Summary 2009 WY 146

Summary of Decision issued December 1, 2009

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

Case Name: Forbes v. State

Citation: 2009 WY 146

Docket Number: S-08-0278

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Forbes: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Justin A. Daraie, Student Intern; Christopher J. King, Student Intern.

Facts/Discussion: Forbes pled guilty to two counts of third-degree sexual abuse of a minor. The district court imposed concurrent sentences of six to eight years, but suspended those sentences and placed Forbes on supervised probation. Subsequently, the State moved to revoke the probation. The district court, after a hearing, revoked probation and imposed the underlying sentence.

Probation revocation proceedings are governed by W.R.Cr.P. 39. A probation violation will not justify revocation unless the violation was willful. The Court reviewed the district court’s finding that Forbes willfully violated a condition of his probation by having a woman and her minor son in his hotel room (his home.) As a condition of his probation, Forbes was ordered not to “initiate, maintain or establish contact” with any minor child. Although it was unclear how contact with the minor was initiated, the district court found Forbes did not terminate contact as required. According to testimony, Forbes was instructed that having the child in the room was a violation. Despite that, the mother and child were again in the room when the probation officer returned with law enforcement.
Forbes contended his actions were justified because they were necessary to prevent the woman and child from spending the night on the street. The Court stated it was unclear whether the defense of necessity was available to defend a violation of probation. In the instant case, there was insufficient evidence to establish the defense. The record showed the district court considered the circumstances of the incident in determining the consequences for the violation.
The Court considered whether the trial court committed reversible error when it did not permit Forbes to allocate at the probation revocation hearing. Although Wyoming has long recognized the right of a defendant to speak in mitigation at sentencing, it has not faced the question of whether a probationer has a right to allocute at a probation revocation hearing. W.R.Cr.P. 39 is silent regarding a defendant’s right to allocute. Forbes cited Anderson to support his claim that the allocution provision of W.R.Cr.P. 32(c)(1)(C) should apply in probation revocation proceedings. In Anderson, the defendant was not sentenced until her probation was revoked; in the instant case, Forbes was challenging a probation revocation proceeding governed by W.R.Cr.P. 39. The Court noted the split of authority on the issue and recommended the Advisory Committee for the Wyoming Rules of Criminal Procedure address the question.

Conclusion: In the instant case and in light of W.R.Cr.P. 39’s silence, the Court could not find that the district court erred in failing to offer allocution to Forbes.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yjejypd .

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