State v. Chavez

• Decision Date: 02 May 2000
• Docket Number: No. 25304/25305.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Fred Martinez CHAVEZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

1 P.3d 809

134 Idaho 308

STATE of Idaho, Plaintiff-Respondent, v. Fred Martinez CHAVEZ, Defendant-Appellant.

Nos. 25304/25305.

Court of Appeals of Idaho.

May 2, 2000.

Ismael Chavez, Caldwell, for appellant.

Hon. Alan G. Lance, Attorney General; Rebekah A. Cude, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

In this appeal, Fred Martinez Chavez challenges a district court order that revoked Chavez's probation and ordered execution of prison sentences. Chavez argues that the State's evidence did not prove the charged probation violations and that, even if such violations were established, it was an abuse of the trial court's discretion to revoke Chavez's probation. Chavez also asserts that his sentences are excessive. We conclude that the district court did not err in revoking probation, but we agree with Chavez's assertion that one of his sentences is unreasonably severe in view of all of the circumstances surrounding Chavez's offenses and his overall behavior while on probation.

FACTS AND PROCEDURAL HISTORY

In 1994, Fred Chavez was arrested for possession of methamphetamine, Idaho Code § 37-2732(c), possession of drug paraphernalia, I.C. § 37-2734A, and driving without privileges, I.C. § 18-8001. He pleaded guilty to the possession and driving without privileges charges in exchange for the dismissal of the paraphernalia charge. For the possession offense, the district court imposed a unified sentence of six years' incarceration, with two years determinate, but suspended the sentences and placed Chavez on probation for six years. For the misdemeanor offense of driving without privileges, Chavez received a sentence of one year's incarceration in the county jail, but the district court suspended eight months of this sentence and allowed Chavez to serve the remainder with work release privileges.

Approximately three months later, while on work release, Chavez failed to return to the jail at the end of his workday. He remained at large for approximately five months. Chavez was consequently charged in a separate case with escape, I.C. § 18-2505, and a probation violation report was filed in his first case. Chavez entered into a plea agreement for disposition of both the escape charge and the probation violation. He agreed to plead guilty to escape and to admit the probation violation, and the prosecutor agreed to recommend that Chavez be placed back on probation, subject to six to nine months' incarceration in the county jail. The plea agreement contained no recommendation as to the length of the underlying sentence which would be suspended.

A consolidated hearing was conducted for Chavez's sentencing on the escape offense and for disposition of the associated probation violation. At this hearing, Chavez presented evidence to explain the reason for his "walk away" escape from the work release program. Through his own testimony and that of several of his relatives, Chavez showed that he had absconded in order to be with his family and to protect them from threats of harm by individuals seeking revenge against Chavez's stepson. The stepson had previously testified for the State in the prosecution of a drug dealer. After giving this testimony, the stepson began receiving threats from members of the drug dealer's family or criminal organization. The stepson was approached by men in a parking lot who threatened to kill him in retribution for his testimony. Thereafter, they stalked the stepson and members of his family including the stepson's mother, Chavez's wife. These people were seen watching and photographing the homes of both the stepson and Chavez's wife, and the stepson's home was broken into. Then, while Chavez was serving his jail sentence, a group of men drove by his wife's residence and shot out a window on her vehicle. Chavez's stepson, who was himself on probation and therefore prohibited from leaving the state, requested of his probation officer that he be transferred to supervision in another state for his safety, but this request was denied. The stepson and his family also repeatedly sought help from the police and the prosecutor, but were told that there was little that could be done to protect them. According to Chavez's testimony, the incident in which his wife's vehicle was fired upon prompted him to abscond from jail in order to protect his family. Thereafter, Chavez and his wife, together with the stepson and his family, moved from motel to motel and to the residences of friends and family in an effort to avoid the men who were threatening them. This continued until Chavez was apprehended. The presentence investigation report concluded that "information from collateral contacts" indicated that the threats to Chavez's family had been real and that he was warranted in having concern for his family.¹

At the end of the sentencing hearing, the district court imposed a fixed five-year sentence for the escape offense. As required by I.C. § 18-2505(1), this sentence was made consecutive to Chavez's sentences for his earlier offenses. However, the district court followed the parties' recommendation in the plea agreement by suspending the sentence, placing Chavez on probation for escape, and reinstating his probation in the methamphetamine case.

Chavez thereafter served his probation without incident for nearly four years. Then, on November 12, 1998, a report of probation violations was filed alleging that Chavez had committed several breaches of his probation terms including changing his residence three times without prior permission from his probation officer, failing to make a monthly report to his probation officer, failing to maintain his employment, and failing to make restitution and supervision fee payments. Chavez denied these allegations.

At the probation violation hearing, Chavez's probation officer testified that Chavez did not make an in-person report or a written report for the month of October 1998 as required. When the probation officer sent a letter to Chavez at his last known residential address, Chavez's wife responded with a telephone call telling the probation officer that Chavez had moved out several weeks before and that she did not know his whereabouts. The probation officer then sought to contact Chavez at his place of employment but was told that Chavez had failed to report to work for the last two weeks. The probation officer also said that in February 1998 and May 1998, Chavez had changed residences, notifying the probation officer only after the fact instead of obtaining advance permission as required by his probation terms. The officer also testified that Chavez had been discharged from a previous job at a sugar factory and was in arrears on payment of supervision fees.

Chavez offered explanations for his behavior, stating that he had lost his sugar factory job and had been unable to continue to perform the duties in his subsequent employment because of a back injury, sustained in an automobile accident, which limited his ability to lift. He acknowledged having changed residences in February and May of 1998 without prior permission but described circumstances that he said required a sudden and unexpected move, and he stressed that he had notified his probation officer soon thereafter. With respect to his alleged October 1998 move, Chavez denied that he had made a change of residence but said he had only temporarily left his home, staying for a time with his father, because Chavez's wife had announced that she wanted a divorce. Chavez said he thought it necessary to leave the home temporarily in the hope that the marital strife would subside. Chavez admitted that he had not reported to his probation officer in October 1998 and that he was in arrears on the payment of probation supervision fees.

The district court found that Chavez had violated his probation terms by failing to report to his probation officer, changing residences without permission, losing his employment for excessive absences, and failing to pay supervision fees. The court revoked Chavez's probation and ordered into execution the original unified six-year sentence with a two-year minimum term for the possession of methamphetamine and the consecutive five-year determinate sentence for escape.

Chavez thereafter filed a motion for reduction of his sentences and submitted therewith medical records to verify his assertion that a back injury had necessitated his absences from his prior employments. The motion was denied by the district court.

Chavez now appeals, asserting that the district court's finding of probation violations is not supported by the evidence, that it was error for the district court to revoke probation, and that the district court abused its discretion by failing to reduce Chavez's sentences upon revocation of probation.

ANALYSIS

In a probation revocation proceeding, the district court must address three issues:

First, was a condition of probation actually violated? Ordinarily, this is a question of fact. Second, does the violation justify revoking the probation? This is a question addressed to the judge's sound discretion. Third, and finally, if probation is revoked, what prison sentence should be ordered? Specifically, if a prison sentence previously has been pronounced but suspended, should that sentence be ordered into execution or should the court order a reduced sentence as authorized by I.C.R. 35? This question, too, is one of discretion.

State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct.App.1989). Chavez challenges the district court's decision on each of these three issues.

A. Sufficiency of the Evidence of a Probation Violation.

We conclude that Chavez's first assertion, that the district court erred in finding that Chavez had violated his probation, is without merit. A finding of a probation violation will be upheld on appeal if the finding is supported by substantial competent evidence in the record. State v. Lafferty, 125 Idaho 378,...