Krow v. State
Annotate this Case
Krow v. State
1992 WY 138
840 P.2d 261
Case Number: 92-99
Decided: 10/26/1992
Supreme Court of Wyoming
Richard Dean KROW, Appellant (Defendant),
v.
The
STATE of Wyoming, Appellee
(Plaintiff).
Appeal from District Court, LaramieCounty, Nicholas G. Kalokathis,
J.
Richard
Dean Krow, pro
se.
Joseph
B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr.
Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen., Cheyenne, for appellee.
Before
MACY, C.J., and THOMAS, CARDINE,
URBIGKIT and GOLDEN, JJ.
GOLDEN, Justice.
[¶1.] Richard Krow appeals
from a district court order which denied his motion to correct an allegedly
illegal sentence.
[¶2.] We
affirm.
ISSUES
[¶3.] The issues on appeal
are:
1.
Whether appellant was denied due process of law by the district court's failure
to hold a preliminary hearing to determine if probable cause existed that he had
violated a term of his probation.
2.
Whether the district court's order which revoked appellant's probation and
reimposed his original sentence of two to five years confinement was supported
by sufficient evidence.
3.
Whether appellant was denied his constitutional right against double jeopardy
when the district court reimposed his original sentence after such sentence had
been reduced to time served and five years probation.
4.
Whether appellant was denied his constitutional right against double jeopardy
when the district court failed to grant full credit for time spent in
S.T.O.P.
FACTS
[¶4.] On June 9, 1989,
appellant pleaded guilty to one count of taking indecent liberties with a minor
in violation of Wyo. Stat. § 14-3-105 (1986). He was sentenced on October 27,
1989, to serve not less than two nor more than five years in the Wyoming State
Penitentiary.
[¶5.] On November 21, 1989,
appellant filed a motion to have his sentence reduced. The district court
granted this motion at a hearing which was held on October 26, 1990. At the
hearing, the district court informed appellant that his original sentence of two
to five years confinement would be suspended and that he would be placed on
probation for five years. Appellant was also advised that he would receive
credit for time served against his term of probation and that he would be
required to serve the first year of probation in the Surveillance and Treatment
of Offender Program (S.T.O.P.).
[¶6.] On August 26, 1991,
appellant filed a second motion to have his sentence reduced. Appellant asserted
that he would be rehired by Union Pacific Railroad if he could obtain an early
release from S.T.O.P. On September 10, 1991, before any action was taken on
appellant's motion, the district attorney filed an affidavit and request for a
hearing to show cause why appellant's probation should not be revoked. The
district attorney stated in his affidavit that appellant had violated a
probation condition by attempting to contact, in April, May and July of 1991,
the victim of his offense. The district attorney's affidavit was supported by an
affidavit from the victim.
[¶7.] A hearing was scheduled
for and held on September 20, 1991. The district attorney presented testimonial
evidence from appellant's probation officer and from the victim regarding the
alleged probation violations. Appellant, who was represented by counsel,
testified on his own behalf to explain that his run-ins with the victim were
mere "coincidences" which did not constitute "contact." Appellant also had his
social worker testify concerning the progress he had made in therapy. Following
the hearing, the district court revoked appellant's probation and reimposed his
original sentence. The district court gave appellant credit for time previously
served in confinement and for 120 days in S.T.O.P.
[¶8.] On April 14, 1992,
appellant filed a motion to correct the sentence imposed by the district court
following the probation revocation hearing. In this motion, appellant raised the
due process, sufficiency of the evidence, and double jeopardy issues which are
presently before this court. The district court denied appellant's motion by
order dated April 17, 1992. Appellant appeals that order.
DISCUSSION
[¶9.] Appellant's first
contention is that he was denied the process of law due by the district court's
failure to hold a preliminary, probable cause hearing before it held the final
revocation hearing. Our discussion of this argument need only be brief as we
have "walked this way before." Murphy v. State, 592 P.2d 1159, 1162 (Wyo.
1979).
[¶10.] In Knobel v. State, 576 P.2d 941
(Wyo. 1978), we addressed whether Morrissey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) required state courts to hold a preliminary and a final probation
revocation hearing. We held that a probationer's due process rights are
adequately protected where a district court, as in this case, settles not only
the initial probable cause question but also determines the fate of the
probationer in a single revocation hearing held in compliance with Wyo.R.Crim.P.
33(f).1 Knobel, 576 P.2d at 942-43; accord
Weisser v. State, 600 P.2d 1320 (Wyo. 1979).
[¶11.] While the process due a probationer does
not necessarily include both a preliminary and a final revocation hearing, it
does include the right to reasonable notice and a meaningful opportunity to be
heard. See, e.g., Swackhammer v. State, 808 P.2d 219 (Wyo. 1991); Mason v. State, 631 P.2d 1051 (Wyo. 1981). In this case,
appellant was notified of the probation violations alleged against him. In
response to this notice, his attorney prepared for the hearing by obtaining a
court order requiring the Department of Probation and Parole to release relevant
information and by having appellant's social worker subpoenaed to testify. A
hearing was then held at which a neutral decisionmaker presided. At this
hearing, appellant confronted the witnesses against him through
cross-examination conducted by his attorney. He also presented evidence and
argument on his own behalf. We hold that appellant's probation revocation
hearing was held in compliance with Wyo.R.Crim.P. 33(f) and that he was afforded
due process of law.
[¶12.] Appellant's second contention is that
there was insufficient evidence to support the district court's order which
revoked his probation and reimposed his original sentence. Specifically,
appellant contends that there was not "a shred of evidence" that he had
"contact" with the victim in violation of his probation agreement. He argues
that his run-ins with the victim were "coincidental" and that they did not
constitute "contact" as he neither spoke to nor touched the victim. We
disagree.
[¶13.] The duties of a district court in a
probation revocation hearing are to determine: (1) whether there are verified
facts which establish by a preponderance of the evidence that a condition of
probation has been violated; and, if so, (2) whether probation should be revoked
in light of the proven violation. Swackhammer, 808 P.2d at 224; Mason, 631 P.2d
at 1055. Upon review, all that is necessary to uphold a district court's
decision to revoke probation is evidence that it made a conscientious judgment,
after hearing the facts, that a condition of probation had been violated. E.g.,
Kupec v. State, 835 P.2d 359 (Wyo. 1992).
[¶14.] A special condition of appellant's
probation was that he "have no contact with the victim * * * under any
circumstances, at any time." At the hearing, the victim testified that appellant
had stopped and "stared" at her while she was at Lion's Park with some friends
in April of 1991; that he had "followed" her and a friend around Frontier Mall
in May of 1991, causing them to hide in the restroom of a department store; and
that he had "stared" at her while she was pushing carts from the Buttrey's
parking lot to the store in July of 1991. Appellant's probation officer
confirmed the victim's testimony, in part, by testifying that appellant had
disclosed during a S.T.O.P. group therapy session that he had "followed" the
victim at the Frontier Mall.
[¶15.] While appellant explained his encounters
with the victim as mere coincidences (he was at Lion's Park to "sit in the sun,"
at the Frontier Mall to "buy his mother a card," and at Buttrey's to "buy a
light bulb"), evidence was also presented which would support a finding that the
encounters were the result of appellant's strong sexual attraction to the
victim. Accordingly, we hold that the record reflects that the district court
made a conscientious judgment, after hearing the facts, that appellant had not
only violated a term of his probation, but also that probation should be revoked
to give the victim "peace of mind."
[¶16.] Appellant's third contention is that the
district court violated his constitutional right against double jeopardy by
reimposing his original sentence of two to five years confinement after revoking
his probation. Specifically, appellant points to the order reducing sentence
which was filed on November 16, 1990. This order purports to "reduce"
appellant's original sentence "to time served and five years probation."
Appellant argues that, since his original sentence was "reduced" and not
"suspended," the district court effectively sentenced him twice for the same
crime. We disagree.
[¶17.] The record reflects that the district
court held a hearing on October 26, 1990, concerning appellant's first motion to
reduce sentence. At the hearing, the district court granted appellant's motion
and stated:
Your sentence that was
entered November 8, 1989, will be modified as follows:
First, the basic term
of two to five years will remain, but that term - the additional term of two
years will be suspended because of the fact - in view of the fact that you have
served time as to that two-year sentence.
You will be placed on
a period of probation for a period of five years, with credit given for all your
time served to date.
[¶18.] As is clear from the foregoing, the
district court suspended appellant's original sentence and placed him on five
years probation. Appellant's attorney was instructed to prepare an order
reflecting this modification of sentence. The order reducing sentence which was
prepared, however, did not accurately reflect the sentence modification. Rather
than provide that appellant's sentence had been suspended and that he had been
placed on five years probation, it provided that his sentence had been reduced
to time served and that he had been placed on five years
probation.
[¶19.] This court has previously held that the
judgment and sentence pronounced orally in open court governs a subsequent,
inconsistent written judgment and sentence. Lane v. State, 663 P.2d 175, 176
(Wyo. 1983); Fullmer v. Meacham, 387 P.2d 1007,
1009 (Wyo.
1964). We believe that this rule should also apply in the context of sentence
modification. Consequently, we hold that the district court did not violate
appellant's constitutional right against double jeopardy by reimposing his suspended sentence following revocation
of probation. Additionally, we direct the district court to enter an order nunc
pro tunc to cause the record to accurately reflect the sentence modification
made orally by the court on October 26, 1990. See Lane, 663 P.2d at 176;
Meacham, 387 P.2d at 1009; Wyo. R.Crim.P. 37.
[¶20.] Appellant's final contention is that,
because the district court failed to give him full credit for time spent in
S.T.O.P., he is being punished twice for the same crime in violation of the
constitutional guarantee against double jeopardy. This argument must fail in
light of Kupec, wherein we recently held that a district court need not give a
probationer credit for time served in S.T.O.P. upon revocation of probation.
Kupec, 835 P.2d at 362. That the district court gave appellant partial credit
for time in S.T.O.P. is attributable to judicial grace, not constitutional
mandate. We hold accordingly.
DISPOSITION
[¶21.] The order of the district court which
denied appellant's motion to correct an allegedly illegal sentence is affirmed,
and the district court is directed to enter an order nunc pro tunc to correct
the order of November 16, 1990, which purported to reduce appellant's sentence
to time served and five years probation.
FOOTNOTES
1 Wyo.R.Crim.P. 33(f),
effective until March 24, 1992, provided:
Revocation of probation. - The court
shall not revoke probation except after a hearing at which the defendant shall
be present and apprised of the grounds on which such action is proposed. The
defendant may be admitted to bail pending such hearing.
The procedures
governing probation revocation are now outlined in substantially greater detail
by Wyo.R.Crim.P. 39.
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