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State v. Gibbs

Supreme Court of Idaho

November 6, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
KODY RAY GIBBS, Defendant-Appellant.

         2017 Opinion No. 111

         Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

         The judgment of the district court is affirmed.

          Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise, for appellant. Reed P. Anderson argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Theodore S. Tollefson argued.

          HORTON, JUSTICE.

         Kody 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         On July 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."

         On 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 court.

         On 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 retaining jurisdiction.

         Gibbs 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.

         On 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.

         On 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 agreement, stating:

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 it.

         On May 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.

         In a 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 position stating:

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.

         The 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 ...


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