                                      No. DA 06-0717

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 174N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CHRISTOPHER LEE CANAL,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. CDC 2003-346,
                     Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender, Roberta R. Zenker,
                     Assistant Appellate Defender, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss,
                     Assistant Attorney General, Helena, Montana

                     Brant S. Light, Cascade County Attorney, Susan Weber, Chief Deputy
                     County Attorney, Great Falls, Montana


                                                          Submitted on Briefs: June 26, 2007

                                                                     Decided: July 17, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, the Supreme Court cause number, and disposition shall

be included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2    Christopher Canal (“Canal”) appeals from an order of the District Court for the

Eighth Judicial District, Cascade County, revoking the suspended sentence previously

given to Canal for the offense of sexual assault. Canal contends that the court’s decision

to revoke was not supported by the evidence in the record. Further, Canal argues that

after the court revoked his suspended sentence, the court imposed an illegal sentence that

does not comport with correctional and sentencing guidelines.

¶3    On May 21, 2004, Canal pled guilty to one count of felony sexual assault. The

District Court sentenced him to ten years with eight years suspended. Canal’s sentence

was subject to thirty-one conditions. Canal served two years at Montana State Prison and

was discharged to the suspended portion of his sentence on May 25, 2006. Canal

apparently was unable to comply fully with the conditions of his suspended sentence.

For instance, he had difficulty finding acceptable housing and was unable to maintain

employment. On June 8, 2006, his probation officer held an intervention hearing to

address Canal’s failure to report to and inform his probation officer of changes in his

residence. Additionally, on July 13, 2006, Canal pled guilty to a partner or family

member assault. Later that same day, Canal’s probation officer submitted a violation


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report which alleged that Canal had violated multiple conditions of his suspended

sentence, as follows:

       Montana State Rule #1 – Residence
       Montana State Rule #4 – Employment and/or Program
       Montana State Rule #5 – Reporting
       Montana State Rule #12 – Laws & Conduct
       Special Condition 4 – Counseling/Treatment/Programming
       Special Condition 9 – No Casinos/No Gambling
       Court-Ordered Condition #14 – No Contact with Under Age Individuals

Subsequently, on July 17, 2006, the County Attorney filed a Petition for Revocation of

Suspended Sentence.

¶4     On August 22, 2006, the District Court held an evidentiary hearing. The court

found, by a preponderance of the evidence, that Canal had violated the conditions of his

suspended sentence. Therefore, the court revoked Canal’s eight-year suspended sentence

and sentenced Canal to eight years with three years suspended.

¶5     On appeal, Canal argues that the District Court abused its discretion when it

revoked his suspended sentence because the court’s decision was not supported by the

evidence in the record. In particular, Canal argues that his probation officer obtained

information regarding Canal’s supposed violations of the conditions of his suspended

sentence from his “jilted and jealous former girlfriends, who had a motive to lie.”

Therefore, Canal maintains, the District Court based its decision to revoke his suspended

sentenced on the “unsupported hearsay testimony of the probation officer, over the

testimony of persons [Canal’s friend and his former girlfriend] with first hand

observations.” In addition, Canal contends that the District Court imposed an illegal

sentence after revoking his suspended sentence because the court did not consider certain


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correctional and sentencing policies and make findings as required by § 46-18-101(2),

MCA (2003).

¶6     In response, the State argues that, even if there was insufficient evidence in the

record to support the District Court’s finding that Canal failed to comply with certain

conditions of his suspended sentence, Canal nonetheless admitted that he violated two

conditions. First, Canal admitted that he failed to tell his probation officer that he had

moved out of his residence, and second, he pled guilty to partner or family member

assault. According to the State, these two admissions support the revocation of Canal’s

suspended sentence. Further, with respect to Canal’s argument concerning an illegal

sentence, the State maintains that § 46-18-101(2), MCA, does not apply in this case. The

State argues that the District Court revoked a suspended sentence already in place and did

not impose an original sentence following a conviction. Therefore, according to the

State, the sentencing statute does not apply.

¶7     We generally review a district court’s decision to revoke a suspended sentence to

determine whether the court abused its discretion and whether the court’s decision was

supported by a preponderance of the evidence. State v. Nelson, 1998 MT 227, ¶ 16, 291

Mont. 15, ¶ 16, 966 P.2d 133, ¶ 16 (citing State v. Lindeman, 285 Mont. 292, 302, 948

P.2d 221, 228 (1997)). Additionally, where “the issue is whether the court followed the

statutory requirements applicable to the revocation proceedings, the question is one of

law over which our review is plenary.” Nelson, ¶ 16.

¶8     Section 46-18-203(7)(a)(iii), MCA (2005), provides that if the judge finds that the

offender has violated the terms and conditions of the suspended sentence, the judge may


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“revoke the suspension of sentence and require the offender to serve either the sentence

imposed or any sentence that could have been imposed that does not include a longer

imprisonment or commitment term than the original sentence.” Here, Canal admitted that

he had violated two conditions of his suspended sentence. Based on our review of the

record, therefore, we conclude that the revocation of Canal’s suspended sentence was

supported by a preponderance of the evidence and that the District Court did not abuse its

discretion in revoking his suspended sentence.

¶9     Further, we agree with the State that § 46-18-101(2), MCA, does not apply in this

case. The District Court revoked Canal’s suspended sentence; it did not impose a new or

original sentence following a conviction. Therefore, the District Court was not required

to consider the sentencing and correctional policies set forth in § 46-18-101(2), MCA, or

make findings regarding those policies.

¶10    Therefore, having reviewed the record in this matter, we have determined to

decide this case pursuant to Section I, Paragraph 3(d) of our 1996 internal operating rules,

as amended in 2003, which provides for memorandum opinions. It is manifest on the

face of the briefs and the record before us that Canal’s appeal is without merit. The legal

issues are clearly controlled by settled Montana law, which the District Court correctly

interpreted.

¶11    Accordingly, the judgment of the District Court is affirmed.


                                                        /S/ JAMES C. NELSON




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We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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