Opinion
Docket No. 34032.
Filed May 8, 2008.
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. R. Barry Wood, District Judge. Order revoking probation, reversed.
Molly J. Huskey, State Appellate Public Defender; Sara B. Thomas, Chief, Appellate Unit, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Christopher Allen Sanchez appeals from the district court order revoking his probation. We conclude that the minor probation violation that he was found to have committed did not justify revocation of Sanchez's probation, and we therefore reverse.
I. BACKGROUND
Sanchez was charged with two counts of aggravated battery, Idaho Code §§ 18-903,-907(b), for stabbing two people, as well as several misdemeanors related to his scuffling with and giving false information to law enforcement officers and his possession of marijuana and drug paraphernalia. When these charges were incurred, Sanchez was on parole from the state of California as a result of convictions there for vandalism and corporal injury to a spouse. He had absconded from that parole by coming to Idaho. Sanchez also had an extensive record of prior crimes in California, including misdemeanor convictions for battery, burglary, telephone harassment, and drug possession offenses, and felony convictions for inflicting corporal injury on a spouse, stalking, and vandalism.
In the present case, Sanchez ultimately entered into a plea agreement pursuant to Idaho Criminal Rule 11(f)(1)(C) by which it was agreed that he would plead guilty to one count of aggravated battery and would receive a suspended sentence and be placed on probation. The agreement was made with the expectation that California authorities would revoke Sanchez's parole and require that he serve the California sentence. The district court accepted the plea agreement, imposed a unified sentence of fifteen years with ten years determinate, and suspended the sentence, placing Sanchez on probation. The district court specifically conditioned Sanchez's probation upon the revocation of his parole in California and imprisonment there. Sanchez was also ordered to maintain employment, to report to his probation officer as directed, and to provide truthful and accurate documentation whenever requested by the Idaho Department of Correction. Upon Sanchez's return to California, that state imposed nine months of imprisonment for the parole violation, with credit for about eight months that he was jailed in Idaho. As a result, Sanchez was again released on parole after approximately one month.
At his California parole officer's direction, Sanchez began residing at an intensive halfway house in California. Because he was again on parole, his Idaho probation officer instructed Sanchez to pay $100 to activate an interstate compact that would transfer his supervision for the Idaho probation to California authorities. He also instructed Sanchez to telephone him on a weekly basis until this occurred.
The State of Idaho subsequently petitioned the district court to revoke Sanchez's probation, alleging that he failed to maintain weekly contact with his Idaho probation officer, failed to maintain employment, failed to pay restitution, and absconded from a treatment program in California. Two hearings were held on these allegations. The first was a probation violation hearing to determine whether the alleged violations occurred. This hearing was conducted before a district judge other than the judge who had handled sentencing. At the violation hearing, Sanchez's Idaho probation officer testified that he was aware that Sanchez was living in the California halfway house because he had received weekly telephone calls from Sanchez for a short period of time. He also received a telephone call from a third party on Sanchez's behalf, but these calls soon ceased. After the telephone calls stopped, the Idaho probation officer made one attempt to contact Sanchez at the halfway house, but was unable to reach Sanchez at the time he called. The Idaho probation officer also contacted Sanchez's California parole officer on several occasions. He testified that the California parole officer indicated that Sanchez had "absconded treatment," and later told him that Sanchez was re-incarcerated in California. The Idaho probation officer also noted that Sanchez had not paid the $100 fee to complete the interstate compact transfer. Although the probation officer acknowledged that payment of the interstate compact fee was not an express term of Sanchez's probation, the State argued that it was implicit as a part of the term requiring that he report to his probation officer as directed.
At this same hearing, Sanchez testified that he attempted to find work after being paroled, but his opportunities were severely limited because his California parole officer required Sanchez to attend classes from 8 a.m. to 3 p.m. five days a week. Sanchez testified that he was able to make contact with his Idaho probation officer on several occasions, but because he was unemployed, he ultimately had no funds to make long-distance telephone calls. For the same reason, he was unable to pay the $100 interstate compact fee. Sanchez admitted that he violated his California parole on one occasion by returning to the halfway house after curfew one evening, but explained that the violation did not result in revocation of his parole. He admitted that after he had been living in the halfway house for a few months, the state of California revoked his parole for a period of seven months. He said that this occurred when he dropped out of a required batterer's rehabilitation program because he was unable to afford the $30 fee for each session. This, he said, is what gave rise to the charge that he had "absconded treatment" in California. Sanchez also placed in evidence a parole revocation record from California that confirmed his explanation that his parole was revoked for not attending a batterer's treatment program and confirmed that he was otherwise in good standing at the halfway house.
Sanchez's Idaho probation officer testified that it was his understanding, based upon conversations with the California parole officer, that Sanchez had absconded from supervision by California authorities, but this testimony is contradicted by the California parole records; and at the subsequent disposition hearing, the prosecutor acknowledged that Sanchez's only parole violations in California were one curfew violation and failure to complete the batterer's program.
In an oral ruling at the conclusion of the hearing, the district court found that Sanchez had violated the terms of his probation by failing to maintain adequate contact with his probation officer and by failing to complete steps to activate the interstate compact as instructed. In a subsequent written order, however, the court omitted the finding regarding the interstate compact, perhaps concluding that completing the compact was not a term of Sanchez's probation.
In a subsequent disposition hearing, the original sentencing judge again presided. At that hearing, defense counsel informed the court that Sanchez's mother had delivered to counsel a money order for the $100 needed to activate the interstate compact and transfer Sanchez's supervision to California. Defense counsel urged that the court reinstate probation conditioned upon an additional period of incarceration in the Gooding County jail until procedures to activate the interstate compact could be completed. The district court elected, however, to revoke Sanchez's probation and execute the original sentence based upon the other judge's written finding that Sanchez had violated a probation term by failing to maintain adequate contact with his probation officer. The district court also mentioned that it had initially placed Sanchez on probation in the belief that his California parole would be revoked and he would be incarcerated there for a long term. Sanchez now appeals the revocation of his probation.
The record does not disclose whether the judge at the disposition hearing had reviewed a transcript or listened to a recording of the violation hearing, or relied solely upon the other judge's written finding of a violation.
II. ANALYSIS
Consistent with principles of due process, a court may revoke probation only upon a finding that the probationer violated the terms of probation. Douglas v. Buder, 412 U.S. 430 (1973); State v. Blake, 133 Idaho 237, 243, 985 P.2d 117, 123 (1999); State v. Prelwitz, 132 Idaho 191, 968 P.2d 1100 (Ct.App. 1998). See also Idaho Code §§ 19-2603, 20-222. The State bears the burden of providing satisfactory proof of a violation, though proof beyond a reasonable doubt is not required. State v. Kelsey, 115 Idaho 311, 314, 766 P.2d 781, 784 (1988); Prelwitz, 132 Idaho at 194, 968 P.2d at 1103. A finding of a probation violation must be on verified facts, and the trial court's exercise of discretion must be informed by an accurate knowledge of the probationer's behavior. State v. Tracy, 119 Idaho 1027, 1028, 812 P.2d 741, 742 (1991). If a probation violation has been proven, the decision whether to revoke probation is within the sound discretion of the court. Blake, 133 Idaho at 243, 985 P.2d at 123; State v. Done, 139 Idaho 635, 636, 84 P.3d 571, 572 (Ct.App. 2003). We review this decision for an abuse of discretion. State v. Wilson, 127 Idaho 506, 510, 903 P.2d 95, 99 (Ct.App. 1995). On appellate review, our inquiry centers on whether the district court acted within the boundaries of its discretion and consistent with any applicable legal standards, and reached its decision by an exercise of reason. State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct.App. 1994).
Here, the evidence of a probation violation, failing to make weekly telephone calls to Sanchez's probation officer, is uncontroverted. The question presented on appeal, therefore, is not whether a violation occurred but whether the violation justified revoking Sanchez's probation.
An initial inquiry is whether the violation was willful. Unless the State shows a willful violation, it is fundamentally unfair for the court to revoke probation without first considering whether adequate alternative methods are available to punish the defendant and protect society. State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003); State v. Leach, 135 Idaho 525, 529, 20 P.3d 709, 713 (Ct. App. 2001); State v. Hall, 114 Idaho 887, 761 P.2d 1239 (Ct.App. 1988). This limitation on the trial court's discretion is constitutionally based, as established by Bearden v. Georgia, 461 U.S. 660 (1983), where the United States Supreme Court reviewed the revocation of a defendant's probation because he was unable to pay a fine and restitution after being laid off from his job. Applying principles of due process and equal protection, the United States Supreme Court said:
If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. . . . Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.
Id. at 668-69. See also Lafferty, 125 Idaho 378, 870 P.2d 1337 (record insufficient to show a willful probation violation for being terminated from a halfway house when defendant was physically unable to perform the work that the halfway house operators required of residents).
In this case, neither the judge who presided at the violation hearing nor the judge who revoked Sanchez's probation made an express finding that his failure to maintain weekly contact with his Idaho probation officer was willful. Sanchez's own testimony indicated that this noncompliance was not willful but stemmed from his indigence, which was attributable in large measure to his inability to obtain work because California parole authorities required his attendance at numerous rehabilitative classes. This explanation is not implausible and was not controverted by the State. Therefore, although the State proved a violation, it did not prove a willful one. Consequently, revocation would be appropriate only if the court first concluded that no available alternatives would be adequate to punish Sanchez and protect society.
Even if we assume, however, that the district court implicitly found the violation to be willful and that such a finding is a reasonable inference from the evidence presented, we find the violation that occurred here to be inadequate to justify the revocation of Sanchez's probation. Probation may not be revoked arbitrarily. State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct.App. 1989). The purpose of probation is to provide an opportunity for rehabilitation under proper control and supervision. State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977); State v. Peterson, 123 Idaho 49, 50-51, 844 P.2d 31, 32-33 (Ct.App. 1992). Thus, in determining whether to revoke probation a court must consider whether probation is meeting the objective of rehabilitation while also providing adequate protection for society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct.App. 1995); State v. Williams, 126 Idaho 39, 42, 878 P.2d 213, 216 (Ct.App. 1994).
Ordinarily, a violation of the sort proved here — failure to maintain contact with a probation officer as directed — would support a determination that the defendant was not cooperating with rehabilitation efforts or submitting to the supervision that is necessary to adequately protect society, and therefore would justify a revocation of probation. But this is no ordinary case. Although Sanchez did not make weekly telephone calls as directed, so far as revealed by the record his probation officer at all times knew Sanchez's location and how to contact him; Sanchez never evaded supervision; and Sanchez was constantly either imprisoned or closely supervised in a halfway house in California. At the time his Idaho probation was revoked, he was back in prison in California. In explaining its decision to revoke probation, the district court expressed an understanding that after being paroled in California Sanchez "does not stay in the halfway house, has reporting problems there, apparently." This understanding is not supported by the evidence for, as noted above, Sanchez consistently resided at the halfway house, his only rule violation being that he returned after curfew on one occasion. Under these unique circumstances, Sanchez's failure to make weekly telephone calls, even if not adequately explained by his indigence, was not a probation violation that prevented adequate supervision or raised significant doubt about the efficacy of Sanchez's probation to serve its rehabilitative purpose or provide adequate protection for society.
Because the $100 needed to transfer supervision to California had been made available by the time of the disposition hearing, the need for Sanchez to make long distance telephone calls to his Idaho probation officer could have been eliminated if his probation had been continued.
The result here might be different if attendance of the batterer's class in California had been a condition of Sanchez's Idaho probation, but it was not, and his failure to attend that class was not alleged by the prosecutor as a basis for revoking the Idaho probation. Further, the evidence is unclear as to whether his dropping the class was willful or was a result of his indigency.
On the record presented, we conclude that the district court did not apply governing legal standards when it revoked Sanchez's probation. Therefore, the district court's order revoking Sanchez's probation is reversed.
Chief Judge GUTIERREZ CONCURS.
I respectfully dissent. Having absconded from parole out of California, Sanchez was charged here in Idaho with two counts of aggravated battery; possession of a controlled substance, marijuana; possession of drug paraphernalia; obstructing and resisting an officer; and two counts of providing false information to law enforcement. The underlying offenses stem from Sanchez's stabbing of two individuals in a bar parking lot, scuffling with police officers upon his arrest, and then giving two false identifications in law enforcement's attempt to ascertain who he was.
The parties entered into an I.C.R. 11 plea agreement wherein Sanchez pled guilty to one count of aggravated battery and the remaining counts were dismissed. As part of this agreement, the sentence imposed by the district court was suspended and Sanchez was placed on probation to be returned to California. This was done in spite of Sanchez's extensive criminal history which spans over a decade and includes two previous felony convictions. His record includes burglary, battery, stalking, vandalism, harassing phone calls, threaten crime with intent to terrorize, and drug offenses. Justification for this lenient treatment by the district court originally was at least, in part, Sanchez's pending parole revocation in California and his complete lack of ties and support system in Idaho which would make probation here inappropriate.
Within five months of Sanchez receiving probation a report of violation was filed on October 20. In that report, the department alleged that Sanchez had not made weekly contact with his probation officer as required since August 3 or approximately eight weeks; had not maintained employment; had not made restitution payments to the victims; had not completed the Interstate Compact to officially transfer his probation to California authorities; and had absconded from his batterer's class treatment program. A hearing was held, and the district court found that Sanchez had violated his probation only by failing to maintain weekly contact with his probation officer. A disposition hearing was held at which time the district court imposed the previously suspended sentence. Sanchez appealed.
The majority begins with the premise that, although the evidence was uncontroverted and although the state proved a violation, it did not prove a willful one. With that premise, I disagree. That determination is not dispositive, however, because the majority further concludes that the violation that did occur is inadequate to justify revocation of Sanchez's probation. A holding with which, once again, I disagree.
Probation may not be revoked arbitrarily. State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct.App. 1989). The purpose of probation is to provide an opportunity for rehabilitation under proper control and supervision. State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 (1977); State v. Peterson, 123 Idaho 49, 50, 844 P.2d 31, 32 (Ct.App. 1992). Thus, in determining whether to revoke probation, a court must consider whether probation is meeting the objective of rehabilitation while also providing adequate protection for society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct.App. 1995). The district court may consider the defendant's conduct both before and during the probationary period. State v. Roy, 113 Idaho 388, 392, 744 P.2d 116, 120 (Ct.App. 1987).
The majority limits its view to the one probation violation found and does not consider Sanchez's conduct both before and during the probationary period. The district court, on the other hand, viewed the totality of the circumstances and found continued probation inappropriate. It did so in a well-reasoned analysis. The district court stated:
The court's well aware of the legal question presented, and that is whether or not the probation violation merits or warrants revocation.
I would say that in my experience, the weight or gravity to be attached to a particular probation violation can vary between individuals, depending upon the history and background and character of the individual.
In other words, if we have someone, just to use an example, if we have someone in jail or on probation who has a felony DUI record, if that person drinks, that is of significantly greater consequence than someone who is on probation that has no substance abuse problem that drinks a can of beer.
The weight to be ascribed to that same exact conduct is, in my view, significantly different.
Here we have a defendant who has a history of violence, history of drug dealing, a history of failing to report, absconding in California, who gets a sentence out of this court suspended on the promise that he would be incarcerated in California; is not incarcerated in — goes down there, gets incarcerated for a brief period, gets paroled.
Paroled by those folks to a halfway house. Does not stay in the halfway house, has reporting problems there, apparently. But I know he has them here, because Judge Hurlbutt has found that.
And while on its face may appear to be a technical violation, in my view and finding and, in the exercise of discretion, is a far greater violation. I would have to find, Mr. Sanchez, that you're not supervisable in this community.
Therefore, I disagree with the conclusion the district court did not apply the correct legal standard. The court exercised its discretion with sound judgment.
Although the majority concedes that "ordinarily" failing to maintain contact would justify revocation, this is "no ordinary case." In my view, this is no "unique circumstance." Probations are routinely transferred through the Interstate Compact from one state to another. It is entirely upon the probationer to strictly comply with the order to maintain contact until that transfer is completed. The affirmative duty and responsibility to abide by all of the terms of probation falls squarely upon the probationer. The district court is not a babysitter, and the probation officer is not a handler. Simply because authorities can discover through other means and sources the whereabouts of the probationer does not relieve the probationer of his or her obligations. To even suggest such a position is astounding.
Idaho appellate courts have long-adhered to the standard that, upon review of a sentence, the issue before the Court is not whether the sentence is one that we would have imposed, but whether the sentence is plainly excessive under any reasonable view of the facts. State v. Burdett, 134 Idaho 271, 279, 1 P.3d 299, 307 (Ct.App. 2000); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App. 1982). If reasonable minds might differ as to whether the sentence is excessive, we are not free to substitute our view for that of the district court. Burdett, 134 Idaho at 279, 1 P.3d at 307; Toohill, 103 Idaho at 568, 650 P.2d at 710. The same should be true for the discretionary decision of what sanction is chosen upon the revocation of probation. That the majority would not have imposed the sentence but, rather, attempted to continue Sanchez's probation in California under other terms does not make the district court's decision arbitrary. Whether the facts of this case could have also supported a different disposition does not establish that the district court abused its discretion.
In conclusion, the district court considered the totality of the circumstances and, although not a term of probation, the district court was correct in looking at Sanchez's nonattendance of the batterer's class, noncompletion of the Interstate Compact, and his overall general performance before and during probation in determining whether continued probation would be appropriate. Accordingly, the only arbitrary action I can deduce in Sanchez's case is the majority's result-driven reversal of the district court's decision. Therefore, I respectfully dissent.