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Robinson v. State

Supreme Court of Wyoming

September 7, 2016

RUSSELL ROBINSON, JR., Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Jonathan C. Coppom, Assistant Attorney General. Argument by Mr. Coppom.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] Appellant Russell Robinson Jr. disagrees with a district court's decision to revoke his probation. He contends that the district court erred at both the adjudicatory and dispositional phases of the probation revocation process. We affirm the revocation and imposition of his sentences.

         ISSUES

         [¶2] Appellant raises three issues, which we have rephrased to more precisely reflect the record and determinations of the district court:

1. Did the district court abuse its discretion during the adjudicatory phase of the probation revocation hearings by concluding that Robinson had violated several conditions of his probation?
2. Was it plain error to receive hearsay evidence during the adjudicatory phase of the probation revocation process?
3. Did the district court err in not reinstating Robinson's probation during the dispositional phase of the probation revocation process?

         FACTS

         [¶3] Pursuant to a plea agreement, Robinson pled no contest to one count of sexual battery, a misdemeanor, in violation of Wyo. Stat. Ann. § 6-2-313 (LexisNexis 2015) and to one count of false imprisonment, also a misdemeanor, in violation of Wyo. Stat. Ann. § 6-2-203(a) (LexisNexis 2015). Because the plea was one of no contest, Robinson was not required to provide a factual basis himself.[1]

         [¶4] Robinson was sentenced to one year incarceration on each count, to be served consecutively, but the district court suspended execution of that sentence in favor of one year of supervised probation on each count, which would result in two years of probation. The probation conditions of the judgment and sentence required Robinson to sign a probation agreement, remain employed, submit to a sex offender evaluation, and complete any subsequently recommended sex offender counseling.

         [¶5] Robinson also signed a sex offender probation agreement with the Wyoming Department of Corrections. It contained greater detail concerning the conditions in the judgment and sentence. It stated in pertinent part that he would:

16. . . . [S]ubmit to sex offender evaluation by a Sex Offender Therapist approved by my Agent and will successfully complete any recommended treatment at my own expense. I will comply with all requirements and actively participate in treatment until released by my treatment provider. Furthermore, I will not miss individual or group therapy without the prior permission of my Agent or Sex Offender Therapist.
***
18. . . . [S]ubmit to, participate in, and pay for sex offender assessment including, but not limited to, polygraph examinations at the request of my Agent or Sex Offender Therapist.
***
22. . . . [R]emain gainfully employed and support my dependents in an occupation determined appropriate by my Agent, in conjunction with my Sex Offender Therapist, unless approved otherwise due to a disability or other circumstances.
23.. . . [W]ill not begin new employment or change existing employment until given prior approval by my Agent and I will immediately notify my Agent if I am disciplined, terminated or dismissed from work for any reason.

         Robinson initialed each provision of the agreement, and signed it at the end.

         [¶6] A few months later, the State filed a petition to revoke Robinson's probation. In support of the petition, an affidavit from Robinson's probation agent, Salli Perryman, was attached. The affidavit asserted, inter alia, that Robinson (1) "failed to report loss of employment to his [probation agent], " (2) "failed to submit to, participate in and pay for a polygraph examination" and (3) "failed to enroll in Sex Offender Treatment." Robinson denied the allegations set forth in the petition.

         [¶7] In accordance with W.R.Cr.P. 39(a)(5), an adjudicative hearing was held, and the State called Ms. Perryman as its only witness. She explained Robinson's failures concerning the sex offender evaluation, submitting to a polygraph test, and confirming his employment. With respect to Robinson's sex offender evaluation, Ms. Perryman testified:

Q. [Prosecutor] What gave rise to the allegation wherein you assert that he has failed to complete his sex offender treatment?
A. [Ms. Perryman] When he came in to meet with me on July 9th, he denied his offense, so I referred him to our sex offender therapist, Chuck Mueller.
Q. And who completes a sex offender treatment program, if you will, with an individual defendant?
A. Who completes it?
Q. Who signs them up for that, does an evaluation?
A. I make the referral, and then Chuck Mueller does the evaluation.
Q. Okay. So did the evaluation take place?
A. Yes.
Q. Okay. And what part of the process, as alleged in paragraph 4 of the affidavit wherein you allege he failed to enroll in sex offender treatment, why do you assert that?
A. I assert that because he went and met with Chuck Mueller. He denied that he committed the offense. Because he denied that he committed his offense, Chuck Mueller has nothing to treat, so because of that, he cannot enroll in sex offender treatment.
Q. Okay. So that's the basis - that part of his sentence, his judgment and sentence is at a standstill in other words?
A. Correct.
Q. And you had recited that that was a condition of his judgment and sentence that was signed by this Court?
A. Yes.

         [¶8] Because Robinson denied committing the offenses he had pled to, and could not therefore enroll in sex offender treatment, he was referred for a polygraph examination, as expressly provided for in the probation agreement. See supra, ¶5. Ms. Perryman explained:

Q. [Prosecutor] Okay. What steps do you take as a probation agent in an instance like this wherein somebody does not successfully enroll in sex offender treatment?
A. [Ms. Perryman] What we do is re-refer them for an instant offense polygraph, which is a polygraph over their offense, and then based on the outcome of that, we take a step either to return ...

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