State v. Lance Raymond Selleck ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 44395
STATE OF IDAHO, ) 2017 Unpublished Opinion No. 538
)
Plaintiff-Respondent, ) Filed: August 2, 2017
)
v. ) Karel A. Lehrman, Clerk
)
LANCE RAYMOND SELLECK, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Bruce L. Pickett, District Judge.
Order denying dismissal or modification of no contact order, reversed and case
remanded.
Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GUTIERREZ, Judge
Lance Raymond Selleck appeals from the district court’s denial of his motion to dismiss
or modify a no contact order. Specifically, Selleck argues the district court erred because its no
contact order did not comply with Idaho Criminal Rule 46.2. For the reasons explained below,
we reverse the district court’s order denying Selleck’s motion to dismiss or modify the no
contact order and remand for further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Upon Selleck being convicted for felony violation of a no contact order, the district court
signed a no contact order prohibiting Selleck from contacting the protected individual. The order
read: “IT IS HEREBY ORDERED that the defendant shall have no contact with [the protected
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person’s name] for fifty (50) years, thus expiring on April 6, 2066.” Selleck filed a motion to
dismiss or modify the no contact order, arguing the order did not comply with Idaho Criminal
Rule 46.2(a). The district court held a hearing and denied Selleck’s motion. Selleck timely
appeals from the denial of his motion.
II.
ANALYSIS
The decision whether to modify a no contact order is within the sound discretion of the
district court. State v. Cobler, 148 Idaho 769, 771, 229 P.3d 374, 376 (2010). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine whether the lower court correctly perceived the issue as one of discretion,
acted within the boundaries of such discretion and consistently with any legal standards
applicable to the specific choices before it, and reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
Idaho Criminal Rule 46.2(a), as it was written before its recent amendment, governed no
contact orders and provided that such orders include the following information:
(1) The case number, defendant’s name and protected person’s name;
(2) A distance restriction;
(3) That the order will expire at 11:59 p.m. on a specific date, or upon dismissal
of the case;
(4) An advisory that:
(a) A violation of the order may be prosecuted as a separate crime under
I.C. § 18-920 for which no bail will be set until an appearance before a judge, and
the possible penalties for this crime,
(b) The no contact order can only be modified by a judge,
(c) When more than one domestic violence protection order is in place, the
most restrictive provision will control any conflicting terms of any other civil or
criminal protection order.
Moreover, Rule 46.2 provided the orders “shall be in writing and served on or signed by the
defendant.”
Here, the no contact order reads: “IT IS HEREBY ORDERED that the defendant shall
have no contact with [the protected person’s name] for fifty (50) years, thus expiring on April 6,
2066.” Selleck contends the district court erred in denying his motion to dismiss or modify the
no contact order because the order did not include a distance restriction, a statement that it will
expire upon dismissal of the case (as an alternative to the expiration date), or any advisory
required by former Rule 46.2(a)(4). Selleck also maintains the no contact order does not comply
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with the requirement that the order be served on or signed by Selleck. In response, the State
challenges Selleck’s arguments that the no contact order failed to comply with the requirement
that the order will expire upon dismissal of the case or on an expiration date and that violation of
the order may be prosecuted as a separate crime. Additionally, the State notes that the district
court ruled that Selleck had notice of the no contact order because it was announced in open
court in Selleck’s presence during his sentencing hearing. However, the State does not contest
the no contact order failed to include a distance restriction and the three-part advisory required
by former Rule 46.2(a)(4)(a)-(c).
Our review of the no contact order reveals the order indeed lacks a distance restriction
and the three-part advisory, as required by former Rule 46.2(a). Moreover, the order does not
comply with the amended Rule 46.2(a) that came into effect on July 1, 2017. The current rule
provides that “no contact orders issued pursuant to Idaho Code § 18-920 must be on the Supreme
Court form found in Appendix A and served on or signed by the defendant.” 1 I.C.R. 46.2(a).
We therefore remand to the district court with instructions to modify the no contact order in
accordance with current Rule 46.2(a).
III.
CONCLUSION
The district court erred in issuing a no contact order that failed to comply with the
requirements of Rule 46.2(a) as it was written both before and after its recent amendment.
Accordingly, we reverse the district court’s order denying Selleck’s motion to dismiss or modify
the no contact order and remand for further proceedings.
Chief Judge GRATTON and Judge HUSKEY CONCUR.
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The form in Appendix A requires the following information: the defendant’s name, date
of birth, gender, and race; the protected person’s name; a description of the charge or convicted
crime; distance restrictions; and an advisory. I.C.R. 46.2 app. A.
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