In a new court filing, Missoula County Attorney Kirsten Pabst reinforced her view that a Missoula judge can and should revoke the suspended rape sentence of former University of Montana football player Beau Donaldson. That's despite an argument from Donaldson's attorney that doing so would unlawfully punish him twice.
In 2013, Donaldson was sentenced to 30 years in prison with 20 of those suspended after he pleaded guilty to a 2010 rape in Missoula. In June 2016, he was released on parole, and since then has lived in Bozeman.
Over the summer, Donaldson was jailed in Bozeman after his supervising officer found he had violated the conditions of his parole, including admitting to drinking and being in bars. Further investigation found that he left the state without permission, and was using a smartphone and social media sites, also forbidden under the terms of his parole.
For those violations, Donaldson already has served 10 days in jail, been put on more stringent alcohol and drug testing, and was told to go back to sex offender group sessions as part of internal sanctions by his supervising officer at the Department of Corrections.
In late September, Pabst filed a request to revoke the suspended portion of Donaldson’s sentence based on the reports. Donaldson’s attorney Peter Lacny responded in a court filing that his client had already been punished by the sanctions, and that revoking the suspended portion of his sentence on top of that would be an unlawful “double punishment.”
In her reply last week, Pabst said revocation is not double punishment because the sanctions Donaldson already faced occurred under the conditions of his parole, and she is seeking to revoke the suspended portion of his sentence, when he would be out of custody on probation. She cited a Montana Supreme Court case that differentiated parole violations and the revocation of a suspended sentence as two separate processes that are allowed “even when based on the same act.”
“Revocation of probation is not a new punishment, it is simply the enforcement of his full, original punishment,” Pabst wrote. “These are separate proceedings, just like if he was being sanctioned as a parolee for committing a crime and was also being charged for committing the crime.”
Lacny’s filing, and Pabst’s reply, also deal with whether Missoula County District Court Judge Karen Townsend can get involved in revocation at this stage at all, given a change put in place by this year’s Legislature. Lawmakers formally implemented what is called “the grid” as a mechanism for dealing with probation and parole violations.
The grid, in part, lays out the remedies available to supervising officers for what are termed compliance violations (drinking when banned by release conditions, for example) as opposed to more serious violations like committing a new crime or having a firearm.
The revised law says that judges who think the grid can still be used effectively for compliance violations can’t revoke sentences until the options available under the grid are “exhausted.”
The county attorney said the fact that Donaldson continues to violate his conditions even after being sanctioned shows that he isn’t responding to be punished under the grid and that the matter should be addressed by the judge.
Townsend, she said, should look at Donaldson’s leaving the state without permission, the ties between his violations and the nature of his original conviction, the number and frequency of his violations and whether the internal sanctions have been effective so far in determining whether he should have his suspended sentence revoked.
“That the Defendant either cannot see or does not care how closely his current behavior is tracking with the behavior involved in his offense speaks to the fact that he has not truly rehabilitated and that he poses a significant risk to the people around him,” Pabst wrote.
Even if Townsend believes that Donaldson could be managed with further internal sanctions, Pabst argued that the officers working with him have met the burden of “exhausting” the violation grid.
The new section of the law enacted by the Legislature also doesn’t clarify what "exhausting" means, and because it is so new the term hasn’t been fleshed out by court precedent.
Lacny’s view from his filing is that all possible internal tools and sanctions must be used before the supervising officer’s use of the grid be considered exhausted.
Pabst contends that such a view of the term is impractical.
“If exhaustion were to mean utilizing the entire grid before allowing revocation of a suspended sentence, then community safety would not be served,” she wrote, adding that such a view would “remove human discretion.”
The judge should instead look at the term exhaustion instead as meaning a “good faith and objectively reasonable effort” to use the grid to manage a person on probation or parole, the county attorney said.
“(Donaldson’s) behavior endangers the people around him and he is clearly not receiving the services he needs to rehabilitate properly,” Pabst wrote.
If Townsend does allow the revocation proceeding to go forward and finds Donaldson violated the conditions of his suspended sentence, she could sentence him to up to the 20 years in prison that was suspended as part of her original sentence.
Donaldson — who remains released under the conditions of his parole — has another court appearance in the revocation set for Nov. 28.