State v. Russell

835 P.2d 1299, 122 Idaho 488, 1992 Ida. LEXIS 146
CourtIdaho Supreme Court
DecidedAugust 12, 1992
Docket19621
StatusPublished
Cited by22 cases

This text of 835 P.2d 1299 (State v. Russell) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Russell, 835 P.2d 1299, 122 Idaho 488, 1992 Ida. LEXIS 146 (Idaho 1992).

Opinions

BAKES, Chief Justice.

This appeal arises from an order of the district court revoking the defendant Charles Russell’s probation and denying his I.C.R. 35 motion for reduction of sentence.1 Russell appealed the district court order, and the Court of Appeals reversed the district court’s revocation of Russell’s probation. The State then filed a petition for review of the Court of Appeals decision, which this court granted.

Russell pled guilty to two counts of obliterating the vehicle identification numbers on snowmobiles in June, 1988, and was sentenced to two concurrent five-year terms. Execution of the sentences was suspended, and Russell was placed on probation. Russell violated several of the conditions of his probation, and the district court revoked his probation in August, 1989, at the same time amending the sentences down to one year fixed and three years indeterminate, which he commenced serving. The court retained jurisdiction for 180 days.

On February 27, 1990, at the end of the retained jurisdiction period, the court brought Russell back and again placed him on probation, including as a condition of that probation that Russell “not contact his wife in any fashion.” However, the court allowed Russell to go to his wife’s home to pick up some of his personal belongings if he was accompanied by a “responsible adult.” That same day Russell went with his lawyer to his wife’s home when she was not present, broke in through the back door of the garage, splintering the door casing, and obtained certain of his personal belongings. The next day, at Russell’s request, his stepfather telephoned Russell’s wife, asking her to speak with Russell regarding their taxes, automobile insurance, and other documents.

The district court was informed of Russell’s contact with his wife and ordered him into court on March 3,1990, to determine if he had violated his probation. At the end of the hearing the trial court revoked his probation and ordered the remainder of the suspended sentence to be served. Russell later filed a motion to reconsider his probation revocation. The trial court treated this motion as a Rule 35 motion for reduction of sentence and, after a hearing, denied the motion. Russell appealed the trial court’s decision.

On appeal, the Court of Appeals reversed the district court’s order revoking Russell’s probation, holding that the condition of probation prohibiting him from contacting his wife was unreasonable.2 The State filed [490]*490this petition for review.3

Preliminarily, regarding our standard of review, when this Court reviews a decision of the Court of Appeals, we give consideration to the ruling of the Court of Appeals, but make an independent appellate review of the trial court’s decision. Rice v. Hill City Stock Yards, 121 Idaho 576, 826 P.2d 1288 (1992); Sato v. Schossberger, 117 Idaho 771, 792 P.2d 336 (1990). If substantial and competent, though conflicting, evidence supports the trial court’s findings of fact, we will uphold those findings on appeal. Rice v. Hill City Stock Yards, supra; MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 701 P.2d 208 (1985).

Russell argues that the condition of probation that he not “contact his wife in any fashion” was unreasonable. In rebuttal, the State argues that Russell failed to raise the issue at either the probation hearing in which the condition was imposed or at the probation revocation hearing, and therefore Russell cannot now raise it on appeal. We have recently reiterated that issues not raised before the trial court will not be considered on appeal. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991). A review of the record discloses that Russell did not raise the issue of the reasonableness of the condition either when it was imposed or at the violation of probation hearing. The only issue raised was whether his actions violated the terms of the probation. Accordingly, Russell’s claim on appeal that the term of probation that he not contact his wife was unreasonable has not been preserved. State v. Martin, supra. The Court of Appeals decision concluding otherwise is vacated.

Russell nevertheless argues that, aside from his reasonableness claim, there was insufficient evidence for the trial court to revoke his probation. Specifically, he argues that the condition that he not “contact his wife in any fashion” was vague and that he thought it meant only that he could not speak to her personally. Russell also argues that his asking his stepfather to telephone his wife did not warrant the trial court’s decision to revoke his probation. The trial court, exercising its discretion, concluded otherwise. We find no abuse of discretion. State v. Hooper, 119 Idaho 606, 809 P.2d 467 (1991); State v. Barton, 119 Idaho 114, 803 P.2d 1020 (Ct.App.1991) (“Once a probation violation has been proved, the decision to revoke probation and pronounce sentence is within the sound discretion of the trial court.”). The trial court explicitly stated to Russell that “you will not contact your wife in any fashion. You will not go onto her premises or into her dwelling without any exceptions.” Mark Branson, a probation officer, testified at the probation violation hearing:

THE COURT: Did you have any discussions with [Russell] about contacting his wife?
THE WITNESS: I did that same evening, which should have been Tuesday the 27th. This would have been after they had been to the home. He came to my office, as he was getting ready to leave we discussed any potential contact with his wife. He was informed by myself and by Mr. Peterson that he was to have no contact whatsoever. He inquired about what about the insurance on my truck, I need to get ahold [sic] of her about that and such things as that. He was advised at that time that any contact that was necessary would have to be handled through his attorney. We discussed that before he left the of[491]*491fice. That came up again later that evening when I was at his home. I again told him any contact whatsoever has to be handled through your attorneys. So there were two times on the 27th. (Emphasis added.)

In light of Mr. Branson’s testimony and the trial court’s specific statement to Russell that he not contact his wife “in any fashion,” we conclude that Russell should reasonably have known that when he asked his stepfather to call his wife he was violating the court’s order.

The trial court had ample opportunity to determine whether Russell was an appropriate candidate for continued probation. His probation had been revoked once before for numerous violations. He had been before the court many times.

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Bluebook (online)
835 P.2d 1299, 122 Idaho 488, 1992 Ida. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-russell-idaho-1992.