State v. Ponder ( 1994 )

NO. 94-373
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TERENCE PONDER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert M. Kampfer, Attorney at Law,
Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Cregg W. Coughlin, Assistant Attorney
General, Helena, Montana
Submitted on Briefs: December 1, 1994
Decided: December 22, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Terence Ponder was charged in the District Court for
the Eighth Judicial District in Cascade County with two counts of
sexual intercourse without consent, in violation of § 45-5-503, MCA
(1991). Pursuant to a written plea agreement, Ponder pled guilty
to one count of sexual intercourse without consent. He was
sentenced to 10 years in prison with all time, except 40 days, of
the sentence suspended, and was given 40 days credit for time
served. On February 18, 1994, the State filed a petition to revoke
Ponder's suspended sentence and alleged that he violated its
conditions. Following an April 4, 1994, evidentiary hearing, the
District Court ordered that Ponder's suspended sentence be revoked
and ordered him to serve the full term of his original sentence.
Ponder appeals. We affirm the judgment of the District Court.
The following issue is presented on appeal:
Did the District Court err when it revoked Ponder's suspended
sentence and ordered him to serve the full term of his original
sentence?
FACTUAL BACKGROUND
On November 26, 1991, Ponder was charged with two counts of
sexual intercourse without consent. On December 17, 1991, he pled
not guilty to both counts.
On December 4, 1992, Ponder filed a written plea agreement
with the District Court in which he agreed to plead guilty to one
count of sexual intercourse without consent and in which the State
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agreed to dismiss the other count. The District Court accepted his
plea and granted the State's motion to dismiss the second count.
On June 9, 1993, Ponder was sentenced to 10 years in the
Montana State Prison, with all time, except 40 days, suspended.
The court also ordered that Ponder serve 40 days in the Cascade
County Jail, but he was given credit for 40 days already served.
The District Court ordered that Ponder abide by conditions of his
suspended sentence, which included requirements that he obtain a
chemical dependency evaluation at his own expense; that he attend
and complete a sexual offender treatment program at his own
expense; and that he pay restitution for counseling expenses for
the victim.
Judy Reimann, Ponder's probation officer, filed an affidavit
on February 8, 1994, in which she stated that she believed he had
violated the terms of his probation. The State filed a petition on
February 18, 1994, in which it requested that his suspended
sentence be revoked. An evidentiary hearing was held on April 4,
1994.
Ponder, Judy Reimann, and Ron Silvers, Ponder's therapist, all
testified at the evidentiary hearing. Silvers testified that
participants in the sexual offender treatment program must adhere
to strict guidelines, which include attendance and participation in
all required meetings, and completion of required homework
assignments. Silvers testified that Ponder was dealing with issues
such as denial, avoidance, and minimization of the crime, but that
he had an excessive number of absences from the program. Silvers
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testified that Ponder was terminated from the program for lack of
attendance, lack of group participation, failure to turn in
assignments, and failure to pay Silvers' bill. However, Silvers
testified that no one had ever been terminated from the program
based solely on a failure to pay.
Reimann testified that Ponder's termination from Silvers'
program is significant because, without therapy, he is a greater
risk to r-e-offend. Reimann recommended prison as an alternative if
Ponder did not continue counseling.
Ponder testified that he lost employment because he missed
work while taking time off to travel to Helena to attend sexual
offender counseling, and that he was having financial difficulties.
He admitted that he missed several meetings at the sexual offender
treatment program.
On April 5, 1994, the District Court found that Ponder had
violated the condition of his suspended sentence which required him
to attend and complete the sexual offender treatment program with
Ron Silvers. The District Court found that three unexcused
absences from the sexual offender treatment program would, in and
of itself, justify revocation. On April 5, 1994, the District
Court revoked Ponder's suspended sentence and sentenced him to
10 years in prison, with credit for time served. The District
Court also ordered that if it is determined that Ponder is not a
suitable candidate for serving his sentence in a community-based
program, he must complete the sex offender treatment program at the
Montana State Prison before he is eligible for parole.
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DISCUSSION
Did the District Court err when it revoked Ponder's suspended
sentence and ordered him to serve the full term of his original
sentence?
We review a district court's revocation of a suspended
sentence for an abuse of discretion. State v. Lundquist ( 19 92 ) , 251
Mont. 329, 331, 825 P.Zd 204, 206 (citing Statev.Robinson (1980), 190
Mont. 145, 149, 619 P.2d 813, 815).
Section 46-23-1013(2), MCA, gives a district court authority
to revoke a suspended sentence based on a violation of its
conditions. That section provides in part that " [il f the violation
is established, the court may . . revoke the . . suspension of
sentence . . .II Section 46-23-1013(2), MCA. After a hearing,
the District Court found that Ponder had violated the terms of his
suspended sentence. That finding was supported by substantial
evidence, and therefore, it was within the District court ' s
discretion to revoke the suspended sentence.
"A defendant given a suspended sentence lives knowing that 'a
fixed sentence for a definite term hangs over him."' State v. Watts
(1986), 221 Mont. 104, 106, 717 P.2d 24, 26 (citing Robertsv. United
states (1943), 320 U.S. 264, 64 S. Ct. 113, 88 L. Ed. 41). We have
held that a district court has the power to suspend a sentence or
to revoke a suspended sentence, and that the decision to revoke a
suspended sentence "cancels a prior act of grace and is within the
court's discretion." St&v. Rogers (1989), 239 Mont. 327, 329, 719
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P.2d 927, 929 (citing Statev. Kern (1984), 212 Mont. 385, 388, 695
P.2d 1300, 1301).
We have affirmed the revocation of a suspended sentence based
on a defendant's failure to complete a sexual offender treatment
program. SeeState Y. Strangeland (1988), 233 Mont. 230, 758 P.2d 776;
Statev. Friedman (1987), 225 Mont. 373, 732 P.2d 1322.
Ponder contends that the reason his suspended sentence was
revoked was because of his indigency, which was beyond his control.
He argues that he was unable to pay for counseling because he
lacked the financial resources to do so, and that travel to the
counseling sessions became difficult because he no longer owned a
car. For these reasons, he argues that the revocation of his
suspended sentence was an abuse of discretion, and that the
District Court should have considered other, less severe, measures.
We have held that "[tlhe standard for revocation . . . is
whether the judge is reasonably satisfied that the conduct of the
probationer has not been what he agreed it would be if he were
given liberty." Lundquist, 825 P.2d at 206 (citing Robinson, 619 P.2d
at 815). In this case, in its April 5, 1994, findings of fact, the
District Court found that Ponder had numerous unexcused absences
from his mandatory sexual offender treatment program and that this
indicated that Ponder "is not admitting responsibility for his
crime, and is not amenable to outpatient treatment." The District
Court also found that Ponder's unexcused absences were part of the
reason he was expelled from the treatment program.
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We conclude that the District Court's findings are supported
by substantial evidence and that it did not abuse its discretion
when it revoked Ponder's suspended sentence.
The judgment of the District Court is affirmed.
Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: