revoke the deferred sentence and impose any sentence that

might have been originally imposed. Section 46-18-203(7)(a)(iv), MCA. Here, Martin

admitted violating the terms of his deferred sentence by consuming alcohol. Whether the

court erred in admitting hearsay testimony on another alleged condition violation is

immaterial. Accordingly, we decline to reach the merits of Martin’s confrontation/cross-

examination argument in the partner assault charge.

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

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that this appeal is without merit. The District Court’s findings of fact are not clearly

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erroneous and the legal issues are controlled by settled Montana law which the District

Court correctly interpreted.

¶12    Affirmed.


                                                     /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ PATRICIA COTTER




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