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Foster v. State

October 7, 2010

ROBERT L. FOSTER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County, The Honorable Jere A. Ryckman, Judge,

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] Robert L. Foster challenges the order of the district court revoking his probation and reinstating his original prison sentence. We affirm.

ISSUES

[¶2] Foster presents the following issues:

I. Were all of the violations of probation proven by a preponderance of the evidence?

II. Did the trial court consider unproven violations in the dispositional phase of the revocation hearing?

FACTS

[¶3] In March 2007, Foster was charged with two counts of felony property destruction under Wyo. Stat. Ann. § 6-3-201(LexisNexis 2009)*fn2 for his part in a vandalism spree. Pursuant to a plea agreement, Foster pled no contest to one count of property destruction on October 22, 2007, in exchange for dismissal of the other charge. In accordance with the terms of that agreement, the district court sentenced Foster on January 3, 2008, to a suspended term of imprisonment of four to seven years, placed him on four years of supervised probation under specified terms and conditions, and ordered him to pay restitution in the amount of $8,570.47.*fn3

[¶4] At the sentencing hearing, the district court made clear that restitution was the integral component of Foster's probation. Foster indicated that he could pay restitution at the rate of $1,000.00 per month, starting on the 15th of January. Despite that representation, Foster never paid anything toward his restitution obligation in January or February.

[¶5] Foster eventually entered into a restitution payment plan, which the district court approved on March 4, 2008, that stated:

I, Robert L. Foster, agree to pay within the term of probation, minimum monthly payments of $200.00 per month beginning March 2008, until total due is paid in full. I further agree that if I am struggling on a particular month, I will pay no less than $25.00 per month. [Emphasis in original.]

Thereafter, Foster made a restitution payment of $100.00 on March 10 (an amount authorized by his probation agent) but did not make another payment until June 2, at which time he paid only $25.00.*fn4 That minimal payment was followed by a payment of $100.00 on July 2.

[ΒΆ6] On July 18, 2008, the State filed a petition to revoke Foster's probation, alleging that Foster had failed to make regular restitution payments as required. The petition also alleged the following probation violations: Foster failed to attend Pretreatment Group at Southwest Counseling Services; he failed to obtain steady employment in a timely manner; he violated the law by committing the offense of "hit and run;" he failed to be honest and compliant with law enforcement; he refused to cooperate with his probation agent and therapist in order to attend recommended counseling at Southwest Counseling Services; and he refused to apply for the Intensive Supervision Program (ISP) as directed by his probation agent. The ...


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