State v. William Dee Van Komen, Jr. ( 2015 )


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  •                IN THE COURT OF APPEALS OF THE STATE OF IDAHO
    Docket No. 41916
    STATE OF IDAHO,                                 ) 2015 Opinion No. 80
    )
    Plaintiff-Respondent,                    ) Filed: December 4, 2015
    )
    v.                                              ) Stephen W. Kenyon, Clerk
    )
    WILLIAM DEE VAN KOMEN, JR.,                     )
    )
    Defendant-Appellant.                     )
    )
    Appeal from the District Court of the First Judicial District, State of Idaho,
    Kootenai County. Hon. John T. Mitchell, District Judge.
    Order relinquishing jurisdiction and executing a unified five-year sentence with
    two years determinate for possession of a controlled substance with intent to
    deliver, affirmed.
    Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
    Appellate Public Defender, Boise, for appellant. Maya P. Waldron argued.
    Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
    Attorney General, Boise, for respondent. Nicole L. Schafer argued.
    ________________________________________________
    GRATTON, Judge
    William Dee Van Komen, Jr., appeals from the district court’s order relinquishing
    jurisdiction and executing a unified five-year sentence with two years determinate for possession
    of a controlled substance with intent to deliver. Van Komen asserts the district court violated his
    Fifth Amendment right against self-incrimination by considering his refusal to submit to a
    polygraph evaluation in deciding to relinquish jurisdiction at his retained jurisdiction review
    hearing. We affirm.
    I.
    FACTUAL AND PROCEDURAL BACKGROUND
    In 2010, Van Komen pled guilty to possession of a controlled substance with the intent to
    deliver, Idaho Code § 37-2732(a)(1)(B), and possession of drug paraphernalia, I.C. § 37-2734A.
    1
    The district court imposed a unified five-year sentence with two years determinate and retained
    jurisdiction. Following the period of retained jurisdiction, the district court placed Van Komen
    on probation for five years.
    In February 2013, the State filed a probation violation report alleging Van Komen had
    consumed alcohol, driven under the influence of alcohol, and consumed a controlled substance.
    Van Komen admitted to violating his probation, and the court continued his probation. In
    August 2013, the State filed a second probation violation report alleging Van Komen failed to
    report for drug testing and was having a relationship with a sixteen-year-old female (A.O.) who
    was on juvenile probation. Van Komen admitted to violating the terms of his probation, and the
    district court revoked his probation and again retained jurisdiction.
    In retaining jurisdiction for the second time, the court also ordered that Van Komen
    submit to a polygraph examination “to assess truthfulness as to (1) no drugs or alcohol after
    March 28th, 2013, and (2) the extent of sexual activity with [A.O.].” Encouraging Van Komen
    to be truthful regarding these issues, the court stated:
    If you test deceptive as to either of those things, then I will likely impose the
    prison sentence, have you serve the rest of your time in prison regardless of
    whether you do well on the rider. If you want to change your story, now would
    be the time to do it. If you test deceptive after this on either of those two
    questions, I’ll send you to prison.
    Van Komen then spoke with his attorney, who informed the court that “[Van Komen will] agree
    to the polygraph arrangement, Your Honor. He didn’t use, and he didn’t have any--I don’t know
    what sexual activity means.”
    At Van Komen’s review hearing following the second period of retained jurisdiction, the
    court inquired as to whether Van Komen submitted to the previously ordered polygraph
    examination. In response to the court’s inquiry, Van Komen’s counsel stated, “I don’t think
    there would be an issue in regards to drugs, Judge. However, in regards to any potential crime,
    uh, regarding some contact with the individual who I believe is a minor, I would advise him to
    assert his Fifth Amendment rights as to that.”
    The district court relinquished jurisdiction and imposed Van Komen’s underlying
    sentence, giving him credit for his time served. In doing so, the court stated:
    The reason that I am revoking your probation is you haven’t done what I
    ordered you to do when I sent you on a rider, and that was to get a polygraph
    evaluation to assess both the truthfulness of no alcohol or drugs after March 28,
    2013, and the extent of any sexual activity with [A.O.].
    2
    The court then expressed concern that Van Komen may have been attempting to contact A.O.
    during the period of retained jurisdiction, and stated that Van Komen had failed to make progress
    as to his ability to comply with orders and the law. Van Komen timely appeals.
    II.
    ANALYSIS
    Van Komen claims the district court abused its discretion when it relinquished
    jurisdiction in this case. The decision to place a defendant on probation or whether, instead, to
    relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
    court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood,
    
    102 Idaho 711
    , 712, 
    639 P.2d 9
    , 10 (1981); State v. Lee, 
    117 Idaho 203
    , 205-06, 
    786 P.2d 594
    ,
    596-97 (Ct. App. 1990). When a trial court’s discretionary decision is reviewed on appeal, the
    appellate court conducts a multi-tiered inquiry to determine:        (1) whether the lower court
    correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
    boundaries of such discretion and consistently with any legal standards applicable to the specific
    choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
    State v. Hedger, 
    115 Idaho 598
    , 600, 
    768 P.2d 1331
    , 1333 (1989). Van Komen argues the court
    did not act consistently with applicable legal standards by relinquishing jurisdiction because he
    asserted a Fifth Amendment right against self-incrimination at his review hearing.
    The Fifth Amendment, made applicable to the states through the Fourteenth Amendment,
    guarantees that “no person . . . shall be compelled in any criminal case to be a witness against
    himself.” U.S. Const. amend. V. There is no case law directly addressing the application of the
    Fifth Amendment right against self-incrimination at a retained jurisdiction review hearing.
    However, a review of how the United States Supreme Court has recognized the right at the
    various stages of a criminal proceeding is instructive. The Supreme Court has applied the right
    differently in these stages depending on the interests the defendant has at stake.
    A criminal defendant’s Fifth Amendment right against self-incrimination applies with the
    most force leading up to and during a criminal prosecution, when the defendant’s liberty interests
    may depend on the assertion of the right. To protect these interests before trial, the Supreme
    Court requires the government to tell criminal defendants they have the right and warn them the
    government will use their statements against them, Miranda v. Arizona, 
    384 U.S. 436
    , 444-45
    (1966), and prevents the prosecution from using any unwarned statements at trial, Oregon v.
    3
    Elstad, 
    470 U.S. 298
    , 307 (1985). To protect these interests at trial (the guilt phase), the
    Supreme Court prevents prosecutors from commenting on a defendant’s silence, Griffin v.
    California, 
    380 U.S. 609
    , 615 (1965), and requires courts to instruct juries that they may not
    draw any adverse inferences from a defendant’s silence, Carter v. Kentucky, 
    450 U.S. 288
    , 299-
    303 (1981).
    Although a defendant’s Fifth Amendment right against self-incrimination remains intact
    during sentencing1 (the penalty phase), the right applies differently than at trial because “the
    Fifth Amendment interests of the defendant are different.” White v. Woodall, 
    134 S. Ct. 1697
    ,
    1703 (2014) (quoting United States v. Whitten, 
    623 F.3d 125
    , 131-132, n.4 (2d Cir. 2010)
    (Livingston, J., dissenting)). At sentencing, the defendant’s Fifth Amendment interests shift
    from seeking liberty to mitigating penalties. Although these are important interests, the right
    against self-incrimination yields somewhat to the judge’s broad sentencing discretion.           See
    Mitchell v. United States, 
    526 U.S. 314
    , 338-339 (1999) (Scalia, J., dissenting). In Mitchell, the
    Supreme Court prohibited judges from drawing adverse inferences from a criminal defendant’s
    silence at sentencing, but explicitly limited the prohibition “to factual determinations respecting
    the circumstances and details of the crime.” 
    Id. at 328.
    This limitation “leaves open the
    possibility that some inferences might permissibly be drawn from a defendant’s penalty-phase
    silence.” 
    White, 134 S. Ct. at 1703
    (holding that Mitchell cannot be read to require a blanket no-
    adverse-inference instruction at every penalty-phase trial). Because judges at the penalty phase
    might permissibly draw adverse inferences from a defendant’s silence that the jury at the guilt
    phase may not, the Fifth Amendment right against self-incrimination is less absolute at
    sentencing than during trial.
    After sentencing, a criminal defendant’s Fifth Amendment right against self-
    incrimination changes once again. Because the trial court has determined the defendant’s guilt
    and fixed a penalty for the convicted crime, the defendant’s Fifth Amendment interests shift to
    avoiding additional penalties. Accordingly, the Supreme Court has limited the application of a
    criminal defendant’s Fifth Amendment right in post-sentencing proceedings to situations where
    the consequences of asserting the right result in the imposition of an additional penalty. See
    McKune v. Lile, 
    536 U.S. 24
    , 49-50 (2002). In McKune, a plurality of four justices noted that “a
    valid conviction and the ensuing restrictions on liberty . . . . necessarily place limitations on the
    1
    Estelle v. Smith, 
    451 U.S. 454
    , 463 (1981).
    4
    exercise of a defendant’s privilege against self-incrimination” and rehabilitation is a legitimate
    penological interest that must be weighed against a defendant’s exercise of his right against self-
    incrimination. 
    Id. at 36-38.
    Although the plurality and Justice O’Connor disagreed on what
    standard applies to define a liberty interest, they agreed that there can be no compulsion where
    the consequences of invoking the right do not implicate a defendant’s post-sentencing liberty
    interests. In her concurrence, Justice O’Connor stated that longer incarceration “as a penalty for
    refusing to incriminate oneself would surely implicate a ‘liberty interest’” and constitute
    compulsion. 
    Id. at 52.
    The plurality and Justice O’Connor further agreed that the Constitution
    does not prevent the government from requiring criminal defendants to choose between
    exercising the right and facing difficult consequences. 
    Id. at 37-38,
    41, 52-53.2 Thus, where a
    defendant’s post-sentencing liberty interests are not implicated, there is no compulsion, and
    hence, no violation of the right against self-incrimination.
    We turn then to application of the right against self-incrimination at a retained
    jurisdiction review hearing. The purpose of retaining jurisdiction after imposing a sentence is to
    afford the trial court added time for evaluation of a defendant’s rehabilitation potential and
    suitability for probation. State v. Goodlett, 
    139 Idaho 262
    , 264, 
    77 P.3d 487
    , 489 (Ct. App.
    2003). During this period, the defendant is in the custody of the Department of Correction for
    the purposes of such evaluation. 
    Id. At the
    end of the retained jurisdiction period, the court may
    suspend the defendant’s sentence and place him on probation or relinquish jurisdiction over him,
    thereby executing his already imposed sentence. 
    Id. If the
    court relinquishes jurisdiction, it may
    also reduce the defendant’s sentence at that time. 
    Id. 2 The
    Court held the consequences the defendant faced--a reduction in incentive level and
    transfer from a medium-security to maximum-security part of the prison--did not amount to
    compulsion, in part because his prison sentence was not increased. McKune v. Lile, 
    536 U.S. 24
    ,
    38, 50-52 (2002). In other post-sentencing situations, the Supreme Court has held there was no
    compulsion where a probationer feared the court would revoke his probation absent truthful
    statements to his probation officer, Minnesota v. Murphy, 
    465 U.S. 420
    , 434-39 (1984); the
    Griffin rule does not apply to state prison disciplinary hearings, Baxter v. Palmigiano, 
    425 U.S. 308
    , 319 (1976); and there is no Fifth Amendment right against self-incrimination at a clemency
    interview, Ohio Adult Parole Authority v. Woodard, 
    523 U.S. 272
    , 286 (1998). Thus, in the
    post-sentencing context, the Supreme Court has limited a criminal defendant’s Fifth Amendment
    right against self-incrimination. The Idaho Supreme Court has followed suit. See State v.
    Crowe, 
    131 Idaho 109
    , 
    952 P.2d 1245
    (1998) (probation revocation).
    5
    In State v. Coassolo, 
    136 Idaho 138
    , 
    30 P.3d 293
    (2001), the Idaho Supreme Court
    addressed whether the defendant in that case possessed a constitutionally protected liberty
    interest that would require a review hearing before the district court relinquished jurisdiction. In
    determining that due process did not require a review hearing, the Court first expressly
    differentiated a sentencing proceeding from a retained jurisdiction review hearing stating, “We
    first note that the constitutional protections required at sentencing are not applicable to the
    retained jurisdiction program because sentencing occurs before the period of retained
    jurisdiction, not when jurisdiction is relinquished.” 
    Id. at 142-43,
    30 P.3d at 297-98. The
    Supreme Court held that a hope or expectation of probation at the conclusion of the retained
    jurisdiction period is not a liberty interest protected by the Due Process Clause. 
    Id. at 143,
    30 P.3d at 298.
    Therefore, based on the McKune holding that there can be no compulsion where the
    consequences of invoking the right against self-incrimination do not implicate a defendant’s
    liberty interests, and the Coassolo holding that defendants in the retained jurisdiction program do
    not have a liberty interest in probation, we conclude that the district court’s demands did not
    amount to compulsion in regard to the Fifth Amendment analysis. Van Komen did not have a
    liberty interest in probation, so relinquishing jurisdiction could not implicate his liberty interests.
    Because relinquishing jurisdiction could not implicate Van Komen’s liberty interests,
    relinquishing jurisdiction also could not amount to compulsion. While Van Komen’s choice
    between refusing the polygraph and receiving his underlying sentence was no doubt a difficult
    one, the court did not violate the Constitution by requiring him to choose. Thus, the district court
    did not violate Van Komen’s Fifth Amendment rights or abuse its discretion when it relinquished
    jurisdiction.3
    3
    Van Komen’s reliance on United States v. Antelope, 
    395 F.3d 1128
    (9th Cir. 2005) is
    misplaced. In Antelope, the district court initially sentenced Antelope to five years of probation.
    
    Id. at 1131.
    The court required Antelope to submit to random polygraph evaluations in a
    rehabilitative camp as a term of his probation. 
    Id. Antelope failed
    to comply with several
    probation conditions and repeatedly refused to submit to polygraph evaluations. 
    Id. At the
    probation revocation hearing, a camp counselor testified that he told Antelope that he would
    likely disclose any criminal polygraph admissions to authorities. 
    Id. at 1135.
    The counselor also
    testified he had disclosed other defendants’ criminal polygraph admissions to authorities and his
    reports led to additional punishment for those defendants. 
    Id. The district
    court revoked
    probation and sentenced Antelope to an additional ten months of incarceration. 
    Id. at 1131-32.
    On appeal, the Ninth Circuit held a defendant must prove “(1) that the testimony desired by the
    6
    III.
    CONCLUSION
    The district court did not violate Van Komen’s Fifth Amendment right against self-
    incrimination or abuse its discretion when it relinquished jurisdiction. The district court’s order
    relinquishing jurisdiction is affirmed.
    Chief Judge MELANSON and Judge GUTIERREZ CONCUR.
    government carried the risk of incrimination, and (2) that the penalty he suffered amounted to
    compulsion” to establish a Fifth Amendment claim. 
    Id. at 1134
    (citations omitted). Based on
    the camp counselor’s testimony, the Ninth Circuit held the testimony desired by the government
    carried the risk of incrimination. 
    Id. The Antelope
    Court grounded its analysis of compulsion in
    Justice O’Connor’s McKune concurrence stating, “Justice O’Connor made clear in
    her McKune concurrence that she would not have found a penalty of ‘longer incarceration’ such
    as that here to be constitutionally permissible.” 
    Id. at 1138.
    Accordingly, the Court held the
    additional ten months of incarceration Antelope received for asserting his Fifth Amendment right
    against self-incrimination amounted to unconstitutional compulsion. 
    Id. Here, the
    district court did not and could not subject Van Komen to longer incarceration
    for asserting his right against self-incrimination, the penalty the Antelope Court held amounted to
    compulsion. Moreover, Van Komen was not threatened with the use of any information in a
    separate criminal proceeding.
    7