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DeMillard v. State

Supreme Court of Wyoming

August 15, 2013

Eric Levanter DEMILLARD, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).

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Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jessica Y. Frint, Assistant Attorney General. Argument by Ms. Frint.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Appellant, Eric DeMillard, challenges an order from the district court revoking his probation. He contends the district

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court abused its discretion in revoking his probation because the conduct violating the terms of his probation was not " willful." He also claims the district court exceeded statutory authority by ordering involuntary administration of medication in order to restore his competency during the probation revocation proceedings. We affirm.


1. Did the district court abuse its discretion when it revoked Appellant's probation?
2. Did the district court err in granting the State's Motion for Involuntary Medication to restore Appellant to competency?


[¶ 2] In 1999, Appellant was charged with four counts of kidnapping, four counts of interference with custody, one count of interference with a peace officer, one count of possession of a weapon with unlawful intent, and one count of aggravated burglary for " keeping his children in his estranged wife's home in Rawlins, Wyoming for several days without her permission, while holding law enforcement at bay." DeMillard v. State, 2008 WY 93, ¶ 4, 190 P.3d 128, 129 (Wyo.2008)( DeMillard I ). Appellant pled guilty to burglary and attempted assault on a peace officer and nolo contendere to four counts of interference with custody, and the State agreed to dismiss the remaining charges. Id., ¶ 5, 190 P.3d at 129. The district court accepted the agreement after finding that Appellant was competent to enter a plea and that Appellant made the plea knowingly and voluntarily. The court sentenced Appellant to prison on each of the counts, but suspended the sentences in favor of twelve years of supervised probation. In acknowledgment of Appellant's history of mental health problems, the court conditioned Appellant's probation on his compliance " with any medical or mental health requirements placed upon him either by the Department of Corrections or as a result of recommendations made by the Wyoming State Hospital or other psychiatric facility." The court also ordered Appellant to have no contact with his ex-wife or her six children.

[¶ 3] In the following years, the State sought to revoke Appellant's probation on several occasions. In June, 2002, the State filed a petition to revoke Appellant's probation for failing to comply with recommended outpatient mental health treatment. Appellant responded to the petition by filing a motion for a mental health evaluation to determine (1) his fitness to proceed, and (2) his mental status at the time of the alleged probation violation. The report generated as a result of the mental health evaluation noted that Appellant had previously been diagnosed with several mental illnesses, including Major Depressive Disorder, Obsessive-Compulsive Disorder, Post-Traumatic Stress Disorder, and Mixed Personality Disorder, and also noted that his psychiatrist was presently considering a diagnosis of schizophrenia. Ultimately, the report concluded that Appellant was " severely mentally ill" at the time of the alleged probation violation and that, due to his mental illness, he lacked the capacity to comply with the conditions of his probation. The report stated that Appellant's " treatment needs exceed that which could reasonably be provided for him on an outpatient basis," and suggested that " a trial of inpatient treatment would be in order." Based on the mental health evaluation, the State stipulated to the dismissal of its petition to revoke Appellant's probation.

[¶ 4] In April, 2005, the State again sought to revoke Appellant's probation due to his failure to comply with recommended mental health treatment. At the hearing on the State's petition, Appellant again requested a mental health evaluation to determine his competency to proceed, and the court suspended the proceedings pending the results of the evaluation. The report generated from that evaluation concluded that " Mr. DeMillard does have the basic capacity to comprehend his position, understand the nature and object of the proceedings against him, conduct his defense in a rational manner, and the ability to cooperate with his counsel to the end that a defense may be interposed on his behalf." Subsequent to the issuance of this report, the State filed another

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petition to revoke Appellant's probation, which added the allegation that Appellant had violated the conditions of his probation by contacting his children. However, for reasons that are unclear from the record, after holding an initial hearing on the State's petitions, the court issued an order dismissing the petitions and reinstating Appellant's probation.

[¶ 5] Appellant subsequently filed a motion to modify his probation conditions to allow him to have telephone contact with his children, and a motion requesting that the district court discharge him from probation altogether. After holding a hearing, the district court denied Appellant's motions, noting that it had not received any indication " by letter or otherwise here today that these children and this ex-wife want to have some contact with Mr. DeMillard." We affirmed the district court's rulings in DeMillard I, ¶¶ 16-17, 190 P.3d at 131.

[¶ 6] The present case was initiated on April 6, 2011, when the State filed its fourth petition to revoke Appellant's probation. The State alleged that Appellant violated probation by contacting his children via email and Facebook, and it supported those allegations by attaching copies of a Facebook message and emails sent by Appellant. The district court issued a warrant for Appellant's arrest and extradition proceedings were commenced in order to transport Appellant from Arizona, where he was residing at the time, to the Carbon County jail. Following Appellant's arrest, the district court appointed counsel for Appellant and set a probation revocation hearing for July 19, 2011.

[¶ 7] As in the prior probation revocation proceedings, Appellant's counsel filed a motion for a mental health evaluation to determine Appellant's fitness to proceed. The district court granted the motion, and an evaluation was conducted by a forensic evaluator at the Wyoming State Hospital. In the October 28, 2011 evaluation, the evaluator concluded that, at that time, Appellant was not competent to proceed " due to major mental illness." However, the evaluator noted that Appellant was refusing to take prescribed medication and requested a 90-day extension for an attempt at restoration of Appellant's competence via medication management. As a result of the evaluation, the district court ordered that all further proceedings be suspended pending determination of Appellant's capacity to proceed.

[¶ 8] On December 8, Appellant's forensic evaluator notified the district court that Appellant was refusing to take his antipsychotic medication, and that his mental condition had ...

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