State v. Graves, 2015 MT 262 (Sept. 1, 2015) (Shea, J.) (5-0, aff’d & rev’d)
Issue: (1) Whether the district court erred by revoking Graves’ suspended sentence before it began; (2) whether Graves was required to sign his conditions of probation before he was subject to those conditions; (3) whether the district court erred in denying the admission of Graves’ out-of-state court records; (4) whether the district court could impose a sentence to the MSP when revoking a 1995 sentence to the DOC; (5) whether the district court erred by denying Graves credit for time served while incarcerated in Oregon after the revocation petition had been filed but before he was transferred to Montana.
Short Answer: (1) No; (2) no, as the reason he didn’t sign was that he escaped; (3) yes; (4) no; (5) yes.
Affirmed and reversed, and remanded for further proceedings
Facts: In 1995, Graves pled guilty to forgery and bail jumping and was sentenced to 20 years with the DOC, 10 years suspended, subject to various conditions during the suspended portion of the sentence. Any violation of the conditions would result in revocation of the suspended sentence.
In January 1996, while awaiting transfer to the Montana State Prison, Graves escaped from jail, and a warrant for his arrest was immediately issued. In March 1997, a governor’s warrant issued to extradite Graves from Bellingham, Washington, where he was being held, and a detainer was placed on him pursuant to the Interstate Agreement on Detainers. Graves filed final paperwork on the detainer, requiring Montana to try him within 180 days. Failing to do that, the state dismissed the escape charge with prejudice, and the governor’s warrant was treated as quashed. The state made no attempt to return Graves to Montana over the next 14 years.
In October 2011, the probation and parole bureau learned Graves was serving a supervisory sentence in Oregon. He had been arrested and convicted of multiple felonies and misdemeanors since his 1996 escape. On Oct. 13, 2011, a probation and parole officer executed an affidavit in support of a petition to revoke Graves’ suspended sentence. On the same day, a prosecutor in Oregon filed a fugitive information stating that Graves was a fugitive form his 1995 forgery conviction, and that Montana would extradite him.
The state filed the petition to revoke Graves’ suspended sentence on Dec. 8, 2011.
At the revocation hearing, Graves testified he did not know he was on probation or that he was required to report to a probation officer. He testified that he had been incarcerated or under supervision for most if not all of the time since his 1997 arrest. Graves’ attorney attempted to introduce various exhibits form out of state to prove the state knew where Graves was from 1997-2011. The state objected on relevance and authentication, and Graves’ attorney replied that the Rules of Evidence do not apply in revocation hearings. The district court denied admission of all of the out-of-state documents.
Graves admitted he had escaped and been convicted of several crimes since his escape. His defense was that he had no notice he was considered a probationer in Montana, or was required to report. He stated he believed Montana had dropped all charges against him since it had taken no action in the 14 years since the escape charge was dismissed.
Procedural Posture & Holding: The district court found that Graves had violated the sentence imposed in 1995, although did not specify how. At the sentencing hearing, the court orally pronounced a sentence of 10 years in MSP with 172 days credit for time served. In the oral and written judgments, the court stated the reasons for the sentence are that Graves is a career criminal who committed several felonies during the suspended time, absconded, failed to report, and cannot blame the state for his problems. Graves appeals, and the Supreme Court affirms in part and reverses in part.
Reasoning: (1) The statute expressly allows for a suspended sentence to be revoked for violations of the conditions of suspension before the period of suspension has begun.
(2) If Graves did not receive due process by being specifically apprised of the conditions of his probation in writing and then signing a copy of the conditions, it was not because he was denied due process so much as he declined due process by escaping before he had the opportunity to review and sign the conditions.
(3) The district court’s refusal to admit the out-of-state records violated Graves’ right to due process. Whether the documents establish that Montana authorities did or did not receive information about Graves’ whereabouts after his escape goes to the weight of the evidence, not its admissibility.
(4) A sentence to MSP is not the same or a lesser sentence than a commitment to the DOC. Tracy controls, and the sentence must be vacated.
(5) Graves should not be penalized for the state’s failure to timely execute the arrest warrant and extradite Graves. On remand, Graves should be given credit for time served from the date Oregon released him to appear in Missoula: December 12, 2011.