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State of Idaho v. Justin Ryan Moss

December 31, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
JUSTIN RYAN MOSS,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Richard D. Greenwood, District Judge; Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: Gutierrez, Judge

2012 Unpublished Opinion No. 778

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Stephen W. Kenyon, Clerk

Orders revoking probation and executing suspended sentences, affirmed.

Justin Ryan Moss appeals from three orders that revoked his probation in three separate cases, consolidated for appeal. In each case, Moss argues the Idaho Supreme Court denied him due process and equal protection when it denied his motion to augment the record with transcripts from various hearings. Moss additionally argues that in each case, the district courts respectively abused their discretion in revoking his probation. Finally, Moss argues that, in just one of the cases, the district court abused its discretion when it denied his motion for a reduction in sentence. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

This appeal involves three underlying criminal cases and convictions for issuing checks without funds, grand theft, and forgery.*fn1 In 2006, Moss pled guilty to issuing checks without funds. The district court withheld judgment and placed Moss on probation. In 2008, Moss fraudulently obtained an individual's financial transaction card information and used it to make purchases. The State charged Moss with grand theft and alleged probation violations in the case relating to issuing checks without funds based on the new criminal conduct. Pursuant to a motion by the State, the cases were consolidated for purposes of entering a plea and sentencing. Moss pled guilty to grand theft and admitted the probation violations. The district court entered a judgment of conviction for grand theft and imposed a unified sentence of ten years, with five years determinate, but suspended the sentence and placed Moss on probation. After finding Moss had violated his probation, the district court revoked the withheld judgment in the issuing checks without funds case; imposed a unified sentence of three years, with eighteen months determinate; but suspended the sentence and continued probation. The court ordered the sentences in both cases to run concurrently.

In 2009, Moss forged a relative's signature on various student loan application documents after the relative had declined to co-sign on the loans. After Moss received the loan checks made out to both him and the co-signer, Moss again forged the signature of his relative in order to cash the checks. The State charged Moss with five counts of forgery and also filed allegations of probation violations in the prior two cases. Moss pled guilty to two counts of forgery. The State moved to dismiss the remaining counts and also dismissed a separate case charging Moss with four counts of again issuing checks without sufficient funds. Moss also admitted to violating his probation in the two prior cases. Upon entering a judgment of conviction to two counts of forgery, the district court imposed two concurrent, unified sentences of ten years, with five years determinate, but retained jurisdiction. As to the probation violations in the prior two cases, the district court executed the suspended sentences, but retained jurisdiction in those two cases as well. The district court ordered the sentences to run concurrently with the sentences imposed for the forgery convictions. Moss successfully completed his period of retained jurisdiction as to all the cases and the court placed Moss on probation.

In June 2010, the State filed allegations of probation violations in each of the three cases, all of which were based on the fact Moss moved to California very shortly after he was placed on probation. By moving, Moss committed the following probation violations: he changed residences without permission; he left his assigned district without permission; he failed to report to his probation officer as instructed; and he absconded from supervision. The district court held a probation violation evidentiary hearing in the forgery case and found violations on all four allegations. At the disposition hearing, Moss made an oral request for a reduction of his suspended sentences if probation was to be revoked. The district court revoked probation and executed the suspended sentences without reduction. Moss later filed a motion for a reduction of his sentences pursuant to Idaho Criminal Rule 35; however, no order regarding the court's disposition of that motion appears in the record.

In light of the finding of probation violations in the forgery case, the district court found Moss was collaterally estopped from challenging the probation violations in the other two cases, based on the same conduct, under the authority in State v. Dempsey, 146 Idaho 327, 193 P.3d 874 (Ct. App. 2008). Thereafter, the district court revoked Moss's probation in those cases and executed the suspended sentences, consistent with a request by Moss that it do so. The probation revocations, issued in three separate orders, were timely appealed and consolidated for disposition in this Court.

Pending appeal and before assignment to this Court, Moss filed a motion to augment the record and suspend the briefing schedule, requesting that the record on appeal be augmented with various transcripts. The State objected to augmenting the record, and the Idaho Supreme Court entered an order denying Moss's motion. Upon assignment to this Court, Moss presents three issues: (1) whether the Idaho Supreme Court denied him due process and equal protection when it denied his motion to augment the record; (2) whether the district courts abused their discretion when they revoked Moss's probation in all three cases; and (3) whether the district court ...


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