STATE v BAISCH
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No. 96-044 IN THE SUPREME COURT OF THE STATE OF MONTANA 1998 MT 12 STATE OF MONTANA, Plaintiff and Respondent, v. JOHN BAISCH, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, The Honorable Dale Cox, Judge presiding. COUNSEL OF RECORD: For Appellant: William F. Hooks, Appellate Defender, Helena, Montana For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena, Montana Gerald J. Navratil, Dawson County Attorney, Glendive, Montana Submitted on Briefs: January 8, 1998 Decided: January 30, 1998 Filed: i Clerk Justice W. William Leaphart delivered the Opinion of the Court. 11 John Baisch (Baisch) appealsfrom the decisionof the SeventhJudicial District Court, Dawson County, revoking his suspendedsentencebasedon violations of his probation and sentencinghim to seven years to be served at the Montana State Prison. We affirm. v Baisch was charged with aggravated assaultfollowing an altercation that occurred at the Dawson Community College on March 19, 1994. Baisch pled guilty to that offense pursuant to an Acknowledgment of Waiver of Rights and Plea of Guilty with the State of Montana (State). The District Court ordered a deferred imposition of Baisch s six-year sentenceand imposed conditions of probation. Among other conditions, Baisch was ordered to remain law abiding, to undergo a psychologicalexamination,and to complete his Graduate Equivalency Diploma (GED) within one year. ll3 On May 8, 1995, Baisch s probation officer conducted an intervention hearing regarding several alleged violations of probation. Thereafter, Baisch pled guilty to the offense of unlawful transaction with minors, and the State filed a petition to revoke Baisch s deferred sentence. Following a hearing on the petition, the District Court found that Baisch had violated several conditions of probation, revoked the deferred sentenceand imposed a suspended sentenceof sevenyears. The suspended sentencealso imposedthe conditions that Baisch remain law abiding, obtain psychological evaluations and complete his GED. Although the record revealsthat Baischhad trouble meeting the psychologicalevaluation and GED conditions ofhis probation, it was not until the events of September13, 1995occurred that the State again petitioned for the revocation of Baisch sprobation. 84 Baisch sprobation officer, John Hodge (Hodge) received a letter from Baisch sadult basic education instructor indicating that Baisch was not meeting appointments and that she no longer desired to work with Baisch on fulfilling his GED requirements. As a result, Hodge contacted Baisch and requestedthat Baisch meet with him on September 13, 1995. Hodge explainedthat his purposein meeting with Baischwas to find out why Baisch was not cooperating with his instructor in fulfilling his GED requirements and to instruct Baisch to cooperate. ll5 However, Hodge testified that when he explained to Baisch why he had called the meeting, Baisch immediately became agitated, claiming he did not have an appointment with [his adult basic education instructor], therefore he broke no appointment. Hodge further testified that as the conversationprogressed,Baisch becamemore agitated and began using foul language, at which time [Baisch] stood up and said something to the effect that [Hodge] was the fault of this problem, that [Hodge] was the reason he was in trouble, and [Baisch] could jump across that desk and hit [Hodge]. As a result of Baisch s conduct, Hodge informed Baisch that he was arresting him and calling the police to transport Baisch to the jail. lb Hodge testified that as soon as he hung up the phone, Baisch swept his arm across Hodges desk knocking items onto the floor, then Baisch stompedout of the room and headed 3 out of the office. Baisch explained that he simply neededto cool off in an area away from Hodge and intended to wait for the police to arrest him in the hallway; however, Hodge thought Baisch was going to leave so he followed Baisch with a can of capsicum spray. When Baisch stopped,Hodge put his hand on Baisch sshoulder and instructed him to come back. Hodge stated that when Baisch turned around he had his hand in a fist as though he was going to hit Hodge so Hodge sprayedhim with the capsicumspray and led Baisch back to his office. v When the police arrived, Baisch was still expressinganger. One officer heard Baisch threaten Hodge, while the other claimed he saw Baisch lunge toward Hodge. The officers took custody of Baisch and charged him with assault and criminal mischief in city court; however, those charges were dismissed without prejudice due to a defect in language. Despite dismissal of the charges,the Statepetitioned to revoke Baisch ssuspendedsentence assertingthree allegedviolations of probation: 1) Baisch was chargedwith criminal mischief and assault after becoming disorderly in the probation office; 2) Baisch failed to keep scheduled appointments for mental health counseling; and 3) Baisch had not fulfilled the GED condition of probation. The District Court concluded that Baisch violated Court Rule #2 and State Rule #8 by failing to conduct himself as a good citizen, revoked Baisch s suspendedsentence, and sentencedhim to the Montana State Prison for a term of seven years. Baisch presents two issues for appeal: T3 1) Did the District Court abuseits discretion in revoking Baisch ssuspended sentence? 4 19 2) Did the District Court abuse its discretion in imposing a seven-year prison sentence? I 710 The standardof review for revocation of a suspended sentenceis whether the district court abusedits discretion. State v. Butler (1995), 272 Mont. 286,289, 900 P.2d 908, 910; Statev. Docken (1995), 274 Mont. 296,298,908 P.2d 213,214. So long as the district court is satisfied that the conduct of the probationer hasnot beenwhat he agreedit would be when he was given liberty, this Court will not overturn a district court s decision to revoke a suspended sentence. Butler, 900 P.2d at 910. However, the State must prove by a preponderance of the evidence that the probationer has violated the terms or conditions of the suspendedsentence. Section 46-18-203, MCA. 711 Baisch arguesthat the State failed to show by a preponderanceof the evidence that Baisch violated a condition ofprobation and therefore the District Court abusedits discretion in revoking Baisch s suspended sentence. The State asserts, however, that the record supports the District Court s decision that Baisch violated the conditions of probation; therefore, the District Court appropriately revoked the suspendedsentence. 112 It is important to note that Baisch does not contest the fact that the events of September 13, 1995 occurred. In fact, Baisch sstatement of the facts is nearly identical to that offered by the State. What Baisch does claim, however, is that his disorderly conduct was the result of an undue amount of stressresulting from his work andhis attempts to fulfill 5 the conditions of probation while taking care of his family. Baisch asserts that he was pulled in any number of directions in his attempts to meet the many obligations imposed on him and [w]hile his conduct toward Hodge may have beeninappropriate,it was the result of the stress brought on by these factors. 113 The State argues that Baisch s initial difficulties with the law stemmed from his inability to control his rage and his resulting aggravated assault against an individual at Dawson Community College. Having failed to receive treatment for his intermittent explosive disorder, Baisch exhibited his rage againby threateninghis probation officer. The State further arguesthat Baisch sconduct was clearly a violation of his probation conditions. 114 Despite the dismissal of Baisch s assault and criminal mischief charges, the facts offered by Baisch and the State support a finding by the District Court that Baisch violated Court Rule #2 and StateRule #8 by failing to conducthimself as a good citizen. We hold that the District Court did not abuseits discretion in revoking Baisch ssuspendedsentence. II 715 Upon finding that a condition of probation has been violated, the district court has discretion to continue the suspendedsentencewithout a change in conditions, continue the suspended sentence with modified or additional terms and conditions, or revoke the suspendedsentenceand require the defendant to serve either the sentenceimposed or any lesser sentence. Section 46-l&203(7), MCA. 6 This Court reviews the district court s sentencing decision for abuseof discretion. State v. Hurlbert (1988) 232 Mont. 115, 123, 756 P.2d 1110, 1115. Furthermore, on appeal,this Court will only review sentences their for legality. We will not review sentences mere inequity or disparity; that task is left to the for SentenceReview Division. State v. Ford (1996), 278 Mont. 353,363,926 P.2d 245,251. 116 Baisch doesnot assertthat his sentenceis illegal. Baisch arguesonly that the factors describedabove,namely the stresscausedby meeting his obligations, causedhis disorderly conduct and therefore the totality of the circumstancesconfronting Baisch demonstratethat imposing the full seven year sentence. . was an abuseof discretion. Essentially, Baisch arguesthat the District Court imposeda harshersentence than it shouldhave. This argument is appropriately presentedto the SentenceReview Division. We conclude that the District Court did not abuseits discretion in imposing Baisch s full sevenyear sentence, We concur: . ustices Fd 3
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