State v. Yost

• Decision Date: 27 January 2016
• Docket Number: 2016 Unpublished Opinion No. 346,Docket No. 43313
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. JESS WADE YOST, Defendant-Appellant.
• Court: Idaho Court of Appeals

STATE OF IDAHO, Plaintiff-Respondent, v. JESS WADE YOST, Defendant-Appellant.

Docket No. 43313

2016 Unpublished Opinion No. 346

COURT OF APPEALS OF THE STATE OF IDAHO

January 27, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Jerome County. Hon. John K. Butler, District Judge.

Order revoking probation, affirmed.

Sara B. Thomas, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgenson, Deputy Attorney General, Boise, for respondent.

____________________

HUSKEY, Judge

Jess Wade Yost appeals from the order revoking probation, and for the first time on appeal, he argues this order violates his constitutional rights to equal protection and due process because the district court revoked probation due to his indigent status. For the reasons set forth below, we affirm.

I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Yost engaged in a sexual relationship with a minor child, videotaped the interaction, and posted the video to Internet sites. Yost was charged and pleaded guilty to sexual battery of a minor child. The district court imposed a twenty-five-year sentence, with five years determinate. Yost served a period of retained jurisdiction and was placed on supervised probation for a period of ten years. After approximately nine months on supervised probation, the State filed a report of probation violations alleging Yost had been discharged from sex-offender treatment, had utilized the internet, and had viewed pornography. Yost entered admissions to those allegations, and the matter was set for disposition. The first disposition hearing was continued by the district court to allow Yost an opportunity to re-enter the sex-offender treatment program. Yost had been discharged from sex-offender treatment because he failed to stay current with the financial requirements of the treatment provider and failed to attend treatment sessions after his account was placed on hold for lack of payment. The district court allowed Yost additional time to make the necessary payments and attend the necessary treatment sessions.

At the second disposition hearing, Yost again argued that he should be placed on probation. Yost argued that despite the fact that he was employed and often had the money saved to pay for his treatment sessions, his inconsistent attendance at treatment should be excused because he had other financial obligations. In revoking probation, the district court stated:

The Court is very concerned about the nature of the violation. The Court, after the admissions were entered, did subsequently hold disposition open for purposes of allowing the defendant to come into compliance with the terms and conditions. Certainly, the Court does understand the financial concerns; however, given the nature of the underlying offense, if the defendant does not have the financial ability to fully and completely participate in sex offender treatment, as required in the community, certainly that treatment is available in the correctional setting and financial ability does not interfere.

It does appear that while Mr. Yost did get re-engaged and began again attending in April of this year that even then, he missed three of the eight groups. There's still an indication, as of June 4, 2015, that the defendant has not scheduled his individual sessions and has not participated in the required maintenance polygraphs.

The district court revoked Yost's probation and imposed the sentence, after reducing the determinate portion of the sentence to three years. Yost appeals the order revoking his probation.

II.ANALYSIS

Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.

Here, the constitutional rights at issue are Yost's due process and equal protection rights. Yost contends that he was denied equal protection of the law and his due process rights were violated because the district court revoked his probation on the basis that Yost was unable to pay for that treatment. We have recognized the United States Supreme Court "has long been sensitive to the treatment of indigents in our criminal justice system, because there can be no equal justice where the kind of trial a man gets depends on the amount of money he has." State v. Braaten, 144 Idaho 606, 608, 167 P.3d 357, 359 (Ct. App. 2007) (quoting Bearden v. Georgia, 461 U.S. 660, 664 (1983) and Griffin v. Illinois, 351 U.S. 12, 19 (1956) (plurality opinion)). However, the Court also provided that "a balancing test that includes elements of due process analysis and elements of equal protection must be applied to determine whether a criminal defendant's indigence may permissibly affect the sentence." Id. The "appropriate question is whether consideration of a defendant's financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process." Id. (quoting Bearden, 461 U.S. at 666 n.8).

It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. Idaho Code §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett,122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan, 153...