                                          No. 02-382

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 138


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

MICHEAL JOHN DRUBE,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Twelfth Judicial District,
                     In and for the County of Chouteau, Cause No. DC-98-08
                     The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Carl White, Attorney at Law, Havre, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Tammy K. Plubell,
                     Assistant Attorney General, Helena, Montana

                     Allin Cheetham, Chouteau County, Fort Benton, Montana


                                                  Submitted on Briefs: January 23, 2003

                                                             Decided: May 13, 2003
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Micheal John Drube (Drube) appeals from the order entered by the Twelfth Judicial

District Court, Chouteau County, revoking the sentence imposed for his conviction for

sexual intercourse without consent. We affirm.

¶2     We rephrase the issues as follows:

¶3     1. Did the District Court abuse its discretion in revoking Drube’s sentence?

¶4     2. Did the District Court err in sentencing Drube?

                                      BACKGROUND

¶5     In 1998, Drube pleaded guilty to the felony offense of sexual intercourse without

consent. Drube was sentenced to the Montana Department of Corrections (DOC) for five

years, to be followed by a suspended sentence of seven years to the Montana State Prison

(MSP). This Court’s Sentence Review Division (SRD) subsequently amended the sentence

to a three-year commitment to the DOC, followed by a nine-year suspended sentence to the

MSP. The amended sentence also included the conditions that Drube complete phases I, II

and III of the sexual offender treatment program at a facility no less secure than a prerelease

center during the three-year commitment to the DOC, and follow an aftercare program

during the entirety of the suspended portion of his sentence.

¶6     In May of 2001, the State of Montana (State) petitioned the District Court to revoke

the suspended portion of Drube’s sentence based on the allegation that Drube was due to

discharge his three-year commitment to the DOC and had failed to complete all three phases

of the sexual offender treatment program. The District Court held a hearing on the

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revocation petition, Drube admitted the allegation and the court revoked his suspended

sentence. The court sentenced Drube to a six-month commitment to the DOC, followed by

a suspended sentence of eight years and six months to the MSP. The sentence included the

condition that Drube enroll in, and successfully complete, an aftercare sexual offender

treatment program during the suspended portion of the sentence.

¶7    In February of 2002, the State again petitioned the District Court to revoke the

suspended portion of Drube’s sentence based on an allegation that Drube had been

terminated from the outpatient sexual offender treatment program he had been attending for

failure to follow the program’s rules. After a hearing on the petition, the District Court

revoked Drube’s suspended sentence and resentenced him to the nine-year term originally

imposed by the SRD, with credit for time served. In its written order dated May 13, 2002,

the court specified that the first five years of the sentence would be a commitment to the

DOC, with the remainder of the sentence to be served at the MSP. The court suspended the

MSP portion of the sentence with a variety of conditions, including that Drube

      must complete Phases I-III of the Sex Offender Program at a facility no less
      secure than a pre-release center. [Drube] also needs to be in an aftercare
      program during the entire suspended sentence. An [intensive supervision]
      program of the [DOC] shall be considered as secure or more secure than a pre-
      release center.

Drube appeals.

                                     DISCUSSION

¶8    1. Did the District Court abuse its discretion in revoking Drube’s sentence?




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¶9     We review a district court’s decision to revoke a defendant’s suspended sentence to

determine whether the court abused its discretion. State v. Williams, 1999 MT 240, ¶ 11,

296 Mont. 258, ¶ 11, 993 P.2d 1, ¶ 11. In revoking a suspended sentence, the district court

must be reasonably satisfied that the defendant’s conduct “has not been what he agreed it

would be if he were given liberty,” and this determination must be supported by a

preponderance of the evidence in favor of the State. Williams, ¶ 11 (citations omitted).

¶10    Drube argues that the District Court abused its discretion in revoking his suspended

sentence without giving him the opportunity to locate and enroll in an alternative sexual

offender treatment program. He asserts that, according to the express terms of his suspended

sentence, he would be in compliance with the conditions set forth by the District Court as

long as he completed his sexual offender treatment at any time during the term of his

suspended sentence. Consequently, according to Drube, his termination from the sexual

offender program in which he was participating did not give the District Court immediate

cause to revoke his sentence and he should have been given the opportunity to enroll in

another program.

¶11    A district court may revoke a defendant’s suspended sentence upon finding that the

defendant has violated the terms and conditions of the sentence. Section 46-18-203(7)(a),

MCA. The specific condition of Drube’s sentence at issue here provided that Drube

       shall enroll in and successfully complete an after care sex offender treatment
       plan during the term of the suspended sentence. Failure to so enroll and
       complete shall be a violation of the terms of the suspended sentence and is
       necessary to protect the public from the predatory conduct of the defendant.



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Drube does not dispute that, at the time the State filed the revocation petition, he had not

successfully completed an aftercare treatment program because he was terminated from the

program in which he was participating. Nor does he dispute that, at that time, he was not

enrolled in an aftercare treatment program. Thus, at the time the State filed its revocation

petition, Drube was in violation of the conditions of his suspended sentence because he

neither had completed an aftercare sexual offender treatment program nor was enrolled in

such a program. Consequently, § 46-18-203(7)(a), MCA, authorized the District Court to

revoke Drube’s suspended sentence.

¶12    Moreover, the District Court expressly stated, both at the close of the revocation

hearing and in its order revoking Drube’s sentence, that Drube was unwilling to cooperate

with the treatment programs and, in the interest of protecting the public, Drube required a

more secure or structured setting in which to complete treatment. These findings were

supported by testimony from Drube’s treatment counselor that Drube did not comply with

program rules, did not appear to be focused on his treatment program, was not ready to live

on his own in a community while attending treatment and was unlikely to be accepted into

an alternative treatment program. Based on these findings, it was reasonable for the court

to have determined that Drube’s termination from his treatment program and his inability to

comply with program requirements outside of a structured setting frustrated the rehabilitative

purposes of his suspended sentence, and that his conduct was not “what he agreed it would

be if he were given liberty.” See, e.g., Williams, ¶ 17.




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¶13    We hold that the District Court did not abuse its discretion in revoking Drube’s

sentence.

¶14    2. Did the District Court err in sentencing Drube?

¶15    As stated above, after revoking Drube’s suspended sentence, the District Court

sentenced him to a nine-year term, specifying that the first five years of the sentence would

be a commitment to the DOC, with the remainder of the sentence to be served at the MSP.

The court ordered that execution of the MSP portion of the sentence be suspended as long

as Drube followed the various conditions set forth. Drube argues that the District Court

erred in sentencing him because it placed a condition on his sentence which was impossible

for him to fulfill and, in its written revocation and sentencing order, the court placed

conditions on his suspended sentence which it did not enunciate at the hearing. We review

a sentence in a criminal case for legality only and our review is confined to determining

whether the sentence is within the parameters of the sentencing statute. State v. Muhammad,

2002 MT 47, ¶ 18, 309 Mont. 1, ¶ 18, 43 P.3d 318, ¶ 18.

¶16    Drube first contends that the District Court placed an impossible condition on his

suspended sentence by requiring that he complete all three phases of the sexual offender

treatment program at a facility no less secure than a prerelease center. He points out that,

in the court’s order in June of 2001 revoking his previous suspended sentence, the court

found that phase III of the sexual offender treatment program “was an aftercare program that

would last for many years and which [Drube] could complete in custody only by remaining

in custody for the entire term of his sentence.” Drube contends that, in making this finding,


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the court essentially determined that it was impossible to complete phase III as part of a

suspended sentence and, consequently, the court erred by requiring him do so in its May of

2002 order.

¶17    The District Court’s order in June of 2001 revoked Drube’s prior suspended sentence

because he was due to discharge the portion of his sentence committing him to the DOC and

had not completed phase III of his sexual offender treatment program. The court’s statement

that Drube could not complete phase III while in custody was directly related to the fact that

he was about to discharge his commitment to the DOC and, thus, would no longer be “in the

custody” of the DOC. In its order in May of 2002, the District Court resentenced Drube to

a five-year commitment to the DOC, during which time he was to complete the three phases

of the sexual offender treatment program. Drube presents nothing establishing that it will

be impossible to complete this requirement within the reinstated five-year commitment to

the DOC. We conclude, therefore, that Drube has failed to establish that the District Court

imposed an impossible condition on his suspended sentence.

¶18    Drube also argues that the District Court erred by including conditions on his

suspended sentence in its written order which it did not include in its oral pronouncement

of sentence at the revocation hearing. At the close of the revocation hearing, the District

Court stated orally that Drube was sentenced to a five-year commitment to the DOC,

followed by a suspended sentence to the MSP. The court did not expressly attach any

conditions to the suspended sentence. In its May of 2002 written order, however, the court

suspended Drube’s sentence upon eight conditions. Drube cites State v. Lane, 1998 MT 76,


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288 Mont. 286, 957 P.2d 9, for the proposition that, where the oral pronouncement of

sentence differs from the written sentencing order the oral pronouncement controls and

asserts, on that basis, that the eight conditions of his suspended sentence must be stricken

from his sentence.

¶19    Drube is correct that, generally, if the written judgment differs from the oral

pronouncement of sentence, the oral pronouncement controls. See Lane, ¶ 40. However,

we have since clarified that the general rule of Lane is not absolute, but must be applied in

a principled manner depending on the circumstances of the case. State v. Johnson, 2000 MT

290, ¶ 20, 302 Mont. 265, ¶ 20, 14 P.3d 480, ¶ 20. Thus, when determining whether a

subsequent written sentencing order is unlawful because it contains conditions not

enunciated orally, we must determine

       first, whether the defendant was afforded the opportunity to respond to its
       inclusion upon sufficient notice at sentencing, and second, whether that
       portion of the written judgment substantively increases one of two things: (1)
       the defendant’s loss of liberty; and (2) the defendant’s sacrifice of property.

Johnson, ¶ 24.

¶20    Here, Drube concedes that all of the conditions in the District Court’s 2002 written

revocation and sentencing order were contained in either his original sentence or the 2001

revocation and sentencing order. Furthermore, the record reflects that Drube was present at

both his original sentencing hearing and the hearing on the 2001 revocation petition, and was

given the opportunity at those times to respond to the conditions the court placed on his

sentences. The conditions in the 2002 revocation and sentencing order were not new or

unknown to Drube. Finally, Drube presents no argument that imposition of the eight

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conditions substantively increases either his loss of liberty or sacrifice of property. We

conclude, therefore, that the written 2002 revocation and sentencing order is not rendered

unlawful by the District Court’s addition of conditions which it did not impose orally at the

sentencing hearing.

¶21    We hold that the District Court did not err in sentencing Drube.

¶22    Affirmed.


                                                         /S/ KARLA M. GRAY



We concur:

/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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