Monday, December 08, 2008

Summary 2008 WY 142

Summary of Decision issued November 5, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Sharp v. State

Citation: 2008 WY 142

Docket Number: S-08-0064

Appeal from the District Court of Crook County, Honorable Dan R. Price, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.

Issues: Whether the district court erred in concluding that the State proved, by a preponderance of the evidence, that Appellant willfully violated the terms and conditions of his probation. Whether Appellant’s sentence was illegal because the trial court imposed fees for medical expenses which are not authorized by law; and, because of a clerical error, Appellant was sentenced under the incorrect subsection?

Holdings: Revocation of probation is largely governed by W.R.Cr.P. 39. The State is required to establish the violation of the conditions of probation alleged in the petition by a preponderance of the evidence. The probationer has the right to appear in person and by counsel and to confront and examine adverse witnesses, and the rules of evidence apply to the adjudicative phase. A district court's decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. The district court's determination that the probation agreement has been violated must be based upon verified facts and must be made pursuant to due process protections. In addition, in order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must be willful, or, if not willful, must presently threaten the safety of society.

Appellant contends that a defendant’s mental illness could render his violation of the terms of his probation not willful. Appellant asserts that he suffered from mental and emotional problems and, as a consequence, he did not act of his own free will or that he was not competent when he left the treatment center, and when he refused to take his medication on that same date. Appellant also asserts that his ability to act willfully was overborne by the distress he felt because he had been refused a furlough to attend his daughter’s funeral. However, the district court had available to it the testimony given at the revocation hearing, including that of Appellant himself, as well as several psychological/psychiatric evaluations of Appellant that were based on recent observation and testing. The thrust of Appellant’s testimony was that he was not being given the right kind of treatment and that he had been denied a furlough to attend the funeral of his daughter, and so he refused his medication and then left the SCS program without having successfully completed it. In these factual materials there is an abundance of evidence that supports the district court’s conclusions, and only a trifle of testimony from Appellant himself that would support a finding that he did not act willfully. Indeed, throughout these proceedings Appellant displayed a penchant for acting impetuously and willfully whenever he found himself in circumstances that were not to his liking. It can only be concluded that the district court did not abuse its discretion in revoking Appellant’s probation and that its findings are supported by a preponderance of the evidence.

A sentence in excess of that authorized by the legislature is illegal and is a matter that is reviewed de novo. The evidence to support the “costs” in the present action is insubstantial and informal. The record does not include any mention of the source of authority for imposing these costs on Appellant. The State’s principal answer to this contention is that the sentencing court has the authority to impose such costs on non-indigent prisoners. Wyo. Stat.§ 18-6-303(f) (2007). However, the record on appeal will support only a conclusion that Appellant was indigent. Both Wyo. Stat. Ann. §§ 7-13-107(e) and 7-13-411(e) suggest that the Department of Corrections is responsible for such expenses. From the record extant, there is no basis in law or fact for imposing those costs on Appellant and, hence, they constitute an illegal sentence as contemplated by our applicable precedents.

The parties agree that the district court erroneously recited § 6-2-502(a)(iii), rather than the correct statutory citation, § 6-2-502(a)(iv), in both the original sentence and in the order revoking probation, and that those clerical errors should be corrected.

The order revoking Appellant’s probation is affirmed in part. That portion of the order which imposes costs to be paid by Appellant to Crook County is reversed. The matter is remanded to the district court to amend the revocation order accordingly and to correct the clerical errors identified above as they appear in both the original judgment and in the order revoking probation.

J. Hill delivered the opinion for the court.

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