State v. Sullivant

State v. Sullivant, 2013 MT 200 (July 23, 2013) (5-0) (McGrath, C.J.)

Issue: (1) Whether the “remainder of the probation sentence” includes the period during which the defendant absconded from probation; (2) whether the district court should hold an evidentiary hearing on the reasons for Sullivant’s absconding; and (3) whether the re-imposition of fines and fees varied from the original sentence and should be stricken.

Short Answer: (1) No; (2) this was not raised below, and the Court declines to invoke plain error review; and (3) no.

Affirmed in part, reversed in part, and remanded

Facts: Sullivant was charged with felony DUI and other offenses, including a felony and several misdemeanors. He pled guilty to both felony DUIs and two misdemeanors, and the state dismissed the remaining charges. Sullivant was sentenced to the Dept. of Corrections for 13 months followed by four years of supervised probation on each of the DUIs. He received six-month suspended sentences for each  of the misdemeanors. The sentences were to run consecutively for a total of 26 months to the DOC, followed by nine years of supervised probation. The Court also imposed a $1000 fine and $1450 fee. Sullivant received credit for 132 days in jail served prior to sentencing.

Sullivant was discharged to probation on June 13, 2002. In August 2003, the state petitioned to revoke his probation based on several violations. The court issued a bench warrant for his arrest, and in December 2003 the state notified the court that Sullivant has absconded from supervision.

Eight years later, in July 2011, the state moved to quash the original arrest warrant and issue a new one. Sullivant was in prison in Kansas; when he was released in August 2011 he was returned to Montana.

The district court held a probation revocation hearing in January 2012. Sullivant admitted he absconded from supervision in 2003 to avoid going back to prison. The record showed that he then embarked on a string of criminal offenses in other states.

Procedural Posture & Holding: The district court sentenced Sullivant to the DOC for eight years, with no time suspended and credit for 194 days served since his return from Kansas. The court denied any credit for time spent on probation, and reimposed the fines and fees set out in the original sentence. Sullivant appeals, and the Supreme Court affirms in part, reverses in part, and remands.

Reasoning: (1) Sullivant contends and the state agrees that when Sullivant’s 2001 probationary sentenced was revoked, the district court had authority to impose a prison term no more than the remainder of his probation. They disagree on how long that term was. Probation is an ‘act of grace’ intended to give an offender a chance to rehabilitate outside of the prison setting. ¶ 12. Absconding frustrates those goals. The Court holds that the “remainder of the probation sentence” does not include any period of time during which the prisoner absconds from probation. The period of absconding begins on the date the state notifies the district court that the defendant absconded. Because the district court may have imposed a longer sentence than is allowed under the rule, the Court remands for resentencing.

(2) Sullivant contends the state had an obligation based on Sullivant’s due process rights to pursue his return to Montana to face probation revocation hearings, and seeks an evidentiary hearing. Because he did not raise this below, he requests plain error review. The Court declines to undertake plain error review.

(3) The district court did not mention the fines and fees when it announced the oral judgment revoking Sullivant’s probation in 2012. In its written judgment, it noted that all unpaid fines and fees from the 2001 sentence were “reimposed.” Sullivant contends the Court lacked authority to reimpose the fees and fines. The 2012 judgment involved revocation of Sullivant’s probation; regardless of whether the fines and fees were mentioned in that judgment, they were part of the original sentence. The court’s note of them in its written 2012 judgment did not increase the Sullivant’s 2001 punishment, and did not invalidate the prior sentence requiring him to pay those fines and fees. However, Sullivant was entitled to credit against a fine for each day of incarceration prior to conviction. § 46-18-403(1), MCA (1999). Upon remand, the district court shall determine the credit Sullivant is due.