                                                                                            November 6 2007


                                          DA 06-0471

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 289



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JACK GRIFFIN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Second Judicial District,
                      In and For the County of Butte/Silver Bow, Cause No. DC-98-26,
                      Honorable John W. Whelan, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jack Griffin, pro se, Billings, Montana

               For Appellee:

                      Honorable Mike McGrath, Attorney General, Mark W. Mattioli,
                      Assistant Attorney General, Helena, Montana

                      Robert M. McCarthy, County Attorney, Butte, Montana


                                                    Submitted on Briefs: October 10, 2007

                                                                Decided: November 6, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Jack Griffin pled guilty to a charge of felony incest, and was sentenced to thirty

years in the Montana State Prison, with fifteen years suspended. Griffin signed a Request

to Amend Conditions of Probation Supervision, consenting that his probation could be

modified to include participation in the Intensive Supervision Program (ISP).          The

District Court approved his request and entered an Order Modifying the Conditions of

Supervision. He subsequently filed a motion to set aside the District Court’s order, which

was denied. He now appeals the District Court’s denial of that motion. We affirm.

¶2     We restate the issue as follows:

¶3     Did the District Court err in denying Griffin’s motion to set aside the order

modifying the conditions of his probation?

                                    BACKGROUND

¶4     Defendant Jack Griffin pled guilty to a charge of felony incest for having sexual

intercourse with his minor daughter and was convicted on June 26, 1998. The District

Court classified Griffin as a Level III sex offender and sentenced him to Montana State

Prison for a period of thirty years, with fifteen years suspended. One of the conditions of

his sentence stated that “[t]he Defendant shall be under the supervision and control of the

Montana Office of Adult Probation and Parole during the entire period of the suspended

sentence including at least monthly personal reports to his parole/probation officer. The

Defendant shall abide by all the rules and conditions of that office” (emphasis added).

This same condition appeared in the pretrial agreement which Griffin himself signed.


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¶5     After serving seven and a half years of his sentence, Griffin was released from the

custody of Montana State Prison and was placed under the supervision of the Department

of Corrections (“the Department”). He wanted to be placed in Billings, though he had no

existing ties to the community there. Griffin met with Laura McKee, a probation officer

of the Department of Corrections Adult Probation and Parole Bureau in Billings. McKee

recommended that Griffin complete ISP when he was released from prison “to assist him

in reentering the community.”        McKee recommended that Griffin’s conditions of

probation supervision be modified to include ISP because he was a Level III sex offender

who had “no ties to [the] community and no job or treatment set up.” She found that

“[h]e warrants a higher level of supervision than standard probation provides.”

¶6     Griffin signed a formal request to modify the conditions of his probation to

include ISP. The Deputy County Attorney then moved the court to modify the conditions

of Griffin’s probation as requested, pursuant to § 46-23-1011(4), MCA (2005). Several

days later, the District Court approved the motion and entered an order modifying the

conditions of Griffin’s supervision. The District Court’s order specifically noted that

Griffin agreed to the conditions in writing.

¶7     A day after the District Court’s order was issued, Griffin moved to have the order

set aside. His attorney withdrew this motion the following day, upon learning that Griffin

had consented to the modification. Later, he spoke with Griffin, and Griffin claimed that

his probation officer had coerced him to sign the request for modification. Griffin’s

attorney then renewed the motion to set aside the District Court’s order modifying the

conditions of Griffin’s probation.
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¶8     The District Court denied the renewed motion to set aside, finding that Griffin had

consented to the request to modify the conditions. The District Court also found that

there was “no evidence from the Defendant that his agreement to the Request for

Modification was coerced or the result of duress.” Rather, the District Court found,

Griffin himself “indicate[d] that he signed such document so he could be supervised in

Billings, Montana.”

¶9     The court concluded that it had the authority to modify the conditions of Griffin’s

probation pursuant to § 46-23-1011(4), MCA, which provides “a judge may modify or

add any condition of probation or suspension of sentence at any time.” Finally, the

District Court concluded, the requirement to complete ISP did not change Griffin’s

original conditions of probation, but merely subjected him to greater scrutiny. This

appeal ensued.

                               STANDARD OF REVIEW

¶10    A district court’s decision to grant or deny a post-trial motion is discretionary.

State v. Sheehan, 2005 MT 305, ¶ 18, 329 Mont. 417, ¶ 18, 124 P.3d 1119, ¶ 18. We

review such rulings in criminal cases for abuse of discretion. Sheehan, ¶ 18. The burden

of demonstrating abuse of discretion is on the party seeking reversal of the district court’s

ruling. Sheehan, ¶ 18.

                                      DISCUSSION

¶11    Did the District Court err in denying Griffin’s motion to set aside the order

modifying the conditions of his probation?


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¶12    Griffin argues that the District Court’s order constituted a modification of his

sentence, and as such, violated his constitutional rights. Specifically, Griffin claims that

the District Court lacked the authority to modify his sentence eight years after it was

issued, and that the ISP requirement violates ex post facto principles because it increased

his punishment.

¶13    In response, the State argues the District Court’s order simply changed the

conditions of Griffin’s supervision on probation. The State maintains the court had the

authority to modify the conditions of Griffin’s probation pursuant to § 46-23-1011(4),

MCA. Because the court’s order did not change the length, term, or substance of

Griffin’s sentence, the State claims that the modification does not implicate constitutional

concerns. We agree.

¶14    A. Did the District Court have authority to modify the conditions of Griffin’s

probation pursuant to § 46-23-1011(4), MCA?

¶15    Section 46-23-1011(4), MCA, gives judges the authority to “modify or add any

condition of probation or suspension of sentence at any time.” At the time Griffin was

sentenced, § 46-23-1011(4), MCA (1998), only permitted judges to modify conditions of

probation. In 2001, the statute was amended to permit judges to “modify or add” to the

conditions of probation. Section 46-23-1011(4), MCA, cmnt (2001). The Legislature

specifically intended that the section be applied retroactively to offenders currently in the

Department’s custody. Section 46-23-1011(4), MCA, cmnt (2001). Even if the provision

had not been made retroactive, under the terms of § 46-23-1011(4), MCA (1998), at the


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time Griffin was sentenced, the District Court still had the authority to modify the

conditions of Griffin’s suspended sentence.

¶16    B. Did the District Court’s order constitute a modification of Griffin’s punishment,

in violation of the ex post facto, double jeopardy, and due process clauses of the Montana

Constitution?

¶17    Not every modification of the conditions of a suspended sentence will implicate ex

post facto concerns. The touchstone of the ex post facto analysis in this context is

whether an offender’s sentence has been changed in a punitive sense. State v. Mount,

2003 MT 275, ¶ 89, 317 Mont. 481, ¶ 89, 78 P.3d 829, ¶ 89 (adopting the intents-effects

test to determine whether laws are punitive or non-punitive). The modification of an

offender’s conditions of probation must be distinguished from a modification of an

offender’s sentence itself.

¶18    It is conceivable that some applications of § 46-23-1011(4), MCA, may violate ex

post facto principles.   If, for example, a district court added months or years to a

defendant’s sentence under the color of § 46-23-1011(4), MCA, that would clearly

violate the constitutional prohibition against ex post facto laws. Mont. Const. art. II, §

31.

¶19    Although the District Court’s order modified the condition of Griffin’s supervision

pursuant to § 46-23-1011(4), MCA, it did not modify his punishment. We conclude that

the District Court’s order simply clarified the conditions of Griffin’s probation, and did

not change his original sentence.       As discussed in more detail below, Griffin’s

participation in ISP was contemplated by the original conditions of his suspended
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sentence. Further, the ISP program is not punitive in nature, and reinforces (rather than

changes) the original conditions of Griffin’s suspended sentence.        Because Griffin’s

sentence itself has not been modified, it is unnecessary for us to reach his ex post facto,

double jeopardy, and due process claims.

¶20    1. Was ISP contemplated as one of the original conditions of Griffin’s suspended

sentence?

¶21    As one of the conditions of his suspended sentence, the District Court ordered

Griffin to “abide by all the rules and conditions of [the Department of Corrections].”

Section 46-23-1002(3), MCA (1998), provides that the Department may “adopt rules for

the conduct of persons placed on parole or probation, except that the department may not

make any rule conflicting with conditions of parole imposed by the board or conditions of

probation imposed by a court.” As we recognized in Therriault, ISP is a permissible

exercise of the Department’s authority under § 46-23-1002(3), MCA, so long as none of

the ISP rules conflict with the offender’s court-ordered conditions of probation. State v.

Therriault, 2000 MT 286, ¶¶ 46-47, 302 Mont. 189, ¶¶ 46-47, 14 P.3d 444, ¶¶ 46-47.

¶22    At the time of Griffin’s sentencing, ISP was used by the Department as one of the

rehabilitation programs for high-risk offenders like Griffin. While the District Court did

not specifically require Griffin to complete ISP in its original conditions, it required him

to abide by all the rules and conditions of the Department’s probation program. One of

the conditions that the Department attached to Griffin’s probation in Billings was the

requirement to complete ISP. Thus, we agree with the District Court’s finding that ISP

was contemplated as one of the original conditions of Griffin’s suspended sentence.
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¶23    2. Does the requirement to successfully complete ISP change Griffin’s original

sentence?

¶24    The District Court’s order modifies the conditions of Griffin’s probation by

intensifying his level of supervision. However, the requirement to complete ISP is not

punitive and does not change the terms of Griffin’s original sentence.

¶25    The Department first developed ISP in Billings in 1987. Since then, it has been

available as an alternative to imprisonment for felony offenders requiring a higher level

of supervision. The program is open to offenders on inmate status, as well as to those on

parole or probation status. The stated purpose of the ISP is to provide “offenders who

need a structured environment, counseling, and supervision” with “a specialized form of

adult probation . . . using a heightened level of supervision, monitoring devices and close

scheduling.” Therriault, ¶¶ 41-42. ISP is a “community-based” program which allows

offenders to “live at home [and] hold or seek jobs.” Therriault, ¶¶ 41-42.

¶26    In Therriault, we explicitly rejected the notion that ISP was punitive in nature, and

held that participation in the program could not change an offender’s status from

probationer to inmate. Therriault, ¶¶ 38-47. We specifically held that the rules and

regulations of ISP may not conflict with the terms of a district court’s sentence.

Therriault, ¶¶ 46-47. Rather, ISP is merely a “specialized form of adult probation and

parole supervision” which places the offender under greater scrutiny, but still requires

him to abide by all the original conditions of his probation. Therriault, ¶¶ 41, 47.

¶27    Thus, the Department’s recommendation that Griffin complete ISP does not

change the terms of his original sentence. To the contrary, the District Court included a
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number of restrictive conditions on Griffin’s suspended sentence. The District Court

prohibited Griffin from contact with children under the age of eighteen; from using or

possessing pornographic material, alcoholic beverages or drugs; from entering any

establishments where alcohol is the primary item of sale; and from using or possessing

any firearms.     Further, the court ordered Griffin to seek and maintain full-time

employment; to submit to random drug testing; to enroll in a chemical dependency

treatment program; and to successfully complete a sex offender treatment program under

the supervision of the Department. ISP will provide Griffin with the resources and tools

he needs to comply with these original conditions of his suspended sentence.

¶28    We agree with the District Court’s conclusion that the ISP requirement simply

requires Griffin to “abide by the original conditions of probation . . . subject to greater

scrutiny.” ISP was contemplated as one of the original conditions of Griffin’s suspended

sentence, and the requirements of ISP do not change the conditions of the District Court’s

sentence. Because the District Court’s order does not modify Griffin’s punishment, he

has not suffered any due process, double jeopardy, or ex post facto violations. As a

result, it is unnecessary to reach the other issues he raises on appeal.

¶29    Finally, we must address Griffin’s claim that he was coerced into signing the

request to modify the conditions of his probation. Griffin has failed to produce any

evidence to support his claim that he signed the request under duress. Thus, we cannot

conclude that the District Court abused its discretion in denying his motion.




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                                    CONCLUSION

¶30   In conclusion, we hold that the District Court did not abuse its discretion in

denying Griffin’s motion to set aside the order modifying the conditions of his probation.

The District Court had the authority to modify the conditions of Griffin’s probation

pursuant to § 46-23-1011(4), MCA. The original conditions of Griffin’s suspended

sentence contemplated the possibility of his participation in ISP. Griffin’s participation

in the ISP program ensures his compliance with each of the conditions imposed by the

District Court in his sentence. The court’s order does not modify the substance of

Griffin’s punishment, and as a result, does not implicate ex post facto, double jeopardy,

or due process concerns. On appeal, Griffin bears the burden of proof in demonstrating

that the District Court has abused its discretion. Here, he has failed to meet that burden

of proof. Thus, we affirm the District Court’s order denying Griffin’s motion to set aside

the order modifying the conditions of his probation.



                                                 /S/ W. WILLIAM LEAPHART


We concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS



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