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State v. Leveque

Court of Appeals of Idaho

November 20, 2017

STATE OF IDAHO, Plaintiff-Respondent,
KILO J. LEVEQUE, Defendant-Appellant.

         2017 Opinion No. 62

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

         Order revoking probation, affirmed; order relinquishing jurisdiction, reversed and case remanded.

          Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.

          GRATTON, Chief Judge.

         Kilo J. LeVeque appeals from the district court's order relinquishing jurisdiction. LeVeque also appeals from the district court's decision to revoke his probation prior to the period of retained jurisdiction.



         Pursuant to a plea agreement, LeVeque pled guilty to burglary, Idaho Code § 18-1401, and possession of methamphetamine, I.C. § 37-2732(c)(1). The district court imposed concurrent sentences of ten years with four years determinate for the burglary conviction and seven years with four years determinate for the possession of methamphetamine conviction. The district court also retained jurisdiction. Following the period of retained jurisdiction, the district court suspended LeVeque's sentence and placed him on probation for three years.

         When LeVeque's probation officer left employment with the Department of Correction, LeVeque's criminal history was reviewed anew and it was discovered that LeVeque had a previous sex offense conviction in South Dakota. LeVeque was originally charged with felony second degree rape in that state, but the charge was later amended to misdemeanor sexual contact without consent. LeVeque entered a plea of nolo contendere to the misdemeanor charge.[1]Because of the South Dakota conviction, LeVeque's terms of probation were amended from general supervised probation to sex offender probation which resulted in additional terms and conditions of supervision. As part of the sex offender treatment, LeVeque was required to answer questions under polygraph examination regarding his sexual history. When asked about his prior conduct in the South Dakota case, LeVeque denied sexual contact occurred without consent and the polygraph indicated that he was deceptive in his answers. This led to LeVeque being dismissed from sex offender treatment.

         LeVeque filed a motion to end probation and reduce terms of probation in which LeVeque requested that the district court reduce the time frame of supervised probation and "eliminate his status in any way as a 'sex offender' or some similar label." The district court denied the motion finding that the court "lacks the ability to dictate how to classify and supervise LeVeque to an executive branch agency such as the State of Idaho Department of [Correction]. LeVeque's motion flies in the face of the doctrine of separation of powers." In its order, the district court noted that LeVeque had willfully violated his supervised probation by testing positive twice for using alcohol, failing his sexual history polygraph examination, and testing positive for a controlled substance (Kratom).

         Thereafter, the State filed a report of probation violation alleging that LeVeque failed to comply with the terms of his sex offender probation, including: (1) engaging in an unapproved sexual relationship, (2) being terminated from his sex offender treatment program, and (3) lying on his polygraph examinations. LeVeque denied the allegations and the district court held an evidentiary hearing. At the hearing, LeVeque requested the district court declare the specific terms of the sex offender probation to be improper in his case. The district court responded, stating: "I don't have the jurisdiction to tell an executive branch agency like the Idaho Department of Corrections how to supervise you. It's their business and their business alone how they choose to classify you, what terms and conditions to put upon you."

         The district court found that LeVeque had willfully violated his probation. The district court revoked probation and executed the underlying sentence, but again retained jurisdiction. The court noted that although it did not view LeVeque as a good candidate for probation, it wanted him to engage in sex offender treatment and give him an opportunity to prove the court wrong. In its probation violation disposition, the district court stated that it was recommending sex offender treatment after LeVeque disclosed the circumstances of the South Dakota conviction in a polygraph examination. However, rather than place LeVeque in the sex offender treatment program, the Department of Correction assigned LeVeque to a drug offender treatment program, which he successfully completed, and never administered the district court's recommended polygraph examination.

         At the subsequent jurisdictional review hearing, the State recommended probation although the prosecutor expressed concern that LeVeque had not been required to complete a sex offender rider. LeVeque also asked for probation. The district judge noted that LeVeque had not completed the polygraph. LeVeque complained that he had not been afforded the opportunity to do so. Regardless, the district court relinquished jurisdiction. LeVeque timely appeals.



         LeVeque argues that the district court abused its discretion both when it revoked LeVeque's probation prior to the period of retained jurisdiction and when it relinquished jurisdiction.

         A. Revocation of Probation

         It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222(2); State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 768 P.2d 713, 717 (Ct. App. 1988). Once a probation violation is established, the district court must then determine whether to revoke or continue probation. State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009). In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and is consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. A district court's decision to revoke probation will not be overturned on appeal absent a showing that the court abused its discretion. Sanchez, 149 Idaho at 105, 233 P.3d at 36. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

         LeVeque argues that the district court erred because it did not perceive the outer bounds of its discretion. Specifically, LeVeque contends that because the district court did not recognize its authority to consider LeVeque's challenges to the terms of his probation, it failed to determine whether the terms of probation were valid before reaching the factual predicate as to whether there was an actual violation. Therefore, its decision to revoke LeVeque's probation was an abuse of its discretion and should be vacated. On the other hand, the State asserts that the district court properly exercised its discretion when it revoked LeVeque's probation.

         Idaho Code § 20-222(2) provides that "the court may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the defendant to be arrested. Thereupon the court . . . may revoke the probation and suspension of sentence and cause the sentence imposed to be executed." According to the district court's comments at LeVeque's evidentiary hearing, its decision to revoke probation was based upon the following considerations. First, the court found that all of the probation violation allegations had been proven. Second, the court observed that LeVeque had "acted like a spoiled, entitled infant" throughout the case. Third, LeVeque's conduct showed his unwillingness to comply with rules of probation. Fourth, the court was concerned that LeVeque had made a false statement pertaining to his sobriety during his right of allocution. Thus, the district court found that LeVeque violated terms of his probation, both for the conditions set forth as a sex offender and also because ...

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