                                                                                         February 14 2012


                                         DA 11-0058

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 34



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROZELL ROLAND COOK,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. CDC 99-044
                      Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Shilo Hernandez,
                      Assistant Appellate Defender, Helena, Montana

                      Robin A. Meguire; Attorney at Law, Great Falls, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
                      Assistant Attorney General, Helena, Montana

                      John Parker, Cascade County Attorney; Great Falls, Montana


                                                  Submitted on Briefs: January 4, 2012

                                                             Decided: February 14, 2012


Filed:

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


¶1       In 1999, Rozell Roland Cook (Cook) pled guilty via an Alford1 plea to two charges

of felony sexual assault in violation of § 45-5-502, MCA. He was sentenced to the

Department of Corrections (DOC) for two concurrent, 20-year terms with ten years

suspended. He was classified as a tier III sexual offender, and his sentence imposed

numerous conditions on the suspended portion related to this classification.

¶2       The State moved to revoke the suspended portion of Cook’s sentence on June 17,

2010—two days before he was scheduled to be released from custody. The District

Court of the Eighth Judicial District, Cascade County, revoked Cook’s suspended

sentence and sentenced him to two concurrent, 10-year commitments to the DOC with

five years suspended. Cook timely appeals from the District Court’s disposition order

revoking his suspended sentence. We affirm in part, reverse in part, and remand for

further proceedings.

                     FACTUAL AND PROCEDURAL BACKGROUND

¶3       The suspended portion of Cook’s sentence contained 25 total conditions. The

following four played some role in his revocation:

      1. Defendant shall be placed under the supervision of the Adult Probation and
         Parole Bureau during the suspended portion of the sentence and shall follow
         all rules and regulations thereof.

                                           .   .   .




1
    See N.C. v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
                                               2
     6. Defendant shall obtain any counseling/evaluations, at his own expense, as
        deemed appropriate by his supervising officer and shall follow all
        recommendations of his counseling/evaluations.

                                         .   .   .

     10.Defendant shall obtain sex offender counseling by an MSOTA [Montana
        Sexual Offender Treatment Association] recognized therapist and abide by
        all of the expenses, conditions and recommendations of the therapist. . . .

                                         .   .   .

     15.Defendant’s place of residence shall not be within 1500 feet of a school,
        playgrounds, toy stores, etc. . . .

¶4      Having served nearly 10 years and completed sexual offender treatment under his

initial commitment, Cook’s pre-parole plan listed his sister-in-law’s Great Falls address

as his residence upon release. However, he was notified in January, 2010 that this

address violated the condition of his suspended sentence that prohibited him from

residing within 1500 feet of certain locations. Cook was then told by his institutional

probation officer that he could stay at a rescue mission in Great Falls, but this was later

ruled out because of its proximity to a women’s athletic center. His probation officer

then informed him he could be released as a transient. Three days before his release,

however, Cook was told that his outpatient treatment provider was dropping him because

of lack of adequate housing. Cook was now in violation of condition 10 as well. The

next day, on June 17, the State petitioned to revoke his suspended sentence, alleging that

he was in violation of conditions 1, 10 and 15. Cook was arrested while still an inmate

and held pending hearings in September and November of 2010.




                                             3
¶5    With the hearings pending, Cook found providers for outpatient treatment in both

Great Falls and Helena. Blair Hopkins was willing to accept Cook as a client in Helena,

and Dr. Donna Zook was willing to treat him in either city. He also found potentially

suitable housing in each community. In Great Falls, Cook found a trailer park with other

sexual offenders living in it that his probation officer was willing to approve. They also

found an apartment that complied with his residency conditions. In Helena, he obtained a

commitment from God’s Love Shelter.

¶6    The State argued that the Helena shelter was inappropriate because it served

women and children, although those populations resided on a separate, locked floor.

Similarly, the State opposed the Great Falls trailer park residence because a rebuttal

witness informed the court that she drove past the park and it was “virtually across the

street” from school bus stops. The witness did concede, however, that several other sex

offenders had been paroled to that particular park. As for the Great Falls apartment, the

State’s witness testified that while it was not near schools, daycares, or parks,

“grandmothers, reside within the building that provide daycare to their grandchildren.”

Travel to Helena for treatment was rejected because Cook could not be supervised there

by his parole officer. Finally, the State opposed treatment in Great Falls by Dr. Zook

because she was not a member of MSOTA. Cook presented evidence by an investigator

who testified that in two months of effort, he found a single landlord who would rent

Cook one of three apartments. Only one of those apartments satisfied condition 15.

Cook argued that the DOC made no effort to help him comply with his conditions, and



                                            4
that because of his lack of culpability and the fact that there were alternatives available,

due process required consideration of alternatives to revocation.

¶7     The District Court found that Cook violated conditions 1 and 15 of his suspended

sentence by not having an approved residence on the eve of his release. Instead of

finding that he had violated condition 10, the court found that he violated condition 6

with respect to treatment and counseling. The District Court found that “with respect to

residence, [Cook] has not identified a place of residence outside the 1,500 feet from

schools, playgrounds, places where children congregate, etc. . . in the nearly five months

that have elapsed since his discharge dates.” The court rejected the Great Falls apartment

complex because it contained “at least nine units, and maybe more, in which it can be

assumed that children live and congregate.” Treatment from Dr. Zook was rejected

because she was not MSOTA qualified, and the court was unwilling to consider Cook

living at the shelter or travelling to Helena for his treatment. The court opined, “This is

the defendant’s issue and the difficulty is a result of his conduct and record. And that is

not something that the Court can remedy or overlook.” In addition to revoking Cook’s

suspended sentence and sentencing him to two concurrent, 10-year commitments to the

DOC with five years suspended, the District Court reimposed the conditions of Cook’s

original suspended sentence and added 16 more.

¶8     Cook initially claims that the District Court lacked authority to revoke his

suspended sentence because the petition to revoke was not filed during the term of the

suspended sentence. He also claims that the District Court erred in finding that he

violated the conditions of his suspended sentence when he was still in custody and had

                                             5
yet to have the opportunity to comply with the conditions. He urges that it was an abuse

of discretion and due process violation to revoke his suspended sentence when his alleged

violations were not willful and alterative measures were available to meet the State’s

penological interests. Finally, he argues that his revocation sentence contains illegal

sentencing conditions.

¶9       Issue one: whether the District Court exceeded its statutory authority, in violation

of § 46-18-203(2), MCA (1999), when it considered and granted the State’s petition to

revoke Cook’s suspended sentence that was filed before the period of suspension had

begun.

¶10      Issue two: whether the District Court abused its discretion by revoking Cook’s

suspended sentence when his violations were unwillful.

¶11      Issue three: whether the District Court imposed illegal conditions on Cook’s

revocation sentence.

                                STANDARDS OF REVIEW

¶12      We review a district court’s decision to revoke a suspended sentence for abuse of

discretion and whether a preponderance of the evidence supported the court’s decision.

State v. Stiffarm, 2011 MT 9, ¶ 8, 359 Mont. 116, 250 P.3d 300. The trial judge must be

reasonably satisfied that the conduct of the probationer has not been what the probationer

agreed it would be if the probationer were given liberty. State v. Goff, 2011 MT 6, ¶ 13,

359 Mont. 107, 247 P.3d 715.          A district court abuses its discretion when it acts

arbitrarily without employment of conscientious judgment or exceeds the bounds of

reason, resulting in substantial injustice. State v. Burke, 2005 MT 250, ¶ 11, 329 Mont.

                                              6
1, 122 P.3d 427. However, when the issue presented is whether the district court had

authority to take a specific action, the question is one of law and is subject to de novo

review. Stiffarm, ¶ 8.

¶13      Where a defendant was sentenced to more than one year of actual incarceration,

and therefore is eligible for sentence review, we review the sentence for legality only.

State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114.

                                        DISCUSSION

¶14      Issue one: whether the District Court exceeded its statutory authority, in violation

of § 46-18-203(2), MCA (1999), when it considered and granted the State’s petition to

revoke Cook’s suspended sentence that was filed before the period of suspension had

begun.

¶15      In Stiffarm, we concluded that then-existing case law that allowed prosecutors to

file petitions to revoke before the start of the suspended sentence was contrary to the

plain language of § 46-18-203(2), MCA (1999), which at the time provided: “[T]he

petition for a revocation must be filed with the sentencing court during the period of

suspension or deferral.” Stiffarm, ¶ 19. Because the State filed its petition to revoke two

days before the commencement of Cook’s suspended sentence, he argues that the District

Court lacked legal authority to revoke his suspended sentence. The State argues that our

Stiffarm holding should only be applied prospectively, thus applicable to cases between

the decision date of January 26, 2011, and April 20, 2011, when the Legislature amended

§ 46-18-203(2), MCA, in response to the case.           We are persuaded by the State’s

argument.

                                              7
¶16    When a decision of this Court results in a “new rule,” that rule applies to all

criminal cases still pending on direct review. State v. Reichmand, 2010 MT 228, ¶ 14,

358 Mont. 68, 243 P.3d 423. However, when an offender appeals the revocation of a

suspended sentence, he does not attack the validity of his conviction. Rather, he attacks

the validity of his sentence. See § 46-21-101, MCA (providing for collateral remedy

from sentences). A revocation proceeding is a “purely administrative action designed to

determine whether a parolee or probationer has violated the conditions of his parole or

probation, not a proceeding designed to punish a criminal defendant for violation of a

criminal law.” State v. Haagenson, 2010 MT 95, ¶ 15, 356 Mont. 177, 232 P.3d 367.

Revocation subjects the defendant to execution of the original sentence as though he had

never been given a suspension of sentence. Haagenson, ¶ 16. This process, however, “is

not a criminal adjudication, does not require proof of a criminal offense, [and] does not

impose punishment for any new offense.” Haagenson, ¶ 16. As such, the posture of our

review in this case is collateral in nature.

¶17    When a conviction is already final and a collateral remedy is sought, a “new rule”

applies only in limited circumstances. State v. Egelhoff, 272 Mont. 114, 126, 900 P.2d

260, 267 (1995).      New substantive rules generally apply retroactively.         Shriro v.

Summerlin, 542 U.S. 348, 351-352, 124 S. Ct. 2519, 2522 (2004). A rule is substantive

rather than procedural if it alters the range of conduct or the class of persons that the law

punishes. Shriro, 542 U.S. at 353, 124 S. Ct. at 2523. Retroactive application is needed

in situations that “necessarily carry a significant risk that a defendant stands convicted of

an act that the law does not make criminal” or faces a punishment that the law cannot

                                               8
impose upon him. Shriro, 542 U.S. at 351-352, 124 S. Ct. at 2522 (internal quotation

omitted).

¶18    New rules of procedure, however, do not typically apply retroactively. Shriro, 542

U.S. at 352, 124 S. Ct. at 2523. New constitutional rules of criminal procedure apply

only when they are “watershed rules of criminal procedure . . . without which the

likelihood of an accurate conviction is seriously diminished.” Gratzer v. Mahoney, 2006

MT 282, ¶ 14, 334 Mont. 297, 150 P.3d 343 (quoting Shriro, 542 U.S. at 352, 124 S. Ct.

at 2523 (internal quotation omitted)). Rules that regulate only the manner of determining

the defendant’s culpability are procedural. Gratzer, ¶ 14 (citing Shriro, 542 U.S. at 353,

124 S. Ct. at 2523).

¶19    In Cook’s case the State moved to revoke his suspended sentence two days before

its commencement and over seven months before we announced Stiffarm. The timing of

the State’s petition conformed to our then-existing interpretation of § 46-18-203(2),

MCA. See e.g. Stiffarm, ¶ 10; State v. LeDeau, 2009 MT 276, ¶¶ 19-21, 352 Mont. 140,

215 P.3d 672; State v. Morrison, 2008 MT 16, ¶¶ 13-18, 341 Mont. 147, 176 P.3d 1027.

Procedural statutes in effect at the time that a case proceeds to trial are the rules that are

to be applied to the resolution of that dispute. State v. Edwards, 2011 MT 210, ¶ 16, 361

Mont. 478, 260 P.3d 396. Stiffarm overturned a prior line of cases involving the judicial

interpretation of § 46-18-203(2), MCA. In doing so, we announced a rule that did not

inhibit the State’s ability to substantively proscribe and punish a defendant, but merely

established procedures that the State must follow when moving to revoke a suspended



                                              9
sentence. Moreover, this was not a watershed rule that could have application to the

accuracy of the defendant’s conviction.

¶20    Accordingly, we hold that Stiffarm applies prospectively to cases on collateral

review in Montana courts and therefore conclude that the District Court did not lack

authority to revoke Cook’s suspended sentence.

¶21    Issue two: whether the District Court abused its discretion by revoking Cook’s

suspended sentence when his violations were not willful.

¶22    Cook contends that the District Court abused its discretion in revoking his

suspended sentence because there was no evidence that he actually violated a condition.

He argues that his substantive due process rights were violated when the District Court

failed to consider alternatives to revocation, and that any violations were not willful. The

State simply counters that Cook did indeed violate conditions of his suspended sentence,

and thus the District Court’s decision was supported by evidence. The State further

argues that Cook’s due process rights do not require that his violations be willful, and that

the District Court considered, but rejected, any offered alternatives to revocation.

¶23    Where the judge finds that the offender has violated the terms and conditions of

the suspended sentence, the judge has the authority to revoke the suspended sentence.

State v. Tirey, 2010 MT 283, ¶ 21, 358 Mont. 510, 247 P.3d 701. A single violation of

the terms and conditions of a sentence is sufficient to support a court’s revocation of that

sentence. Tirey, ¶ 21. However, the Due Process Clause of the Fourteenth Amendment

to the United States Constitution imposes procedural and substantive limits on the

revocation of the conditional liberty created by probation or parole. State v. Lee, 2001

                                             10
MT 176, ¶ 18, 306 Mont. 173, 31 P.3d 998 (citing Bearden v. Georgia, 461 U.S. 660,

666, 103 S. Ct. 2064, 2069 (1983)).

¶24    In Bearden, the United States Supreme Court considered the substantive limits

imposed by the Due Process Clause on revocation for failure to pay a fine and restitution

in the absence of evidence that the defendant was culpable or that alternative forms of

punishment were inadequate. Bearden, 461 U.S. at 665, 103 S. Ct. at 2069. The Supreme

Court concluded:

       If the probationer has made all reasonable efforts to pay the fine or
       restitution, and yet cannot do so through no fault of his own, it is
       fundamentally unfair to revoke probation automatically without considering
       whether adequate methods of punishing the defendant are available.

Bearden, 461 U.S. at 668-669, 103 S. Ct. at 2070-2071.

¶25    Accordingly, the revocation resulted in a denial of due process. The holding of

Bearden, however, does not prohibit a revocation of probation in other contexts, even if

the failure to obey a condition of probation is not found to be intentional or willful. See

Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254, 2257 (1985).

¶26    The Supreme Court’s decision in Bearden was limited to “revocation proceedings

for failure to pay a fine or restitution.” Bearden, 461 U.S. at 672, 103 S. Ct. at 2073.

Importantly, the Supreme Court went on to observe: “We do not suggest that, in other

contexts, the probationer’s lack of fault in violating a term of probation would necessarily

prevent a court from revoking probation.” Bearden, 461 U.S. at 668, 103 S. Ct. at 2070

n.9. Montana case law also holds that violations of non-financial conditions need not

necessarily be willful in order to justify revocation. See Lee, ¶ 21.


                                             11
¶27    In Lee, defendant’s suspended sentence was conditioned on completing a sexual

offender treatment program while incarcerated. Lee, ¶ 5. Lee spent several years on a

wait list for the various levels of the sexual offender program, a delay that was further

delayed by a sit down strike. Lee, ¶ 6. He nearly completed phase II before his release

date and subsequent revocation. We found that when the circumstances are such that

failure to complete a condition of probation is solely the fault of the State, due process

requires the trial court to consider adequate alternatives to incarceration. Lee, ¶ 23.

¶28    Despite our conclusion in Lee, we have subsequently rejected analysis based upon

fault when an alleged good faith effort to comply with conditions nevertheless results in

the violation of conditions related to the defendant’s rehabilitation or the protection of the

public. See e.g. Tirey, ¶ 24 (revocation affirmed over defendant’s allegation that his good

faith effort was frustrated by his probation officer’s unreasonable demands, his poverty,

and bad weather); State v. Senn, 2003 MT 52, ¶¶ 24-26, 314 Mont. 348, 66 P.3d 288

(revocation affirmed despite argument that good faith effort to comply was derailed by

poor health and poverty); State v. Williams, 1999 MT 240, ¶ 24, 296 Mont. 258, 993 P.2d

1 (defendant’s inability to secure sex offender treatment frustrated purpose of probation).

¶29    Our holding in Williams is instructive in this case. Williams was convicted of

sexual intercourse without consent and received a suspended sentence conditioned upon

his acceptance into either of two state pre-release centers and completion of a sex

offender treatment program.       Williams, ¶¶ 5-6.     However, both pre-release center

programs rejected Williams because of his lack of social skills, immaturity, and behavior.

Williams, ¶ 9. The State’s motion to revoke Williams’ probation was granted because he

                                             12
could not comply with the conditions of suspension. Williams, ¶ 10. We affirmed the

revocation because Williams’ inability to secure treatment “frustrated the purpose of

probation, namely, his rehabilitation.”    Williams, ¶ 17.    In Lee, we reaffirmed this

conclusion, opining: “We do not believe our holding in Williams suffers from any

constitutional infirmity.” Lee, ¶ 21. Importantly, we observed that the court in Williams

considered alternatives, but determined that none short of incarceration was suitable. See

Lee, ¶ 22.

¶30    In this case, the District Court found Cook to be an “extremely dangerous sex

offender,” with “questionable” prospects for rehabilitation.2 Cook’s burden was to come

up with a plan to show that he could be released to serve his suspended sentence in

compliance with its conditions. Yet, even five months after the petition to revoke was

filed, Cook had failed to find an MSOTA-qualified treatment provider and a residence

that complied with his conditions of suspension. Thus, the court found him to remain a

“high risk to children in need of the highest level of supervision,” and determined that no

alternatives short of incarceration were suitable. Cook’s reliance upon Lee is misplaced

because there is no indication that the State was responsible for any portion of this

failure. Whether Cook’s violations were or were not voluntary is not dispositive. Such

an approach to the revocation question ignores the fact that circumstances other than

conduct chargeable to the defendant may nevertheless frustrate the purposes of probation

and suspension of sentences—specifically, rehabilitation and protection of the public.

2
 Cook admitted in his psychosexual evaluation that he struggles on a daily basis not to
molest children, and previously admitted during court-ordered treatment for a prior
charge in Alaska that he had sexually abused approximately 200 children.
                                            13
We hold that the District Court did not abuse its discretion in revoking Cook’s suspended

sentence.

¶31   Issue three: whether the District Court imposed illegal conditions on Cook’s

revocation sentence.

¶32   Cook’s revocation sentence reimposed the conditions of his original suspended

sentence and added another 16. Cook challenges two of the newly imposed conditions,

along with the 1500 foot residential exclusionary zone condition of his original

suspended sentence. He argues that these conditions are punitive in nature, and thus

constitute a greater sentence upon revocation than that to which he was originally

sentenced.

¶33   When the court finds that the offender has violated the conditions of the suspended

sentence, it may “revoke the suspension of sentence and require the offender to serve

either the sentence imposed or any lesser sentence.” Section 46-18-203(7)(a)(iii), MCA

(1997). Determining whether the sentence at revocation is the “same or lesser” than the

sentence originally imposed requires that we look at the substance of the conditions to

determine whether they are punitive in nature. Tirey, ¶ 28. We review new conditions in

the context of the entire sentence; that is, whether the overall revocation sentence

constitutes more or less punishment than the sentence originally imposed. Tirey, ¶ 28.

The District Court sentenced Cook to serve the 10 years originally suspended, but now

with 5 years suspended. In other words, Cook’s revocation sentence suspends 5 years of

a commitment that he could have otherwise been required to serve.          As such, the

revocation sentence conforms to the requirements of § 46-18-203(7)(a)(iii), MCA (1997).

                                           14
¶34    Although the 2010 sentence requires the integration of 16 new conditions, many of

those conditions merely reiterate the conditions of Cook’s original suspended sentence.

Condition two of Cook’s revocation sentence prohibits him from frequenting “places

where children congregate,” including “parties, family functions, [and] holiday

festivities” without probation and parole approval and a chaperone. Cook argues that this

is an unduly restrictive intrusion into his family relations and right to associate.

However, § 46-18-203(7)(a)(ii), MCA (1997), allows for modified or additional terms or

conditions. And, when found “necessary to obtain the objectives of rehabilitation and the

protection of the victim and society,” § 46-18-202(1)(c), MCA, permits a court to impose

“restrictions on the offender’s freedom of association.” Likewise, Cook alleges that the

1,500 foot residential exclusionary zone in the original sentence is unduly punitive

because it is “tantamount to banishment.” In State v. Muhammad, 2002 MT 47, 309

Mont. 1, 43 P.3d 318, we did hold that a condition banishing the offender from Cascade

County was “not reasonably related to the goals of rehabilitation and is broader than

necessary to protect the victim.”

¶35    We use a nexus test to determine whether a restriction or condition meets the

requirements of § 46-18-202(1)(g), MCA. State v. Guill, 2011 MT 32, ¶ 59, 359 Mont.

225, 248 P.3d 826. This test is satisfied so long as the condition is reasonably related to

the objectives of rehabilitation and protection of the victim and society, and has a

correlation to the underlying offense or the offender. Guill, ¶ 59. Here, the nexus

between these conditions and Cook, considering his substantial history as a sexual

offender, as well as his current offense, is readily apparent. The last time Cook was left

                                            15
unsupervised with children he sexually assaulted them. Further, the District Court found

that Cook still presented an extreme threat to children. Thus, restricting Cook’s contact

with children not only serves to protect society, but the condition will serve the objective

of rehabilitation in that it reduces his likelihood of reoffending. We find that the District

Court did not abuse its discretion in imposing conditions reasonably designed to protect

society and serve Cook’s rehabilitation.

¶36    Finally, the revocation sentence requires that Cook be “placed on GPS monitoring

for the entirety of his supervision at his own expense.”          This service is currently

unavailable in Montana.       As such, the State concedes the issue as an impossible

condition. Consequently, this matter will be remanded to the District Court to strike the

GPS requirement as illegal.

                                      CONCLUSION

¶37    We affirm the District Court’s revocation of Cook’s suspended sentence.

However, we reverse the District Court’s imposition of Condition 15 in the revocation

order and remand to strike the illegal GPS condition. We affirm the District Court's

imposition of the other new conditions.

¶38    Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this Opinion.


                                                         /S/ MIKE McGRATH




                                             16
We concur:


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




Justice Beth Baker, concurring.

¶39    While I continue to believe that Stiffarm was wrongly decided, it now represents

the law as determined by this Court. The “‘concerns for stability, predictability and equal

treatment’ in the law” I voiced in Stiffarm (¶ 22 (Baker, J., dissenting) (quoting

Formicove, Inc. v. Burlington N., 207 Mont. 189, 194, 673 P.2d 469, 472 (1983)), would

not be served by overruling it, as the State advocates we do in this case. The legislature

quickly changed the statute to leave no doubt about the intent we ascribed to it for many

years. Continuing the roller coaster at this point would advance little purpose. Rather,

for the reasons stated by the Court, I concur that Stiffarm’s application should be

prospective only. The petition to revoke Cook’s suspended sentence was filed properly

according to the law in effect at the time of Cook’s crimes, the law in effect at the time of

revocation, and the law in effect now. For that reason, I join the Court’s opinion here.



                                                  /S/ BETH BAKER


Justice Jim Rice joins in the concurring Opinion of Justice Beth Baker.


                                                  /S/ JIM RICE


                                             17
Justice James C. Nelson, dissenting.

¶40    I dissent.

¶41    The State has misstated the issue in this case, and the Court has unfortunately

taken the bait. The question here is not whether State v. Stiffarm, 2011 MT 9, 359 Mont.

116, 250 P.3d 300, should be applied retroactively. This is not a retroactivity case.

¶42    Our law is well established and unequivocal: “The law in effect at the time an

offense is committed controls as to the possible sentence for the offense, as well as the

revocation of that sentence.” State v. Tirey, 2010 MT 283A, ¶ 26, 358 Mont. 510, 247

P.3d 701 (emphasis added) (citing State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220,

113 P.3d 297). “[A] person has the right to be sentenced under the statutes which are in

effect at the time of the offense, and . . . imposition of a sentence under statutes not in

effect at the time an offense was committed is an ex post facto application of the law and

therefore unconstitutional.” State v. Striplin, 2009 MT 76, ¶ 30, 349 Mont. 466, 204 P.3d

687 (emphasis added) (citing Tracy, ¶ 16).

¶43    The 1997 Montana Code Annotated was in effect at the time of Cook’s offense.

Section 46-18-203(2), MCA (1997), states that “[t]he petition for a revocation must be

filed with the sentencing court during the period of suspension or deferral” (emphasis

added). The revocation of Cook’s sentence is controlled by this language.




                                             18
¶44   So, what does “[t]he petition for a revocation must be filed with the sentencing

court during the period of suspension or deferral” mean? In Stiffarm, ¶¶ 13-14, this Court

explained exactly what this language means:

              The language of § 46-18-203(2), MCA, is clear and unambiguous. It
      states that a petition for revocation must be filed “during the period of
      suspension or deferral.” Section 46-18-203(2), MCA (emphasis added).
      The meaning of “during” is: “1: throughout the continuance or course of;
      2: at some point in the course of,” Webster’s Third New International
      Dictionary 703 (G. & C. Merriam Co. 1971), “1: throughout the entire
      time of; all through; 2: at some point in the entire time of; in the course
      of.” Webster’s New World College Dictionary 443 (4th ed., Wiley
      Publishing 2002).
              The plain meaning of § 46-18-203(2), MCA, is that the State may
      properly file a petition to revoke a suspended or deferred sentence only
      after the sentence has commenced and before it concludes, not before and
      not after the period of suspension or deferral.

¶45   In Stiffarm, ¶¶ 16-17, this Court explained that § 46-18-203(2), MCA, has always

had this meaning, ever since its enactment in 1983. The problem was that some of our

post-1983 precedents had relied on pre-1983 decisions in suggesting that a district court

has the authority to consider and grant a petition to revoke a suspended sentence that is

filed before the defendant begins serving that sentence. We corrected that erroneous

conception in Stiffarm.

¶46   While the State consumes some 14 pages of its brief on appeal attacking and

bemoaning Stiffarm, the fact remains that Stiffarm is the law. Contrary to the Court’s

analysis, our decision in Stiffarm did not announce any “new rules.” All this Court did in

Stiffarm is simply interpret and apply the plain language of § 46-18-203(2), MCA, which

stated that “[t]he petition for a revocation must be filed with the sentencing court during

the period of suspension or deferral” (emphasis added). This is the language which

                                            19
existed in the 1997 MCA. This is the language, therefore, which governed the District

Court’s authority to revoke Cook’s sentence. We said in Stiffarm that “during” really

does mean “during,” not “before” and not “after.” Accordingly, the District Court lacked

authority to revoke Cook’s suspended sentence based on the State’s petition for

revocation that was filed two days before Cook was scheduled to begin serving the

suspended sentence.

¶47    Retroactivity analysis is completely irrelevant to this case. And in applying such

analysis here, the Court violates the fundamental principle that the revocation of a

suspended sentence is controlled by “the statutes which are in effect at the time of the

offense.” Tracy, ¶ 16. Regrettably, I believe the Court has, in fact, continued “the roller

coaster” in this case. Concurrence, ¶ 39. I would reverse on Issue One and not address

Issues Two and Three.

¶48    I dissent.


                                                 /S/ JAMES C. NELSON




                                            20
