State v. Mark Stephen Wicklund ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38310
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 313
)
Plaintiff-Respondent, ) Filed: January 10, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
MARK STEPHEN WICKLUND, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Thomas F. Neville, District Judge.
Order denying motion to modify probation, affirmed.
Jacob D. Deaton, Eagle, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
PERRY, Judge Pro Tem
Mark Stephen Wicklund appeals from the district court’s denial of his motion to modify
his probation. We affirm.
I.
FACTS AND PROCEDURE
In 2001, Wicklund was indicted on the charge of sexual battery of a minor child sixteen
or seventeen years of age, I.C. § 18-1508A. Pursuant to a written plea agreement, Wicklund
pleaded guilty. On November 15, 2001, the district court filed a judgment of conviction wherein
it imposed a unified term of imprisonment of seven years, with two years fixed. The judgment
further provided that:
The Court does hereby suspend execution of the above sentence and places the
defendant on probation for a seven (7) year period upon the following terms and
conditions.
....
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e. The defendant shall pay a $20,000 fine at the minimum rate of $250 per
month.
In 2008, the district court found Wicklund in violation of one of the terms of his probation. On
August 8, 2008, the district court entered an order reinstating probation, adding additional terms
and extending the time of probation “through November 13, 2011.”
On October 19, 2010, Wicklund filed a motion seeking relief from the fine imposed as a
term of probation. 1 He contended, among other things, that his changed financial circumstances
made it impossible for him to pay the fine. The district court denied the motion. Wicklund
appealed.
On December 13, 2011, this Court entered an order noting that the appellate record
showed that Wicklund’s probation was set to expire on November 13, 2011. In the order, we
allowed the parties seven days to inform this Court why this case is not moot. The State did not
respond. Wicklund responded, contending that the case was not moot because he asserts he can
still be found in contempt for failing to pay the fine. 2 Without addressing the merits of
Wicklund’s argument, we turn to his underlying issue raised on appeal, that is, it is “impossible”
for Wicklund to pay the remainder of his fine as a condition of his probation.
II.
ANALYSIS
On appeal, Wicklund contends that the district court erred in denying his motion to set
aside the fine because his present financial circumstances render it impossible for him to pay it.
Idaho Code Section 19-2601(2) gives the trial court the discretion to place a defendant on
probation “under such terms and conditions as it deems necessary and expedient.” However, the
statute does not provide the trial court with the authority to impose arbitrary or unreasonable
conditions. State v. Wakefield, 145 Idaho 270, 273, 178 P.3d 635, 638 (Ct. App. 2007).
1
See State v. Cross, 105 Idaho 494, 670 P.2d 901 (1983) (holding that a fine may be
imposed as a term of probation). See also State v. McCool, 139 Idaho 804, 87 P.3d 291 (2004).
2
In his response Wicklund cited to State v. Schorzman, 129 Idaho 313, 924 P.2d 214(1996). In Schorzman, the Supreme Court addressed the trial court’s contempt powers when a
defendant fails to pay a fine that is part of the sentence. It was not an instance where the fine
was a condition of probation and is therefore completely inapplicable here.
2
Imposition of a term of probation impossible of fulfillment is an abuse of discretion. State v.
Sandoval, 92 Idaho 853, 861, 452 P.2d 350, 358 (1969).
For two reasons, Wicklund’s claim of error is without merit. First, in this appeal
Wicklund improperly relies upon unsworn statements in his motion to establish the evidentiary
basis for his current claim of impossibility. He claims in his appellate brief that the “facts as set
forth in Wicklund’s motion stand uncontroverted.” Although Wicklund apparently submitted an
affidavit along with his motion, he has failed to make that affidavit part of the record in this
appeal. The motion itself is not evidence, however. It is the responsibility of the appellant to
provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108
Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on
appeal to support the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho
103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991).
Second, even if this Court were to accept the assertions of Wicklund in his motion as
true, he has failed to show that his financial condition makes it impossible for him to pay the
fine. Among other things, Wicklund stated that he lives at home and cares for his elderly parents
and that he has paid over $5,000 of his fine. He claims he has been disabled and unable to work
since 2006, and that the district court’s term of probation restricting his use of the Internet leaves
him without alternative gainful employment. He concedes that he collects a monthly disability
payment of $1,300; however, he states it does not cover his living expenses. He also points out
that the probation office has waived his monthly supervision fee. Wicklund fails to show that his
compliance with the term of probation is “impossible” because “[a]lleging difficulty in meeting
the payments, as opposed to impossibility, is not sufficient to find an abuse of discretion.” State
v. Cross, 105 Idaho 494, 496, 670 P.2d 901, 903 (1983).
The district court’s order denying the motion to modify probation is affirmed.
Chief Judge GRATTON and Judge MELANSON CONCUR.
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