Summary 2007 WY 204

Summary of Decision issued December 18, 2007

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Case Name: Neidlinger, Jr. v. State

Citation: 2007 WY 204

Docket Number: 06-292, S-07-0062

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Diane Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Senior Assistant Attorney General.

Issue: Whether the trial court’s revocation of probation on the grounds that Appellant would not admit to sexual misconduct in treatment, despite the fact that he had entered a no contest plea, was an abuse of discretion.

Facts/Discussion: In this consolidated appeal, Appellant challenged the order of the district court revoking his probation and sentencing him to a term of incarceration.
Standard of Review: The Court reviews a trial court’s decision to revoke probation under an abuse of discretion standard.
Appellant did not present any argument directly challenging the legality of his conviction and sentence underlying the appeal in Docket No. 06-292 therefore the Court affirmed in all respects the original Judgment and Sentence entered.
The Court agreed with Appellant that admission of criminal conduct was not a probationary requirement. The condition at issue simply required Appellant to submit to and pay for a sex offender evaluation by a sex offender counselor approved of by the probation agent. The Court found he complied with that condition of probation. By requiring Appellant to admit to criminal conduct as part of the evaluation, the district court extended the probationary condition beyond its express language. The Court also noted there was no indication in the record that Appellant was ever advised he would have to admit to criminal conduct in order to fulfill that condition. Appellant’s failure to admit to criminal conduct cannot be considered a willful violation of a condition of probation.

Holding: The Court summarily affirmed Appellant’s conviction in Docket No. 06-292 because he did not present any argument directly challenging that conviction. The Court reversed the order of the district court revoking Appellant’s probation and re-imposing the original sentence and remanded.

Reversed and remanded.

J. Golden delivered the opinion.

Link: http://tinyurl.com/2zkjd5 .