State v. B. Fetveit

10/20/2020
DA 19-0018
Case Number: DA 19-0018
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 264STATE OF MONTANA,
Plaintiff and Appellee,
v.
BJORN MARTIN HAYES FETVEIT,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-15-257(D)
Honorable Dan Wilson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Kathryn Hutchison, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Alison Howard, Deputy
County Attorney, Kalispell, Montana
Submitted on Briefs: August 19, 2020
Decided: October 20, 2020
Filed:
Vir-641.-if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Bjorn Fetveit appeals an Eleventh Judicial District Court order revoking Fetveit’s
deferred sentence for criminal possession of dangerous drugs. We affirm.
¶2 We address the following issues on appeal:
Issue One: Whether the District Court violated Fetveit’s Sixth Amendment right to
confront witnesses against him by relying on statements made in the Report of
Violation by his previous probation officer.
Issue Two: Whether the State presented sufficient evidence at Fetveit’s revocation
hearing to establish that he absconded.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On March 8, 2016, Bjorn Fetveit pleaded guilty to Criminal Possession of
Dangerous Drugs via an Alford plea. In May 2016, the District Court accepted the plea
and sentenced Fetveit to three years, all suspended, in the Montana State Prison subject to
31 conditions of probation. These conditions included requiring Fetveit to get permission
from his probation officer to change residences, mandating that Fetveit report to his
probation officer as directed by the officer, ordering Fetveit to abstain from possessing or
using illegal drugs, and requiring that Fetveit not have or use weapons at any time.
¶4 In March 2017 Fetveit’s Probation Officer James Brenden (Brenden) filed a Report
of Violation alleging several probation condition violations, and the Flathead County
Attorney filed a petition for revocation of Fetveit’s suspended sentence. On April 27, 2017,
the District Court held a revocation hearing where Fetveit admitted to several violations.
Notably, Fetveit admitted that he failed to report to his probation officer during the months
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of August, October, November, and December 2016, and January and February 2017. He
acknowledged that failing to report during those months was absconding.
¶5 The District Court revoked Fetveit’s suspended sentence and re-sentenced Fetveit
to his previous three-year sentence and again suspended all three years. The District Court
ordered Fetveit to comply with each condition of his probation and parole imposed by his
2016 sentence and as an added condition enroll in the Montana Chemical Dependency
Center (MCDC) treatment program within 30 days of the Order.1 Fetveit signed his new
conditions of supervision with Brenden on May 1, 2017.
¶6 On May 21, 2018, Brenden filed a new Report of Violation which identified three
probation condition violations. The report alleged that Fetveit had failed to report for his
scheduled office meetings with his probation officer each month from July 2017 to May
2018. Fetveit’s failure to report was listed as a non-compliance violation. The other two
alleged violations in the report were compliance violations. Brenden attempted to contact
Fetveit on May 1, May 11, June 1, June 15, and July 13, 2017.
¶7 On May 22, 2018, the Flathead County Attorney filed a second petition for
revocation of suspended sentence claiming Fetveit violated three conditions of his
probation, including absconding. On November 8, 2018, the District Court held a
revocation hearing. Fetveit’s current probation officer at the time, Brianne Marshall,
testified. Brenden did not testify.
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Fetveit failed to enroll within 30 days, but eventually completed treatment on September 6,
2018, at MCDC.
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¶8 Marshall testified using the Report of Violation as well as her own supervision
experiences. Marshall verified that the records at Probation & Parole supported the
allegations in the report written by Brenden. Specifically, she noted Fetveit failed to report
each month from August 2017 to May 2018. She testified that after approximately three
months of failure to report, she would consider the probationer to have absconded. The
report also indicated that on May 17, 2018, Brenden spoke with Salinda Lechner, Fetveit’s
friend, who advised Brenden that Fetveit had been living in his parents’ garage off and on
because he wanted to “get clean” prior to reporting again to his probation officer. As
outlined in the report, Lechner told Brenden that Fetveit told her he was absconding.
Marshall testified that Fetveit told her that he used methamphetamine three days after he
completed treatment with MCDC.
¶9 Following an initial objection based on constitutionality, the District Court asked
defense counsel if the defense position was that the court could not rely on the written
statements made by Brenden in his report. Defense counsel responded, “Your Honor, I
wouldn’t make that argument . . . .” The court found that Fetveit failed to report from
August 2017 to May 2018, and that Brenden attempted to contact Fetveit by telephone
multiple times during that period. The court determined that Fetveit had absconded from
supervision.
STANDARD OF REVIEW
¶10 We review a district court’s decision to revoke a suspended sentence to determine
whether the district court’s decision was supported by a preponderance of the evidence,
and if it was, whether the court abused its discretion. State v. Goff, 2011 MT 6, ¶ 13, 359
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Mont. 107, 247 P.3d 715 (citations omitted). A district court abuses its discretion when it
acts arbitrarily without employment of conscientious judgment or exceeds the bounds of
reason, resulting in substantial injustice. State v. Weldele, 2003 MT 117, ¶ 72, 315 Mont.
452, 69 P.3d 1162 (citation omitted).
DISCUSSION
¶11 Issue One: Whether the District Court violated Fetveit’s Sixth Amendment right to
confront witnesses against him by relying on statements made in the Report of
Violation by his previous probation officer.
¶12 Fetveit argues that he had the right to confront and cross-examine Brenden. Fetveit
argues that the District Court revoked his suspended sentence based solely on hearsay
statements contained in Brenden’s Report of Violation.
¶13 “The minimum requirements of due process are extended to sentence revocation
hearings.” State v. Sebastian, 2013 MT 347, ¶ 18, 372 Mont. 522, 313 P.3d 198 (citations
omitted). Prior to the revocation hearing, the probationer has already been convicted of a
crime and thus the revocation hearing is a summary hearing where the State can establish
condition violations. Sebastian, ¶ 19 (citations omitted). Revocation hearings are not
subject to the Montana Rules of Evidence, although they need to be fundamentally fair.
Sebastian, ¶ 19 (citations omitted).
¶14 The District Court did not violate Fetveit’s Sixth Amendment right to confront
witnesses against him by relying on statements made in Brenden’s report. Reports of
Violation are properly used as evidence in revocation proceedings where the due process
requirements consist of: written notice of the violations; disclosure of evidence against the
probationer; opportunity to be heard in person and to present evidence and witnesses; a
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neutral tribunal; a written statement by the factfinder as to the evidence relied on and the
reasons for revocation; the right to cross-examine witnesses unless the hearing body finds
good cause for disallowing confrontation; and the right to counsel. State v. Kingery, 239
Mont. 160, 165, 779 P.2d 495 (1989) (citations omitted). These requirements do not
prevent courts from using documentary evidence that may not meet usual evidentiary
requirements. U.S. v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987) (citation omitted).
Marshall verified the contents of the report and testified about her own experiences
supervising Fetveit, particularly his failing to report repeatedly for months. The District
Court’s reliance on all the material in the record including the statement that Fetveit was
purposefully absconding was not an abuse of discretion.
¶15 Issue Two: Whether the State presented sufficient evidence at Fetveit’s revocation
hearing to establish that he absconded.
¶16 Due to prison overcrowding, high recidivism of first-time criminal offenders, and
issues in criminal justice related to the growing problems with substance abuse in the state,
the Montana Legislature enacted S.B. 224 to establish the Commission on Sentencing in
2015. State v. Oropeza, 2020 MT 16, 398 Mont. 379, 456 P.3d 1023. One of the initiatives
was S.B. 59, which required the Department of Corrections (DOC) to adopt, maintain, and
implement the policy known as the Montana Incentives and Interventions Grid for Adult
Probation & Parole (“MIIG”) in order to guide supervision of offenders. Oropeza, ¶ 4
(citation omitted).
¶17 The MIIG provides guidelines for probation and parole officers that create
consistency with incentives and interventions for offenders. Oropeza, ¶ 5. Positive
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behaviors are incentivized, and when offenders violate conditions of their probation or
parole, the MIIG provides guidance on what intervention response should be utilized.
Oropeza, ¶ 5. The MIIG also separates condition violations into two categories:
compliance and non-compliance. Section 46-18-203(7) through (12), MCA. Most
violations are categorized as compliance violations and cannot result in an automatic
revocation of a deferred or suspended sentence. Compliance violations must instead be
addressed utilizing the MIIG procedures. Non-compliance violations, including
absconding, can result in a direct revocation and are not subject to the MIIG procedures.
Section 46-18-203(7)(a)(iii), MCA.
¶18 Fetveit argues that § 46-18-203(11)(a), MCA, distinguishes absconding from a
simple failure to report and that the District Court erred in finding that Fetveit failed to
report for the purpose of avoiding supervision. Fetveit also argues that the District Court
erred in finding that the probation officer made reasonable efforts to locate Fetveit. The
statute denotes “absconding” to mean “when an offender deliberately makes the offender’s
whereabouts unknown to a probation and parole officer or fails to report for the purpose of
avoiding supervision, and reasonable efforts by the probation and parole officer to locate
the offender have been unsuccessful.” Section 46-18-203(11)(a), MCA (emphasis added).
Compliance violations are defined in the negative to mean violations that are not
absconding or other serious violations such as a new criminal offense. Section
46-18-203(11)(b)(i)-(v), MCA. Thus, absconding is defined to be more serious than a
compliance violation.
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¶19 The District Court did not abuse its discretion by holding that Fetveit absconded.
As noted above, the court must find both that the probationer failed to report for the purpose
of avoiding supervision and that reasonable efforts by the officer have been unsuccessful.
Section 46-18-203(11)(a), MCA; see Oropeza, ¶ 17.
¶20 On May 1, 2017, Fetveit signed his new conditions of supervision following his first
revocation hearing. In July 2017 he began failing to report to his probation officer. He
continued failing to report for the next ten months. Marshall stated that she began
supervising Fetveit in July 2018 and that Fetveit failed to report to her. Fetveit himself
admitted to absconding in his first revocation hearing. Fetveit knew that avoiding his
probation officer for long periods of time amounted to absconding, and yet for ten months
prior to his second revocation he failed to report.
¶21 The District Court also correctly concluded that the probation officer made
“reasonable efforts” to contact Fetveit. Brenden attempted to contact Fetveit multiple times
by phone from August 10, 2017, to March 5, 2018. In May 2018 Brenden spoke with
Lechner, the woman Fetveit was with when he got arrested, who advised Brenden that
Fetveit told her he was “absconding” and that he wanted to “get clean” before he saw his
probation officer again. Fetveit failed to report to or attempt to contact his probation officer
for over ten months despite Brenden’s repeated efforts to contact him.
¶22 Repeated efforts by the probation office to reach Fetveit, and his failure to report or
even attempt to contact his probation officer established sufficient evidence for the District
Court to determine that Fetveit absconded within the definition of § 46-18-203(11)(a),
MCA.
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CONCLUSION
¶23 The District Court did not violate Fetveit’s Sixth Amendment right to confront
witnesses during his revocation hearing. The District Court did not abuse its discretion in
determining Fetveit absconded. The District Court’s conclusion is supported by substantial
evidence that Fetveit failed to report for the purpose of avoiding supervision and that the
probation office made reasonable efforts to contact him.
¶24 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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