ORIGINAL 08/13/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0573

DA 21-0573

STATE OF MONTANA, Plaintiff and Appellee, v. ORDER GARY L. PETERSON, F1L Defendant and Appellant.

AUG 1 3 2024 Bowen Clerk of Greenwciod Supreme Court State of Montane In 2015, Gary L. Peterson pled guilty pursuant to a plea agreement to three counts of sexual abuse of children. Peterson was sentenced in 2016. For reasons not pertinent to this appeal, the District Court entered an Arnended Judgment in 2018 that imposed the following sentence: Count I: a 15-year DOC commitment with 10 years suspended; Count II: a 10-year DOC commitment with five years suspended; Count III: a 10-year DOC commitment with five years suspended. The District Court ordered the sentences on all three counts to run concurrently.

On December 9, 2020, the State filed a petition to revoke Peterson's three concurrent, suspended five-year DOC commitments. The State alleged that Peterson had committed eight violations of the conditions of his sentence. The District Court conducted an evidentiary hearing, after which it found that Peterson had committed six of the eight violations alleged. The District Court did not find that Peterson had violated what had been identified in the petition to revoke as alleged violations 1 and 8. However, the District Court's subsequently issued written "Order Following Evidentiary Hearing" ("Evidentiary Order") stated: "Based on the record, the Court finds the Defendant violated allegations 1, 2, 3, 4, 5, 6, and 7 in the State's Petition for Revocation of Suspended Sentence." The State acknowledges that the Evidentiary Order mistakenly states that the District Court found that Peterson committed the first allegation listed in the Petition for Revocation. The State concedes that the Evidentiary Order should be amended to accurately reflect the District Court's oral ruling and we should remand the matter to the District Court with instructions , to issue an amended Evidentiary Order to correct this error.

On September 17, 2021, the District Court held a dispositional hearing. In pertinent part, the District Court orally ordered that the disposition on revocation would be "10 years Department of Corrections, five years suspended." The District Court's subsequent written "Order Revoking Suspended Sentence ("Revocation Order") stated: "Defendant's suspended sentence is revoked," and "Defendant [is] committed to the Montana Department of Cort,ections for a term of ten (10) years, five (5) years of which shall be suspended." Neither the District Court's oral i-uling nor the Revocation Order delineated its application among the three counts which were the subject of the revocation petition.

The State concedes, though, that any interpretation of. the District Court's Revocation Order that would apply the ten-year DOC commitment, to Counts II and III would render the sentences in conflict with § 46-18-203(7)(a)(iii), MCA, which precludes the District Court from imposing a sentence upon revocation that exceeds the original term of commitment. The State agrees with Peterson's position that the District Court sought to impose the revocation sentence of ten years DOC with five years suspended only to Count I, and the State concedes that we should remand the matter to the District Court with instructions to issue an amended Revocation Order, clarifying that Counts II and III remain suspended and continue to run concurrently to Count I. .Pursuant to the agreement of the parties, IT IS ORDERED that this matter is remanded to. the Twelfth Judicial District Court with instructions to amend the Order Following Evidentiary Hearing by striking that portion of the Order that reads "Defendant violated allegations 1, 2, 3, 4, 5, 6, and 7 in the State's Petition for Revocation of Suspended Sentence[,]" and replacing it with the language, "Defendant violated allegations 2, 3, 4, 5, 6, and 7 in the State's Petition for Revocation of Suspended Sentence." IT IS FURTHER ORDERED that the District Court shall amend the Order Revoking Suspended Sentence by striking paragraphs 1 and 2 and replacing them with the following language: 1. Defendant's suspended sentence under Count I of the Amended Judgment is revoked. Defendant is comrnitted to the Montana Department of Corrections for a terrn of ten (1 0) years, five (5) years of which shall be suspended.

2. The Defendant's suspended sentence under Counts II and III of the Amended Judgment are continued and remain suspended. Counts II and III continue to run concurrently to Count I.

The Clerk is directed to provide copies of this Order to all counsel of record and to the Clerk of Court for Hi11 County.

Dated this 14-- day of August, 2024.

k Justices /e„„„e,„