Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
The opinion of the court was delivered by: J. Jones, Justice.
SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED DECEMBER 29, 2009, IS HEREBY WITHDRAWN
Judgment of conviction and sentence affirmed; order denying ICR 35 motion affirmed; order denying motion to modify protection order vacated and the case remanded.
Brian C. Cobler appeals from the judgment of conviction and sentence entered upon his guilty plea to sexual battery of a minor, sixteen or seventeen years of age. He challenges the sentence, the denial of his Idaho Criminal Rule 35 motion for reduction of the sentence, and the order denying his motion to modify a no contact order that prohibited contact with any minors. The order denying the motion to modify the no contact order is vacated and the case is remanded for further proceedings on that issue.
In 2006, Brian C. Cobler pleaded guilty to one count of sexual battery of a minor, sixteen or seventeen years of age, based on charges that Cobler and his wife had maintained a sexual relationship with a seventeen-year-old girl, J.M. At his initial appearance, the magistrate judge entered a no contact order prohibiting Cobler from contacting J.M. and all minors until dismissal of the case, effectively precluding Cobler from having any contact with his three minor children. Following his guilty plea, the district court sentenced Cobler to a unified sentence of ten years, with two years fixed.
Cobler subsequently filed a pro se Rule 35 motion for reduction of his sentence and a motion to modify the no contact order to allow him to have contact with his children. Both motions were denied by the district court. On appeal, Cobler argued that the no contact order violated his fundamental rights as a parent; that the district court's denial of his motion to modify the no contact order violated his due process rights; that the district court abused its discretion in denying the motion; that Idaho Code section 18-920, Idaho Criminal Rule 46.2, and the specific terms of the no contact order were unconstitutionally vague and overbroad; and that the district court abused its discretion by imposing an excessive sentence and by denying his Rule 35 motion. The Idaho Court of Appeals determined that Cobler's sentence was not excessive, but determined that the no contact order violated Cobler's fundamental rights as a parent and remanded the case for an evidentiary hearing. The State then requested, and we granted, review of all issues on appeal.
While Cobler makes a multi-pronged attack on the order denying his motion to modify the no contact order, including that the court abused its discretion in denying the motion, we need only address the abuse of discretion claim. The decision whether to modify a no contact order is within the sound discretion of the district court. The test for determining whether a district court abused its discretion is: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason. Sun Valley Shopping Center Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
The no contact order was entered against Cobler at his initial appearance, prohibiting him from having contact with J.M. and "all minors." The order stated that it could "be modified only by a judge and will expire . . . upon dismissal of this case." On appeal, Cobler contends that the no contact order was invalid from the outset, being overly broad. We decline to consider this issue because Cobler failed to raise it below. It might be observed, however, that the magistrate judge cannot be faulted for prohibiting contact with all minors at the outset of this matter. Cobler was charged with a felony sex offense against a minor. The State requested a no contact order with the victim or any minor child "until the risk can be assessed." That was not an unreasonable request and it was not unreasonable for the magistrate judge to respond with such an order. The problem arises because the order remained in effect long after there was an opportunity to assess the risk, in particular the risk that Cobler may or may not pose with regard to having contact with his children.
On October 12, 2007, Cobler filed a pro se motion seeking to modify the no contact order to remove his children from its coverage. On October 25, 2007, the court entered an order styled "Second Memorandum Decision Re Defendant's Motion for Reduction of Sentence Pursuant to I.C.R. 35." The order apparently dealt with reconsideration of a Rule 35 motion Cobler had previously submitted in order to obtain a reduction of his sentence, as well as the motion to modify the no contact order. With regard to the latter motion, the order stated:
"A No Contact Order was issued regarding Brian Cobler on October 17, 2006, that included all minor children. That order was to remain in ...