State v. Michael A. Gandenberger ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 39557
STATE OF IDAHO, ) 2013 Unpublished Opinion No. 618
)
Plaintiff-Respondent, ) Filed: August 6, 2013
)
v. ) Stephen W. Kenyon, Clerk
)
MICHAEL A. GANDENBERGER, ) THIS IS AN UNPUBLISHED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,
Elmore County. Hon. R. Barry Wood, District Judge.
Order revoking probation, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LANSING, Judge
Michael A. Gandenberger appeals from the district court’s order revoking his probation
and executing the underlying sentence. We affirm.
I.
BACKGROUND
In November 2010, Gandenberger was convicted of failing to register as a sex offender,
Idaho Code §§ 18-8311(1) (2006), 18-8307(4)(a) (2006). In February 2011, the district court
imposed a sentence of five years, with one year fixed, but suspended the sentence and placed
Gandenberger on probation for five years. In August 2011, a report was filed alleging that
Gandenberger was in violation of a term of his probation. The district court found Gandenberger
guilty of the violation, revoked probation, and executed the underlying sentence. Gandenberger
appeals.
1
II.
STANDARDS OF REVIEW
A district court’s finding of a probation violation will be upheld on appeal if there is
substantial evidence in the record to support the finding. State v. Sanchez, 149 Idaho 102, 105,
233 P.3d 33, 36 (2009); State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct. App.
1994). This “involves a wholly retrospective factual question.” Morrissey v. Brewer, 408 U.S.
471, 479 (1972). To comply with the principles of due process, “a court may revoke probation
only upon evidence that the probationer has in fact violated the terms or conditions of
probation.” Lafferty, 125 Idaho at 381, 870 P.2d at 1340. In the event of conflicting evidence,
we will defer to the district court’s determinations regarding the credibility of witnesses. State v.
Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003).
III.
ANALYSIS
The district court found Gandenberger in violation of the following term of probation:
I will not initiate, maintain, or establish contact with any person, male or
female, under the age of 18 years without the presence of an approved supervisor.
The supervisor must be over the age of 21 and be approved by both my
supervising officer and therapist.
Gandenberger presents a single issue on appeal: “Whether, absent any substantial and
competent evidence that Mr. Gandenberger willfully violated the terms of his probation, the
district court’s decision to revoke Mr. Gandenberger’s probation was in error.” Regarding that
issue, his arguments are multifaceted. He asserts that a 2012 amendment to Idaho Criminal
Rule 33(e) providing that probation shall not be revoked absent a court finding of a willful
violation should apply retroactively to his case; that the district court found a willful violation of
only being in the “presence” of children and therefore did not understand or appreciate the full
term of probation at issue; that no evidence shows, and the district court did not find, that
Gandenberger was willfully “without the presence of an approved supervisor”; that there was no
substantial or competent evidence that he initiated or established contact with a minor child; and
that, prior to the amendment of the rule, for a nonwillful violation to warrant revocation of
probation, the court was required to consider alternatives to revocation, which the court did not
do.
2
Several of Gandenberger’s claims are without merit because they are based on a parsing
of the district court’s findings and the term of his probation beyond any reasonable
interpretation. At the hearing on the alleged probation violation, the agreement of supervision
bearing Gandenberger’s signature and initials beside each term was admitted into evidence.
Gandenberger’s probation officer testified about the procedure for approving a supervisor, and
said that no one had applied to be Gandenberger’s supervisor or had been approved by either
himself or Gandenberger’s therapist. Gandenberger’s cousin testified that she brought her three-
year-old daughter and her five-year-old son to barbeques at Gandenberger’s father’s house
(where Gandenberger also resided) and that Gandenberger “interacted,” played and watched
movies with the children. Gandenberger’s father said that at the barbeques, Gandenberger “kind
of chases [the children] around a little bit and plays tag and stuff like that.” This is sufficient
evidence to support a finding that Gandenberger maintained contact with children outside the
presence of an approved supervisor, in violation of the term of probation.
Gandenberger’s assertions that the court misapprehended the probationary term and that
the court did not find a willful violation of the entirety of that term are not supported by the
record. The district court plainly was aware of the content of the term of probation, as it repeated
it verbatim at the hearing. The court expressly found that based upon “the uncontroverted
testimony, there is unauthorized contact by Gandenberger with the children at the barbeque.”
The district court also expressly found that neither Gandenberger’s therapist nor his probation
officer had approved a supervisor. Finally, the district court expressly stated that:
. . . I believe I did before, but I will again make the finding that the probation
violation established by the State here is a willful violation. There is nothing
beyond the probationer’s control or that his conduct wasn’t willful in being
present around these children. It’s clearly, in my view, a willful violation.
Because we determine that the district court found a willful violation of the term of probation,
and that the evidence was sufficient to sustain this finding, we need not address the remaining
issues of whether new I.C.R. 33(c) should be given retroactive application or whether the court
erred by insufficiently considering alternatives to revocation of probation on a finding of a
nonwillful violation.
The district court’s order revoking Gandenberger’s probation is affirmed.
Judge GRATTON and Judge MELANSON CONCUR.
3