Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2012 Unpublished Opinion No. 533
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order revoking probation, affirmed.
Benjamin R. Hone appeals from the district court's order revoking his probation. For the reasons set forth below, we affirm.
In 2005, Hone pled guilty to possession of a controlled substance, I.C. § 37-2732(c); petit theft by possession, I.C. §§ 18-2403(4) and -2407(2); grand theft, I.C. §§ 18-2403(1) and -2407(1)(b); and grand theft by possession of stolen property, I.C. §§ 18-2403(4) and -2407(1). Hone was sentenced to a unified term of six years, with a minimum period of confinement of two years, for possession of a controlled substance; a one year period of confinement for petit theft by possession; and unified terms of nine years, with minimum periods of confinement of four years, for the two grand theft counts. The district court ordered that the sentences run concurrently and retained jurisdiction. Following the period of retained jurisdiction, the district court suspended Hone's sentences and placed him on probation.
The state filed a motion for probation violation alleging that Hone violated the conditions of his probation by committing domestic battery in the presence of children, using marijuana, and failing to obtain permission from his probation officer before leaving the state. The domestic battery charge was later amended to disturbing the peace. A no-contact order was entered in January 2010 in the domestic battery case and Hone was prohibited from having contact with the mother of their young daughter unless he met with the mother for exchange of the child and with the mother's consent. The mother twice moved to terminate the no-contact order, but those motions were denied. At a hearing on the probation violation motion, Hone admitted to violating the conditions of his probation by committing the crime of disturbing the peace and using marijuana. However, the district court reinstated and extended Hone's probation with amended conditions.
Thereafter, the state filed another motion for probation violation alleging that Hone violated the conditions of his probation by violating the no-contact order on June 3, failing to reimburse Ada County for public defender fees, and committing the crime of unlawful overtaking and passing of a school bus. After a hearing, the district court found that Hone committed all three of the alleged probation violations and set the matter for a disposition hearing. Prior to the disposition hearing on those violations, the state filed another motion for probation violation alleging that Hone violated the no-contact order again on October 20, committed the crime of driving without privileges, failed to notify his probation officer of any and all contact with law enforcement personnel, and failed to actively seek employment or be enrolled as a full-time student. Hone admitted to violating the no-contact order on October 20 and committing the crime of driving without privileges, and the state dismissed the remaining allegations. The district court revoked Hone's probation and ordered that the underlying sentences be executed. The district court also reduced the fixed portion of Hone's sentences for the two grand theft counts to three years pursuant to I.C.R. 35. Hone appeals.
Hone argues that the district court erred by revoking his probation because the district court's finding that he violated the no-contact order on June 3 as part of an intentional scheme to circumvent the provisions of the no-contact order was not supported by substantial evidence. In reviewing a probation revocation proceeding, we use a two-step analysis. State v. Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003). First, we ask whether the defendant violated the terms of the probation. Id. If it is determined that the defendant has in fact violated the terms of his or her probation, the second question is what should be the consequences of that violation. Id. For the first step, a district court's finding of a probation violation will be upheld on appeal if there is substantial evidence in the record to support the finding. State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct. App. 1994). This first step involves a wholly retrospective factual question. Morrissey v. Brewer, 408 U.S. 471, 479 (1972). To comply with the principles of due process, "a court may revoke probation only upon evidence that the probationer has in fact violated the terms or conditions of probation." Lafferty, 125 Idaho at 381, 870 P.2d at 1340. In the event of conflicting evidence, we will defer to the district court's determinations regarding the credibility of witnesses. Knutsen, 138 Idaho at 923, 71 P.3d at 1070. After the court has determined that the defendant has violated his or her probation, it must then go to the second step and determine whether to revoke or continue probation. Lafferty, 125 Idaho at 381, 870 P.2d at 1340. A district court's decision to revoke probation will not be overturned on appeal absent a showing that the court abused its discretion. State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009); Lafferty, 125 Idaho at 381, 870 P.2d at 1340.
At the hearing on the probation violation motion, the property manager of the apartment complex where the mother of Hone's child lived testified that she knew and recognized Hone and that the mother and Hone applied for the apartment together in 2009. The manager further stated that, while the mother's name was the only name on the lease, Hone was allowed to reside in the apartment as a permanent guest and was given a parking permit. The manager testified that, between January and June 2010, both Hone and the mother's vehicles were frequently parked at the apartment complex. The manager also testified that she served the mother with a notice of non-renewal on May 17 to vacate on June 30 and that this led to a conversation with Hone wherein he expressed his displeasure with the notice and a second confrontation wherein Hone stated he was going to file a complaint.
Hone's probation officer testified that, during a telephone conversation with Hone on June 3, Hone told the probation officer that he was at the mother's residence. The probation officer testified that he ended the phone call, drove to the mother's apartment, and met with two other police officers there. The probation officer explained that, when Hone walked out of the ...