Robinson v. State
| Decision Date | 07 September 2016 |
| Docket Number | S–16–0003 |
| Citation | 378 P.3d 599,2016 WY 90 |
| Parties | Russell Robinson, Jr., Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Jonathan C. Coppom, Assistant Attorney General. Argument by Mr. Coppom.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
, Justice.
[¶1] Appellant Russell Robinson Jr. disagrees with a district court's decision to revoke his probation. He contends that the district court erred at both the adjudicatory and dispositional phases of the probation revocation process. We affirm the revocation and imposition of his sentences.
[¶2] Appellant raises three issues, which we have rephrased to more precisely reflect the record and determinations of the district court:
1. Did the district court abuse its discretion during the adjudicatory phase of the probation revocation hearings by concluding that Robinson had violated several conditions of his probation?
2. Was it plain error to receive hearsay evidence during the adjudicatory phase of the probation revocation process?
3. Did the district court err in not reinstating Robinson's probation during the dispositional phase of the probation revocation process?
[¶3] Pursuant to a plea agreement, Robinson pled no contest to one count of sexual battery, a misdemeanor, in violation of Wyo. Stat. Ann. § 6–2–313 (LexisNexis 2015)
and to one count of false imprisonment, also a misdemeanor, in violation of Wyo. Stat. Ann. § 6–2–203(a) (LexisNexis 2015). Because the plea was one of no contest, Robinson was not required to provide a factual basis himself.1
[¶4] Robinson was sentenced to one year incarceration on each count, to be served consecutively, but the district court suspended execution of that sentence in favor of one year of supervised probation on each count, which would result in two years of probation. The probation conditions of the judgment and sentence required Robinson to sign a probation agreement, remain employed, submit to a sex offender evaluation, and complete any subsequently recommended sex offender counseling.
[¶5] Robinson also signed a sex offender probation agreement with the Wyoming Department of Corrections. It contained greater detail concerning the conditions in the judgment and sentence. It stated in pertinent part that he would:
Robinson initialed each provision of the agreement, and signed it at the end.
[¶6] A few months later, the State filed a petition to revoke Robinson's probation. In support of the petition, an affidavit from Robinson's probation agent, Salli Perryman, was attached. The affidavit asserted, inter alia , that Robinson (1) “failed to report loss of employment to his [probation agent],” (2) “failed to submit to, participate in and pay for a polygraph examination” and (3) “failed to enroll in Sex Offender Treatment.” Robinson denied the allegations set forth in the petition.
[¶7] In accordance with W.R.Cr.P. 39(a)(5)
, an adjudicative hearing was held, and the State called Ms. Perryman as its only witness. She explained Robinson's failures concerning the sex offender evaluation, submitting to a polygraph test, and confirming his employment. With respect to Robinson's sex offender evaluation, Ms. Perryman testified:
[¶8] Because Robinson denied committing the offenses he had pled to, and could not therefore enroll in sex offender treatment, he was referred for a polygraph examination, as expressly provided for in the probation agreement. See supra , ¶5. Ms. Perryman explained:
[¶9] Ms. Perryman testified that she made three attempts to have Robinson take a polygraph, all of which were unsuccessful. On the first attempt, she provided Robinson notice of the appointment several days in advance; however, at the appointment Robinson said that he was in too much pain and could not stay because he had a doctor's appointment scheduled. As a result, the polygraph was rescheduled, and Ms. Perryman asked him to bring documentation showing that he did in fact have a medical appointment. Robinson never provided that documentation.
[¶10] At the second attempt, Robinson called the morning of the scheduled examination and left a message saying he was too sick to attend. Ms. Perryman asked him to provide documentation of medical services he received for his illness that day, which he never did.
[¶11] The polygraph was then rescheduled a third time. For two weeks Ms. Perryman tried to contact Robinson and confirm that he was indeed going to show up at the scheduled time and date. He never returned her calls. Two days before the scheduled appointment, Ms. Perryman went to his house to confirm the date and time. Robinson was home, and Ms. Perryman was able to speak with him and assure that he knew of the appointment. Robinson prophetically told her that he would be sick in two days and unable to take the polygraph at that time. Ms. Perryman asked for any kind of medical documentation regarding his approaching sickness, a request that went unfulfilled.
[¶12] In the end, Robinson did provide some emergency room documentation of his visits there, but those visits were on days other than when the polygraphs had been scheduled. In other words, he never provided medical documentation of illness on any of the three days he was scheduled to take the polygraph.
[¶13] With respect to Robinson's failure to maintain employment, Ms. Perryman testified that Robinson told her he was employed as the general manager at a grocery store. In accordance with her normal procedure, Ms. Perryman repeatedly requested proof of employment such as a pay stub or other documentation, which Robinson never provided. Because Robinson did not comply with the request, Ms. Perryman called the grocery store. She asked to speak with the human resources hiring manager, who informed her that they had never had an employee with Robinson's name.
[¶14] Based upon this evidence presented at the adjudicatory phase, the district court concluded that the State had proved the allegations in the petition by a preponderance of the evidence. Specifically, it determined Robinson had violated the terms of his probation because he failed to prove that he maintained employment and repeatedly failed to submit to a polygraph.2 The district court explained its decision as follows:
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