Forbes v. State

• Decision Date: 01 December 2009
• Docket Number: No. S-08-0278.,S-08-0278.
• Citation: 2009 WY 146,220 P.3d 510
• Parties: William Henry FORBES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

220 P.3d 510

2009 WY 146

William Henry FORBES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0278.

Supreme Court of Wyoming.

December 1, 2009.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Justin A. Daraie, Student Intern; Christopher J. King, Student Intern. Argument by Mr. Daraie.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] William Henry Forbes pled guilty to two counts of third-degree sexual abuse of a minor. The district court imposed concurrent sentences of six to eight years, but suspended those sentences and placed Mr. Forbes on supervised probation. Subsequently, the State moved to revoke his probation. The district court, after a hearing, revoked probation and imposed the underlying sentence. Mr. Forbes appeals, claiming that the State failed to prove he willfully violated a condition of his probation, and that the district court erred when it did not provide him the opportunity to allocute at his probation revocation hearing. We affirm.

ISSUES

[¶ 2] Mr. Forbes presents the following issues on appeal:

1. Did the trial court err in revoking appellant's probation, as he did not initiate, establish or maintain contact with a minor?

2. Was the alleged probation violation willful?

3. Did the trial court err when it refused to allow appellant to allocute at his probation revocation hearing?

FACTS

[¶ 3] Mr. Forbes met the victim in Anchorage, Alaska, when she was fourteen and he was thirty-five. They began a sexual relationship and the victim became pregnant with Mr. Forbes's child. They traveled to California and Louisiana and eventually landed in Wyoming when their car broke down in Cheyenne. In June of 2007, the victim gave birth to a son. The victim contacted law enforcement seeking a welfare check on the child. She disclosed her sexual relationship with Mr. Forbes to the responding officer. The State filed criminal charges against Mr. Forbes.

[¶ 4] In April of 2008, Mr. Forbes pled guilty to two counts of third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(iv) (LexisNexis 2007).¹ Following entry of that plea, the district court sentenced Mr. Forbes to six to eight years in the Wyoming State Penitentiary. The court suspended execution of that sentence in favor of six years of supervised probation. The Judgment and Sentence of the district court specifically provided: "DEFENDANT shall not initiate, maintain, or establish contact with any minor child, nor attempt to do so, nor reside in the same residence with minor children without the written permission of the probation agent in consultation with the treatment provider."

[¶ 5] During a routine home visit, Mr. Forbes's probation officer discovered a woman and her 14-year-old son in his hotel room. Mr. Forbes claimed they were homeless and he had no choice but to give them a place to stay for the night. Mr. Forbes was taken into custody and the State initiated proceedings to revoke his probation. The district court held a revocation hearing, found that Mr. Forbes's actions violated a condition of probation, and revoked his probation. The court heard arguments from counsel regarding further disposition, but did not offer Mr. Forbes the opportunity to make a statement prior to rendering a decision. After the court announced its decision to impose the underlying sentence, Mr. Forbes requested an opportunity to address the court but was not allowed to do so. This appeal followed.

STANDARD OF REVIEW

[¶ 6] Probation revocation proceedings are reviewed under our abuse of discretion standard. Ramsdell v. State, 2006 WY 159, ¶ 11, 149 P.3d 459, 462 (Wyo.2006). A district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. Mapp v. State, 929 P.2d 1222, 1225 (Wyo.1996). We review the district court's decision to determine whether the court could reasonably conclude as it did. Id. "Upon review, all that is necessary to uphold a district court's decision to revoke probation is evidence that it made a conscientious judgment, after hearing the facts, that a condition of probation had been violated." Sweets v. State, 2003 WY 64, ¶ 9, 69 P.3d 404, 406 (Wyo.2003).

DISCUSSION

[¶ 7] Probation revocation hearings are governed by W.R.Cr.P. 39. In addressing proceedings under this rule we have stated:

The proceedings for probation revocation consist of a two-part process. The first part, the adjudicatory phase, requires the district court to determine by a preponderance of the evidence whether a condition of probation was violated. The second, dispositional phase, is triggered only upon a finding that a condition of probation was violated. In this phase, the district court must deliberate not only upon the violation, but also the reasons the conditions were originally imposed and the circumstances surrounding the violation. After consideration of all these factors, the district court must then determine the appropriate consequences of the probationer's violation.

Sinning v. State, 2007 WY 193, ¶ 9, 172 P.3d 388, 390 (Wyo.2007), quoting Mapp, 929 P.2d at 1226.

[¶ 8] A probation violation ordinarily will justify revocation only if the violation was willful. E.g., Edrington v. State, 2008 WY 70, ¶ 7, 185 P.3d 1264, 1266 (Wyo. 2008); Sami v. State, 2004 WY 23, ¶ 15, 85 P.3d 1014, 1020 (Wyo.2004); Anderson v. State, 2002 WY 46, ¶ 26, 43 P.3d 108, 118 (Wyo.2002). In the context of a probation revocation, the term "willful" is given its ordinary and common meaning. Edrington, ¶ 9, 185 P.3d at 1267. "Willfully means intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly." Id., quoting Butz v. State, 2007 WY 152, ¶ 20, 167 P.3d 650, 655 (Wyo.2007).

[¶ 9] At the probation revocation hearing, the district court first considered the State's evidence of the violation and Mr. Forbes's contention that his actions were justified. Once it determined Mr. Forbes had violated a condition of probation, the court revoked probation and then heard arguments regarding disposition. We will first address the district court's finding that Mr. Forbes willfully violated a condition of his probation.

[¶ 10] As a condition of his probation, Mr. Forbes was ordered not to "initiate, maintain, or establish contact with any minor child." The State contended that Mr. Forbes "maintained" contact with a minor. The word "maintain" is not defined in the sentencing order identifying Mr. Forbes's probation conditions. The parties agree, however, that the common definition of "[t]o continue (something)" applies to this probation condition. Black's Law Dictionary 1039 (9th ed. 2009). This common meaning of "maintain" is evident when considered in relation to the words "establish" and "initiate." The prohibition on "maintaining" contact with a minor supplements the prohibitions of "initiating" and "establishing" by forbidding Mr. Forbes from continuing contact with a minor that may have been initiated or established by him, or someone else.

[¶ 11] While it may have been unclear how contact with the minor was initiated, the district court found that Mr. Forbes did not terminate contact as required. The State presented the testimony of Mr. Forbes's probation officer who described going to Mr. Forbes's hotel room for a routine home visit. She then testified:

[Probation Officer]: I collected a breathal[y]zer, went into his hotel room. At that point, I noticed that his closet door was shut. That was noticeable to me because it's a small hotel room, and normally, he has that door open, previously had a chair in it, sort of treated it as a separate room because his room was so small.

So he set it up as best he could to make it an apartment. On that day the door was shut, so I asked him if he would open the door. He told me I wouldn't like it, and he was very nervous. I told him, "That's okay. I still need you to open the door." He opened the door and a lady ... was in there with her minor son.

....

[Prosecutor]: Did you ask them to leave?

[Probation Officer]: They did. They left — her and her son. They had a suitcase with them on wheels, and they pulled their suitcase behind them, and they left. I watched them walk down the hallway.

[Prosecutor]: Did you have any further conversation with Mr. Forbes?

[Probation Officer]: I continued to talk with Mr. Forbes because at that point I was doing two things: I was trying to get a supervisor on the phone to figure out what to do, and I was talking with Mr. Forbes about why he was in this situation. He told me he felt like he had to give them a place to stay. I told him he of all people know we have homeless people and different things available to people, that he needs to follow the conditions of his probation, and also that he needs to protect himself. Why would he put himself in that position if he knew he was a sex offender, and have a minor around?

[Prosecutor]: Did he express any concern about violating the terms of his probation?

[Probation Officer]: He was. He was very nervous what was going to happen from here, did this affect his probation. He was very nervous.

[Prosecutor]: Well, was he aware this was a condition of his probation that he was not to have any contact with minors?

[Probation Officer]: Yes, he was. I went over court orders with him. I [had] gone over a second-offense Probation and Parole agreement that we have. He was very aware of the contact. He opened the hotel room and knew they were...