Opinion No. 111
from the District Court of the First Judicial District of the
State of Idaho, Kootenai County. Hon. John T. Mitchell,
judgment of the district court is affirmed.
D. Fredericksen, Idaho State Appellate Public Defender,
Boise, for appellant. Reed P. Anderson argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. Theodore S. Tollefson argued.
Ray Gibbs ("Gibbs") appeals the Kootenai County
district court's order extending his probation. Gibbs
argues that: (1) he was denied his constitutional right to
due process because his case was not heard by an impartial
judge; and (2) the district court abused its discretion by
increasing, sua sponte, his probation from a term of six
years to life. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
March of 2013, Gibbs was charged with delivery of a
controlled substance after he sold methamphetamine to a
minor. Pursuant to plea negotiations, Gibbs pled guilty to
delivery of a controlled substance, and the district court
dismissed allegations that the delivery was to a minor and
that Gibbs was a persistent violator. On August 9, 2013, the
district court imposed a suspended sentence of fifteen years,
with ten years fixed, and placed Gibbs on probation for five
years. One condition of Gibbs' probation required him to
successfully complete mental health court.
2, 2014, Gibbs tested positive for using spice and was
ordered to serve seven days of discretionary jail time. On
August 6, 2014, Gibbs was again ordered to serve seven days
of discretionary jail time after he admitted to using spice,
frequenting a bar, and associating with people involved in
criminal activity. After these violations, Gibbs remained on
probation, but his mental health court progress reports began
reflecting concerns, with one report noting that Gibbs
"needs to take this program seriously."
November 19, 2014, Gibbs' probation officer filed a
report of probation violation alleging that Gibbs had engaged
in sexual activity with a fourteen year-old girl. The State
filed a motion to show cause why probation should not be
revoked. Gibbs was subsequently terminated from mental health
March 26, 2015, Gibbs and the State entered into a Rule 11
Plea Agreement, in which Gibbs agreed to plead guilty to a
felony charge of injury to a child ("the 2014
Case"), and to be sentenced to a unified term of five
years, with two and one-half years fixed, with the court
admitted that he violated the terms of his probation in the
current case, and the district court extended the term of
probation by one year, ordered Gibbs to continue probation on
the same terms originally imposed, and added the requirement
that Gibbs successfully complete the retained jurisdiction in
the 2014 Case. Gibbs satisfactorily completed the rider.
February 23, 2016, Gibbs' probation officer filed another
report alleging that Gibbs had violated his probation by: (1)
committing the felony crime of sexual exploitation of a
child; (2) using methamphetamine; (3) possessing three
unauthorized smart phones; (4) knowingly associating with his
methamphetamine supplier; and (5) making prohibited contact
with a victim. The State filed a motion to show cause why
probation should not be revoked.
April 27, 2016, the parties informed the district court that
Gibbs had been indicted by a federal grand jury for
possessing child pornography. The State requested a
continuance of the probation violation hearing, and the
parties informed the district court that they intended to
enter into a plea agreement whereby Gibbs would plead guilty
to the federal charge and the State would move to dismiss the
probation violation proceedings in the current case and the
2014 Case as well as the new sexual exploitation charge. The
district court expressed concern about the proposed
Well, if the State does withdraw the allegations, I intend to
proceed on an order to show cause. I have the ability to
enforce my orders, and if these allegations are proven to be
true, my intention is to impose your Idaho prison sentence,
so we can proceed at a later date but it would be on an
evidentiary hearing even if the State wants to withdraw these
allegations. . . .
I think both sides need to research my ability to go forward.
I mean I don't want to do something illegal, but my
understanding is that the Court has the power to enforce its
own orders, and if you're going to strip the Court of
that power, I'm not - you'd better be sure you can do
17, 2016, the parties filed a written plea agreement in which
the State committed to dismissing the pending felony charge
and the probation violation allegations in the 2014 Case and
the current case if Gibbs pled guilty to the federal charge.
On May 23, 2016, Gibbs' lawyer sent the district court a
letter regarding the pending probation violation proceeding.
The letter explained the federal charges against Gibbs, the
sentence he would likely receive, and the possibility of
supervised release following his incarceration.
May 25, 2016, hearing, the district court acknowledged that
it had reviewed the letter from Gibbs' counsel as well as
the proposed plea agreement. The district court clarified its
All right. And I've read the plea agreement. On April
27th I indicated that if the plaintiff were to
withdraw the allegation or not prosecute on the probation
violation or the order to show cause, that I was planning on
proceeding ahead with an order to show cause of my own, and I
think the appropriate way to proceed beyond that would be to
appoint a special prosecutor, so why . . . I would not want
to enforce my order and impose Mr. Gibbs' prison sentence
in the state of Idaho if he didn't do - if he did what he
was accused of doing.
prosecuting attorney responded that "it was my decision
[after consultation with his superiors] to use my discretion,
my prosecutorial discretion, to dismiss the case essentially
without prejudice to see what the feds were going to
do." The prosecuting attorney went on to say that
"this doesn't happen a lot to [sic] where I'll
dismiss a case if it goes federal, but it's happened a
handful of times in my practice where I've done just
that." The State indicated it had filed motions to
dismiss in Gibbs' other state court cases and noted ...