State v. Saavedra, 1172

• Decision Date: 28 May 1987
• Docket Number: No. 1172,1172
• Citation: 406 N.W.2d 667
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Mario E. SAAVEDRA, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 667

406 N.W.2d 667

The STATE of North Dakota, Plaintiff and Appellee, v.Mario E. SAAVEDRA, Defendant and Appellant.

Crim. No. 1172.

Supreme Court of North Dakota.

May 28, 1987.

Wayne D. Goter, Asst. State's Atty., Mandan, for plaintiff and appellee.

Bickle, Coles & Snyder, Bismarck, for defendant and appellant; argued by James J. Coles.

LEVINE, Justice.

Mario E. Saavedra appeals from a criminal judgment revoking his probation.We affirm.

Pursuant to a formal plea agreement, Saavedra pleaded guilty to the felony of gross sexual imposition.Under the plea agreement, imposition of sentence was to be deferred for two years during which time Saavedra would abide by the rules and regulations of the Board of Pardons and Parole, commit no criminal violations and submit to an evaluation and complete any prescribed treatment.The trial court accepted the plea agreement and incorporated these conditions into its order deferring imposition of judgment and sentence.The trial court also ordered Saavedra to sign a probation agreement with the probation officer, stating:

"You will be subject to the rules and regulations of the Board of Pardons and Parole, a whole book, in effect.You will also be required to sign an agreement, in effect, a contract, with the parole officer.Those rules and regulations, if you violate them, it's the same as if I had announced that regulation here in court.I adopt them.I know what they say.I know what the agreement is.Indeed, I helped write the agreement."

Two weeks later, Gary Masching, Saavedra's probation officer, filed a petition for revocation of probation on the grounds that Saavedra failed to sign a probation agreement.At the revocation hearing, Saavedra testified that he was then willing to sign the probation agreement and abide by its terms.The trial court declined to revoke Saavedra's probation.

About two months later, Masching filed a second petition for revocation of Saavedra's probation.At the revocation hearing, the trial court found that Saavedra violated the terms of his probation agreement by failing to provide a urine sample when requested to do so by Masching.The court revoked Saavedra's probation and sentenced him to forty-five days in the county jail.Saavedra appeals from the criminal judgment and commitment and raises three issues:

I

Whether the trial court's finding that Saavedra violated a condition of his probation is supported by a preponderance of the evidence; and, if so, whether such violation warrants revocation.

II

Whether Saavedra's probation may be revoked given the manner in which the conditions of his probation were imposed.

III

Whether the trial judge was so biased and prejudiced against Saavedra that he should have recused himself from hearing the second revocation proceeding.

I.

Saavedra argues that the trial court's finding that he violated a condition of his probation by failing to provide a urine sample when requested to do so by Masching was clearly erroneous because the violation is not shown by a preponderance of the evidence.Even if supported by sufficient evidence, Saavedra claims the violation is not serious enough to justify revocation of his probation.

While we have stated that our standard of review of a probation revocation is an abuse of discretion, revocation proceedings really encompass a two-step analysis which requires a bifurcated review on appeal.First, we must review the trial court's factual determination that the defendant violated the terms of his probation, and then the trial court's discretionary determination that the violation warrants revocation.

Under the first prong of the analysis, the prosecution has the burden of establishing a violation by a preponderance of the evidence.State v. Altringer, 388 N.W.2d 864, 865(N.D.1986).Generally, the preponderance of the evidence standard of proof applies in civil cases where we review fact findings under the clearly erroneous standard.However, we have also applied the clearly erroneous standard in criminal cases when reviewing fact findings made by the trial court.See, e.g., State v. Padgett, 393 N.W.2d 754, 757(N.D.1986);State v. Olmstead, 246 N.W.2d 888, 890(N.D.1976).Accordingly, we will review a trial court's factual finding of a violation of probation under the clearly erroneous standard.

A finding of fact is clearly erroneous when, although there may be evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.City of Fargo v. Case Development Co., 401 N.W.2d 529, 531(N.D.1987).In reviewing factual determinations we do not re-examine findings of fact decided by the trial court upon conflicting evidence; nor do we appraise the credibility of witnesses.SeeBuzzell v. Libi, 340 N.W.2d 36, 39(N.D.1983).These are functions of the trial court and we will not substitute our judgment for that of the trial court when there is testimony to support its findings.Buzzell v. Libi, supra.

At the second revocation hearing, Masching testified that he requested Saavedra to provide a urine sample for a drug test and gave Saavedra two opportunities to comply, but Saavedra did not comply with the first request and did not show up for a second appointment.Saavedra claims that Masching did not make an appointment for a second test.The trial court apparently believed Masching's testimony, an appraisal we will not second-guess.We conclude that the trial court's finding that Saavedra violated a condition of his probation by failing to submit to a drug test is not clearly erroneous.

Once a violation of a condition of probation is established, the trial court is authorized to revoke an order suspending a sentence or an order suspending the imposition of a sentence, or to continue probation on the same or different conditions.Rule 32(f)(2)(iii),North Dakota Rules of Criminal Procedure.Because the decision to revoke or to continue probation is discretionary with the trial court, we review the trial court's decision to revoke under the abuse of discretion standard.State v. Altringer, supra.

Saavedra argues that because Masching was not justified in requesting a drug test, violation of this condition does not warrant revocation.However, the trial court found that Masching's request was reasonable and that Saavedra was no longer a suitable candidate for probation.We are not persuaded that the trial court abused its discretion in revoking Saavedra's probation.

II.

Saavedra next argues that the trial court unlawfully delegated to a probation officer the authority to enlarge or modify the conditions of probation by allowing Masching to complete a probation agreement ¹ without explicit directions from the court.We agree.

The Legislature has given the trial court the authority to prescribe conditions of probation under a deferred imposition of sentence.North Dakota Century Code Sec. 12-53-13.However, in this case, instead of itself setting the terms of probation, the trial court ordered Saavedra to obey the conditions encompassed within a probation agreement, the development of which the trial court had worked on and the terms of which it knew.The problem is that while ten of the terms and conditions of the agreement are standard, nine are optional.In this case, it was the probation officer, not the court, who decided which of the nine optional conditions should apply to Saavedra.At issue is violation of one of these optional conditions, the submission to drug testing when requested by a probation officer.

While there may be no problem with the trial court's relying on and ordering a pre-established standardized list of probation terms, seeState v. Pike, 49 Or.App. 67, 618 P.2d 1315(1980), we believe it is unauthorized and unlawful for the trial court to allow a probation officer to pick and choose among optional terms of probation contained within that agreement.It is the trial judge, and not the probation officer, who is authorized under our statutory scheme to establish conditions of probation.

Section 12-53-13, NDCC, gives a sentencing judge wide discretion in imposing conditions for a deferred imposition of sentence.State v. Kottenbroch, 319 N.W.2d 465, 474(N.D.1982).Section 12-53-13, NDCC, provides:

"When a defendant has been found guilty of a crime, whether or not for the first time, the court having jurisdiction thereof, upon application or its own motion may, in its discretion, suspend the imposing of the sentence and may direct that such suspension continue for a definite period of time, upon such terms and conditions as it may determine...."[Emphasis supplied.]

The Legislature has also given the court discretion in imposing conditions of probation under NDCC Sec. 12.1-32-07.²State v Kottenbroch, supra.Section 12.1-32-07 allows the court to fashion any probation requirements it deems necessary to insure that the defendant will lead a law-abiding life.State v. Bohl, 317 N.W.2d 790, 796(N.D.1982).The list of conditions under Sec. 12.1-32-07 is not exclusive and the imposition of these conditions is purely a matter of judicial discretion so as to allow a judge to tailor conditions to meet particular facts and circumstances in any given case.State v. Perbix, 331 N.W.2d 14, 18(N.D.1983).

Section 12.1-32-07, NDCC, applies when the defendant is "sentenced to probation."In this case, the court deferred imposition of sentence and placed Saavedra on probation pursuant to Sec. 12-53-14, NDCC.We have acknowledged there is a difference between a sentence to probation when execution of sentence is deferred and placing a defendant on probation when imposition of sentence is deferred.State v. Siegel, 404 N.W.2d 469(N.D.1987);John v. State, 160 N.W.2d 37(N.D.1968).However, NDCC Sec. 12-53-14 provides that a defendant"placed on probation" under a deferred imposition of sentence is subject to the same rules and regulations as applied to persons "sentenced to...