State Of Idaho v. Allen
| Decision Date | 11 January 2011 |
| Docket Number | 2011 Unpublished Opinion No. 317,Docket No. 37140 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. JAMES ANDREW ALLEN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
Order revoking probation and requiring execution of sentences, affirmed.
Nevin, Benjamin, McKay & Bartlett LLP; Deborah A. Whipple, Boise for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
James Andrew Allen appeals from the district court's order revoking his probation and executing the previously imposed sentences. We affirm.
A jury found Allen guilty of rape, attempted rape, and intimidating a witness, arising from his actions towards T.H., a woman with whom he had an intermittent romantic relationship over the course of eight years. The district court imposed a unified sentence of ten years with two years determinate for the rape conviction and concurrent unified sentences of five years with one year determinate for the two remaining convictions. The court suspended the sentences and retained jurisdiction.
Less than two months later, the court was notified that Allen was not making progress in the retained jurisdiction program because he was refusing to participate in sex offendertreatment. The court conducted a status conference where it directed Allen to resume participation in the program. Following the period of retained jurisdiction, the court suspended execution of Allen's sentences and placed him on probation for ten years.
Within a few weeks, the state filed a report alleging probation violations, specifically that Allen had violated his curfew, had violated the no-contact order with the victim, and had failed to comply with his electronic monitoring agreement. The state filed an addendum alleging that according to GPS data, Allen had been in the "exact vicinity" of the victim's car during the time it was vandalized. Allen thereafter entered into a stipulation admitting to violating probation by initiating contact with the victim, and in exchange the state agreed to withdraw the remaining allegations. The parties further agreed that the appropriate disposition would be for the court to leave Allen on probation with the additional condition that he immediately transfer supervision to the state of Louisiana and not return to Idaho without written permission of the court.
Through an interstate compact, Allen's probation was transferred to Louisiana. The terms of the transfer required that Allen comply with the conditions of supervision placed on him by both Idaho and Louisiana, and specified that failure to comply with such terms and conditions would be considered a probation violation.
Several months later, Allen attended a scheduled meeting with his Louisiana probation officer where he was given a "random drug screen." After two tests administered in the office came back positive for cocaine, Allen was arrested. Pursuant to Louisiana procedure, a "preliminary hearing" was held during which Allen admitted to drug use and a hearing officer concluded that there was probable cause to believe that Allen had violated his probation by testing positive for cocaine, failing to obtain gainful and regular employment where he had been working for his family's business but was not "on the books," and failing to attend sex offender treatment on three different occasions. The state of Idaho then filed a report of violation in Idaho, alleging these three violations. Allen was returned to Idaho and the district court held an evidentiary hearing. At the conclusion of the hearing, the court found substantial reliable evidence that Allen had violated his probation as alleged, revoked his probation, and ordered the suspended sentences executed. Allen now appeals the revocation of his probation and, in the alternative, the court's failure to reduce the underlying sentences when ordering their execution.
Allen argues that the district court erred in revoking his probation upon the court's findings that Allen had violated the "gainful employment" and drug use conditions of his probation. Specifically, he contends the court erred because: (1) he did not violate the "gainful" employment condition of his probation where he had been working for his family's business; (2) that even if he did violate the employment clause, the court erred in revoking probation on that basis without first considering alternatives to revocation; (3) his right to confront witnesses was violated "when evidence of the drug screening test given in Louisiana was admitted without allowing [him] to confront the anonymous male officer who supervised the collection of the urine samples"; and (4) the evidence that Allen violated his probation by using drugs was insufficient. Overall, Allen contends that because two of the three violations found by the district court were erroneous, the case must be remanded for the district court to determine whether revocation of probation continues to be appropriate.1
In reviewing a probation revocation proceeding, we use a two-step analysis. State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009); State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003). First, we ask whether the defendant violated the terms of his probation. Knutsen, 138 Idaho at 923, 71 P.3d at 1070. A district court's finding of a probation violation will be upheld on appeal if there is substantial evidence in the record to support the finding. Sanchez, 149 Idaho at 105, 233 P.3d at 36; State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct. App. 1994). This first step involves a wholly retrospective factual question. Morrissey v. Brewer, 408 U.S. 471, 479 (1972);Sanchez, 149 Idaho at 105, 233 P.3d at 36. To comply with the principles of due process, a court may revoke probation only upon evidence that the probationer has in fact violated the terms or conditions of probation. Sanchez, 149 Idaho at 105, 233 P.3d at 36; Lafferty, 125 Idaho at 381, 870 P.2d at 1340. In the event of conflicting evidence, we will defer to the district court's determinations regarding the credibilityof witnesses. Sanchez, 149 Idaho at 105, 233 P.3d at 36; Knutsen, 138 Idaho at 923, 71 P.3d at 1070.
If it is determined that the defendant has in fact violated the terms of his probation, the second question is what should be the consequence of that violation. Knutsen, 138 Idaho at 923, 71 P.3d at 1070. The determination of whether a probation violation has been established is separate from the decision of what consequence, if any, to impose for that violation. Sanchez, 149 Idaho at 105, 233 P.3d at 36;State v. Thompson, 140 Idaho 796, 799, 102 P.3d 1115, 1118 (2004). A district court's decision to revoke probation will not be overturned on appeal absent a showing that the court abused its discretion. Sanchez, 149 Idaho at 105, 233 P.3d at 36;Lafferty, 125 Idaho at 381, 870 P.2d at 1340. In reviewing the court's discretionary decision, we conduct an inquiry to determine whether the court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with the applicable legal standards, and reached its decision by an exercise of reason. Sanchez, 149 Idaho at 105-06, 233 P.3d at 36-37; Knutsen, 138 Idaho at 923, 71 P.3d at 1070.
One applicable legal standard the district court must utilize in determining whether to revoke probation is based upon whether the violation was willful or non-willful:
If a knowing and intentional probation violation has been proved, a district court's decision to revoke probation will be reviewed for an abuse of discretion. However, if a probationer's violation of a probation condition was not willful, or was beyond the probationer's control, a court may not revoke probation and order imprisonment without first considering alternative methods to address the violation.
Sanchez, 149 Idaho at 106, 233 P.3d at 37 (quotingState v. Leach, 135 Idaho 525, 529, 20 P.3d 709, 713 (Ct. App. 2001)). Where a violation is determined to be non-willful, only if the trial court determines that alternatives to imprisonment are not adequate in a particular situation to meet the state's legitimate interest in punishment, deterrence, or the protection of society, may the court imprison a probationer who has made sufficient, genuine efforts to obey the terms of the probation order. Leach, 135 Idaho at 529, 20 P.3d at 713.
Allen contends that the court erred in finding that he had violated his probation by using drugs because admission of evidence relating to the drug screening test violated his state and federal constitutional rights to confrontation and, in the alternative, there was not sufficientcredible evidence to find that he had violated the conditions of his probation by using drugs. Thus, he contends, there was not reliable evidence that he had used drugs.
Allen asserts that the federal and state constitutions guarantee the right to confront witnesses in probation hearings, and his right to do so was violated where evidence of the results of the drug screening test given in Louisiana was admitted without allowing him to confront the "anonymous male officer" who supervised the collection of the urine samples. Therefore, Allen contends, admission of the evidence relating to the drug screening test should not have been admitted.
Probationers do not enjoy the full panoply of constitutional protections afforded criminal defendants. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007). See also Gagnon v. Scarpelli, 411 U.S. 778,...
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