                                                                                           January 21 2014


                                           DA 13-0046

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2014 MT 12



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RODNEY ARNETTE EDMUNDSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 05-063(C)
                        Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Nancy G. Schwartz, N.G. Schwartz Law, PLLC, Billings, Montana

                For Appellee:

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

                        Ed Corrigan, Flathead County Attorney, Kalispell, Montana



                                                    Submitted on Briefs: December 18, 2013
                                                               Decided: January 21, 2014


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1        Rodney Arnette Edmundson appeals from two orders of the Eleventh Judicial

District Court, Flathead County, related to the revocation of his suspended sentence. We

affirm.

¶2        The following issues are raised on appeal:

¶3     Issue One: Whether the District Court erred when it denied Edmundson’s motion
to dismiss the petition for revocation.

¶4     Issue Two: Whether the District Court erred when it considered allegedly
unreliable information about Edmundson’s criminal history.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶5        In 2005, Edmundson was charged with four counts of felony assault with a

weapon, one count of misdemeanor sexual assault, and one count of misdemeanor

violation of privacy in communications. He reached a plea agreement with the State,

pursuant to which he pled guilty to one count of felony assault with a weapon. The

remaining charges were dismissed.         The District Court sentenced Edmundson to a

ten-year commitment to the Department of Corrections, with five years suspended. At

the hearing, Edmundson contested portions of the presentencing investigation report

(PSI) pertaining to his criminal history. The District Court made handwritten annotations

on the PSI indicating Edmundson’s objections, but denied his motion to amend the PSI

because he had offered no evidence supporting his claim that the information was

incorrect. Edmundson was released on parole on January 8, 2009, and transferred his

supervision to his home state of Indiana on July 9, 2009. On February 9, 2010, he

discharged parole and began serving the suspended portion of his sentence.

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¶6      The conditions of his suspended sentence required him to maintain regular

employment and pay restitution to the victim.       On October 5, 2011, Edmundson’s

probation officer in Indiana reported that Edmundson was not employed and had fallen

behind on his restitution obligations. A petition for revocation was filed in the Flathead

County District Court, and Edmundson returned to Montana. At a revocation hearing on

March 1, 2012, Edmundson admitted the violations, explaining that he had been laid off

from the job he had held for a year and a half. The District Court re-suspended his

sentence, allowing him to continue his supervision in Montana. Edmundson reported that

he intended to stay with an acquaintance in Bozeman and transferred his supervision

there on March 8, 2012.

¶7      On March 22, 2012, Bozeman police were called when Edmundson allegedly

refused to leave the Continental Motor Inn, where he was seeking a room. Officers

believed him to be intoxicated and arrested him on suspicion of violating his probation.

Edmundson was taken to the Gallatin County Detention Center. It is uncontested that

Edmundson had an initial appearance in the Gallatin County District Court on March 23,

2012. Edmundson remained in the Gallatin County Detention Center until April 25,

2012.

¶8      A report of violation by Probation Officer Arturo Gonzalez was filed in the

Flathead County District Court on March 27, 2012. The report alleged that Edmundson

did not reside at his reported address, was found in possession of two diazepam pills for

which he did not have a prescription, was unemployed, consumed alcohol, refused to

provide breath and urine samples, and refused to leave the Continental Motor Inn.

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Edmundson claims that on April 13, 2012, he sent a pro se Order for Transport to the

Flathead County District Court, seeking an appearance there. The Order does not appear

in the record, and the State contests this claim. On April 16, 2012, a petition for

revocation was filed in the Flathead County District Court. A bench warrant was issued

the next day. On April 24, 2012, Edmundson appeared on the warrant in the Gallatin

County Justice Court. He was transferred to Flathead County on April 25, 2012, and

appeared in the Flathead County Justice Court on April 26, 2012. A hearing on the

petition to revoke was scheduled in the Flathead County District Court for May 10, 2012.

¶9     At that hearing, Edmundson denied the alleged violations, and an evidentiary

hearing was set for May 24, 2012. Edmundson requested a continuance to allow him

time to move to dismiss the petition on the grounds that the State had failed to bring him

before the District Court without unnecessary delay. The motion to dismiss was denied

on July 10, 2012. The District Court found that Edmundson’s appearances on March 23,

April 24, April 26, and May 10 satisfied the requirements of due process.

¶10    At the evidentiary hearing on August 2, 2012, Edmundson admitted that he was

not living at his reported address and was not employed. He admitted to possessing the

diazepam pills, but claimed he had a prescription. He admitted to consuming alcohol and

failing to provide a urine sample to his probation officer, though he had provided a breath

sample to the arresting officer. When asked what disposition he would like from the

Court, Edmundson responded, “I would ask the Court that I can get sentenced to . . .

whatever I have left, Your Honor.” He confirmed that he was asking the Court for a



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commitment to DOC with recommended placement at a prerelease facility. His attorney

concurred with the State’s recommendation of a five-year DOC commitment.

¶11    The District Court found the recommendation appropriate, noting that but for

Edmundson’s “fairly lengthy” criminal history, the sentence would probably be

shortened. The District Court sentenced Edmundson to a five-year commitment to DOC

with recommended placement at prerelease. Edmundson asked to address the Court, and

explained that an offense from Kokomo, Indiana, was erroneously reported twice in the

PSI. The Court acknowledged Edmundson’s remarks and concluded the hearing.

                               STANDARD OF REVIEW

¶12    This Court reviews a District Court’s interpretation and application of a statute de

novo. State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d 819. We exercise

plenary review of constitutional questions, including whether a probationer’s right to due

process has been violated.     Triplett, ¶ 13.   A district Court’s decision to revoke a

suspended sentence is reviewed for abuse of discretion. State v. Roberts, 2010 MT 110,

¶ 7, 356 Mont. 290, 233 P.3d 324.

                                      DISCUSSION

¶13    Issue One: Whether the District Court erred when it denied Edmundson’s motion
       to dismiss the petition for revocation.

¶14    Edmundson argues that the petition for revocation should have been dismissed,

because he did not appear before the District Court for a hearing on the petition until fifty

days after his arrest. He claims this was an unreasonable delay that violated both the

statutory provisions governing revocation proceedings and his constitutional right to due


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process. Edmundson does not challenge the District Court’s determination that he had

“initial revocation proceedings,” including three court appearances, during which he was

informed of his rights and appointed an attorney.

¶15    When a petition for revocation is filed, the offender must be brought before the

judge “without unnecessary delay” and informed of the allegations in the petition, the

opportunity to appear and present evidence, the opportunity to question adverse

witnesses, and the right to be represented by counsel. Section 46-18-203, MCA. These

requirements apply prior to the revocation hearing. Triplett, ¶ 19 (citing State v. Finley,

2003 MT 239, ¶ 30, 317 Mont. 268, 77 P.3d 193).               Specifically, “the ‘without

unnecessary delay’ language plainly refers to the first court appearance after an offender

is arrested pursuant to a revocation petition.” Triplett, ¶ 18. Edmundson does not dispute

that he appeared in the Gallatin County District Court and was informed of his rights on

March 23, 2012, the day after his arrest. The requirements of § 46-18-203, MCA, were

satisfied by Edmundson’s initial appearance. See Triplett, ¶¶ 18-19.

¶16    Edmundson also argues that the fifty-day period between his arrest and the

revocation hearing violated his right to due process. A revocation hearing is a civil

proceeding, and an offender is not entitled to the full range of constitutional rights

available to a defendant in a criminal trial. Finley, ¶ 29 (citing Morrissey v. Brewer, 408

U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972)). The right to a speedy trial does not apply to

a revocation hearing. State v. Oppelt, 184 Mont. 48, 56, 601 P.2d 394, 399 (1979). An

offender is entitled to the protections of due process, including written notice of the

alleged violation, disclosure of the evidence against him or her, the opportunity to be

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heard and to present evidence, the right to confront witnesses, the right to a neutral

arbiter, and the right to receive a written statement of the evidence relied upon and the

reason for the revocation. Finley, ¶ 31 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93

S. Ct. 1756, 1761-62 (1973)).

¶17    Aside from these guarantees, due process is ultimately measured by the

fundamental fairness of the proceeding. State v. West, 2008 MT 338, ¶ 32, 346 Mont.

244, 194 P.3d 683. The individual circumstances of each case will determine whether a

delay is unreasonable, and the length of the delay is not the only factor considered. West,

¶¶ 33-34. The totality of the circumstances must be taken into account. West, ¶ 35.

¶18    Edmundson was arrested in another jurisdiction.         He was granted a court

appearance the day after his arrest and informed of his rights. The report of violation was

filed promptly. He made two more appearances prior to his May 10 hearing, and was

appointed an attorney. Considering the totality of the circumstances, the proceedings

were fundamentally fair and did not violate Edmundson’s right to due process. We

affirm the order of the District Court denying Edmundson’s motion to dismiss the

petition for revocation.

¶19    Issue Two: Whether the District Court erred when it considered allegedly
       unreliable information about Edmundson’s criminal history.

¶20    Edmundson argues that the District Court violated his right to due process by

considering inaccurate information about his criminal history during sentencing.         A

person convicted of a crime “has a due process right to be sentenced based on correct

information.” State v. Harper, 2006 MT 259, ¶ 18, 334 Mont. 138, 144 P.3d 826 (citing


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State v. Bar-Jonah, 2004 MT 344, ¶ 120, 324 Mont. 278, 102 P.3d 1229). The “rigorous

standards” of accuracy required in an original sentencing proceeding “are equally as

important when the trial court is passing upon the state’s motion to revoke a deferred or

suspended sentence.” State v. Knapp, 174 Mont. 373, 379, 570 P.2d 1138, 1141 (1977).

Due process requires that an offender be given the opportunity to explain or rebut the

information in a presentencing investigation report. State v. Ferguson, 2005 MT 343,

¶ 100, 330 Mont. 103, 126 P.3d 463. A sentence will not be overturned, however, unless

the information relied upon by the sentencing court is shown to be materially inaccurate.

Harper, ¶ 18 (citing Bar-Jonah, ¶ 120). When revoking a suspended sentence, the

District Court may require the offender to serve the sentence originally imposed. Section

46-18-203(7)(a)(iii), MCA.

¶21   In this case, Edmundson’s objections to the information contained in the PSI had

already been considered and noted, as reflected in the order denying his motion to amend

the PSI. A copy of the PSI with handwritten notes indicating the disputed charges was

included in the record considered by the District Court at the hearing on August 2, 2012.

The District Court allowed Edmundson to contest the PSI again during that hearing and

acknowledged his objection. Edmundson offered no new support for his assertion that

the PSI was inaccurate. Notwithstanding the disputed charges, Edmundson’s criminal

history is indeed “fairly lengthy,” spanning five states and nineteen years.         The

disposition Edmundson received—a five-year DOC commitment with recommended

placement at a prerelease facility—was exactly what he requested. The District Court did

not violate Edmundson’s right to due process by considering the criminal history

                                           8
information in the PSI, nor did it abuse its discretion by requiring him to serve the

remainder of his original sentence.

¶22   Affirmed.

                                             /S/ MIKE McGRATH


We concur:


/S/ JIM RICE
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON




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