Reece v. State
| Decision Date | 09 October 2008 |
| Docket Number | No. S-07-0296.,S-07-0296. |
| Parties | Dawson A. REECE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.
Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Dawson A. Reece challenges his probation revocation, stating that the terms of his probation failed to specify the required, and the prohibited, conduct, and that the district court did not make adequate findings to justify the revocation. On appeal, we affirm.
[¶ 2] Reece presents two issues for review:
1. WERE [REECE]'S DUE PROCESS RIGHTS VIOLATED BY THE NON-SPECIFICITY OF THE TERMS OF HIS PROBATION AND A FAILURE TO ADVISE HIM OF THE CONDUCT THAT WAS REQUIRED AND PROHIBITED?
2. DID THE TRIAL COURT'S FAILURE TO MAKE SPECIFIC FINDINGS REQUIRED BY LAW AMOUNT TO ARBITRARY AND CAPRICIOUS ACTION AND AN ABUSE OF DISCRETION?
The State rephrases the issues as follows:
1. THE TERMS OF [REECE]'S PROBATION WERE SUFFICIENTLY SPECIFIC AND HE WAS PROPERLY ADVISED OF THE TERMS OF HIS PROBATION; THEREFORE, HIS DUE PROCESS RIGHTS WERE NOT VIOLATED.
2. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DID NOT MAKE EXPRESS FINDINGS OF FACT — BEYOND ACCEPTING [REECE]'S OWN ADMISSION THAT HE VIOLATED A TERM OF HIS PROBATION — TO SUPPORT ITS FINDING THAT A PROBATION VIOLATION OCCURRED.
[¶ 3] In August of 2005, Reece was charged with two counts of kidnapping, two counts of aggravated assault, one count of felonious restraint, one count of domestic violence, and one count of cruelty to animals. Pursuant to a plea agreement, Reece pled guilty to one count of felonious restraint and one count of aggravated assault, with the remaining charges dismissed. Concurrent prison terms of three to five years and five to eight years were imposed. The court recommended that Reece complete the Boot Camp program, and contemplated that if he successfully completed Boot Camp, Reece would be transferred to an Adult Community Corrections (ACC) program to be followed by three years of supervised probation.
[¶ 4] Reece successfully completed Boot Camp, and on June 13, 2007, was released from custody, placed on probation, and transferred to the Wyoming Substance Abuse Treatment and Recovery Center (WYSTAR), a residential treatment facility in Sheridan. The WYSTAR placement occurred after Reece was denied admission to ACC and intensive supervised probation.
[¶ 5] On July 18, 2007, the State filed a petition to revoke Reece's probation, alleging that Reece violated the terms of his probation by failing to successfully complete the WYSTAR program. Reece was discharged from WYSTAR because he was "unsuccessful under criteria for readiness for change." A WYSTAR clinician also indicated that "because of Reece's intimidating verbal behavior, it became necessary to discharge him in immediate fashion."
[¶ 6] Reece's probation was revoked. The court stated that Reece "voluntarily admitted violating his probation as alleged in the Petition for Revocation of Probation and the accompanying affidavit and [Reece] provided a sufficient factual basis to support his admission." Both of Reece's sentences were reinstated, but the court again suspended the five to eight year sentence in favor of three years of supervised probation, following the completion of the three to five year sentence.
[¶ 7] This appeal followed.
[¶ 8] As we stated in the case, In Re CT, 2006 WY 101, ¶ 8, 140 P.3d 643, 646 (Wyo.2006):
The appellant's claim that his constitutional due process rights have been violated is reviewed de novo by this Court. Meyers v. State, 2005 WY 163, ¶ 8, 124 P.3d 710, 714 (Wyo.2005). The party claiming an infringement on his right to due process has the burden of demonstrating both that he has a protected interest and that such interest has been affected in an impermissible way. DH v. Wyo. Dep't of Family Servs. (In re "H" Children), 2003 WY 155, ¶ 38, 79 P.3d 997, 1008 (Wyo. 2003), reh'g denied (January 13, 2004). Generally, sentencing decisions are reviewed for an abuse of discretion. Bitz v. State, 2003 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo.2003). Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. White v. State, 934 P.2d 745, 746 (Wyo.1997). A sentence is illegal if it violates the constitution or other law. Martinez v. State, 2002 WY 10, ¶ 9, 39 P.3d 394, 396 (Wyo.2002). An "error of law committed by the court under the circumstances" is an abuse of discretion. White, 934 P.2d at 746 (quoting Garcia v. State, 777 P.2d 603, 607 (Wyo.1989)). If there was no objection below, alleged errors are reviewed under our plain error standard, where the appellant must show (1) a clear record of the alleged error; (2) the violation of a clear and unequivocal rule of law; (3) denial of a substantial right; and (4) material prejudice. Butcher v. State, 2005 WY 146, ¶¶ 29, 33, 123 P.3d 543, 552, 553 (Wyo.2005).
[¶ 9] Reece's first issue on appeal is that his due process rights were violated because the terms of his probation failed to specify the required, and the prohibited, conduct. The State responds that the terms of probation were specific enough and that due process was not violated.
[¶ 10] Revocation of probation is largely governed by court rule, W.R.Cr.P. 39. Under Rule 39, the State is required to establish the violation of the conditions of probation alleged in the petition by a preponderance of the evidence. W.R.Cr.P. 39(a)(5).
[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.
Messer v. State, 2006 WY 141, ¶ 9, 145 P.3d 457, 460 (Wyo.2006).
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. W.R.Cr.P. 39(a)(5) 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.
Mapp v. State, 929 P.2d 1222, 1226 (Wyo. 1996). "Willfulness is determined at the dispositional phase of the proceedings." Sinning v. State, 2007 WY 193, ¶ 10, 172 P.3d 388, 390 (Wyo.2007). As a general rule of criminal law, probationary conditions must be specific, but general conditions are acceptable if specific guidelines will follow:
Generally, the probationer should be apprised of the conditions with which he or she must comply, and the court should state in its order the terms and conditions on which it grants the suspension or probation.... In order to be enforceable, a condition of probation must not be vague, indefinite, or uncertain, and a general condition of probation is permissible only so long as it is contemplated that the court or its designee will provide the probationer with reasonable, specific direction within the ambit of the initially expressed general condition, and such guidance is in fact given.
24 C.J.S. Criminal Law § 2151 at 226 (2006) (internal footnotes omitted).
[¶ 11] Unfortunately for the parties in this appeal, they did not have the benefit of our recent opinion in Edrington v. State, 2008 WY 70, 185 P.3d 1264 (Wyo.2008). Similar to the facts here, Mr. Edrington sought review of his probation revocation after he was terminated from an inpatient treatment program, the completion of which was a condition of his probation. The difference between the two cases, however, is that in Edrington, both sides readily agreed that the defendant failed to complete the program assigned to him, and that he was terminated from the program because he violated its rules. Here, Reece contends that he was not in violation of the rules, as they were not spelled out for him. Edrington's justification for not following the rules was that he suffered from a mental illness. However, upon review, this Court concluded that Edrington's mental illness did not prevent him from understanding the rules of his program, or the nature and consequences of his actions. Accordingly, in our estimation the district court did not abuse its discretion when it revoked Edrington's probation pursuant to W.R.Cr.P. 39 and reinstated his full sentence.
[¶ 12] Though the facts of Edrington and this case differ slightly, we are able to take away from Edrington its main message— that violating a main condition of one's probation is enough for revocation. Here, Reece contends that the actual terms of his probation failed to specify the required, and the prohibited, conduct. However, the probation order clearly stated that Reece "must successfully complete the WYSTAR Resident Treatment Program." Reece was aware that his completion of the program was a requirement of his continued probation and was aware that by failing to complete the program, he would violate the terms of his probation. Reece stated the following at his probation revocation hearing:
Also, Reece's...
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