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State v. Sliwinski

Supreme Court of Montana

September 11, 2018

STATE OF MONTANA, Plaintiff and Appellee,
THOMAS EMIL SLIWINSKI, Defendant and Appellant.

          Submitted on Briefs: August 1, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause Nos. BDC 2003-14, BDC 2003-133 Honorable DeeAnn Cooney, Presiding Judge

          For Appellant: Colin M. Stephens, Smith and Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana


          James Jeremiah Shea Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited, and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Thomas Emil Sliwinski appeals the Order of the First Judicial District Court, Lewis and Clark County, revoking Sliwinski's previously-suspended sentence and entering an amended judgment based on its finding that he failed to adhere to sentencing conditions. We affirm.

         ¶3 On January 21, 2003, the State charged Sliwinski with sexual intercourse without consent, in violation of § 45-5-503, MCA, for engaging in sexual activity with his then-fourteen-year-old step-daughter. On March 10, 2003, Sliwinski pled guilty to criminal endangerment, in violation of § 45-5-207, MCA. On October 28, 2003, the District Court imposed a ten-year suspended sentence for the charge of criminal endangerment. On May 7, 2004, following a bench trial, Sliwinski was convicted of tampering with or fabricating evidence, in violation of § 45-7-207(1)(a), MCA. On May 27, 2004, the District Court imposed a five-year suspended sentence for the offense of tampering with or fabricating evidence to run consecutively to the ten-year sentence. As part of the conditions of his sentences, Sliwinski was to register as a sex offender, attend sex-offender treatment with a Montana Sex Offender Treatment Association (MSOTA) provider, and comply with all treatment recommendations. Sliwinski then began treatment with MSOTA provider Kevin Wyse.

         ¶4 Around June 14, 2004, Wyse terminated Sliwinski's treatment. Wyse informed Sliwinski's probation officer, Cathy Murphy, that Sliwinski was a very manipulative offender and was not complying with treatment. Wyse observed that Sliwinski lacked motivation to change, manipulated the therapeutic process to avoid incarceration, and refused to stop living with his victim and minor children. Sliwinski alleged it was not dangerous for him to live in the home with his victim or other minor children, and that he was actively seeking treatment under the direction of another therapist.[1]

         ¶5 The State moved to revoke Sliwinski's suspended sentences. Leading up to the revocation hearing, there was no evidence Sliwinski was engaging in sex-offender treatment or was in compliance with his probation conditions. Sliwinski was still living with his victim and family members, including underage children. Sliwinski failed to appear at the revocation hearing and the District Court issued an arrest warrant. Sliwinski absconded to Mexico with his victim and minor children, where he lived as a fugitive for over ten years.[2] Ultimately, Sliwinski was apprehended by Mexican authorities and brought back to Montana.

         ¶6 On February 4, 2016, the District Court set a hearing for the revocation proceedings. Sliwinski moved for a continuance, the State did not object, and the District Court ordered the hearing continued for thirty-five days. On March 10, 2016, when Sliwinski next appeared, he asked for an additional continuance. The District Court denied Sliwinski's request, concluding:

It seems like a fairly clear-cut discussion . . . if there is either evidence that [Sliwinski] was in sex offender treatment or was not. . . .
The issue seems really clear to me that there was an allegation that [Sliwinski] was in violation of the terms of the probation. He didn't show up to actually dispute that. He left.

         At the hearing, probation officer Annette Carter testified about the presentence investigation she and Murphy prepared and about Sliwinski's history of participation and compliance with sex offender treatment with Wyse. Sliwinski did not object to Carter's testimony. The District Court determined "that Mr. Sliwinski did, in fact, violate the conditions of the suspended sentence." The District Court stated that the record, including the testimony of Carter and the letter from Wyse, "make[s] it clear that [Sliwinski] did not complete . . . [or] comply with the condition that he attend sex offender treatment, and he was not around for the next [twelve] years to . . . either refute that or to . . . show that he did so." With the consent of the State, the District Court allowed a second ...

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