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State v. Macker

Supreme Court of Montana

January 7, 2014

STATE OF MONTANA, Plaintiff and Appellee,
v.
GRAHAM JOSEPH MACKER, Defendant and Appellant.

Submitted on Briefs: December 10, 2013

APPEAL FROM District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DC 09-153C, DC 09-154A, Honorable Heidi Ulbricht, Presiding Judge, Honorable Ted O. Lympus, Presiding Judge

For Appellant: Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney, Kenneth R. Park, Deputy County Attorney, Kalispell, Montana

OPINION

Mike McGrath, Chief Justice

¶1 Graham Joseph Macker appeals from an order of the Eleventh Judicial District Court, Flathead County, revoking his suspended sentence and committing him to the custody of the Department of Corrections. We affirm.

¶2 The following issues are raised on appeal:

¶3 Issue One: Whether § 46-16-215, MCA, requires production of independent evidence to corroborate an offender's admission of a violation of the conditions of his or her suspended sentence.

¶4 Issue Two: Whether the District Court violated Macker's right to confront adverse witnesses.

PROCEDURAL AND FACTUAL BACKGROUND

¶5 On March 31, 2009, Macker was charged with forgery and issuing bad checks. He pled guilty to both counts on December 17, 2009. On February 25, 2010, he received a deferred sentence of two consecutive three-year terms, a total of six years, during which he was subject to the supervision of the Department of Corrections, Adult Probation and Parole Bureau. After about two years, Macker violated the conditions of his supervision. At a hearing on October 18, 2012, Macker admitted the violations, and the District Court imposed two consecutive three-year commitments to the Department of Corrections, with all time suspended. During his suspended sentence, Macker remained under the supervision of the Probation and Parole Bureau. The conditions of his supervision prohibited him from possessing or consuming intoxicants, including alcohol.

¶6 On November 8, 2012, Probation Officer Paul Parrish learned that Macker had been treated for alcohol poisoning at Kalispell Regional Medical Center the night before. Parrish visited Macker's home, and Macker admitted that he had consumed a bottle of vodka on the night in question. Parrish also spoke with Macker's mother, who confirmed that her son had been treated at the hospital, and expressed concern about his increased drinking. She told Parrish that Macker had consumed a fifth of alcohol for each of the three previous nights. Parrish obtained a urine sample from Macker, which initially tested positive for opiates. Further analysis by the state crime lab determined that Macker had not been using drugs. The sample was not tested for alcohol.

ΒΆ7 A revocation hearing was held January 31, 2013, at which Parrish was the only witness. Parrish testified that Macker had admitted being treated for alcohol poisoning. Parrish also repeated the statement of Macker's mother that he had been drinking for the three nights prior to November 8, and that she was concerned about his "spiraling" alcohol use. Parrish had not obtained any hospital records and the State presented no other evidence of the alleged violation. The District Court found that the State had proven the violation by a preponderance of the evidence. The ...


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