State v. Sebastian , 372 Mont. 522 ( 2013 )

November 19 2013
DA 13-0018
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 347STATE OF MONTANA,
Plaintiff and Appellee,
v.
VICTOR GAYLEN SEBASTIAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 10-58
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Julie Brown, Montana Legal Justice, PLLC; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General; Helena, Montana
William E. Fulbright, Ravalli County Attorney, Thorin Geist, Deputy Ravalli
County Attorney; Hamilton, Montana
Submitted on Briefs: October 30, 2013
Decided: November 19, 2013
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Victor Gaylen Sebastian (Sebastian) appeals from the Order of the Montana Twenty-
First Judicial District Court, Ravalli County, revoking his suspended sentence, committing
him to the custody of the Department of Corrections and recommending he be screened for
the most intensive chemical dependency treatment program available. We affirm.
¶2 We address the following issue:
Did the District Court abuse its discretion by denying Sebastian’s motion to continue
the revocation hearing when the evidence against him had not been fully disclosed,
violating his right to due process?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 2011, Sebastian was found guilty of felony burglary and misdemeanor criminal
mischief, for breaking into a church. He was committed to the supervision of the
Department of Corrections for five years, all suspended, to run concurrently with a six-
month suspended sentence related to another offense; and placed under the rules and
regulations of the Adult Probation and Parole Bureau. The conditions of his probation
included the following:
(i) The Defendant must comply with all municipal, county, state, and
federal laws and ordinances, and conduct himself/herself as a good citizen . . .
(j) The Defendant is prohibited from using or possessing alcoholic
beverages and illegal drugs . . .
(dd) The Defendant will not knowingly associate with probationers,
parolees, prison inmates . . .
(l) The Defendant will pay all fines and fees as ordered and directed by the
Court.
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¶4 Sebastian has an unusually severe case of Crohn’s disease. He has had over thirty
operations due to this condition, lost three toes to it, and had eleven pounds of his intestines
removed. Sebastian has been prescribed hydrocodone and methadone as well as other
medications, to help him live with Crohn’s disease. He admits to using marijuana
medicinally for this condition, although he is no longer legally-authorized to do so. He
admits to crushing and snorting his hydrocodone and methadone because, he says, Crohn’s
disease otherwise causes him to pass the medications before they are absorbed by his system.
The instructions on the medications provide they are to be taken orally.
¶5 On August 10, 2012, Sebastian was stopped for driving erratically. The responding
officer said that when he came up to the vehicle, Sebastian appeared to be sleeping and kept
closing his eyes and putting his head back. Sebastian passed field sobriety tests. He initially
agreed to a blood test, but changed his mind. Significantly later, he passed a drug
recognition test. He was not cited for driving under the influence.
¶6 On August 15, 2012, Sebastian admitted to his probation officer that he was taking
too much of his medication. He stated he was crushing up and snorting the medication and
that he had a problem. Based on these disclosures, his probation officer told him she was
going to file a revocation and that she felt he needed long term inpatient treatment, to which,
she said, Sebastian agreed.
¶7 On August 23, 2012, Sebastian was involved in a motor vehicle accident with a jeep
near Corvallis on Eastside Highway at the 6.9 mile marker. The driver of the jeep fled the
scene and the responding officer pursued. Sebastian left the scene in the opposite direction.
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State Trooper Tamra Winchell eventually caught up with Sebastian at a trailer court. When
she spoke to Sebastian, it appeared to her that he was “under the influence of something.”
Half an hour to forty-five minutes after she arrived at the scene she said Sebastian became
sick. He was sweating and complaining of pain; she had to open the door of her patrol car
for him to throw up. Winchell transported Sebastian to the hospital. There, he submitted to
blood tests. The preliminary blood tests were positive for marijuana and a methamphetamine
component. At the time of the revocation hearing, the results of the blood tests had not come
back yet and Sebastian could only be charged with careless driving.
¶8 Sebastian’s probation officer also arrived at the scene on August 23. She testified that
he told her his car had been parked all day at the trailer park. He did not report the accident
to her and denied having any knowledge of the accident. She also stated he appeared to be
under the influence of something—nodding off at times, appearing very awake at times, and
periodically turning “extremely aggressive.” She stated that Sebastian also told her on
August 23 that he had been misusing his medications.
¶9 At the time of these events, Sebastian was dating a woman who lived with her father.
Her father was on probation. She stated that Sebastian came over the house all the time but
had very little interaction with her father. Neither the father’s probation officer nor
Sebastian’s probation officer had approved the two having contact.
¶10 Finally, Sebastian stated at his hearing that, because he does not have the money, he
has not been paying his court-ordered supervision fees.
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¶11 In a letter to the District Court, received September 11, 2012, Sebastian admitted to
crushing and snorting his medications because of his Crohn’s disease. He also admitted to
the fact that he did not have a medical marijuana card, although he still needs the drug.
¶12 On September 7, 2012, the State filed a petition to revoke Sebastian’s suspended
sentence. The State alleged that Sebastian had violated his probation by driving under the
influence of hydrocodone and methadone; refusing to provide a bodily fluid sample
requested by a law enforcement officer; and driving a vehicle while under the influence of
narcotics, being involved in an accident, and lying about being involved in the accident. The
State also alleged that Sebastian violated his probation on at least two occasions by crushing
up his medications and snorting them, rather than taking them as directed by a physician. In
addition, it alleged Sebastian had been associating with another probationer without
permission and failing to pay court-ordered restitution.
¶13 Sebastian’s revocation hearing was scheduled for October 23, 2012. On October 22,
2012, Sebastian moved for a continuance of the hearing. His motion explained that a
“substantial amount of discovery, including blood test results, suspect and witness statement
videos or audio recordings, drug recognition expert evaluation reports, 911 call recordings,
histories and notes, and names of investigating officers” had not yet been produced. The
District Court denied this motion on October 23, 2012. After the hearing, the District Court
ordered Sebastian’s suspended sentence revoked; ordered him committed to the Department
of Corrections for five years; and recommended he be screened for the most intensive
chemical dependency treatment program the Department of Corrections had to offer.
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Sebastian appeals, alleging that his right to due process was violated when the District Court
revoked his suspended sentence after denying his motion to continue the revocation hearing,
pending full disclosure of the evidence against him.
STANDARD OF REVIEW
¶14 “A district court’s ruling on a motion to continue is subject to the district court’s
discretion, and this Court reviews the ruling to determine whether the district court abused its
discretion.” State v. Morrison, 2009 MT 397, ¶ 5, 353 Mont. 407, 220 P.3d 659 (citing State
v. Anderson, 1999 MT 58, ¶ 10, 293 Mont. 472, 977 P.2d 315). “A district court abuses its
discretion when it acts arbitrarily without the employment of conscientious judgment or
exceeds the bounds of reason, resulting in a substantial injustice.” State v. Goff, 2011 MT 6,
¶ 20, 359 Mont. 107, 247 P.3d 715. Generally, this Court reviews a district court’s decision
to revoke a suspended sentence to determine whether it was supported by a preponderance of
the evidence and whether the district court abused its discretion. State v. Gillingham, 2008
MT 38, ¶ 17, 341 Mont. 325, 176 P.3d 1075. Where a defendant presents a question of law
related to constitutional rights, however, this Court’s review is plenary. Gillingham, ¶ 17.
DISCUSSION
¶15 Did the District Court abuse its discretion by denying Sebastian’s motion to continue
the revocation hearing when the evidence against him had not been fully disclosed, violating
his right to due process?
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¶16 Section 46-18-203, MCA, permits a district court to order a hearing on revocation of a
suspended sentence if the State files a petition for revocation which demonstrates probable
cause that the probationer has violated any condition of a suspended sentence. When such a
hearing occurs, the offender must be brought before a judge and advised of: “(a) the
allegations of the petition; (b) the opportunity to appear and to present evidence in [sic] the
offender's own behalf; (c) the opportunity to question adverse witnesses; and (d) the right to
be represented by counsel at the revocation hearing[.]” Section 46-18-203(4), MCA. The
State must prove, by a preponderance of the evidence, that the offender has violated the
probation conditions. Section 46-18-203(6)(a), MCA. A preponderance of the evidence is
“such evidence as, when weighed with that opposed to it, has more convincing force and the
greater probability of truth.” State v. Stuit, 176 Mont. 84, 89, 576 P.2d 264, 267 (1978)
(citing People v. Condley, 69 Cal. App. 3d 999 (1977)). If the court finds the State has
carried this burden, it is within the court’s discretion to determine an appropriate action in
response to the violation. State v. Pedersen, 2003 MT 315, ¶ 17, 318 Mont. 262, 80 P.3d 79(citing § 46-18-203(7), MCA); See § 46-18-203(7), MCA.
¶17 The Fourteenth Amendment of the United States Constitution protects individuals
from State action that would deprive them of life, liberty, or property without due process of
law. U.S. Const. amend. XIV, § 1. Montana’s Constitution also protects this right. Mont.
Const. art. II, § 17. At stake in a probation revocation proceeding is a probationer’s
conditional liberty interest. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 1759
(1973).
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¶18 “The minimum requirements of due process are extended to sentence revocation
hearings.” Pedersen, ¶ 21 (citing State v. Nelson, 225 Mont. 215, 218, 731 P.2d 1299, 1302
(1987)). “What is needed is an informal hearing structured to assure that the finding of a
parole [or probation] violation will be based on verified facts and that the exercise of
discretion will be informed by an accurate knowledge of the parolee’s [or probationer’s]
behavior.” Morrissey v. Brewer, 408 U.S. 471, 484, 92 S. Ct. 2593, 2602 (1972) (although
Morrissey involved revocation of parole, the United States Supreme Court observed in
Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759-60, that there is no difference relevant to the
guarantee of due process between revocation of parole and revocation of probation; the same
standards apply to both). A defendant is entitled to notice of all alleged violations leading to
the petition to revoke. Nelson, 225 Mont. at 218-19, 731 P.2d at 1302. In addition, a
defendant is, upon his request, entitled to question a person who has given adverse
information on which parole or probation revocation is to be based. Morrissey, 408 U.S. at
487, 92 S. Ct. at 2603.
¶19 A probationer’s right to due process in a revocation proceeding is different from the
right to due process in a criminal proceeding. We have explained:
The revocation hearing is not a criminal trial but a summary hearing to
establish a violation of the conditions of the prisoner's probation. The
probationer already stands convicted of a crime no matter what the grounds for
the revocation may be[.]
State v. Triplett, 2008 MT 360, ¶ 16, 346 Mont. 383, 195 P.3d 819 (quoting State v. Kingery,
239 Mont. 160, 165, 779 P.2d 495, 498 (1989)). As a result, the revocation hearing is not
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subject to the Montana Rules of Evidence, although it must be fundamentally fair. Pedersen,
¶ 20; M. R. Evid. 101(c)(3).
¶20 Sebastian argues that his right to due process was violated at his revocation hearing
because the evidence against him was not fully disclosed. For instance, Sebastian argues, the
District Court’s decision that he had violated the terms of his probation was based partially
on the assumption that Sebastian had been driving under the influence on August 10 and
August 23. The blood tests from the August 23 incident could have established conclusively
whether Sebastian was guilty of the offense charged. The recordings of the 911 calls and
disclosure of the witnesses against Sebastian could have helped shed light on whether or not
Sebastian was actually intoxicated in these incidents. Without this evidence, or the names of
the witnesses against him, Sebastian argues, he was not able to call for testimony that might
have corroborated his explanation for the events. Finally, Sebastian argues that he was not
provided with a copy of his probation officer’s chronological notes, which “should have
contained the admissions that [he] allegedly made about some of the condition violations.”
The lack of disclosure denied Sebastian the ability to put on a proper defense and rendered
the revocation hearing fundamentally unfair, he alleges.
¶21 Sebastian argues that disclosure of the evidence against a probationer is one of the
requirements necessary to satisfy the “minimal” due process required at a probation
revocation hearing. Pedersen, ¶ 21. He analogizes to this Court’s decision in Pedersen, in
which we held that the district court erred when it admitted certain drug test results, when the
State had not notified Pedersen that the violations would be used against him at his
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revocation hearing. Pedersen, ¶ 22. Pedersen challenged evidence of his drug use presented
during his probation revocation hearing, when drug use had not been mentioned as a reason
for revocation in the pre-hearing documents. Pedersen, ¶ 16. Pedersen argued that he was
not on notice that the State would introduce the drug test evidence and, therefore, he had no
reason to request the results. Pedersen, ¶ 16. This Court held that, although the District
Court committed error in allowing the evidence of Pedersen’s drug test results, the District
Court did not rely on that evidence in making its findings and so the error was harmless.
Pedersen, ¶ 22.
¶22 Here, Sebastian’s probation officer told him that she would be filing a revocation after
he admitted to her that he had been misusing his medications and that he had a problem.
Sebastian was aware of the allegations in the petition; and that those allegations included
allegations he had been driving under the influence. It was for precisely that reason that he
moved for a continuance. Unlike Pedersen, Sebastian had the notice of the allegations
against him that his “minimal” due process right and § 46-18-203(4), MCA, demanded. The
State also points out that the record reflects that Sebastian’s counsel had received Sebastian’s
probation officer’s chronological notes and was aware of the witnesses to the August 23
accident at the time of the hearing.
¶23 Sebastian’s failure to receive the other evidence he alleges would have been relevant
to his defense against the charged violations did not prejudice him, given the weight of the
uncontroverted evidence presented at the hearing and his own admissions. The District
Court specifically found that the State had not proved that Sebastian drove under the
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influence of hydrocodone and methadone related to his August 10 driving incident. As for
the August 23 offense, the blood test results were not required to establish that he had
violated his conditions of probation. Rather, the testimony of the officer who spoke to him
following that incident; his probation officer’s observations; and his admissions to his
probation officer about his drug use were enough to show by a preponderance of the
evidence that he had driven under the influence, in violation of his probation conditions. The
use of the officers’ testimony to establish the violation by a preponderance of the evidence
did not offend Sebastian’s right to due process because he was able to question both of these
individuals.
¶24 Even if there was additional evidence that had not been produced, the court’s decision
to revoke Sebastian’s suspended sentence on the basis that he violated his probation
conditions was not an abuse of discretion. “A single violation of the conditions of a
suspended sentence is sufficient to support a district court’s revocation of that sentence.”
Gillingham, ¶ 28. To establish a violation, the State only had to show by a preponderance of
the evidence that Sebastian violated a single condition of suspension. See § 46-18-203(6),
MCA. Sebastian himself admitted to crushing and snorting his medications—an illegal
method of using them—in his letter to the District Court. He also admitted that he had
crushed and snorted his medications and used non-prescribed marijuana to his probation
officer. Sebastian’s own admissions would be sufficient to support a determination that he
had violated the conditions of his probation pertaining to illegal drug use.
11
¶25 The District Court did not abuse its discretion in denying Sebastian’s motion to
continue or in revoking his suspended sentence. A preponderance of the evidence supported
the District Court’s determination that Sebastian had violated the conditions of his probation
and that revocation of his suspended sentence was necessary. The undisclosed evidence was
unnecessary to the District Court’s determination. No violation of Sebastian’s right to due
process occurred. As the District Court observed, “[t]he Defendant clearly has serious
medical issues, but he also clearly has severe addiction issues and has never found a
successful way to manage his medications without resorting to extra illegal means to do so.”
¶26 As a final note, we held in abeyance the State’s motion to strike new issues Sebastian
raised for the first time in his reply brief. Sebastian argued in his reply brief that the
evidence he requested would have given him the opportunity to present circumstances in
mitigation of the sentence to be imposed upon revocation. “The reply brief must be confined
to new matter raised in the brief of the appellee.” M. R. App. P. 12(3). Legal theories raised
for the first time in an appellant’s reply brief are outside the scope of such a brief and this
Court has repeatedly refused to address them. State v. Sattler, 1998 MT 57, ¶ 47, 288 Mont.
79, 956 P.2d 54; State v. Hagen, 283 Mont. 156, 159, 939 P.2d 994, 996 (1997). We agree
that this argument was raised for the first time in Sebastian’s reply brief and do not consider
it further.
CONCLUSION
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¶27 The District Court did not abuse its discretion, or violate Sebastian’s right to due
process, when it revoked Sebastian’s probation without requiring full disclosure of all
evidence against him. Serving his sentence will give Sebastian the opportunity to complete
chemical dependency treatment that it seems he sorely needs.
¶28 Affirmed.
/S/ MICHAEL E WHEAT
We concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON
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