Appeal from the District Court of the Third Judicial District, State of Idaho, Payette County. Hon. Susan E. Wiebe, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
2013 Unpublished Opinion No. 313
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Order revoking probation and executing unified sentence of five years, with two years determinate, for possession of a controlled substance, affirmed; order denying Idaho Criminal Rule 35 motion, affirmed.
Joey Edward Hall appeals from the district court's order revoking probation and executing his suspended unified sentence of five years, with two years determinate, for possession of a controlled substance (methamphetamine). Specifically, Hall asserts the district court erred when it failed to conduct a sufficient inquiry regarding Hall's request for substitute counsel during the probation revocation proceedings and failed to appoint substitute counsel. Additionally, Hall appeals from the district court's order denying Hall's Idaho Criminal Rule 35 motion for a reduction in sentence, asserting the district court abused its discretion. For the reasons set forth below, we affirm both orders.
The State charged Hall with felony possession of a controlled substance (methamphetamine). Pursuant to a plea agreement, Hall pled guilty, and the district court withheld judgment and transferred the case to drug court. Among the terms of the withheld judgment, Hall was to serve three years of probation.
After various violations of the rules of drug court and Hall having served some discretionary jail time on at least three different occasions, the State filed a motion seeking the revocation of Hall's probation due to several additional violations: changing residence without the prior approval of the probation officer; failing to appear in drug court when scheduled; admitting to having consumed alcohol and controlled substances; failing to follow requests of the probation officer; and being terminated from drug court. Hall admitted to being terminated from drug court, and the State withdrew the remaining allegations.
Prior to the disposition hearing on the probation violation, Hall moved to set aside his admission to being terminated from drug court because that particular allegation was premature. Although Hall had allegedly been removed from the drug court program prior to the State's filing of the motion, the actual order expelling Hall from drug court was not filed until after the State made its motion. The district court permitted Hall to withdraw his admission and held an evidentiary hearing on all of the State's allegations of probation violations initially brought forward. The State presented testimony from the supervising officer in the drug court program, and Hall testified on his own behalf. The district court found proof of three violations: the failure to report as required to the probation officer; consumption of drugs; and the failure to follow all lawful requests of the probation officer.
Before the disposition hearing, the State filed another motion for revocation of Hall's probation based on allegations that Hall failed to submit to drug testing on two occasions and that Hall was terminated from the drug court program (a renewed allegation based on the order terminating Hall from drug court later filed). The district court indicated it would dismiss the new allegations if it decided to revoke Hall's probation at the disposition hearing on the first set of probation violations. The district court then revoked the withheld judgment and probation, imposed a unified sentence of five years, with two years determinate, and retained jurisdiction.
The district court, before the expiration of the retained jurisdiction period, placed Hall on probation for three years.
Just one month later, the State filed another motion to revoke Hall's probation due to more violations. The State alleged Hall violated the terms of his probation by resisting and obstructing an officer, consuming methamphetamine and alcohol, and failing to submit to drug testing. At the evidentiary hearing on these allegations, Hall expressed his desire to have new counsel based on counsel's failure to consult with Hall, discuss the case with Hall, or respond in any manner to Hall's requests to take certain actions with regard to the proceedings. After some questioning, the district court denied Hall's request and proceeded with the evidentiary hearing. The district court found insufficient evidence to support the resisting and obstructing an officer charge, but found Hall had violated probation by consuming drugs and alcohol and by refusing to submit to drug testing.*fn1 Thereafter, the district court revoked Hall's probation and executed the suspended sentence. Hall filed a Rule 35 motion for a reduction of sentence, which the district court denied. However, the district court did grant a subsequent motion Hall made regarding a request for credit for time served. Hall timely appeals and presents two issues: (1) whether the district court failed to make a sufficient inquiry into Hall's request for new counsel and abused its discretion in failing to appoint substitute counsel; and (2) whether the district court abused its discretion in denying Hall's Rule 35 motion for a reduction in sentence.
A. Request for Appointment of ...