                              No.     90-032
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
CLARENCE CHAMPAGNE,                                             -
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            Defendant and Appellant.                            o r.
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APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable Russell K. Fillner, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Arthur J. Thompson, Thompson      &     Sessions, Billings,
                Montana
            For Respondent:
                Hon. Marc Racicot, Attorney General; Elizabeth L.
                Griffing, Asst. Atty. General, Helena, Montana
                Harold Hanser, County Attorney; Teresa O'Connor,
                Deputy County Attorney, Billings, Montana


                              Submitted on Briefs:       September 6, 1990
                                            Decided :     October 23, 1990
Filed:




                                    Clerk
Justice John Conway Harrism delivered the Opinion of the Court.


     The District Court of the Thirteenth Judicial District,
Yellowstone County, revoked defendant's suspended sentence to five
years in the Montana State Prison.     Defendant appeals this order.
We affirm.
     The issue before this Court for review is whether the
defendant was denied due process of the law.
     On December 29, 1988, Clarence Champagne, defendant, was
charged by information with the offense of conspiracy as defined
by 5 45-4-102, MCA.    On May 9, 1989, Champagne entered a plea of
guilty to the offense, and on June 27, 1989, he was sentenced to
the Montana State Prison.      The sentence was completely suspended
on a special condition that he abide by the rules of the Intensive
Supervision Program.
     On or about October 3, 1989, a Petition for Revocation of
Suspended Sentence was filed.     A hearing was set on the petition
for October 17, 1989. On October 17, 1989, defendant appeared with
counsel and admitted the truth of the allegations contained in the
petition.    Based on the evidence presented, the District Court
found that the defendant violated the terms of his suspended
sentence.    The District Court set pronouncement of judgment for
November 14, 1989.
     On November 14 1989, defendant appeared with counsel and,
after   hearing   testimony,   the   District   Court   continued   the
sentencing until November 21, 1989.      On November 21, 1989, the
District Court revoked defendant's suspended sentence, and ordered
him to serve a term of five years in the Montana State Prison.
From this order revoking defendant's suspended sentence defendant
now appeals.    We affirm the District Court's        revocation of
defendant's suspended sentence.
     The facts are as follows:
     On the morning of December 25, 1988, defendant and two other
men were involved in the robbery of a Kwik Way convenience store
in Billings, Montana.    Defendant was the driver of the car used by
the three men   and     remained in the car during the robbery.
Defendant was charged with, and plead guilty to, conspiracy.
     Prior to sentencing, the District Court reviewed defendant's
presentence report which reflected a history of drug and alcohol
abuse. The District Court then sentenced Champagne to a five year
term in the Montana State Prison.     The sentence was suspended on
the usual   conditions of probation.       Under   these conditions
defendant was not to drink any intoxicating liquor or use any
narcotic or dangerous drugs without a doctor's prescription and to
conduct himself in a law abiding manner.     In addition, defendant
was to abide by the rules of the Intensive Supervision Program,
which is an intensive out-patient program. Defendant was expressly
told that any violation of the rules of the Intensive Supervision
Program could result in the revocation of his suspended sentence.
     On October 4, 1989, a petition for revocation of the order
suspending the sentence was filed with the District Court.        A
report   from Randy   Gowen, defendant's    probation   officer, was
attached to the petition and outlined the reasons supporting
revocation of the suspended sentence. In the report, the probation
officer stated that in the late evening hours of September 16,
1989, defendant assaulted his girlfriend outside of a Super-
America convenience store.    Witnesses stated that he pulled her
hair, twisted her arm and dragged her on the ground until defendant
had her on the east side of the building, where he continued to
punch and kick her while she lay on the ground.         At that time
defendant began stomping on her head and quit only when he heard
the police approaching.
     On October 17, 1989, a hearing was held before the District
Court on the revocation petition.    At this hearing the defendant
admitted to the truth of all the allegations contained in the
petition.   In particular, the defendant admitted that he did
violate Intensive Supervision Rules Nos. 1, 9, and 14; and Court
Rules Nos. 1 and 3.   With respect to the above rules, the District
Court found the defendant to have violated the following:
     Intensive Supervision Rule No.        1 in   that defendant on
September 16, 1989, was out of his residence without permission of
his supervising officer.
     Intensive Supervision Rule No. 9 and Court Rule No. 1 in that
the defendant indicated that on the evening of September 16, 1989,
he had consumed a handful of pills and was drinking alcohol.
     Intensive Supervision Rule No. 14 and Court Rule No. 3 in that
the defendant on September 16, 1989, violently attacked and
assaulted his girlfriend beside a convenience store. Her injuries
required   that    she be   placed   in the hospital   overnight for
observation.      She received many cuts, scratches, contusions and
hematomas as a result of the attack.
     Pronouncement of judgment was set for November 14, 1989.
     At the November 14 hearing, defendant again admitted the truth
of the allegations contained in the petition.          Defendant also
testified that he had voluntarily tried to obtain treatment for his
alcohol and drug abuse problems but was denied that opportunity by
those in the Intensive supervision Program.     The State called no
witnesses.   The District Court deferred the sentencing hearing for
one week until November 21, 1989.
     At the commencement of the hearing on November 21, 1989, the
District Court noted that defendant's probation officer, Mr. Gowen,
had not testified at the November 14 hearing but was now present
and could be called by the State as a witness.    Over objection of
defense counsel, Mr. Gowen was allowed to testify.
     Gowen testified that defendant had requested residential
treatment but was denied residential treatment because he had
already been through a number of residential treatment programs
from which he had not ostensibly benefitted.      Defendant himself
verified that he had attended at least four residential treatment
centers in the towns of Glasgow, Hazelton, Sheridan and Galen.
       After the November 21 hearing the District Court issued its
written order revoking defendant's suspended sentence.
       Additional facts will be presented as necessary.
       The issue is whether defendant was denied due process of the
law.
       Defendant claims that the District Court's decision to revoke
his suspended sentence was based on improper ex parte communication
between the probation officer and the District Court which occurred
during the week the November 14 sentencing hearing was deferred.
Defendant argues that this ex parte communication violated his
rights to due process.    At the November 21 sentencing hearing, Mr.
Gowen was examined and testified regarding his communication with
the District Court.
            Q. [By defense counsel] Is it fair to say
            that you and members of your office were
            disturbed that Mr. Champagne did not have his
            suspended sentence revoked last week?
            A.   [By Mr. Gowen]   Surprised.
            Q.  It was your understanding that his
            suspended sentence had not been revoked; is
            that correct?
            A. I did not think he had his sentence
            revoked, but that the action was still
            pending, and that I was to come to court and
            give this version of the story.
            Q. Was that something you learned from what
            happened last Tuesday, or something you
            learned from discussing the matter with Judge
            Fillner between last Tuesday and now?
            A. I believe I discussed the case with you
            that very same day, and with other people in
            my office, then later with Judge Fillner.
          Q. And you and other members of your office
          have had ex parte communications with the
          Court with regard to this matter?
          A.     Ex parte, meaning what?
          Q.   Meaning by yourself.
          A. Just you and the Judge.       I discussed it
          briefly with Judge Fillner.
          Q.   Were counsel for either party present?
          A.  No. I had talked to you early last week
          about the same matter and my feelings.
          Mr. Thompson:     Nothing further.
     Our inquiry is whether the admitted ex parte communication
between Gowen and the District Court was designed to I1influence
judicial actionI1, thereby denying appellant due process.
     The record before us on review is wanting of objective
evidence which establishes that Gowen1s private discussion with
the District Court was "designed to influence1'the ~istrictCourt's
revocation of defendant's suspended sentence.    ~uringcross exam,
defense counsel had the opportunity to inquire of Gowen the
specific details of Gowen1s ex parte communication with        the
District Judge, but did not do so.         Such inquiry on cross-
examination could have elicited what statements Gowen made to the
District Judge, and the purpose Gowen had in making the ex parte
communication.    Rather, defense counsel only established that the
communication between Gowen and the District Court was, in fact,
private or ex parte.
     Because the record fails to disclose any material evidence
that the ex parte communication of Gowen with the District Judge
was intended to or did influence the court in revoking appellant's
suspended sentence, we hold that defendant was not denied due
process and affirm the District Court in revoking defendant's
suspended sentence.
    Defendant next contends that the hearing on November              14

resulted in a final order that denied revocation of the suspended
sentence.   Defendant further contends that the District Court
cannot, at a later date, revise this final order based on ex parte
communications. We find that defendant's characterization of the
November 14 hearing is incorrect.
     On November 14, the District Court stated that it would give
defendant 'lone more chance1' but then tempered this statement by
deferring the revocation hearing until November 21.           It appears
from the record that the November 14 hearing was deferred so that
the evidence and testimony presented could be reviewed together
with testimony from Gowen regarding defendant's statement in court
that he was prevented by his supervising officer from attending a
mental health center.
     Indeed, on November 21, Gowen's testimony was allowed solely
to rebut defendant's earlier testimony that defendant was denied
voluntary   residential   treatment   by   those   at   the    ~ntensive
Supervision Program.    We further find that no order was signed at
the conclusion of the November 14, 1989 hearing.               One week
intervened while this hearing to revoke the suspended sentence was
deferred.    At the close of the November 21, 1989 hearing, the
District    Court   signed   a   final   order   revoking   the   suspended
sentence.    This order was based on substantial evidence contained
in the record on appeal.         We find that the record on appeal is
replete with substantial evidence to support the revocation of the
suspended sentence.     We hold that the District Court did not deny
defendant his right to due process by revoking his five year
suspended sentence.     The District Court's order is affirmed.




                                          pL L ~ ~ L    Justi e




            Justices


Justice Diane G. Barz did not participate.
Justice John C. Sheehy, concurring:


     The record fails to show what influence, if any, the ex parte
communication before the November 21 hearing of Gowan had on the
district judge.   For that reason, I agree with the Opinion.
     I suppose in this work-a-day world of handling and sentencing
convicted criminals, out-of-court contacts between judges and their
probation officers are bound to occur. When the appearance arises,
as in this case, that such a contact occurred which may have swayed
the Court to change its mind, the gloss of fairness in the system,
as perceived by the defendant, dissipates. I suggest to all of the
judiciary that pre-sentence reports in writing, with access thereto
for all counsel, without oral amplification except in open court,
is by far the better way to proceed.
