State v. Castro, No. 33452.

• Court: United States State Supreme Court of Idaho
• Writing for the Court: Horton
• Citation: 177 P.3d 387,145 Idaho 173
• Parties: STATE, of Idaho, Plaintiff-Respondent, v. Benjamin CASTRO Jr., Defendant-Appellant.
• Decision Date: 25 January 2008
• Docket Number: No. 33452.

177 P.3d 387 145 Idaho 173 STATE, of Idaho, Plaintiff-Respondent,
v.
Benjamin CASTRO Jr., Defendant-Appellant. No. 33452. Supreme Court of Idaho, Boise, January 2008 Term. January 25, 2008.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Eric Fredericksen argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica Lorello argued.

[177 P.3d 388]

HORTON, Justice.

Benjamin Castro Jr. appeals from the district court's memorandum decision and order, which continued a previous no contact order. Castro asserts that the district court erred in failing to either vacate or modify his no contact order as the order does not specify a date upon which it will expire. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August of 2003, Castro was on felony probation for possession of methamphetamine when he struck his pregnant wife Maritza in the stomach and hit her in the face and head until she lost consciousness. The attacks occurred in front of their one-year-old daughter. Castro and Maritza were separated at the time and living in different dwellings. Following the attacks, however, Castro confined Maritza to his parents' house, where he was also living. He forbade Maritza to venture outside and would cover her mouth if she screamed. After an informant reported the crime to Castro's probation officer, police responded to the residence. When Maritza came to the door, officers observed she bore two black eyes. She told the police she was pregnant and bleeding and that Castro would not let her go to the hospital. Police arrested Castro and took Maritza to the hospital. Castro was charged with felony domestic battery in the presence of a child, second degree kidnapping, and two counts of unlawful possession of a firearm.

At Castro's arraignment, the magistrate, pursuant to I.C. § 18-920, issued an order which prohibited Castro from contact with Maritza. Consistent with the version of I.C.R. 46.2 then in effect, the no contact order stated in relevant part, "[t]his order can only be modified by a judge and will remain in effect until further order from the court."

Pursuant to a plea agreement, Castro pled guilty to felony domestic battery in the presence of a child in violation of I.C. §§ 18-903 and 18-918 in exchange for the State agreeing to dismiss the remaining charges. The district court imposed an eight-year prison sentence, with two years fixed.

I.C.R. 46.2 was amended, effective July 1, 2004. The amendment removed the requirement for the inclusion of the language "[t]his order can only be modified by a judge and will remain in effect until further order from the court," and added a new requirement that no contact orders must provide that "the order will expire at 11:59 p.m. on a specific date."

While Castro was serving his sentence, his second daughter was born to Maritza. Maritza made a pro se motion to have the no contact order vacated or modified so she could bring her daughters to visit their father in prison. A hearing on this motion was held on July 16, 2004. The district court stated that it would terminate the no contact order if Maritza could get a letter from her counselor saying that it was in the best interest of the children to visit their father in prison. At the hearing, the prosecutor informed the district court that the amendment to I.C.R. 46.2 required an expiration date on all no contact orders, noting that Castro's lacked an expiration date. Castro was not represented by counsel at this hearing and did not address the issue of lack of an expiration date. The district court stated that, unless the no contact order was terminated sooner, it would set a date for the expiration of the no contact order eighteen years in the future to assure that the daughters had reached the age of majority. Maritza apparently did not provide the requested letter, as no further action was taken on her motion.

On December 10, 2004, Castro filed a pro se motion to vacate and set aside the no contact order "to enable him and his wife to begin mending and healing the family unit of which they are the heads." Castro submitted letters and documents in support of his motion. Maritza...