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Date: 11-20-2020

Case Style:


Case Number: DA 18-0499

Judge: Laurie McKinnon


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General

Defendant's Attorney:

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Fort Benton, MT - Criminal defense lawyer represented defendant Steven Fjelstad with appealing a Twelfth Judicial District Court order revoking his deferred sentence for criminal endangerment.

In August 2016, Fjelstad was charged with felony driving under the influence.1
pleaded guilty to an amended charge of criminal endangerment, a felony, in violation of
§ 45-5-207, MCA (2015), in March 2017. His sentencing hearing took place in May 2017.
The District Court sentenced him to five years to the Department of Corrections (DOC),
with all time suspended, and imposed all standard conditions of probation.
¶4 Fjelstad remained compliant with the terms of his suspended sentence through
October 31, 2017. In April 2018, the State filed a petition to revoke his sentence. The
petition alleged that Fjelstad violated four conditions of his suspended sentence, including
absconding; failing to follow the directions of the chemical dependency evaluator; failing
to pay fees; and testing positive for methamphetamine and amphetamine. Fjelstad denied
the violations and the District Court held an evidentiary hearing in June 2018. The court

1 Some of the District Court documents and Appellant’s opening brief spell Appellant’s last name
“Fjelsted,” but the District Court judgment spells his name “Fjelstad.” The Department of
Correction’s website also spells his name “Fjelstad,” and lists “Fjelsted” as a name he is also
known as. We will refer to the Appellant as “Fjelstad.”
heard testimony from Tomeka Williams, Fjelstad’s probation officer, and Cheryl Basta, his
chemical dependency counselor.
¶5 At the hearing, Williams testified that Fjelstad signed the rules of probation, which
required him to report to her as directed. He was initially required to report once a month;
however, after he committed violations at the end of August and beginning of September,
he was required to report and conduct urinalysis (UA) tests more often. Williams testified
that Fjelstad’s last contact with probation and parole was October 31, 2017. After that,
Williams was not able to reach him. She called Fjelstad on November 29, 2017,
December 21, 2017, and January 1, 2018, and she left messages instructing him to call her.
In addition to phone calls, Williams sent a letter to the address Fjelstad provided to the
probation office. However, the letter was returned because Fjelstad had not provided a unit
number. Williams testified that she called Basta, but Basta could not contact Fjelstad
either. Williams acknowledged that she did not try to go to Fjelstad’s home, even though
it was 0.3 miles from her office, but testified she did not do so because she did not have a
unit number. She also did not attempt to contact Fjelstad’s landlord because she did not
have the landlord’s name and number at that time, but she did admit to having a billing
address. Williams did not remember whether she had contacted Fjelstad’s employer. On
January 1, 2018, Williams requested a warrant be issued for Fjelstad. After Fjelstad was
arrested in April 2018, he told Williams somebody had come into his residence and stolen
his phone, but that he had since rectified the situation.
¶6 Basta testified she conducted a chemical dependency evaluation on Fjelstad in
June 2017 and determined he needed treatment, which he entered into with Basta. One of
Fjelstad’s treatment requirements was to comply with random UA tests. In
September 2017, Basta learned Fjelstad tested positive for methamphetamine and
amphetamine in a test administered by probation and parole, and she requested he provide
another sample for a UA test. He refused. Basta eventually terminated him from treatment
because he failed to show up for two appointments without rescheduling and did not
respond to a text message and letter she sent to him. Fjelstad told Basta that his phone had
been stolen but he had or was getting another phone. He provided another number for her
to contact him.
¶7 The District Court found the State met its burden of proving by a preponderance of
the evidence that Fjelstad committed the violations alleged in the State’s petition to revoke,
including the violation of absconding. The only non-compliance violation was the
absconding violation. At sentencing, the court stated, “It is possible that this officer did
not do all that she could have. But Mr. Fjelstad has a burden upon him. . . . You have to
keep in contact with the probation officer and tell them that your phone is stolen. Beyond
that, you did not report.” The court imposed a five-year commitment to the DOC with
two years suspended and credited Fjelstad for time served. The Court explained it was
imposing the sentence because Fjelstad failed to maintain compliance during his time on
probation, including drug use, failing to pay fines, and absconding supervision.
¶8 A trial court’s statutory interpretation is a question of law this Court reviews for
correctness. State v. Duong, 2015 MT 70, ¶ 11, 378 Mont. 345, 343 P.3d 1218. When the
issue presented is whether the district court had authority to take a specific action, the
question is one of law and subject to de novo review. State v. Graves, 2015 MT 262, ¶ 12,
381 Mont. 37, 355 P.3d 769. However, “we review a district court’s decision to revoke a
suspended or deferred sentence to determine whether the district court’s decision was
supported by a preponderance of the evidence in favor of the State, and if it was, whether
the court abused its discretion.” State v. Goff, 2011 MT 6, ¶ 13, 359 Mont. 107,
247 P.3d 715. 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.
¶9 Whether the District Court abused its discretion when it revoked Fjelstad’s deferred
sentence after he failed to report to his probation officer for five months.
¶10 In 2015, the Montana Legislature enacted Senate Bill 224, establishing the
Commission on Sentencing in order to address prison overcrowding, high recidivism of
first-time criminal offenders, and the growing impact of substance abuse on people in the
state’s criminal justice system. State v. Oropeza, 2020 MT 16, ¶ 3, 398 Mont. 379,
456 P.3d 1023. One of the initiatives proposed by the Commission was Senate Bill 59,
which required the DOC to adopt, maintain, and implement the policy known as the
Montana Incentives and Interventions Grid for Adult Probation & Parole (MIIG) to guide
supervision of offenders. Oropeza, ¶ 4 (citation omitted).
¶11 The MIIG provides guidelines for probation and parole officers that create
consistency with incentives and interventions for offenders. Oropeza, ¶ 5. The MIIG
incentivizes positive behaviors and provides guidance on intervention responses when an
offender violates a condition of their probation or parole. Oropeza, ¶ 5. The MIIG also
separates condition violations into two categories: compliance and non-compliance.
Oropeza, ¶ 6 (citing § 46-18-203(7)-(12), MCA). Most violations are categorized as
compliance violations and cannot result in an automatic revocation of a deferred or
suspended sentence but must be addressed utilizing the MIIG procedures.
Section 46-18-203(8)(a), MCA. However, 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.
¶12 Fjelstad maintains that he merely failed to report, a compliance violation, but did
not abscond. He argues that the District Court erroneously revoked his suspended sentence
for this compliance violation that should have been addressed through MIIG procedures.
We disagree and conclude the State met its burden of proving Fjelstad absconded.
¶13 Section 46-18-203(11)(a), MCA, defines “absconding” as an “offender deliberately
mak[ing] the offender’s whereabouts unknown to a probation and parole officer or fail[ing]
to report for the purposes of avoiding supervision, and reasonable efforts by the probation
and parole officer to locate the offender have been unsuccessful.” In other words, to bypass
the MIIG and proceed directly to revocation of a defendant’s suspended sentence, the State
is required to prove that the defendant (1) deliberately made their whereabouts unknown
to a probation and parole officer or failed to report for the purposes of avoiding supervision,
and (2) that reasonable efforts by the probation and parole officer to locate the offender
were unsuccessful. Section 46-18-203(11)(a), MCA. Fjelstad argues that the State met
neither requirement.
Failure to report for purposes of avoiding supervision
¶14 When determining whether an offender “deliberately” made his whereabouts
unknown or failed to report “for the purposes of avoiding supervision” under
§ 46-18-203(11)(a), a court can infer the defendant’s state of mind from the defendant’s
actions or lack of actions. See State v. Sage, 221 Mont. 192, 199, 717 P.2d 1096,
1100 (1986) (stating the jury can infer the defendant’s mental state from the defendant’s
actions and the circumstances involved). Additionally, in Oropeza, we held that evidence
Oropeza knew he was supposed to report, was directed to report, and failed to report for
over three months was “beyond adequate to” make a finding that he failed to report for the
purpose of avoiding supervision. Oropeza, ¶ 18. Similar to Oropeza, Fjelstad was required
to report at least monthly, if not more, and he failed to do so for over five months. Fjelstad
did not report from November 2017 through March 2018, even though he was instructed
to report when initially placed on probation and his probation officer left him messages
warning him that he needed to report. Fjelstad also failed to include his unit number in his
address, which resulted in the letter being returned to Williams. These facts are sufficient
for a District Court to conclude Fjelstad deliberately made his whereabouts unknown and
failed to report for the purpose of avoiding supervision.
¶15 Fjelstad argues that an important distinction exists between Oropeza and his case in
that Oropeza ignored two direct communications from his current and past probation
officers instructing Oropeza to report the following day. Fjelstad maintains that Oropeza’s
willful disobedience of two direct orders from probation officers was sufficient to
demonstrate a “purpose of avoiding supervision.” In contrast, Fjelstad contends he never
received any direct communication from the probation office because his phone was stolen
and the letter was returned. Thus, Fjelstad maintains that his conduct does not amount to
a purposeful avoidance of supervision. We do not find this argument persuasive, nor do
we find the distinction between the facts in Oropeza and here significant. The reason
Fjelstad did not receive any direct communications from Williams was because Fjelstad,
himself, failed to provide her a complete address and updated phone number. It is a
defendant’s responsibility to provide correct contact information to the probation office.
Fjelstad signed the rules of probation form, acknowledging that he was to report monthly,
and his failure to do so for over five months supports a finding that Fjelstad made his
“whereabouts unknown or failed to report for the purpose of avoiding supervision.”
Reasonable Efforts
¶16 The State is also required to prove that the probation officer made
“reasonable efforts” to locate the defendant. Section 46-18-203(11)(a), MCA. In Oropeza,
we held that a probation officer made reasonable efforts to contact Oropeza when: the
officer told Oropeza that he needed to contact the officer the next day; the officer visited
Oropeza’s residence at least twice and called Oropeza’s place of employment multiple
times; another probation officer personally advised Oropeza to report after seeing him in a
grocery store; and Oropeza’s probation officer contacted Oropeza’s girlfriend by phone
and told her the officer needed to speak with Oropeza. Oropeza, ¶ 19. Fjelstad maintains
that Williams’ efforts stand in stark contrast to those of the probation officer in Oropeza
and that Williams’s phone calls were not sufficient because his phone was stolen. Again,
we disagree.
¶17 While Williams acknowledged that she never tried to locate Fjelstad by going to his
address, nor did she attempt to locate him by asking his landlord about his whereabouts,
we nonetheless conclude that Williams’s efforts were reasonable. While the District Court
was correct in its observation that Williams may not have done “all that she could have,”
§ 46-18-203(11)(a), MCA, does not require a probation officer to do everything in their
power to locate a probationer. Rather, the statute requires “reasonable efforts.” Williams
called Fjelstad and left messages with him multiple times. With the exception of Fjelstad’s
statements to Williams and Basta that his phone was stolen, there is no other evidence in
the record supporting this claim. Furthermore, even if Fjelstad’s phone was stolen, he still
had an obligation to report when scheduled and to notify his probation officer if his phone
number changed. Williams also sent a letter, but it was returned because Fjelstad did not
provide his unit number. Fjelstad similarly had an obligation to provide a correct address
to Williams. Finally, Williams called Basta who said she was also unable to contact
Fjelstad. William’s efforts to contact Fjelstad by calling him multiple times, sending a
letter, and contacting his chemical dependency counselor were adequate and reasonable.

Outcome: The District Court did not abuse its discretion in determining Fjelstad absconded, a
non-compliance violation of his probation conditions, and Williams was not required to exhaust MIIG procedures prior to initiating revocation proceedings against Fjelstad. The District Court’s conclusion is supported by sufficient evidence that Fjelstad failed to report for the purpose of avoiding supervision, and the probation officer made reasonable effortsto contact Fjelstad.


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