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State v. Le Veque

Supreme Court of Idaho

September 6, 2018

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

          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 in part, reversed in part, and remanded for further proceedings.

          Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Brian R. Dickson argued.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for Respondent. Russell J. Spencer argued.

          HORTON, JUSTICE.

         Kilo J. Le Veque appeals the decisions of the district court in Kootenai County to revoke his probation and subsequently relinquish jurisdiction. Le Veque argues that the district court abused its discretion in these decisions by refusing to consider the propriety of the terms of his probation at the revocation hearing and by relinquishing jurisdiction solely because Le Veque had not obtained a polygraph examination that the district court desired. The Court of Appeals affirmed the district court's order revoking probation and reversed the district court's order relinquishing jurisdiction. We granted the State's petition for review. We affirm the district court's decision revoking Le Veque's probation, reverse the district court's decision relinquishing jurisdiction, and remand the case for further proceedings before a new district court judge.


          Le Veque pled guilty to burglary and possession of a controlled substance. The district court imposed an underlying unified sentence of ten years, with four years fixed, for the burglary and a concurrent unified sentence of seven years, with four years fixed, for possession of a controlled substance. The district court retained jurisdiction. Following this initial period of retained jurisdiction, the district court suspended Le Veque's sentences and placed him on probation for three years.

         Le Veque was initially placed on general supervision probation. After reviewing Le Veque's criminal history, the Department of Correction (Department) learned that Le Veque had been convicted of a sex offense in South Dakota within the preceding ten years and placed him on sex offender probation. By way of motions, Le Veque challenged the propriety of the terms and conditions of his probation, but the district court denied his attempts to terminate the probation or modify the terms of probation. The district court found that the Department's policy that resulted in Le Veque being placed on sex offender probation was not arbitrary or capricious. Le Veque did not appeal the district court's denial of his motions.

         While on probation, Le Veque engaged in an unapproved sexual relationship, failed to provide truthful information on polygraph examinations, and was terminated from his sex offender treatment program for failing to take responsibility for his prior sex crime. Le Veque was also sanctioned for consuming alcohol and using a substance known as kratom[1] while on probation.

         On October 28, 2015, Le Veque was arrested on an agent's warrant and the State filed a motion seeking revocation of his probation based upon allegations contained in his probation officer's report of violation. Le Veque denied those allegations and again challenged the propriety of subjecting him to the requirements of sex offender probation. The district court denied Le Veque's motion objecting to sex offender probation, noting that it had previously denied two similar motions. Following an evidentiary hearing, the district court found that Le Veque had willfully violated the terms of his probation. The district court revoked Le Veque's probation and ordered him to serve his previously suspended sentence, retaining jurisdiction for up to one year. In that order, the district court included the following statement: "THE COURT SPECIFICALLY RECOMMENDS SEX OFFENDER TREATMENT AFTER HE FULLY DISCLOSES HIS INVOLVEMENT IN HIS SOUTH DAKOTA CRIME, AND THAT HIS DISCLOSURE IS VERIFIED WITH A POLYGRAPH." Le Veque timely filed a notice of appeal from the order revoking probation.

         Notwithstanding the district court's recommendation that Le Veque be placed in a sex offender treatment program, the Department placed Le Veque in a substance abuse program. Le Veque successfully completed the substance abuse program and the Department recommended that he be placed on probation. The prosecutor joined in the recommendation, despite concerns that Le Veque had not been placed into a sex offender program.

         The district court relinquished jurisdiction, noting that he had not completed the polygraph examination that the district court had addressed in its previous order. The district court acknowledged that the Department determines the type of treatment provided but stated that Le Veque "could've arranged for a full disclosure polygraph that was passable or passed either before you went on your [second] rider or after you returned, and you haven't . . . ." Le Veque and his attorney then inquired if the district court would allow additional time for Le Veque to take a polygraph examination. The district court denied that request and entered its order relinquishing jurisdiction.

         Le Veque timely appealed from the order relinquishing jurisdiction, which was treated as an amended notice of appeal. Thus, the two matters before the Court on appeal are: (1) the district court's revocation of Le Veque's probation and (2) the district court's subsequent relinquishment of jurisdiction.


         When considering a case on review from a decision of the Court of Appeals, this Court gives due consideration to the conclusions of the Court of Appeals, but reviews the district court's decision directly. State v. Rogers, 140 Idaho 223, 226, 91 P.3d 1127, 1130 (2004). This Court exercises free review over constitutional questions. Guzman v. Piercy, 155 Idaho 928, 934, 318 P.3d 918, 924 (2014).

         "The decision to relinquish jurisdiction or grant probation is committed to the district judge's discretion." State v. Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001). "Once a probation violation has been proven, the decision of whether to revoke probation is within the sound discretion of the court." State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007).

When this Court reviews an alleged abuse of discretion by a trial court the sequence of inquiry requires consideration of four essentials. Whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.

Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (emphasis in original) (citing Hull v. Geisler, 163 Idaho 247, 250, 409 P.3d 827, 830 (2018)).

         III. ...

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