State v. Russell , 122 Idaho 488 ( 1992 )

BAKES, Chief Justice.

This appeal arises from an order of the district court revoking the defendant Charles Russell’s probation and denying his I.C.R. 35 motion for reduction of sentence.¹ Russell appealed the district court order, and the Court of Appeals reversed the district court’s revocation of Russell’s probation. The State then filed a petition for review of the Court of Appeals decision, which this court granted.

Russell pled guilty to two counts of obliterating the vehicle identification numbers on snowmobiles in June, 1988, and was sentenced to two concurrent five-year terms. Execution of the sentences was suspended, and Russell was placed on probation. Russell violated several of the conditions of his probation, and the district court revoked his probation in August, 1989, at the same time amending the sentences down to one year fixed and three years indeterminate, which he commenced serving. The court retained jurisdiction for 180 days.

On February 27, 1990, at the end of the retained jurisdiction period, the court brought Russell back and again placed him on probation, including as a condition of that probation that Russell “not contact his wife in any fashion.” However, the court allowed Russell to go to his wife’s home to pick up some of his personal belongings if he was accompanied by a “responsible adult.” That same day Russell went with his lawyer to his wife’s home when she was not present, broke in through the back door of the garage, splintering the door casing, and obtained certain of his personal belongings. The next day, at Russell’s request, his stepfather telephoned Russell’s wife, asking her to speak with Russell regarding their taxes, automobile insurance, and other documents.

The district court was informed of Russell’s contact with his wife and ordered him into court on March 3,1990, to determine if he had violated his probation. At the end of the hearing the trial court revoked his probation and ordered the remainder of the suspended sentence to be served. Russell later filed a motion to reconsider his probation revocation. The trial court treated this motion as a Rule 35 motion for reduction of sentence and, after a hearing, denied the motion. Russell appealed the trial court’s decision.

On appeal, the Court of Appeals reversed the district court’s order revoking Russell’s probation, holding that the condition of probation prohibiting him from contacting his wife was unreasonable.² The State filed this petition for review.³

Preliminarily, regarding our standard of review, when this Court reviews a decision of the Court of Appeals, we give consideration to the ruling of the Court of Appeals, but make an independent appellate review of the trial court’s decision. Rice v. Hill City Stock Yards, 121 Idaho 576, 826 P.2d 1288 (1992); Sato v. Schossberger, 117 Idaho 771, 792 P.2d 336 (1990). If substantial and competent, though conflicting, evidence supports the trial court’s findings of fact, we will uphold those findings on appeal. Rice v. Hill City Stock Yards, supra; MacNeil v. Minidoka Memorial Hosp., 108 Idaho 588, 701 P.2d 208 (1985).

Russell argues that the condition of probation that he not “contact his wife in any fashion” was unreasonable. In rebuttal, the State argues that Russell failed to raise the issue at either the probation hearing in which the condition was imposed or at the probation revocation hearing, and therefore Russell cannot now raise it on appeal. We have recently reiterated that issues not raised before the trial court will not be considered on appeal. State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991). A review of the record discloses that Russell did not raise the issue of the reasonableness of the condition either when it was imposed or at the violation of probation hearing. The only issue raised was whether his actions violated the terms of the probation. Accordingly, Russell’s claim on appeal that the term of probation that he not contact his wife was unreasonable has not been preserved. State v. Martin, supra. The Court of Appeals decision concluding otherwise is vacated.

Russell nevertheless argues that, aside from his reasonableness claim, there was insufficient evidence for the trial court to revoke his probation. Specifically, he argues that the condition that he not “contact his wife in any fashion” was vague and that he thought it meant only that he could not speak to her personally. Russell also argues that his asking his stepfather to telephone his wife did not warrant the trial court’s decision to revoke his probation. The trial court, exercising its discretion, concluded otherwise. We find no abuse of discretion. State v. Hooper, 119 Idaho 606, 809 P.2d 467 (1991); State v. Barton, 119 Idaho 114, 803 P.2d 1020 (Ct.App.1991) (“Once a probation violation has been proved, the decision to revoke probation and pronounce sentence is within the sound discretion of the trial court.”). The trial court explicitly stated to Russell that “you will not contact your wife in any fashion. You will not go onto her premises or into her dwelling without any exceptions.” Mark Branson, a probation officer, testified at the probation violation hearing:

THE COURT: Did you have any discussions with [Russell] about contacting his wife?

THE WITNESS: I did that same evening, which should have been Tuesday the 27th. This would have been after they had been to the home. He came to my office, as he was getting ready to leave we discussed any potential contact with his wife. He was informed by myself and by Mr. Peterson that he was to have no contact whatsoever. He inquired about what about the insurance on my truck, I need to get ahold [sic] of her about that and such things as that. He was advised at that time that any contact that was necessary would have to be handled through his attorney. We discussed that before he left the office. That came up again later that evening when I was at his home. I again told him any contact whatsoever has to be handled through your attorneys. So there were two times on the 27th. (Emphasis added.)

In light of Mr. Branson’s testimony and the trial court’s specific statement to Russell that he not contact his wife “in any fashion,” we conclude that Russell should reasonably have known that when he asked his stepfather to call his wife he was violating the court’s order.

The trial court had ample opportunity to determine whether Russell was an appropriate candidate for continued probation. His probation had been revoked once before for numerous violations. He had been before the court many times. Throughout Russell’s various court proceedings, the trial court repeatedly remarked that he had an extremely poor attitude and that he had been “defiant to all kinds of authority,” “resistive to the probation officer,” and that he had “argued with the Court.” The trial court was able to judge Russell’s demeanor throughout these proceedings. After noting that Russell had an extremely poor attitude, the court considered the threat to society if Russell continued to be released on probation. He looked at Russell’s previous actions while on probation, understandably concluding that Russell would be likely to violate any probation conditions in the future, given his past record.⁴ In view of these facts, we hold that the trial court did not err in revoking Russell’s probation.

Russell contends that the trial court improperly based its decision to revoke his probation on the court’s previous concerns with Russell and on the method in which Russell broke into his wife’s house to get his personal belongings. Russell’s past behavior and his method of entry into his wife’s house were factors which the trial court was entitled to consider in determining how to exercise his discretion in the revocation proceeding.

In the process of determining whether a grant of probation is appropriate ..., the trial court necessarily must be permitted to evaluate a broad range of information about the defendant’s personality. This information may be gathered from many sources____ Very little information about a defendant will be irrelevant to the effort of the law to individualize treatment of convicted persons.

State v. Moore, 93 Idaho 14, 17, 454 P.2d 51, 54 (1969). In that same case, the Court stated:

In a determination of the appropriateness of a grant of probation, the trial court must consider the defendant’s “previous character and actions, * * * [his prospects for] abidpng] by the terms of his probation and * * * [for] rehabilitation,] and * * * the interests of society.” The primary consideration has been stated to be the “good order and protection of society.”

State v. Moore, 93 Idaho 14, 17, 454 P.2d 51, 54 (1969), quoting State v. Moore, 78 Idaho at 359, 363, 304 P.2d 1101-1103.

Next, Russell argues that the trial court erred in denying his Rule 35 Motion. The Court of Appeals held:

I.C.R. 35 permits the filing of such a motion “upon revocation of probation.” The trial court revoked Russell’s probation on March 2, 1990. Russell did not file his Rule 35 motion until March 9, 1990. The motion was untimely, and absent any special circumstances or any misleading conduct on the part of the government which could explain the delay, the trial court has no jurisdiction to entertain the motion. (Citation omitted.) Thus, the trial court did not err in denying the motion.

We agree. “When a reduction of a sentence is sought upon revocation of probation, the motion must be made at the time probation is revoked. It cannot be filed after revocation and after the prison sentence has been ordered into execution.” State v. Hocker, 119 Idaho 105, 106-07, 803 P.2d 1011, 1012-1013 (Ct.App.1991).

Finally, Russell argues that the trial court erred by failing to grant his motion to dismiss at the end of the State’s case in chief at the second probation revocation hearing. He contends that there was inadequate proof that he requested his stepfather to phone his wife and thus the State failed to prove its case and the motion to dismiss should have been granted. However, Russell’s estranged wife testified, without objection, for the State that:

He [Russell’s stepfather] called, he said, “Richard would like to talk to you.” And I indicated to him at that time, I said, “Why didn’t he contact me or talk to me before they decided to break into my house yesterday?” Tony said, “I don’t know about that.” I said, “Then I suggest you ask him about that.” He said, “All he wants to talk to you about is your taxes.” And I said, “I suggest he call and talk to the attorneys about it, then,” and I hung up.

In this probation violation proceeding, that was sufficient evidence that the call was made at Russell’s request to survive a motion to dismiss. Russell himself acknowledged in his testimony that he had in fact asked his stepfather to make the call. The trial court did not err in denying Russell’s motion to dismiss the action to revoke his probation.

We affirm the trial court’s decision to revoke Russell’s probation. That portion of the Court of Appeals opinion holding otherwise is vacated. We also affim the trial court’s decision to deny Russell’s Rule 35 motion.

JOHNSON and McDEVITT, JJ., and CAREY, J. Pro Tern., concur.

1 . Russell's notice of appeal, filed on March 26, 1990, purports to appeal from the "final judgment of conviction entered in the above entitled action on the 11th day of August, 1989, ..., the order revoking appellant’s probation entered in the above entitled action on the 2nd day of March, 1990, and the order denying the Rule 35 motion of appellant dated the 13th day of March, 1990____’’ The latter two orders are within 42 days of the time that the notice of appeal was filed. However, the original final judgment of conviction was entered on August 11, 1989, and no appeal was filed within 42 days of that date. Under I.A.R. 17(e)(B) a notice of appeal may only be filed from those final judgments "for which the time for appeal has not expired.” Therefore, there is no jurisdiction to consider the original final judgment of conviction in this appeal.

2 . The Court of Appeals also held that the district court properly dismissed Russell’s Rule 35 motion challenging his probation revocation because the motion was not timely filed. The court rejected the other issues which Russell attempted to raise either because they had not been raised in the trial court or were not timely raised on appeal.

3 . Russell was released on parole on March 5, 1992, sifter the Court of Appeals opinion was released. Subsequently, the State filed a motion to dismiss this appeal, arguing that since Russell had been released on parole, his attack on his probation revocation had become moot. We disagree. As counsel for Russell argued before this Court during oral argument, if Russell had been released on probation rather than parole, and if he successfully completed his term of probation, he would have had the opportunity to reduce his conviction to a misdemeanor. Also, the penalties for violating a condition of probation can be less severe than that for a parole violation, which is generally an immediate return to jail. Accordingly, we conclude that this case is not moot and deny the State’s motion to dismiss the appeal.

4 . At the probation revocation hearing, the trial court stated:

This Court believes that Mr. Russell is and could be a threat to society. I gave him every opportunity to prove himself ... and here he is right back in court in violation of another court order____