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State v. Sullivant

Supreme Court of Montana

July 23, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
KEVIN RAYMOND SULLIVANT, Defendant and Appellant.

Submitted on Briefs June 12, 2013

APPEAL FROM District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause Nos. DC 00-108 & DC 00-133 Honorable Jeffrey H. Langton, Presiding Judge

For Appellant Wade M. Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant Appellate Defender, Helena, Montana

For Appellee Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana

William E. Fulbright, Ravalli County Attorney; Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana

Mike McGrath Chief Justice

¶1 Kevin Raymond Sullivant appeals from the District Court's judgment revoking his suspended sentence. We affirm in part, reverse in part, and remand to the District Court.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In August 2000 and again in October 2000, the State charged Sullivant with felony DUI and associated offenses, including a felony and several misdemeanors. In November 2000, Sullivant pled guilty to both of the felony DUI offenses and to two of the misdemeanor offenses. The State dismissed the remaining charges.

¶3 In February 2001, the District Court sentenced Sullivant to the custody of the Department of Corrections for 13 months followed by four years of supervised probation on each of the DUI offenses. The District Court sentenced Sullivant to six months each for the offenses of obstructing a police officer and for driving with a suspended license, and suspended those sentences. The District Court ordered that all of the sentences would be consecutive to one another, for a total commitment of 26 months to the Department of Corrections, followed by nine years of supervised probation. The sentence also included a fee of $1450 and a fine of $1000, and a credit for 132 days served in jail prior to sentencing.

¶4 Sullivant served his commitment to the Department of Corrections and was discharged on June 13, 2002, to begin serving his period of probation. On August 14, 2003, the State filed a petition to revoke Sullivant's probation based upon his violation of a number of the conditions of probation. T he State alleged that Sullivant had been arrested in Butte for disorderly conduct and resisting arrest; his probation officer found him intoxicated at home; he failed to appear for an appointment with his probation officer; and he was arrested for another DUI. The District Court issued a bench warrant for Sullivant's arrest, and on December 4, 2003, the State notified the District Court that Sullivant had absconded from supervision.

¶5 Eight years later in July 2011, the State moved the District Court to quash the original arrest warrant and to issue a new warrant for Sullivant's arrest. At that time Sullivant was in prison in Kansas, and when he was released from the Kansas sentence he was returned to Montana in August 2011.

¶6 The District Court held a probation revocation hearing in January 2012, and found that Sullivant had violated conditions of probation. Sullivant admitted that he absconded from supervision in 2003 to avoid going back to prison by leaving the State of Montana. The record before the District Court showed that after Sullivant absconded, he embarked upon a string of criminal offenses in other states, resulting in convictions for trespass, theft, disorderly conduct, battery, possession of marijuana, burglary, resisting arrest and shoplifting. The District Court sentenced Sullivant to the Department of Corrections for eight years, with no time suspended and with credit for 194 days served since his return from Kansas. T he District Court denied credit for any time spent on probation and re-imposed the fines and fees set out in the original sentence.

ΒΆ7 Sullivant appeals contending that the eight-year delay between the initial arrest warrant and his actual arrest in 2011 violated his right to due process. H e acknowledges that he did not raise this issue or object at the time of sentencing, and contends that this Court should consider his arguments as a matter of plain error. He also contends that his case should be remanded to the District Court for an evidentiary hearing on the reasons for the delay. Sullivant further contends that the District Court could only revoke any remaining probation time left on his original sentence, and that by the time he was sentenced in 2012 the original probationary period had ...


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