                                                                                             November 19 2013


                                           DA 13-0018

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 347



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

VICTOR GAYLEN SEBASTIAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 10-58
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General; Helena, Montana

                        William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy Ravalli
                        County Attorney; Hamilton, Montana



                                                     Submitted on Briefs: October 30, 2013
                                                                Decided: November 19, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Victor Gaylen Sebastian (Sebastian) appeals from the Order of the Montana Twenty-

First Judicial District Court, Ravalli County, revoking his suspended sentence, committing

him to the custody of the Department of Corrections and recommending he be screened for

the most intensive chemical dependency treatment program available. We affirm.

¶2    We address the following issue:

      Did the District Court abuse its discretion by denying Sebastian’s motion to continue
      the revocation hearing when the evidence against him had not been fully disclosed,
      violating his right to due process?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    In 2011, Sebastian was found guilty of felony burglary and misdemeanor criminal

mischief, for breaking into a church.     He was committed to the supervision of the

Department of Corrections for five years, all suspended, to run concurrently with a six-

month suspended sentence related to another offense; and placed under the rules and

regulations of the Adult Probation and Parole Bureau. The conditions of his probation

included the following:

      (i)    The Defendant must comply with all municipal, county, state, and
      federal laws and ordinances, and conduct himself/herself as a good citizen . . .
      (j)    The Defendant is prohibited from using or possessing alcoholic
      beverages and illegal drugs . . .
      (dd) The Defendant will not knowingly associate with probationers,
      parolees, prison inmates . . .
      (l)    The Defendant will pay all fines and fees as ordered and directed by the
      Court.




                                             2
¶4     Sebastian has an unusually severe case of Crohn’s disease. He has had over thirty

operations due to this condition, lost three toes to it, and had eleven pounds of his intestines

removed. Sebastian has been prescribed hydrocodone and methadone as well as other

medications, to help him live with Crohn’s disease.          He admits to using marijuana

medicinally for this condition, although he is no longer legally-authorized to do so. He

admits to crushing and snorting his hydrocodone and methadone because, he says, Crohn’s

disease otherwise causes him to pass the medications before they are absorbed by his system.

The instructions on the medications provide they are to be taken orally.

¶5     On August 10, 2012, Sebastian was stopped for driving erratically. The responding

officer said that when he came up to the vehicle, Sebastian appeared to be sleeping and kept

closing his eyes and putting his head back. Sebastian passed field sobriety tests. He initially

agreed to a blood test, but changed his mind. Significantly later, he passed a drug

recognition test. He was not cited for driving under the influence.

¶6     On August 15, 2012, Sebastian admitted to his probation officer that he was taking

too much of his medication. He stated he was crushing up and snorting the medication and

that he had a problem. Based on these disclosures, his probation officer told him she was

going to file a revocation and that she felt he needed long term inpatient treatment, to which,

she said, Sebastian agreed.

¶7     On August 23, 2012, Sebastian was involved in a motor vehicle accident with a jeep

near Corvallis on Eastside Highway at the 6.9 mile marker. The driver of the jeep fled the

scene and the responding officer pursued. Sebastian left the scene in the opposite direction.
                                               3
State Trooper Tamra Winchell eventually caught up with Sebastian at a trailer court. When

she spoke to Sebastian, it appeared to her that he was “under the influence of something.”

Half an hour to forty-five minutes after she arrived at the scene she said Sebastian became

sick. He was sweating and complaining of pain; she had to open the door of her patrol car

for him to throw up. Winchell transported Sebastian to the hospital. There, he submitted to

blood tests. The preliminary blood tests were positive for marijuana and a methamphetamine

component. At the time of the revocation hearing, the results of the blood tests had not come

back yet and Sebastian could only be charged with careless driving.

¶8     Sebastian’s probation officer also arrived at the scene on August 23. She testified that

he told her his car had been parked all day at the trailer park. He did not report the accident

to her and denied having any knowledge of the accident. She also stated he appeared to be

under the influence of something—nodding off at times, appearing very awake at times, and

periodically turning “extremely aggressive.” She stated that Sebastian also told her on

August 23 that he had been misusing his medications.

¶9     At the time of these events, Sebastian was dating a woman who lived with her father.

Her father was on probation. She stated that Sebastian came over the house all the time but

had very little interaction with her father. Neither the father’s probation officer nor

Sebastian’s probation officer had approved the two having contact.

¶10    Finally, Sebastian stated at his hearing that, because he does not have the money, he

has not been paying his court-ordered supervision fees.



                                              4
¶11    In a letter to the District Court, received September 11, 2012, Sebastian admitted to

crushing and snorting his medications because of his Crohn’s disease. He also admitted to

the fact that he did not have a medical marijuana card, although he still needs the drug.

¶12    On September 7, 2012, the State filed a petition to revoke Sebastian’s suspended

sentence. The State alleged that Sebastian had violated his probation by driving under the

influence of hydrocodone and methadone; refusing to provide a bodily fluid sample

requested by a law enforcement officer; and driving a vehicle while under the influence of

narcotics, being involved in an accident, and lying about being involved in the accident. The

State also alleged that Sebastian violated his probation on at least two occasions by crushing

up his medications and snorting them, rather than taking them as directed by a physician. In

addition, it alleged Sebastian had been associating with another probationer without

permission and failing to pay court-ordered restitution.

¶13    Sebastian’s revocation hearing was scheduled for October 23, 2012. On October 22,

2012, Sebastian moved for a continuance of the hearing. His motion explained that a

“substantial amount of discovery, including blood test results, suspect and witness statement

videos or audio recordings, drug recognition expert evaluation reports, 911 call recordings,

histories and notes, and names of investigating officers” had not yet been produced. The

District Court denied this motion on October 23, 2012. After the hearing, the District Court

ordered Sebastian’s suspended sentence revoked; ordered him committed to the Department

of Corrections for five years; and recommended he be screened for the most intensive

chemical dependency treatment program the Department of Corrections had to offer.
                                              5
Sebastian appeals, alleging that his right to due process was violated when the District Court

revoked his suspended sentence after denying his motion to continue the revocation hearing,

pending full disclosure of the evidence against him.

                                STANDARD OF REVIEW

¶14    “A district court’s ruling on a motion to continue is subject to the district court’s

discretion, and this Court reviews the ruling to determine whether the district court abused its

discretion.” State v. Morrison, 2009 MT 397, ¶ 5, 353 Mont. 407, 220 P.3d 659 (citing State

v. Anderson, 1999 MT 58, ¶ 10, 293 Mont. 472, 977 P.2d 315). “A district court abuses its

discretion when it acts arbitrarily without the employment of conscientious judgment or

exceeds the bounds of reason, resulting in a substantial injustice.” State v. Goff, 2011 MT 6,

¶ 20, 359 Mont. 107, 247 P.3d 715. Generally, this Court reviews a district court’s decision

to revoke a suspended sentence to determine whether it was supported by a preponderance of

the evidence and whether the district court abused its discretion. State v. Gillingham, 2008

MT 38, ¶ 17, 341 Mont. 325, 176 P.3d 1075. Where a defendant presents a question of law

related to constitutional rights, however, this Court’s review is plenary. Gillingham, ¶ 17.




                                       DISCUSSION

¶15 Did the District Court abuse its discretion by denying Sebastian’s motion to continue
the revocation hearing when the evidence against him had not been fully disclosed, violating
his right to due process?



                                               6
¶16    Section 46-18-203, MCA, permits a district court to order a hearing on revocation of a

suspended sentence if the State files a petition for revocation which demonstrates probable

cause that the probationer has violated any condition of a suspended sentence. When such a

hearing occurs, the offender must be brought before a judge and advised of: “(a) the

allegations of the petition; (b) the opportunity to appear and to present evidence in [sic] the

offender's own behalf; (c) the opportunity to question adverse witnesses; and (d) the right to

be represented by counsel at the revocation hearing[.]” Section 46-18-203(4), MCA. The

State must prove, by a preponderance of the evidence, that the offender has violated the

probation conditions. Section 46-18-203(6)(a), MCA. A preponderance of the evidence is

“such evidence as, when weighed with that opposed to it, has more convincing force and the

greater probability of truth.” State v. Stuit, 176 Mont. 84, 89, 576 P.2d 264, 267 (1978)

(citing People v. Condley, 69 Cal. App. 3d 999 (1977)). If the court finds the State has

carried this burden, it is within the court’s discretion to determine an appropriate action in

response to the violation. State v. Pedersen, 2003 MT 315, ¶ 17, 318 Mont. 262, 80 P.3d 79

(citing § 46-18-203(7), MCA); See § 46-18-203(7), MCA.

¶17    The Fourteenth Amendment of the United States Constitution protects individuals

from State action that would deprive them of life, liberty, or property without due process of

law. U.S. Const. amend. XIV, § 1. Montana’s Constitution also protects this right. Mont.

Const. art. II, § 17. At stake in a probation revocation proceeding is a probationer’s

conditional liberty interest. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 1759

(1973).
                                              7
¶18    “The minimum requirements of due process are extended to sentence revocation

hearings.” Pedersen, ¶ 21 (citing State v. Nelson, 225 Mont. 215, 218, 731 P.2d 1299, 1302

(1987)). “What is needed is an informal hearing structured to assure that the finding of a

parole [or probation] violation will be based on verified facts and that the exercise of

discretion will be informed by an accurate knowledge of the parolee’s [or probationer’s]

behavior.” Morrissey v. Brewer, 408 U.S. 471, 484, 92 S. Ct. 2593, 2602 (1972) (although

Morrissey involved revocation of parole, the United States Supreme Court observed in

Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759-60, that there is no difference relevant to the

guarantee of due process between revocation of parole and revocation of probation; the same

standards apply to both). A defendant is entitled to notice of all alleged violations leading to

the petition to revoke. Nelson, 225 Mont. at 218-19, 731 P.2d at 1302. In addition, a

defendant is, upon his request, entitled to question a person who has given adverse

information on which parole or probation revocation is to be based. Morrissey, 408 U.S. at

487, 92 S. Ct. at 2603.

¶19    A probationer’s right to due process in a revocation proceeding is different from the

right to due process in a criminal proceeding. We have explained:

       The revocation hearing is not a criminal trial but a summary hearing to
       establish a violation of the conditions of the prisoner's probation. The
       probationer already stands convicted of a crime no matter what the grounds for
       the revocation may be[.]

State v. Triplett, 2008 MT 360, ¶ 16, 346 Mont. 383, 195 P.3d 819 (quoting State v. Kingery,

239 Mont. 160, 165, 779 P.2d 495, 498 (1989)). As a result, the revocation hearing is not


                                               8
subject to the Montana Rules of Evidence, although it must be fundamentally fair. Pedersen,

¶ 20; M. R. Evid. 101(c)(3).

¶20    Sebastian argues that his right to due process was violated at his revocation hearing

because the evidence against him was not fully disclosed. For instance, Sebastian argues, the

District Court’s decision that he had violated the terms of his probation was based partially

on the assumption that Sebastian had been driving under the influence on August 10 and

August 23. The blood tests from the August 23 incident could have established conclusively

whether Sebastian was guilty of the offense charged. The recordings of the 911 calls and

disclosure of the witnesses against Sebastian could have helped shed light on whether or not

Sebastian was actually intoxicated in these incidents. Without this evidence, or the names of

the witnesses against him, Sebastian argues, he was not able to call for testimony that might

have corroborated his explanation for the events. Finally, Sebastian argues that he was not

provided with a copy of his probation officer’s chronological notes, which “should have

contained the admissions that [he] allegedly made about some of the condition violations.”

The lack of disclosure denied Sebastian the ability to put on a proper defense and rendered

the revocation hearing fundamentally unfair, he alleges.

¶21    Sebastian argues that disclosure of the evidence against a probationer is one of the

requirements necessary to satisfy the “minimal” due process required at a probation

revocation hearing. Pedersen, ¶ 21. He analogizes to this Court’s decision in Pedersen, in

which we held that the district court erred when it admitted certain drug test results, when the

State had not notified Pedersen that the violations would be used against him at his
                                               9
revocation hearing. Pedersen, ¶ 22. Pedersen challenged evidence of his drug use presented

during his probation revocation hearing, when drug use had not been mentioned as a reason

for revocation in the pre-hearing documents. Pedersen, ¶ 16. Pedersen argued that he was

not on notice that the State would introduce the drug test evidence and, therefore, he had no

reason to request the results. Pedersen, ¶ 16. This Court held that, although the District

Court committed error in allowing the evidence of Pedersen’s drug test results, the District

Court did not rely on that evidence in making its findings and so the error was harmless.

Pedersen, ¶ 22.

¶22    Here, Sebastian’s probation officer told him that she would be filing a revocation after

he admitted to her that he had been misusing his medications and that he had a problem.

Sebastian was aware of the allegations in the petition; and that those allegations included

allegations he had been driving under the influence. It was for precisely that reason that he

moved for a continuance. Unlike Pedersen, Sebastian had the notice of the allegations

against him that his “minimal” due process right and § 46-18-203(4), MCA, demanded. The

State also points out that the record reflects that Sebastian’s counsel had received Sebastian’s

probation officer’s chronological notes and was aware of the witnesses to the August 23

accident at the time of the hearing.

¶23    Sebastian’s failure to receive the other evidence he alleges would have been relevant

to his defense against the charged violations did not prejudice him, given the weight of the

uncontroverted evidence presented at the hearing and his own admissions. The District

Court specifically found that the State had not proved that Sebastian drove under the
                                              10
influence of hydrocodone and methadone related to his August 10 driving incident. As for

the August 23 offense, the blood test results were not required to establish that he had

violated his conditions of probation. Rather, the testimony of the officer who spoke to him

following that incident; his probation officer’s observations; and his admissions to his

probation officer about his drug use were enough to show by a preponderance of the

evidence that he had driven under the influence, in violation of his probation conditions. The

use of the officers’ testimony to establish the violation by a preponderance of the evidence

did not offend Sebastian’s right to due process because he was able to question both of these

individuals.

¶24    Even if there was additional evidence that had not been produced, the court’s decision

to revoke Sebastian’s suspended sentence on the basis that he violated his probation

conditions was not an abuse of discretion. “A single violation of the conditions of a

suspended sentence is sufficient to support a district court’s revocation of that sentence.”

Gillingham, ¶ 28. To establish a violation, the State only had to show by a preponderance of

the evidence that Sebastian violated a single condition of suspension. See § 46-18-203(6),

MCA. Sebastian himself admitted to crushing and snorting his medications—an illegal

method of using them—in his letter to the District Court. He also admitted that he had

crushed and snorted his medications and used non-prescribed marijuana to his probation

officer. Sebastian’s own admissions would be sufficient to support a determination that he

had violated the conditions of his probation pertaining to illegal drug use.



                                             11
¶25     The District Court did not abuse its discretion in denying Sebastian’s motion to

continue or in revoking his suspended sentence. A preponderance of the evidence supported

the District Court’s determination that Sebastian had violated the conditions of his probation

and that revocation of his suspended sentence was necessary. The undisclosed evidence was

unnecessary to the District Court’s determination. No violation of Sebastian’s right to due

process occurred. As the District Court observed, “[t]he Defendant clearly has serious

medical issues, but he also clearly has severe addiction issues and has never found a

successful way to manage his medications without resorting to extra illegal means to do so.”



¶26     As a final note, we held in abeyance the State’s motion to strike new issues Sebastian

raised for the first time in his reply brief. Sebastian argued in his reply brief that the

evidence he requested would have given him the opportunity to present circumstances in

mitigation of the sentence to be imposed upon revocation. “The reply brief must be confined

to new matter raised in the brief of the appellee.” M. R. App. P. 12(3). Legal theories raised

for the first time in an appellant’s reply brief are outside the scope of such a brief and this

Court has repeatedly refused to address them. State v. Sattler, 1998 MT 57, ¶ 47, 288 Mont.

79, 956 P.2d 54; State v. Hagen, 283 Mont. 156, 159, 939 P.2d 994, 996 (1997). We agree

that this argument was raised for the first time in Sebastian’s reply brief and do not consider

it further.

                                      CONCLUSION



                                              12
¶27   The District Court did not abuse its discretion, or violate Sebastian’s right to due

process, when it revoked Sebastian’s probation without requiring full disclosure of all

evidence against him. Serving his sentence will give Sebastian the opportunity to complete

chemical dependency treatment that it seems he sorely needs.

¶28   Affirmed.


                                                /S/ MICHAEL E WHEAT


We concur:


/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON




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