                                                No.    84-513

                     I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                       1985




S T A T E O F MONTANA,

                      P l a i n t i f f and R e s p o n d e n t ,

                                     .-.
C L I F F O R D EDWARD MONT&TH,

                      D e f e n d a n t and A p p e l l a n t .




A P P E A L FROM:     D i s t r i c t C o u r t of t h e T w e n t i e t h J u d i c i a l D i s t r i c t ,
                      I n a n d f o r t h e C o u n t y of L a k e ,
                      T h e H o n o r a b l e Jack L. G r e e n , Judge p r e s i d i n g .



COUNSEL O F RECORD:

         For A p p e l l a n t :

                      Christian,           M c C u r d y & Wold,    Polson,          Montana


         For R e s p o n d e n t :

                      Mike Greely, Attorney General, Helena, Montana
                      John R. F r e d e r i c k , C o u n t y A t t o r n e y , P o l s o n ,
                      Montana




                                                S u b m i t t e d on B r i e f s :    A p r i l 4,    1985




                                                Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
       Defendant appeals the order entered August 13, 1984, in
the   Fourth    Judicial District, Lake County,     revoking the
suspension of his sentence entered on July 13, 1983.             The
order reinstated     an eight-year   sentence with three years
suspended based upon the report and testimony of defendant's
Montana probation officer on alleged violations of the condi-
tions of suspension of the sentence while defendant was in
North Dakota.
      We   remand    for an evidentiary hearing.         The   record
raises the question of whether defendant was afforded proce-
dural protection due under the interstate compact on the
supervision     of   out-of-state   probationers   and    parolees.
Sections 46-23-1101 through 46-23-1106, MCA.
      Clifford Edward Monteith entered a plea of guilty to
felony theft on June 22, 1983, as part of a negotiated plea
agreement.     He had "hot wired" a 1979 Ford pickup truck from
a car lot on April 30, 1983, placed a false temporary sticker
in the window, and used the truck.      From a tip, the authori-
ties located the truck in the area and issued a warrant for
his arrest on May 2, 1983.      He was arrested in Las Vegas on
May 18, 1383.     This was Monteith's first felony offense, but
he had a history of lesser crimes involving mischief, alcohol
and drugs.     Although he had been confined in jails and treat-
ment programs, he had never been to prison.
      Monteith's probateion officer, Ron Alsbury, recommended
a suspended ten-year sentence conditional upon completion of
ninety days served in the Lake County jail, no drinking,
"alcohol counseling as deemed appropriate by probation offi-
cer," payment of attorney fees and restitution.      Alsbury also
recommended (as Monteith wished) that the defendant return to
his residence in North Dakota, seek employment, and have his
probation transferred to the State of North Dakota.
        Monteith went    to North Dakota under the interstate
compact on supervision of probation and parole.             On October
1, 1983, he was arrested for driving under the influence of
alcohol, escape from lawful custody, and no driver's license.
He apparently pled guilty pursuant to a plea bargain with the
State of North Dakota and agreed to completion of an alcohol-
ism treatment program at the North Dakota State Hospital.          He
completed the program on December 1, 1983, and was released
to his residence.
        Alsbury filed a probation violation report March 14,
1984,     alleging    three      rule   infractions:        (1)   Rule
$2--defendant changed his residence without obtaining permis-
sion    from   his   probation    officer;   (2) Rule    #6--defendant
consumed alcoholic beverages; and            (3) Rule   #13--defendant
disobeyed the law as evidenced by his guilty pleas to the
misdemeanor offenses.
        The Lake County attorney petitioned for a revocation of
the suspension of sentence on March 20, 1984, based upon the
report of violations submitted by Alsbury.              Monteith first
reappeared in District Court in Lake County on July 25, 1984,
following arrest on a warrant filed March 21, 1984, on charg-

es of violating conditions of probation and absconding from
probation supervision.        He said he had three hearings in
North Dakota, but counsel offered no evidence as to the
nature of the proceedings.
        At the second hearing in Lake County on August 1, 1984,
Monteith under questioning from the court denied the allega-
tion that he had changed his residence.           He claimed that he
had been living at his residence in North Dakota and that he
called the probation officer about five times, but he was not
in twice and too busy to talk three times.       He admitted to
consuming intoxicants but denied through counsel "at this
time" the allegation that he had disobeyed the law as repre-
sented by his guilty plea.    The court referred the case to
the original sentencing judge because of defendant's denial
of the allegations.
      On August 8, 1984, the sentencing judge called proba-
tion officer Alsbury who under cross-examination admitted
knowledge of a plea bargain     in North Dakota, Monteith's
completion of the alcohol treatment program and no further
record of trouble with alcohol or the law.   Alsbury indicated
that the State of North Dakota represented to Monteith that
there would be no recommendation of violation if he met the
conditions of the plea bargain.    Monteith was charged with
violation of Rule # 2 relating to change of residence without
permission; however, Alsbury in testimony apparently recom-
mended revocation of the suspended sentence for violation of
a duty to report to the North Dakota probation officer, a
violation that Monteith was not charged with.    Either alleged
violation occurred after the October incident.
      The court, noting defendant's denial of violation of
Rule # 2 which "provides that you shall not change your place
of residence without first obtaining permission from your
supervising officer" (i.e., absconding from probation super-
vision), however, based the revocation on the admissions to
violations of Rules # 6 and #13 at the hearing August 8, 1984.
Yet the probation officer testified tha-t he had violated "the
duty to report," not changing residence as claimed in the
report.   The court order revoking the suspension of sentence
found that defendant had violated "the conditions of his
probation as alleged in the report of violation prepared and
filed by his probation officer herein."
        We consider the following issues raised by appellant:
        1.   Did failure to provide a preliminary on-site hea-r-
ing in North Dakota violate defendant's Fourteenth Amendment
right to due process?
        2.   Did   the   North   Dakota plea   bargain    involve the
consent of Montana authorities, thus binding Montana to waive
violations of Rules # 6 and #13, consuming alcohol and dis-
obeying the laws, as cause for revocation?
        3.   Did sufficient evidence support the revocation of
defendant's suspended sentence?
        Issue No. 1:     Failure - provide on-site hearing.
                                 to                               The
State contends that         46-23-1102(3), MCA, applied here and
allowed Montana to retake the defendant upon its own initia-
tive without formality; all legal requirements for extradi-
tion were expressly waived by the statute, provided that no
criminal charges or suspected offenses were pending in North
Dakota.      The State further contends that defendant was af-
forded due process in excess of the provision in that North
Dakota provided him an extradition hearing.              (The District
Court in Lake County did not have a transcript record of the
three hearings in North Dakota when revoking the sentence.)
Defendant, the State claims, did not demonstrate any North
Dakota involvement in the decision to retake the defendant to
Montana.
        Appellant's position is that S 46-23-1103, MCA, applies
where a probationer is supervised pursuant to the interstate
compact and the supervising state believes that the sending
state    should    consider retaking or    reincarcerating for a
probation violation.       The statute provides that before the
supervising state initiates a retaking by notifying the com-
pact administrator, it must hold a hearing in accordance with
the    act within    a   reasonable time unless the hearing   is
waived.    The probationer has the right at this hearing to
notice in writing of the allegations and. the purpose to
determine probable cause for revocation; opportunity before
the hearing to get assistance; right to confront and examine
those making a.llegations; and opportunity to admit, deny or
explain and offer proof of contentions.       Section 46-23-1105,
MCA.    At the end of the hearing the appropriate officers
shall report to the sending state, furnish a copy of the
hearing record and       recommend a disposition.     (The three
hearings in North Dakota, of which the District Court in Lake
County had no transcript, involved extradition and not an
opportunity to know or counter any allegations.)
        The record before the Di.strictCourt failed to indicate
whether Montana or North Dakota initiated the retaking of
defendant.    The court, however, had. notice that the viola-
tions occurred in North Dakota with the knowled.geof a North
Dakota probation officer.      The Montana probation officer left
unclear in his report, upon which the court based its order,
whether or not the retaking was at the recommendation of
North Dakota.
        Based upon this record, we cannot rea.ch the issue of
whether defendant's Fourteenth Amendment right to due process
was violated by a failure to provide an on-site hearing in
North Dakota pursuant to Fisher v. Crist (1979), 182 Mont.
124, 594 P.2d 1140, and Morrissey v. Brewer (1972), 408 U. S.
471, 92 S.Ct.       2593, 33 L.Ed.2d   484.   At the evidentiary
hearing, the District Court should be presented with a better
record on what compliance there was with the provisions for
interstate supervision of probationers and parolees.                  Sec-
tions 46-23-1101 through 46-23-11-06,MCA.
        Issue No. 2:    Effect - out-of-state plea bargain.
                               of                                      The
court ordered the revocation based upon the offenses subject
to a guilty plea as sufficient despite denial of the viola-
tion of failure to report (or changing residence, without
permission, whichever          the   State   is    claiming).      Through
Alsbury's testimony, the court had notice of a guilty plea as
part of a plea bargain.              The court also had notice from
testimony of probation officer Alsbury that Monteith had been
party to some form of bargain relating to his North Dakota
pleas which may have been a plea bargain consented to by
Montana authorities.
        There was no record of the North Dakota plea bargain
other than testimony which does not adequately clarify what
occurred. The court found by defendant's admissions to the
underlying offenses that he had violated the terms and condi-
tions of his probation.        On remand-, the court should consider
evidence on the plea bargain to determine its existence and
details, including possible agreement of Montana authorities
to its terms.       If the North Dakota offenses are the basis for
the revocation and have not been, by plea bargain, waived by
Montana    authorities as       cause   for revocation, the         record
should more accurately and completely document the charges
and the disposition.
        Issue No. 3:      Sufficient evidence - support revoca-
                                              to
tion.    Alsbury, the probation officer, recommended revocation
not based upon the offenses involved in a guilty plea in
October 1983 but upon either the failure to report or chang-
ing     residence    without    permission        from   the    supervising
officer.       The court, however, found that the October offenses
supported revocation, based upon defendant's admissions to
the violations.
     Although the admissions would. support revocation, there
remain    unresolved     issues   of   fact which   may   affect   the
decision:
         (1) Did the State of North Dakota notify Montana to
retake the defendant?
         (2) What procedures did the State of Montana follow to
retake the defendant under the interstate compact on supervi-
sion of probationers, S § 46-23-1101 through 46-23-1106, MCA?
         (3)    Did. the probation 0fficia.l~in Montana agree to
honor a successful completion of the terms of a guilty plea
in North Dakota through the interstate compact?
      Remanded for an evid.entiary hearing.




                                         Chief Justice

We concur:
