Sena v. State

• Decision Date: 06 November 2019
• Docket Number: S-19-0026
• Citation: 451 P.3d 1143
• Parties: Michael Angelo SENA, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

451 P.3d 1143

Michael Angelo SENA, Jr., Appellant (Defendant),

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

S-19-0026

Supreme Court of Wyoming.

November 6, 2019

Representing Appellant: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Samuel Williams, Assistant Attorney General.

Before FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ., and DEEGAN, D.J.

BOOMGAARDEN, Justice.

[¶1] Michael Angelo Sena, Jr. appeals the district court’s order revoking his probation in Docket 33-549 and imposing sentence. Mr. Sena contends that the court did not have authority to revoke his probation because the probation violation did not "occur[ ] during the probationary period," as required by Wyoming Statute § 7-13-305(c). He also contends that, even if the court had authority to revoke his probation, it abused its discretion because there was no evidence to support a finding that he violated the probation condition willfully. We affirm.

ISSUES

[¶2] Mr. Sena raises two issues, which we rephrase as:

1. Did the district court have authority to revoke Mr. Sena’s probation?

2. If the district court had authority, did the court abuse its discretion when it revoked Mr. Sena’s probation?

FACTS

[¶3] Mr. Sena’s probation revocation proceedings in Docket 33-549 are closely related to his probation revocation proceedings in Docket 32-612. The same district court judge presided over both cases and held several combined hearings as the cases became increasingly intertwined. Consequently, we discuss facts pertaining to both cases, beginning with Docket 32-612.

[¶4] In June 2015, the State charged Mr. Sena in Docket 32-612 with failing to report a change of address to law enforcement within three days, in violation of Wyoming’s sex offender registration statutes. Mr. Sena reached a plea agreement with the State and pled guilty to that offense. The court sentenced him to three to five years, suspended execution of the sentence, and placed him on probation for three years.

[¶5] Nearly two years later, at the end of March 2017, the State filed a petition to revoke Mr. Sena’s probation because, as of March 23, he "ha[d] not made any payments on his restitution"; "ha[d] not returned any calls from [his Probation and Parole Agent] and had a no call/no show for his office visit"; his whereabouts were unknown; and he had not completed "his UA call in’s sanction."

[¶6] Two days after the State filed the petition, the State charged Mr. Sena in Docket 33-549 with failing to report a change of address to law enforcement, subsequent offense, in violation of Wyoming’s sex offender registration statutes. Mr. Sena reached a plea agreement with the State in which he agreed to plead no contest to the charge and admit to violating his probation in Docket 32-612.

[¶7] Approximately one year later, in May 2018, the court held a combined probation revocation and sentencing hearing. In Docket 32-612, the court revoked Mr. Sena’s probation and reinstated the three-year probation term. In Docket 33-549, the court sentenced Mr. Sena to three to five years, suspended in favor of three years of probation, to "run consecutive[ ] to the probationary sentence set forth in 32-612."

[¶8] The following month, the State filed a petition to revoke Mr. Sena’s probation in both cases based on his conduct between June 13 and 15. In Docket 32-612, the State alleged that Mr. Sena committed three probation violations:

1. On or about June 15, 2018 said Defendant admitted to consuming alcohol on this date as well as consuming alcohol on June 14, 2018.

....

2. On or about June 13, 2018 said Defendant provided a positive [Blood Alcohol Content] sample of .103%. Said Defendant left the Cheyenne Field Office after providing this sample and being instructed not to leave the office.

....

3. Said Defendant reported false employment to his probation agent.

[¶9] In Docket 33-549, the State alleged Mr. Sena committed one violation:

1. The Defendant’s whereabouts were unknown from June 13, 2018 until his arrest on June 15, 2018.

[¶10] Several months later, the court held a combined probation revocation hearing in which it addressed all four allegations. At the hearing, the court read each allegation to Mr. Sena and he admitted each allegation. After Mr. Sena admitted the allegation in Docket 33-549 that his "whereabouts were unknown from June 13th to 15th, 2018," the court found "just given the nature of the allegations and the fact that [Mr. Sena is] under oath, [he] has provided a factual basis for most of the allegations." The only allegation about which the court asked follow-up questions of Mr. Sena was the false employment allegation because the Probation and Parole Agent’s affidavit did not include the date on which he committed that violation.

[¶11] The court revoked Mr. Sena’s probation in both cases and imposed the underlying consecutive sentences of three to five years. Mr. Sena filed a timely notice of appeal in both cases, but voluntarily dismissed his appeal in Docket 32-612.

DISCUSSION

I. The district court had authority to revoke Mr. Sena’s probation in Docket 33-549.

[¶12] In his first issue, Mr. Sena argues that the district court did not have subject matter jurisdiction or authority to revoke his probation in Docket 33-549 because his probation violation did not "occur[ ] during the probationary period" under Wyoming Statute § 7-13-305(c). He maintains that because the court ordered he serve his probation in Docket 33-549 consecutive to his probation in Docket 32-612—and he was still serving probation in Docket 32-612 when he committed the probation violation at issue—it could not revoke his probation in Docket 33-549. We conclude that the court had the necessary statutory authority to revoke Mr. Sena’s probation.

[¶13] "Whether the district court had the authority to revoke probation is a question of law which we review de novo ." DeMillard v. State , 2014 WY 105, ¶ 8, 332 P.3d 534, 536 (Wyo. 2014) (citation omitted).¹ "A trial court’s authority over probation, like all sentencing functions, comes from the legislature." Harada v. State , 2016 WY 19, ¶ 16, 368 P.3d 275, 280 (Wyo. 2016) (citations omitted). "By statute, probation is defined as ‘a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if he violates the conditions.’ " Id. ¶ 17, 368 P.3d at 281 (quoting Wyo. Stat. Ann. § 7-13-401(a)(x) (LexisNexis 2015)). "The governing statutes flesh out the sentencing court’s authority to revoke or modify probation." Id.

[¶14] To determine whether the district court had authority to revoke Mr. Sena’s probation under Wyoming Statute § 7-13-305(c), "we apply our usual rules of statutory interpretation: ‘Our paramount consideration is the legislature’s intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.’ " Phoenix Vintners, LLC v. Noble , 2018 WY 87, ¶ 15, 423 P.3d 309, 313 (Wyo. 2018) (quoting Spreeman v. State , 2012 WY 88, ¶ 10, 278 P.3d 1159, 1162 (Wyo. 2012) ).

[¶15] If we determine a statute is ambiguous, meaning that it is "vague or uncertain and subject to varying interpretations," id. (quoting Brock v. State ex rel. Wyoming Workforce Servs., Unemployment Ins. Div. , 2017 WY 47, ¶ 8, 394 P.3d 460, 462–63 (Wyo. 2017) ), "we apply general principles of statutory construction ‘to construe any ambiguous language to accurately reflect the intent of the legislature.’ "

Matter of Estate of Frank , 2019 WY 4, ¶ 8, 432 P.3d 885, 887 (Wyo. 2019) (citation omitted). "We ‘read the statutes together, and construe statutes relating to the same subject in harmony.’ " Id. (citation omitted).

[¶16] Wyoming Statute § 7-13-305(c) addresses the commencement of probation revocation proceedings and states:

For a violation of a condition of probation occurring during the probationary period, revocation proceedings may be commenced at any time during the period of suspension of sentence or probation under W.S. 7-13-302, or within thirty (30) days thereafter, in which case the court may issue a warrant and cause the defendant to be arrested. If after hearing the court determines that the defendant violated any of the terms of probation or suspension of sentence, the court may proceed to deal with the case as if no suspension of sentence or probation had been ordered.

Wyo. Stat. Ann. § 7-13-305(c) (LexisNexis 2019).²

[¶17] Using the conjunction "or", § 7-13-305(c) identifies three alternative time periods in which probation revocation proceedings may commence "[f]or a violation of a condition of probation occurring during the probationary period[.]" Id. First, the statute provides that, "[f]or a violation of a condition of probation occurring during the probationary period, revocation proceedings may be commenced at any time during the period of suspension of sentence ... under W.S. 7-13-302 [.]" Id. (emphasis added). Second, the statute provides that, "[f]or a violation of a condition of probation occurring during the probationary period, revocation proceedings may be commenced at any time during the period of ... probation under W.S. 7-13-302 [.]" Id. (emphasis added). And third, the statute permits the court to commence proceedings "[f]or a violation of a condition of probation occurring during the probationary period, ... within thirty (30) days [after the period of suspension of sentence or probation under W.S. 7-13-302 ]." Id . (emphasis added). In sum, § 7-13-305(c) allows a court to commence probation revocation proceedings before, during, and after that window of time during which an offender is actually serving his probationary sentence, provided that the...