Summary 2006 WY 141

Summary of Decision issued November 3, 2006

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Case Name: Messer v. State

Citation: 2006 WY 141

Docket Number: 05-236

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Deputy Attorney General.

Issue: Whether the State or the defendant has the burden of proof at a probation revocation hearing. Whether the State proved that Appellant willfully violated the terms of his probation.

Holding: Appellant was sentenced by the district court to a term of 18 to 24 months imprisonment, which sentence was suspended and a “split” sentence was imposed of 6 months in county jail followed by 24 months of supervised probation. On September 7, 2004, the State filed a petition to revoke Appellant’s probation. In December 2004, the district court denied this petition because the State failed to prove that Appellant had willfully violated the terms of his probation. The State next filed a petition heard in July 2005. At the conclusion of the hearing, the district court reviewed the evidence and concluded that the State had proven each of the allegations by a preponderance of the evidence. Appellant’s probation was revoked and the sentence of 18 to 24 months was re-imposed with credit for days served.
Standard of Review: Revocation of probation is largely governed by court rule W.R.Cr.P. 39. The State is required to establish violation of the conditions of probation alleged in the petition by a preponderance of the evidence. A district court’s decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion.
Burden of Proof: The district court’s full statement showed that it recognized and applied the correct burden of proof.
Willfully: The district court summation clearly shows that the judge inferred from the evidence that the violations were willful. The Court has held previously that such inference is appropriate where the evidence warrants. The Court carefully examined the evidence and concluded the district court did not abuse its discretion in finding the probation violations were willful. Furthermore, given the district court’s denial of the first petition on the ground that willfulness had not been proven, it was clear that the district court treated willfulness as an element that required proof.

Affirmed.

J. Voigt delivered the decision.

Link to the case: http://tinyurl.com/ygffwy .