Harada v. State

• Decision Date: 16 February 2016
• Docket Number: No. S–15–0181.,S–15–0181.
• Citation: 368 P.3d 275
• Parties: Heather A. HARADA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

368 P.3d 275

Heather A. HARADA, Appellant (Defendant),

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

No. S–15–0181.

Supreme Court of Wyoming.

Feb. 16, 2016.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; and Joshua C. Eames, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL

, Justice.

[¶ 1] Heather Harada pled guilty to third degree sexual assault in exchange for a deferred prosecution and five years of probation. After Ms. Harada had served close to four years of probation, the district court entered an order modifying the terms of her probation to require that she submit to and pay for a psychosexual evaluation. Ms. Harada appeals that order claiming that there was no change of circumstances, rehabilitation benefit, or community protection interest to justify modifying the probation order and the district court therefore abused its discretion in ordering the modification. We affirm.

ISSUE

[¶ 2] Ms. Harada presents a single issue for our review:

I. Did the district court abuse its discretion by modifying its prior order without any evidence, specifically including a change of circumstances, a benefit to rehabilitation or protection of the community?

FACTS

[¶ 3] In February 2010, while Ms. Harada was an employee of Cheyenne Transitional Center, a community correctional facility, she had a sexual relationship with an inmate at the facility. On January 7, 2011, the State filed an information charging Ms. Harada with one count of second degree sexual assault, in violation of Wyo. Stat. Ann. § 6–2–303(a)(vii)

, which prohibits a correctional employee from having a sexual relationship with an inmate. On May 6, 2011, the State and Ms. Harada entered into a plea agreement pursuant to which Ms. Harada agreed to plead guilty to a reduced charge of third degree sexual assault in exchange for a deferred prosecution and a five-year supervised probation. The plea agreement specified:

AS A RESULT of the Defendant's plea(s) to the above Count(s), the Defendant and the State agree that the Defendant's plea of guilty shall not be entered and that the Defendant shall be afforded first offender treatment pursuant to W.S. 7–13–301

, providing that the Defendant is statutorily eligible, obeys all bond conditions and other conditions hereinafter. The recommendation regarding probation shall be for a five (5) year supervised probation with terms in accord with the P.S.R. [Presentence Report] in this matter.

[¶ 4] On July 1, 2011, a Presentence Report prepared and signed by a Department of Corrections Probation/Parole Agent was submitted to the district court. The report stated:

The Defendant before the Court is a twenty-two (22) year old female facing sentencing for the felony offense of 3rd Degree Sexual Assault–Sexual Contact. She does not have any previous criminal history, nor did she report any substance abuse history. The Defendant is currently living with the victim in this case and has a daughter with him. She relayed that although she is not particularly happy about her current legal situation, she is willing to complete probation so that she may resolve this matter.

[¶ 5] The Presentence Report thereafter listed a number of conditions that the probation/parole agent recommended be attached to Ms. Harada's probation should probation be granted. Condition No. 14 specified that Ms. Harada shall "attend any counseling and/or submit to evaluations deemed appropriate by her probation agent."

[¶ 6] On July 15, 2011, the district court held Ms. Harada's sentencing hearing. The court confirmed that defense counsel had reviewed the Presentence Report with Ms. Harada and heard from defense counsel concerning inaccuracies in the report. The court then heard from defense counsel concerning any objections to the report's recommended probation conditions and ruled on the defense objections as follows:

[Defense Counsel]: There are some parts of the probation recommendations I wanted to address.

THE COURT: I think now is fine. Go ahead, Counsel, before I call upon your client.

[Defense Counsel]: Your Honor, on page 9 it outlines the conditions and Number Nine says she will not associate with persons of disreputable character, which I always found to be a rather vague term to begin with. * * * [T]he man she lives with, [is a] convicted felon [who] * * * the district attorney's office allowed contact with * * * early on in this case, and they have continued to reside together.

So we would certainly ask that he not be included in the group of people that she's not allowed to associate with, and he's the father of the child that they're raising together.

Also No. 17 says she will notify all future employers about this case. I'm not—I know this happened at work, but if it's—it doesn't seem like it's the kind of situation that would affect her future employment. It's not like she stole from an employer or something along those lines, and it is a 301 disposition.

So we would ask that No. 9 be modified to that extent and No. 17 be withdrawn.

* * *

THE COURT: * * * I want to go to those conditions of probation. You agreed with all of them. You know what's going on here, [Ms. Harada]. I've been asked, however, to make an exception. I will, to Paragraph 9; that is, the disreputable persons prohibition[,] [m]ake an exception for your husband or the father of your child with whom you cohabitate or any other person approved by your agent. That way if there's a real need in the course of your life, generally, to make allowance[,] the agent can do so.

As to 17, no, I decline to strike 17. This occurred in the course of employment. One of the consequences she's avoided, consequences [of] sex offender registration, conviction, prison, all that sort of thing, but she can't really avoid the manner that she is publicly and always on probation. In fact, that very thing has run counter to effective supervision in the past because then agent shows up at work, interferes with the job, if agent can't find that information because of it.

So I decline to modify 17, but I will modify 9. I'll ask [the State] to ensure that the final order is prepared in that fashion.

[¶ 7] On July 28, 2011, the district court issued its judgment and order. The order deferred entry of Ms. Harada's plea and deferred her sentencing, and it placed her on probation for a period of five years, to run from the date of the court's judgment and order. The order reflected the probation conditions specifically discussed during the sentencing hearing, along with the requested modification granted by the court. The order further specified that "Defendant shall conform to the rules, regulations and conditions imposed by law, by the Court, and by the Probation Officer and shall sign a Probation Agreement[.]"

[¶ 8] On August 4, 2011, Ms. Harada signed a document entitled Department of Corrections Sex Offender Probation/Parole Agreement. In signing the agreement, Ms. Harada affirmed that the agreement had been read to her and that she fully understood and agreed to abide by the conditions of supervision outlined in the agreement. Ms. Harada initialed each of the conditions, including the following:

16. I will submit to a sex offender evaluation by a Sex Offender Therapist approved by my Agent and will successfully complete any recommended treatment at my own expense. I will comply with all requirements and actively participate in treatment until released by my treatment provider.

17. I will not be allowed to change from the approved Sex Offender Therapist or treatment program without prior approval of my Agent.

18. I will submit to, participate in, and pay for sex offender assessment including, but not limited to, polygraph examinations at the request of my Agent or Sex Offender Therapist.

[¶ 9] On November 20, 2014, the State filed a petition to revoke Ms. Harada's probation. The petition alleged that Ms. Harada had violated the terms of her probation by failing to obtain a psychosexual evaluation as directed by her probation agent. Ms. Harada opposed the petition, contending that her probation agent did not have the authority to require her to undergo the evaluation because the district court did not directly order the evaluation as a condition of her probation.

[¶ 10] On April 17, 2015, the district court held a hearing on the petition to revoke. During that hearing, the court asked the parties whether the question of whether the psychosexual evaluation was in fact a condition of Ms. Harada's probation could be resolved by simply modifying the court's final order to expressly require the evaluation.

THE COURT: And neither one of you mentioned, but the first thing that occurs to me when someone said there was, in effect, a condition of probation has been violated, and you say it wasn't listed in the order, nobody has asked me to modify it.

[Defense Counsel]: Right.

THE COURT: Can't I modify it?

[Defense Counsel]: You sure can.

THE COURT: Right. So if the State—if the State instead of revoking the probation, which of course involves a 301 treatment thing, if the State revokes the—or moves to modify, do you object to me adding the condition from this point forward?

[Defense Counsel]: Well, I believe we should have a discussion about that. Absolutely. I would like a couple minutes to talk about that issue, but I think it would be well within your authority to consider the issue in that way, and I would prefer the matter be brought before the Court in that posture.

* * *

THE COURT: All right. Rather than delay this, is it—is it agreeable that instead of treating the revocation of probation, revoking her, reinstating her, is it agreeable to the parties that the Court at this time treat it as a motion to modify the terms of probation, and let you

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