Ketcham v. State

Citation618 P.2d 1356
Decision Date10 November 1980
Docket NumberNo. 5291,5291
PartiesJamie KETCHAM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div. and Paul H. Byrtus, Legal Intern (argued), on brief, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

On November 16, 1978, appellant-defendant was sentenced to a term of not less than two nor more than five years in the Wyoming State Penitentiary after a plea of guilty to a charge of burglary in violation of § 6-7-201, W.S.1977. The execution of the sentence was suspended and appellant was placed on probation for a period of five years. On March 28, 1980, the court ordered revocation of appellant's probation for violation of the terms and conditions thereof. Appellant appeals from the revocation order and the resulting judgment and sentence.

We affirm.

In granting probation, the court conditioned it upon the obeyance of appellant of "all of the rules and regulations" of the Department of Probation and Parole, and upon the direction that he "not violate any of the laws of the United States of America, the State of Wyoming, or any other state * * * or any of their political subdivisions."

The probation violation resulted from appellant's involvement with a 14-year-old girl. Although the specific finding of the trial court was that appellant violated the provisions of § 14-3-105, W.S.1977 1 there was no dispute over the fact that victim's parents had forbidden her to keep company with appellant; that she was 14 years of age; that on February 15, 1980, she did not go to school and was reported missing by her parents to the sheriff; that she left school with appellant and spent the following four or five days with him, during which time appellant had sexual intercourse with her; and that appellant was then 18 years of age. Victim testified that she had not had sexual intercourse with anyone other than appellant. The district court found such actions and involvement by appellant to be contrary to the terms and conditions under which he was granted probation.

Appellant words the issues on appeal as follows:

"1. The Finding By The Court That Appellant Violated His Probation By Committing A Violation Of W.S. 14-3-105 Cannot Stand In View Of The Fact That This Statute Has Been Repealed By Implication By W.S. 6-4-305 2 And 6-4-504 3.

"2. The 'Show Cause' Procedure By Which Appellant's Probation Was Revoked Constitutes Denial Of Due Process By Placing The Burden Of Proof On Appellant To Establish That He Did Not Commit The Claimed Violation."

FACT OF VIOLATION

Appellant argues that § 14-3-105, W.S.1977 (indecent liberties statute) was repealed by implication through the enactment of § 6-4-305, W.S.1977 (fourth-degree sexual assault statute) and § 6-4-504, W.S.1977 (child abuse statute), which, he contends, are more specific with regard to the prohibited acts, and the provisions of which, he contends, are inconsistent and Not only is appellant's contention subject to criticism in that § 14-3-105 is a later enactment (last enacted in 1978) than §§ 6-4-305 and 6-4-504 (enacted in 1977), but the question of inconsistency and implied repeal was not presented to the trial court. A contention for error first raised on appeal will not be considered unless it qualifies as plain error. Hampton v. State, Wyo., 558 P.2d 504 (1977). The plain-error doctrine is to be applied cautiously and in exceptional circumstances. Hampton v. State, supra; Downs v. State, Wyo., 581 P.2d 610 (1978).

repugnant to § 14-3-105. Appellant concludes that he could not be accused of violating § 14-3-105 inasmuch as it was repealed by implication; that he could not be accused of violation of § 6-4-305 inasmuch as there was not a four-year differential between his age and that of the victim (he lacked three days of being four years older than the victim); and that he could not be accused of violation of § 6-4-504 inasmuch as he was not an adult (he was 18 years of age).

" * * * For this court to invoke the plain-error rule, as embodied in Rule 49(b), W.R.Cr.P., three specific criteria must be fulfilled: first, the record must be clear as to the incident that occurred at trial that is alleged as error; second, the proponent of the rule must demonstrate a violation of a clear and unequivocal rule of law; and third, the proponent must prove that a substantial right has been violated and that the defendant has been materially prejudiced by that violation. (Citations.) These requirements must be fulfilled even if constitutional rights are involved." Madrid v. State, Wyo., 592 P.2d 709, 710 (1979).

The violation of a clear and unequivocal rule of law has not been here demonstrated. In this respect, it is appropriate to review the law as it relates to probation revocation.

"The imposition of probation and, therefore, the revocation, lie in the sound discretion of the district court.

" ' * * * All that is essential is the court's conscientious judgment after hearing the facts that the violation has occurred. This should not be an arbitrary action and should include a consideration of both the reasons underlying the original imposition of conditions, the violation of these, and the reasons leading to such violation. * * * ' State v. Reisch, Wyo., 491 P.2d 1254, 1255 (1971). See Sanchez v. State, Wyo., 592 P.2d 1130 (1979)." Buck v. State, Wyo., 603 P.2d 878, 879 (1979).

"The sufficiency of the evidence to sustain an order revoking probation is a matter within the sound discretion of the trial court and its action will be reversed only upon a clear showing of abuse of discretion. The court cannot act arbitrarily, however, or according to whim or caprice." 21 Am.Jur.2d Criminal Law § 568, p. 536 (1965).

The evidence need not establish the violation beyond a reasonable doubt. 24 C.J.S. Criminal Law § 1572(4), p. 505 (1961); State v. Fortier, 20 Or.App. 613, 533 P.2d 187, 188 (1975).

A probationer or parolee is not entitled to the "full panoply of rights" that attend a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); United States v. Strada, 8 Cir. 1974, 503 F.2d 1081.

"In such final hearing, the usual rules of evidence need not be applied, United States v. Cates, C.A. 4th (1968), 402 F.2d 473, 474(5), and it is not required that the evidence have shown beyond a reasonable doubt that Mr. Mills violated the conditions of his probation, Manning v. United States, C.A. 5th (1947), 161 F.2d 827, 829(7), certiorari denied (1947), 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374. If the evidence satisfies the presiding judge that the conduct of the probationer has not measured-up to the terms and conditions of his probation, in its discretion, the Court will revoke the probation. See Burns v. United States (1932), 287 U.S. 216, 221, 53 S.Ct. 154, 77 L.Ed. 266, 269. * * * " United States v. Mills, E.D.Tenn., 444 F.Supp. 26, 27 (1977).

Revocation of probation because of a violation of law is not precluded although the probationer is acquitted in a criminal proceeding predicated on such violation. Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550 (1977); Jones v. State, 142 Ga.App. 274, 235 S.E.2d 681 (1977); Bernal-Zazueta v. United States, 9 Cir. 1955, 225 F.2d 64. A few jurisdictions have taken a contrary position as to this point. See Annotation, Probation Revocation-Following Acquittal, 76 A.L.R.3d 564 (1977). Probation may be revoked on the basis of conduct which falls short of criminal conduct. United States v. Chambers, 3 Cir. 1970, 429 F.2d 410; State v. Reisch, supra.

In general, it can be said that the determination of whether or not a probationer has violated the terms and conditions of his probation is within the sound discretion of the court and is not subject to reversal on appeal unless the discretion is abused. State v. Reisch, supra.

"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * *" Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

Turning then to the action taken in this case by the trial court, it carefully informed appellant of the consequences of violation of the terms of probation. The following was said at the time of sentence:

"THE COURT: It's the judgment and sentence then of this court, Mr. Ketcham, that you are hereby sentenced for a period of from two to five years in the Wyoming State Penitentiary. I'm going to suspend the imposition of the sentence and place you on probation for a five-year period upon the following terms and conditions; that you be under the supervision of the Wyoming State Probation and Parole Department and that you abide by the rules and regulations of the State Probation and Parole Department; that you not commit any other crimes during that five-year period, which is the term of your probation, because if you violate any of the laws of any municipality, of any state, or of the nation during that time period, you would be brought before this Court on an order to show cause and if it's determined that you violated the laws, then you will have to serve your two to five year sentence in the Wyoming State Penitentiary. Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: Now, you can't treat that lightly because there are probably a half a dozen people from this country who are now in the penitentiary who violated the terms of their probation, and apparently when they were placed on probation they thought that had gotten off scott-free and...

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