State v. Russell
| Decision Date | 12 August 1992 |
| Docket Number | No. 19621,19621 |
| Citation | 122 Idaho 488,835 P.2d 1299 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Charles Richard RUSSELL, Defendant-Appellant. Pocatello, May 1992 Term |
| Court | Idaho Supreme Court |
Larry EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.
This appeal arises from an order of the district court revoking the defendant Charles Russell's probation and denying his I.C.R. 35 motion for reduction of sentence. 1 Russell appealed the district court order, and the Court of Appeals reversed the district court's revocation of Russell's probation. The State then filed a petition for review of the Court of Appeals decision, which this court granted.
Russell pled guilty to two counts of obliterating the vehicle identification numbers on snowmobiles in June, 1988, and was sentenced to two concurrent five-year terms. Execution of the sentences was suspended, and Russell was placed on probation. Russell violated several of the conditions of his probation, and the district court revoked his probation in August, 1989, at the same time amending the sentences down to one year fixed and three years indeterminate, which he commenced serving. The court retained jurisdiction for 180 days.
On February 27, 1990, at the end of the retained jurisdiction period, the court brought Russell back and again placed him on probation, including as a condition of that probation that Russell "not contact his wife in any fashion." However, the court allowed Russell to go to his wife's home to pick up some of his personal belongings if he was accompanied by a "responsible adult." That same day Russell went with his lawyer to his wife's home when she was not present, broke in through the back door of the garage, splintering the door casing, and obtained certain of his personal belongings. The next day, at Russell's request, his stepfather telephoned Russell's wife, asking her to speak with Russell regarding their taxes, automobile insurance, and other documents.
The district court was informed of Russell's contact with his wife and ordered him into court on March 3, 1990, to determine if he had violated his probation. At the end of the hearing the trial court revoked his probation and ordered the remainder of the suspended sentence to be served. Russell later filed a motion to reconsider his probation revocation. The trial court treated this motion as a Rule 35 motion for reduction of sentence and, after a hearing, denied the motion. Russell appealed the trial court's decision.
On appeal, the Court of Appeals reversed the district court's order revoking Russell's probation, holding that the condition of probation prohibiting him from contacting his wife was unreasonable. 2 The State filed Preliminarily, regarding our standard of review, when this Court reviews a decision of the Court of Appeals, we give consideration to the ruling of the Court of Appeals, but make an independent appellate review of the trial court's decision. Rice v. Hill City Stock Yards, 121 Idaho 576, 826 P.2d 1288 (1992); Sato v. Schossberger, 117 Idaho 771, 792 P.2d 336 (1990). If substantial and competent, though conflicting, evidence supports the trial court's findings of fact, we will uphold those findings on appeal. Rice v. Hill City Stock Yards, supra; MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 701 P.2d 208 (1985).
[122 Idaho 490] this petition for review. 3
Russell argues that the condition of probation that he not "contact his wife in any fashion" was unreasonable. In rebuttal, the State argues that Russell failed to raise the issue at either the probation hearing in which the condition was imposed or at the probation revocation hearing, and therefore Russell cannot now raise it on appeal. We have recently reiterated that issues not raised before the trial court will not be considered on appeal. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991). A review of the record discloses that Russell did not raise the issue of the reasonableness of the condition either when it was imposed or at the violation of probation hearing. The only issue raised was whether his actions violated the terms of the probation. Accordingly, Russell's claim on appeal that the term of probation that he not contact his wife was unreasonable has not been preserved. State v. Martin, supra. The Court of Appeals decision concluding otherwise is vacated.
Russell nevertheless argues that, aside from his reasonableness claim, there was insufficient evidence for the trial court to revoke his probation. Specifically, he argues that the condition that he not "contact his wife in any fashion" was vague and that he thought it meant only that he could not speak to her personally. Russell also argues that his asking his stepfather to telephone his wife did not warrant the trial court's decision to revoke his probation. The trial court, exercising its discretion, concluded otherwise. We find no abuse of discretion. State v. Hooper, 119 Idaho 606, 809 P.2d 467 (1991); State v. Barton, 119 Idaho 114, 803 P.2d 1020 (Ct.App.1991) (). The trial court explicitly stated to Russell that Mark Branson, a probation officer, testified at the probation violation hearing:
In light of Mr. Branson's testimony and the trial court's specific statement to Russell that he not contact his wife "in any fashion," we conclude that Russell should reasonably have known that when he asked his stepfather to call his wife he was violating the court's order.
The trial court had ample opportunity to determine whether Russell was an appropriate candidate for continued probation. His probation had been revoked once before for numerous violations. He had been before the court many times. Throughout Russell's various court proceedings, the trial court repeatedly remarked that he had an extremely poor attitude and that he had been "defiant to all kinds of authority," "resistive to the probation officer," and that he had "argued with the Court." The trial court was able to judge Russell's demeanor throughout these proceedings. After noting that Russell had an extremely poor attitude, the court considered the threat to society if Russell continued to be released on probation. He looked at Russell's previous actions while on probation, understandably concluding that Russell would be likely to violate any probation conditions in the future, given his past record. 4 In view of these facts, we hold that the trial court did not err in revoking Russell's probation.
Russell contends that the trial court improperly based its decision to revoke his probation on the court's previous concerns with Russell and on the method in which Russell broke into his wife's house to get his personal belongings. Russell's past behavior and his method of entry into his wife's house were factors which the trial court was entitled to consider in determining how to exercise his discretion in the revocation proceeding.
In the process of determining whether a grant of probation is appropriate ..., the trial court necessarily must be permitted to evaluate a broad range of information about the defendant's personality. This information may be gathered from many sources.... Very little information about a defendant will be irrelevant to the effort of the law to individualize treatment of convicted persons.
State v. Moore, 93 Idaho 14, 17, 454 P.2d 51, 54 (1969). In that same case, the Court stated:
In a determination of the appropriateness of a grant of probation, the trial court must consider the defendant's "previous character and actions, * * * [his prospects for] abid[ing] by the terms of his probation and * * * [for] rehabilita[ion,] and * * * the interests of society." The primary consideration has been stated to be the "good order and protection of society."
State v. Moore, 93 Idaho 14, 17, 454 P.2d 51, 54 (1969), quoting State v. Moore, 78 Idaho at 359, 363, 304 P.2d 1101-1103.
Next, Russell argues that the trial court erred in denying his Rule 35 Motion. The Court of Appeals held:
I.C.R. 35 permits the filing of such a motion "upon revocation of probation." The trial court revoked Russell's probation on March 2, 1990. Russell did not file his Rule 35 motion until March 9, 1990. The motion was untimely, and absent any special circumstances or any misleading conduct on the part of the government which could explain the delay, the trial court has no jurisdiction to entertain the motion. (Citation omitted.) Thus, the trial court did not err in denying the motion.
We agree. "When a reduction of a sentence is sought upon revocation of probation, the motion must be made at...
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