Bazzle v. State

• Decision Date: 11 February 2019
• Docket Number: S-18-0124
• Citation: 434 P.3d 1090
• Parties: Caleb Dwight BAZZLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

434 P.3d 1090

Caleb Dwight BAZZLE, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0124

Supreme Court of Wyoming.

February 11, 2019

Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General. Argument by Ms. Martens.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] Caleb Dwight Bazzle appeals from the district court’s order revoking his probation and imposing the original suspended sentence. We affirm.

ISSUES

[¶2] Mr. Bazzle presents the following issue on appeal:

To revoke probation, the State must prove that the probationer willfully violated the conditions of probation. During the adjudicatory stage of proceedings, after concluding that Mr. Bazzle had failed to prove that he had complied with the conditions of his probation and finding that his alleged violations were willful, the district court revoked his probation. Did the court err in its conclusions[ ] and were its findings supported by the evidence?

The State raises an additional issue:

A defendant’s waiver of his appellate rights will be enforced unless the appellate issue is outside the scope of the waiver, the waiver was not knowing and voluntary, and enforcing the waiver would result in a miscarriage of justice. In his plea agreement, Bazzle agreed not to file "any ... appeals." Bazzle does not address his waiver.

Should this Court enforce the waiver and refuse to consider the issue he raises?

FACTS

[¶3] On December 15, 2015, the State charged Mr. Bazzle with five drug-related crimes—possession of marijuana (third offense); endangering children; and three counts of delivery of a controlled substance (buprenorphine). On February 2, 2016, the State and Mr. Bazzle entered into a plea agreement, memorialized in a document entitled "Statement of Agreement." Mr. Bazzle agreed to plead guilty to the first count–possession of marijuana (third offense), and the State agreed to dismiss the remaining charges. They jointly recommended to the district court that Mr. Bazzle receive a sentence of incarceration for three to five years, to be suspended in favor of five years of supervised probation. Under the terms of the agreement, Mr. Bazzle was required to "enroll in, and successfully complete, the Sublette County Treatment Court Program." Mr. Bazzle also agreed "not to file any post guilty plea/post-conviction motions, requests for sentence reduction, appeals or post-conviction relief petitions."

[¶4] The district court held a change of plea and sentencing hearing on June 27, 2016. The prosecutor outlined the terms of the plea agreement, specifically mentioning the requirement that Mr. Bazzle enroll in and successfully complete the Treatment Court Program and that he was waiving his right to appeal. The district court addressed Mr. Bazzle, as follows:

COURT: You would be required under this agreement to enroll in and successfully complete the Sublette County Treatment Court Program as a condition. Do you have any questions about that?

....

DEFENDANT: I do not, [Y]our Honor.

COURT: Implicit in that requirement is that you would enroll in and successfully complete in-patient treatment for substances, alcohol or both as recommended in the Presentence Investigation Report in order to get you to a level that the Sublette County Treatment Court Program would accept you. Do you have any questions about the treatment requirement that is implied under this Sublette County Treatment Court Program requirement?

DEFENDANT: I do not, [Y]our Honor.

[¶5] The district court accepted the plea agreement and Mr. Bazzle’s guilty plea, imposed the recommended three to five year sentence, suspended the sentence, and placed him on supervised probation for five years. The Court Probation Terms and Conditions Order, filed June 28, 2016, stated in relevant part:

32) Defendant shall not own, transport, consume, inhale, ingest, use, possess, purchase, manufacture, sell, bargain, give away, receive, be under the influence of, handle, or engage in any other act that a person may be capable of doing regarding or in connection with, any controlled substances, illicit substances, toxic substances, medications ... or paraphernalia associated with such, unless prescribed by a licensed practitioner. In the event that a substance or medication has been prescribed to Defendant, Defendant shall strictly follow the terms of [the] prescription, including, but not limited to, taking only the dosage(s) and amount(s) prescribed strictly within the time(s) prescribed[.] (Defendant shall not over-medicate, under-medicate, take more frequently, or less frequently than strictly prescribed).

....

37) Defendant shall strictly follow and successfully complete ... any and all recommendations made in the Addiction Severity Index (ASI/ASAM)[.]

....

39) As directed by his Agent, Defendant shall enroll in and Defendant shall thereafter successfully complete ... an ASAM Level III.5 clinically managed high intensity residential treatment program or comparable treatment program approved by the probation agent, and ... attend any and all recommended after-care, relapse prevention, and/or recovery maintenance program(s)....

40) As directed by his Agent, Defendant shall apply for the Sublette County Treatment Court Program, or comparable treatment court program approved by the probation agent, and if accepted ... successfully complete said program. Defendant shall abide by any and all policies, rules, regulations, directives, or orders of the Treatment Court Program and strictly follow any and all directives of the Treatment Court team members.

[¶6] After he began serving his probation, Mr. Bazzle started using a prescription drug, buprenorphine

, without telling his probation agent. Buprenorphine is a synthetic opioid that is used to treat opioid dependence. In August 2016, probation agent, Jeannie Whinnery, learned that Mr. Bazzle was using buprenorphine when he tested positive for the drug. Ms. Whinnery informed him that he could not participate in the Treatment Court Program if he was taking buprenorphine.

[¶7] Mr. Bazzle began residential drug treatment in November 2016 and was discharged, at his request, with "maximum benefits" on January 12, 2017. While in treatment, Jed Shay, M.D. switched Mr. Bazzle’s medication to Suboxone

, another synthetic opioid that contains buprenorphine and is used to treat opioid dependence. www.suboxone.com.

[¶8] On January 26, 2017, Kathy Anderson, the coordinator of the Sublette County Treatment Court, sent Mr. Bazzle a letter informing him that he would not be allowed to "commence participation in the Treatment Court until [he] titrate[d]¹ off all opioid-type prescriptions, including but not limited to Buprenorphine

, S[u]boxone, or any similar synthetic opioid." The letter acknowledged that Mr. Bazzle had provided the Treatment Court with a prescription from Dr. Shay, which stated that tapering off Suboxone should take six months. Ms. Anderson instructed Mr. Bazzle to provide a more detailed titration plan. She also stated that his acceptance in the Treatment Court Program would "remain open until July 12, 2017 (six (6) months from the date of the titration prescription sheet by Dr. Shay)," but that if he was still using any opioid or synthetic opioid prescription drug at that time, his "acceptance in the Treatment Court program [would] be revoked and [he would] be prohibited from participating in the program."

[¶9] On July 12, 2017, Ms. Anderson informed Ms. Whinnery that Mr. Bazzle would not be allowed to participate in the Treatment Court Program because he had not titrated off Suboxone

. A few days later, the State filed a petition to revoke Mr. Bazzle’s probation. The State alleged that Mr. Bazzle had violated the terms of his probation which required him to successfully complete residential drug treatment and the Treatment Court Program.

[¶10] Mr. Bazzle denied the State’s allegations and filed a memorandum asserting that he had not willfully violated his probation. He argued that his dismissal from residential treatment was not willful, as evidenced by the fact he was awarded "maximum benefits." He also claimed that he had not willfully violated the probation condition that required him to complete the Sublette County Treatment Court Program. While Mr. Bazzle acknowledged he was still using Suboxone

, he maintained his use was justified because his physicians recommended continuing the medication.

[¶11] The district court held an adjudicatory hearing on the State’s petition to revoke Mr. Bazzle’s probation on November 21, 2017. Ms. Anderson testified that Mr. Bazzle was discharged from residential drug treatment with maximum benefits in January 2017, but the Treatment Court did not consider that a successful completion of treatment. She also explained that the Treatment Court did not allow participants to use Suboxone

because it was subject to abuse, can be used to "get high," and may be sold or distributed illegally. Ms. Anderson confirmed that she sent Mr. Bazzle the January 26, 2017, letter which informed him that he needed to stop using Suboxone and directed him to submit a detailed titration plan prepared by his healthcare provider. She testified that he had provided a handwritten titration plan in June 2017, but he did not follow the plan and was still using Suboxone. Therefore, he was not allowed to attend the Treatment Court Program.

[¶12] Brad Bell, a case manager at the residential treatment facility, testified that Mr. Bazzle did not complete the program and was "manipulative" and "resistant to treatment." Carol Mitchelson was the probation agent who supervised Mr. Bazzle while he attended residential drug treatment. She testified that patients typically attend the treatment program for four to six months,...