Kupec v. State, 91-194

• Decision Date: 31 July 1992
• Docket Number: No. 91-194,91-194
• Parties: Gloria Mae KUPEC, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 359

835 P.2d 359

Gloria Mae KUPEC, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 91-194.

Supreme Court of Wyoming.

July 31, 1992.

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director of the Defender Aid Program, and Stephany A. Meyer, Student Intern for the Defender Aid Program, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Michael K. Kelly, Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

MACY, Chief Justice.

Appellant Gloria Mae Kupec appeals from the lower court's order revoking her probation and reinstating her original sentence.

We affirm.

Appellant states the issues as follows:

I. Whether the district court erred by allowing hearsay testimony at Appellant's probation revocation hearing on the issue of whether a condition of probation was violated?

II. Whether the district court erred by allowing evidence of the urinalysis without an established chain of custody?

III. Whether the district court judge erred in finding a violation when he relied solely on the breathalyzer result without finding that Appellant willfully and intentionally consumed alcohol?

IV. Whether the district court erred in failing to credit Appellant's minimum and maximum sentence for the two hundred fifty days served in the S.T.O.P. program?

On November 13, 1989, the district court sentenced Appellant to not less than two years nor more than twelve years in the Women's Correctional Facility. The district court imposed the sentence after Appellant entered a plea of guilty to delivery of a controlled substance in violation of Wyo.Stat. §§ 35-7-1031(a)(i) and 35-7-1016(b)(iv) (1988). On May 3, 1990, Appellant filed a motion to reduce her sentence, which the court granted on November 26, 1990. The court suspended Appellant's sentence and placed her on probation for four years, with the first year to be spent in the Surveillance and Treatment of Offender Program (S.T.O.P.). Appellant's probation, among other things, prohibited her from consuming alcohol or using illegal drugs. In addition to her regular probation, the S.T.O.P. required Appellant to remain at her residence except during those times approved by her probation agent; to wear an electronic monitoring device to ensure compliance with her residential confinement restrictions; to travel only by approved routes; to remain employed full time; to attend treatment and counseling programs; and to allow only guests into her residence who had received the probation officer's prior approval. ¹

On May 28, 1991, the district attorney filed a petition to revoke Appellant's probation after a urine test administered by her probation officer revealed the presence of cocaine metabolites. The district attorney subsequently filed a second petition to revoke Appellant's probation after a breathalyzer examination conducted by the Laramie County sheriff's office on June 19, 1991, indicated that she had a blood alcohol content of .151%. On July 2, 1991, the district court conducted a hearing to determine whether Appellant violated her probation by ingesting alcohol and cocaine. After hearing all the evidence, the court found that Appellant had violated her probation conditions. The court held a second hearing on July 10, 1991, to hear any mitigating circumstances, whereupon it reimposed Appellant's original sentence.

At the initial probation revocation hearing, Kelly Mann, the probation officer who collected Appellant's urine sample, did not testify. Rather than calling Ms. Mann, who had moved to Nebraska, the State called Chris Danni, another S.T.O.P. probation officer. Ms. Danni identified the initials of the sample taker on a urine test kit which purportedly contained Appellant's contaminated urine sample as belonging to Ms. Mann. Two chemists from the Wyoming Department of Health testified that the urine sample purportedly belonging to Appellant tested positive for cocaine metabolites.

To support its allegation of alcohol consumption, the State called John Roncalio, Appellant's probation officer following Ms. Mann's departure. Mr. Roncalio testified that he visited Appellant in her home during the evening of June 19, 1991, because she had missed a mandatory S.T.O.P. group meeting. While at Appellant's home, Mr. Roncalio used a portable breathalyzer machine to determine whether she had consumed any alcohol. Mr. Roncalio conducted three separate breathalyzer examinations on Appellant, with each test indicating the presence of alcohol. To verify the results of the breathalyzer tests, Mr. Roncalio transported Appellant to the Laramie County sheriff's office where, in a fourth breathalyzer test, Appellant's blood alcohol content registered .151%. Mr. Roncalio testified that, when he confronted Appellant with her positive breathalyzer test results, she denied drinking any alcohol but admitted maybe unknowingly consuming some spiked lemonade.

The trial court found that, by ingesting cocaine and alcohol, Appellant had violated her probation conditions. The court revoked Appellant's probation and reinstated her original sentence of not less than two years nor more than twelve years in the Women's Correctional Facility. Appellant was granted credit against the minimum and maximum terms of her sentence for the time she had already served in the correctional facility.

Appellant claims that the district court improperly concluded that she ingested cocaine because she was denied her right to confront the probation officer who monitored the urine collection; because the district court improperly relied upon hearsay testimony; and because the court admitted her urinalysis results into evidence without establishing a chain of custody. Appellant also argues that the court erred by relying upon her breathalyzer test results without finding that she willfully and intentionally consumed alcohol. We are satisfied that the district court had sufficient evidence to revoke Appellant's probation for consuming alcohol, and, consequently, we decline to address Appellant's claims concerning her rights of confrontation, hearsay, and chain of custody.

Appellant contends that the district court erred by failing to consider evidence which demonstrated that she did not willfully consume alcohol. Our statutes and rules concerning probation do not specify whether a probationer must willfully violate a probation condition before a court may revoke probation. See, e.g., Wyo.Stat. § 7-13-401(a)(x) (Supp.1991). Similarly, our prior probation revocation cases have not specifically required that a probationer willfully violate a probation condition before a court may revoke probation. See Kahlsdorf v. State, 823 P.2d 1184, 1195 (Wyo.1991).

The United States Supreme Court has considered the issue of whether a probationer must willfully violate a probation condition in the context of his ability to pay a fine or make restitution. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the Supreme Court found that a state is perfectly justified in imprisoning a probationer who willfully fails to pay a fine which was required as a probation condition. However, when a probationer is unable to pay the fine or make the restitution through no fault of his own, automatically revoking his probation without first considering an alternative means of punishment would be fundamentally unfair. 461 U.S. at 668-69, 103 S.Ct. at 2070-71. In a footnote, the Supreme Court addressed the question of whether a defendant who violates a probation condition not mandating the payment of money must act willfully. The Supreme Court reasoned that a probationer's lack of fault in violating a probation condition not involving the payment of money should not necessarily prevent a court from revoking probation. For example, a court should not allow a chronic drunken driver to remain on probation when that person has no control over his consumption of alcohol and constitutes a threat to society. 461 U.S. at 668 n. 9, 103 S.Ct. at 2070 n. 9.

The Utah Court of Appeals recently followed the approach suggested by Bearden to determine whether a defendant charged with violating a probation condition not involving the payment of money must act willfully. State v. Hodges, 798 P.2d 270 (Utah Ct.App.1990), cert. denied, (Dec. 26, 1990). The Utah Court of Appeals held: "[I]n order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must be willful, or, if not willful, must presently threaten the safety of society." Id. at 277. We agree with the rule as stated by the Utah Court of Appeals. Revoking the probation of a defendant whose failure to comply with his probation conditions was not willful but instead resulted from factors beyond his control would be fundamentally unfair. At the same time, a court cannot be prevented from revoking probation in situations where the probationer's conduct is beyond his control and such conduct creates a threat to society.

Applying the foregoing test to the present case, we must determine whether sufficient evidence exists to support a finding that Appellant willfully consumed alcohol. In a probation revocation proceeding, it is within the trial court's discretion to determine whether a probationer violated his probation conditions, and that determination will not be reversed unless the discretion was abused. Swackhammer v. State, 808 P.2d 219, 224 (Wyo.1991); Ketcham v. State, 618 P.2d 1356, 1360 (Wyo.1980). This Court has frequently explained:

" '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.' " Mower v. State, 750 P.2d 679, 680-81 ...