State v




                                                   State v. Baker
                                              Decided March 10, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 96-681

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 55N

                                                    STATE OF MONTANA,

                                                    Plaintiff and Respondent,

                                                                      v.

                                                 ROBERT PHILLIP BAKER,

                                                    Defendant and Appellant.

                     APPEAL FROM: District Court of the Eleventh Judicial District,

                                              In and for the County of Flathead,

                                      Honorable Ted O. Lympus, Judge Presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                              William Hooks, Appellate Defender, Helena, Montana

                                                          For Respondents:

                              Honorable Joseph P. Mazurek, Attorney General; Mark

                                    C. Fowler, Assistant Attorney General, Helena,

                                                                 Montana

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                                 Thomas Esch, County Attorney, Kalispell, Montana

                                           Submitted on Briefs: January 30, 1998

                                                    Decided:         March 10, 1998

                             Chief Justice Turnage delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.


¶2 Robert Phillip Baker appeals from the revocation of his
deferred imposition of sentence in the Eleventh Judicial District
Court, Flathead County. We affirm.


¶3 The issues are whether the District Court violated Baker's due
process rights and his constitutional right to the assistance of
counsel, whether it abused its discretion in denying Baker's
motions for continuances, and whether it denied him his statutory
and constitutional rights to confrontation and cross-examination.


¶4 In December 1993, Baker pled guilty in the District Court to
issuing a felony bad check. The court placed him on probation and
ordered that imposition of sentence be deferred for three years,
subject to written terms and conditions.


¶5 In November 1994, the State of Montana petitioned to revoke
Baker's deferred imposition of sentence based upon alleged
violations of the terms of his probation including his 1994 theft

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of a motor vehicle in California. The attorney initially appointed
to represent Baker at his revocation hearing was allowed to
withdraw due to disagreements with Baker concerning the handling of
the case. The court later dismissed Baker's second court-
appointed attorney and allowed Baker to represent himself at his
revocation hearing, after Baker filed a written notice of
substitution of counsel indicating that he wished to proceed pro
se.


¶6 At the revocation hearing, Baker's Montana probation officer
testified in person and two California witnesses testified by
telephone. Baker cross-examined each witness and made a statement
to the court in his own behalf. At the close of the hearing, the
court found sufficient evidence to revoke the deferred imposition.
Baker was sentenced to ten years in the custody of the Department
of Corrections. He appeals.


¶7 The record, which includes numerous and voluminous handwritten
documents filed by Baker both before and after he assumed pro se
status, establishes to this Court's satisfaction that Baker
knowingly and voluntarily waived his right to counsel at the
revocation hearing, pursuant to the applicable requirements under
Montana and federal law. Under this record, failure to grant
Baker's eve-of-hearing request for a continuance was not an abuse
of discretion. At the revocation hearing, the State introduced a
certified copy of the California U.S. District Court judgment
against Baker for theft of a motor vehicle. This conviction alone
was a clear violation of the terms of, and sufficient as grounds to
revoke, Baker's probation. There is no reasonable possibility that
the alleged errors at the revocation hearing affected Baker's
substantial rights. See State v. Powers (1982), 198 Mont. 289,
301, 645 P.2d 1357, 1364. Nor has Baker established that the
court's failure to grant his request for a sixty-day continuance of
the sentencing hearing was an abuse of discretion.


¶8 Affirmed.



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                          /S/ J. A. TURNAGE
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART




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