Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.
Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; David E. Singleton, Student Director; Samantha Daniels, Student Intern.
Before BURKE, C.J., and HILL, KITE[*], and FOX, JJ., and CRANFILL, D.J.
CRANFILL, District Judge.
[¶1] Appellant Antoine Devonne Butler challenges the revocation of his probation. He argues his probation was revoked based on violations for which he had previously been punished with administrative sanctions, which is in violation of Wyo. Stat. Ann. § 7-13-1107 (LexisNexis 2013). We agree the plain language of Wyo. Stat. Ann. § 7-13-1107 requires the State to choose between administrative sanctions or revoking the probation of an Intensive Supervision Program participant who violates the rules. The State cannot subject a person to both punishments based on the same violations. In this case, the violations the State relied upon in their petition to revoke probation were the same violations which had previously been subject to administrative sanctions. We therefore reverse the order revoking probation and remand to the district court for an order granting Butler's motion to dismiss the State's Petition for Probation Revocation.
[¶2] The parties generally agree the sole issue for our review is:
Whether Mr. Butler's probation was properly revoked based on Intensive Supervision Program violations which had previously been subject to administrative sanctions.
[¶3] On July 6, 2010, Mr. Butler was arrested for conspiracy to commit burglary and accessory, aiding and abetting that same burglary. He pled guilty pursuant to a plea agreement to the charge of conspiracy to commit burglary. He received a deferral under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2013), and in March of 2011, the district court placed him on supervised probation for five years. The State filed a petition to revoke that probation on July 25, 2011. The petition alleged the Defendant had violated his probation in that he 1) did not report for a scheduled appointment with his supervising agent; 2) moved without his agent's knowledge or consent; 3) failed to perform community service as directed by his supervising agent; and 4) had not paid his Victim's Compensation Fund fee. Mr. Butler admitted the allegations in the petition, and the probation was revoked and reinstated.
[¶4] The State filed a second petition to revoke probation on January 4, 2013. The petition alleged the Defendant had violated his probation in that he 1) left the state of Wyoming without a valid travel permit or approval from his supervising agent; 2) failed to report to the Probation/Parole office for scheduled appointments; 3) was convicted of False Reporting-False Identification, a misdemeanor in Colorado; 4) had not actively sought employment or participated in community service as directed by his supervising agent; and 5) failed to make consistent payments toward the court-ordered Victim's Compensation Fund surcharge, Public Defender fees, ASL/ASAM assessment fee and Court automation fee. Mr. Butler admitted the allegations of the petition. The district court revoked Mr. Butler's deferral and imposed a four to seven year sentence, which was suspended in favor of five years of supervised probation. The district court also placed Mr. Butler in an intensive supervision program (ISP) pursuant to Wyo. Stat. Ann. § 7-13-1101, et seq. (LexisNexis 2013).
[¶5] Mr. Butler committed eleven violations of the rules while in the ISP. The ISP program gave him an administrative sanction for those violations by placing Mr. Butler in a residential community corrections program, Cheyenne Transitional Center (CTC) for sixty days. He was expelled from the CTC after only two days. The expulsion resulted from Mr. Butler being allowed to go to a library, but an ISP employee was unable to locate him there despite looking through the entire library twice.
[¶6] On June 17, 2013, the State filed another petition to revoke probation relying on the eleven violations of the ISP rules that had led to placement at CTC. The petition alleged the Defendant had violated his probation in that 1) his whereabouts were unknown; 2) he violated condition #5 of the ISP Agreement by being off schedule on April 17, 2013; 3) he failed to maintain employment; 4) he violated condition #5 of the ISP Agreement by being off schedule on April 22, 2013; 5) he violated condition #12 of the ISP Agreement by being at an unapproved location on April 22, 2013; 6) he violated condition #15 of the ISP Agreement by having contact with an unapproved person on April 22, 2013; 7) he violated condition #5 of the ISP Agreement by being off schedule on April 30, 2013; 8) he violated condition #5 of the ISP Agreement by being off schedule on May 27, 2013; 9) he violated condition #18 of the ISP Agreement by removing his Electronic Monitor on ...