Counts v. State

2008 WY 156, 197 P.3d 1280, 2008 Wyo. LEXIS 165, 2008 WL 5413162
CourtWyoming Supreme Court
DecidedDecember 31, 2008
DocketS-08-0095
StatusPublished
Cited by12 cases

This text of 2008 WY 156 (Counts v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Counts v. State, 2008 WY 156, 197 P.3d 1280, 2008 Wyo. LEXIS 165, 2008 WL 5413162 (Wyo. 2008).

Opinion

VOIGT, Chief Justice.

[T1] The appellant contends that his constitutional right to due process of law was violated when his probation was revoked without him having received adequate notice of the basis for that revocation, and without the district court having supervised his removal from a community corrections facility. Finding no error, we affirm.

ISSUE

[T2] Was the appellant's right to due process of law violated by revocation of his probation without adequate notice to him of the basis for such revocation or by the district court's failure to supervise his removal from a community corrections facility?

FACTS

[13] The appellant pled guilty to unlawful delivery of a controlled substance and on January 9, 2007, was sentenced to incarceration for a period of not less than 80 months and not more than 60 months. That sentence was suspended, however, and he was placed on supervised probation for a period of 36 months. One of the conditions of probation was the following:

4. That the Defendant shall enter and successfully complete the residential felony program at Community Alternatives of Casper (CAC). That the Defendant must apply to CAC within two (2) days.

[14] The appellant arrived at Community Alternatives of Casper (CAC) on February 25, 2007. He obtained employment at several businesses, eventually beginning work at an Old Chicago restaurant on July 24, 2007. On October 24, 2007, the appellant was "written up" on a disciplinary form containing the following allegation:

On [October 28, 2007] Resident Nicolas Counts # 169783-B was signed out to work, however when this Employment Coordinator conducted an on-site check it was discovered that he was not actually there and that he had been clocked out of work since 1916. Mr. Counts did not sign back into the Agency until 0018 on 10/24/2007, 5 hours unauthorized and unaccounted for by our staff at this facility, this is a direct *1282 violation of MJ47-Failure to return to the community corrections facility on or before the time specified in the schedule of the release plan. This includes failure to telephone the ACC as directed by staff when changing locations and absences from designated sign out locations without prior approval from staff. This has become a pattern for Mr. Counts, he received a conduct order on 05/21/07 and several staff-ings addressing failure to follow Agency policies and procedures, specifically for being in places without staff authorization. He has also had 2 prior staff reports of being unauthorized on 04/28/07 and 05/28/07. Most recently, Mr. Counts has received a couple of formal Notice of Charges, one MJ46-Failure to telephone the community corrections facility upon changing location or failure to remain in the particular area designated in pass/furlough/leave on 08/19/07 and a similar MJ47 on 09/17/07.

[15] The appellant was arrested and jailed until a disciplinary hearing was held on October 26, 2007. He was served with a copy of the allegations along with an outline of his administrative rights. A summary of the hearing indicates that the appellant presented the following explanation for his alleged absence from the restaurant:

Offender informs he was denied for his pass and called in to his work to verify his schedule for the day. He claims to have permission form [sic] his manager to have dinner with his mother on the clock. The offender even charged his meal to be taken for his pay, then he "Hung Out[.]" See Record for further details.

The hearing officers found no mitigating factors, found two aggravating factors-prior similar acts and planned misconduct-and ree-ommended termination from CAC. The notice terminating the appellant from CAC stated the following as the reason for termination:

Resident Counts, Nicolas, ID# 16973-B, was found guilty during formal disciplinary hearing Case # CO710-09-148, of unauthorized movement while in the community, with aggravating factors of a continued history of the same.

[16] On November 5, 2007, the State filed a Petition for Revocation and Request for Bench Warrant, to which was attached an Affidavit for Revocation of Probation and Request for Bench Warrant containing the following pertinent allegation:

1. That said Defendant, on October 26, 2007, was terminated from the felony program at Community Alternatives of Cas-per in violation of condition number four (4) of his Judgment and Sentence.

[T7] The appellant was afforded an initial appearance in regard to the petition on November 7, 2007, at which time bond was set and counsel was appointed. A revocation hearing scheduled for November 15, 2007, was continued at the request of the appellant's counsel. Eventually, at a hearing on January 8, 2008, the appellant admitted that he had been terminated from the CAC program, but contended that he could not defend himself against the revocation petition because the allegations therein were insufficiently specific, and because the discovery documents that had been provided to him covered too much time and too much conduct to narrow down the accusation. Based upon the appellant's admissions, the district court adjudicated the issue of the violation, ordered the discovery documents be made a part of the court record, and granted the parties leave to seek additional discovery and to file briefs and motions prior to a dispositional hearing.

[T8] A little over one week later, the appellant filed a demand that the State amend its petition to set forth the grounds upon which the appellant had been terminated from CAC and upon which the State would rely in seeking revocation of probation. The State responded with a memorandum of law, taking the position that the State was not required to prove anything beyond the appellant's termination from CAC.

[19] The dispositional hearing was held on February 22, 2008. The State relied generally upon the discovery documents that had been served upon the appellant, and specifically upon the termination report contained therein. The appellant argued that the State had not met the requirements of W.R.Cr.P. 39(a) that a petition for revocation of proba *1283 tion must set forth "the conditions of probation which are alleged to have been violated by the probationer and the facts establishing the violation." Further, the appellant argued that the State had failed to prove that the probation violation was willful.

[110] At the end of the hearing, the district court concluded that the appellant had violated probation by failing successfully to complete the CAC program. In reaching that conclusion, the district court relied not only upon the appellant's admission that he had been terminated from CAC, but also upon the CAC document that charged the Old Chicago incident, and upon the CAC documents showing the appellant's history at CAC. The court further concluded that the documents and hearing testimony proved that the probation violation was willful. The appellant's probation was revoked and the original sentence was re-imposed, with a ree-ommendation for "Boot Camp." 1

STANDARD OF REVIEW

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Bluebook (online)
2008 WY 156, 197 P.3d 1280, 2008 Wyo. LEXIS 165, 2008 WL 5413162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/counts-v-state-wyo-2008.