State v. Le Veque

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45704
STATE OF IDAHO, )
) Boise, May 2018 Term
Plaintiff-Respondent, )
) Filed: September 6, 2018
v. )
) Karel A. Lehrman, Clerk
KILO J. LE VEQUE, )
)
Defendant-Appellant. )
Appeal from the District Court of the First Judicial District of the State of Idaho,
Kootenai County, Hon. John T. Mitchell, District Judge.
The judgment of the district court is affirmed in part, reversed in part,
and remanded for further proceedings.
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant.
Brian R. Dickson argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for Respondent. Russell J.
Spencer argued.
_______________________________________________
HORTON, Justice.
Kilo J. Le Veque appeals the decisions of the district court in Kootenai County to revoke
his probation and subsequently relinquish jurisdiction. Le Veque argues that the district court
abused its discretion in these decisions by refusing to consider the propriety of the terms of his
probation at the revocation hearing and by relinquishing jurisdiction solely because Le Veque
had not obtained a polygraph examination that the district court desired. The Court of Appeals
affirmed the district court’s order revoking probation and reversed the district court’s order
relinquishing jurisdiction. We granted the State’s petition for review. We affirm the district
court’s decision revoking Le Veque’s probation, reverse the district court’s decision
relinquishing jurisdiction, and remand the case for further proceedings before a new district court
judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
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Le Veque pled guilty to burglary and possession of a controlled substance. The district
court imposed an underlying unified sentence of ten years, with four years fixed, for the burglary
and a concurrent unified sentence of seven years, with four years fixed, for possession of a
controlled substance. The district court retained jurisdiction. Following this initial period of
retained jurisdiction, the district court suspended Le Veque’s sentences and placed him on
probation for three years.
Le Veque was initially placed on general supervision probation. After reviewing Le
Veque’s criminal history, the Department of Correction (Department) learned that Le Veque had
been convicted of a sex offense in South Dakota within the preceding ten years and placed him
on sex offender probation. By way of motions, Le Veque challenged the propriety of the terms
and conditions of his probation, but the district court denied his attempts to terminate the
probation or modify the terms of probation. The district court found that the Department’s policy
that resulted in Le Veque being placed on sex offender probation was not arbitrary or capricious.
Le Veque did not appeal the district court’s denial of his motions.
While on probation, Le Veque engaged in an unapproved sexual relationship, failed to
provide truthful information on polygraph examinations, and was terminated from his sex
offender treatment program for failing to take responsibility for his prior sex crime. Le Veque
was also sanctioned for consuming alcohol and using a substance known as kratom 1 while on
probation.
On October 28, 2015, Le Veque was arrested on an agent’s warrant and the State filed a
motion seeking revocation of his probation based upon allegations contained in his probation
officer’s report of violation. Le Veque denied those allegations and again challenged the
propriety of subjecting him to the requirements of sex offender probation. The district court
denied Le Veque’s motion objecting to sex offender probation, noting that it had previously
denied two similar motions. Following an evidentiary hearing, the district court found that Le
Veque had willfully violated the terms of his probation. The district court revoked Le Veque’s
probation and ordered him to serve his previously suspended sentence, retaining jurisdiction for
up to one year. In that order, the district court included the following statement: “THE COURT
SPECIFICALLY RECOMMENDS SEX OFFENDER TREATMENT AFTER HE FULLY
1
According to the National Institute on Drug Abuse’s website, “Kratom is a tropical tree (Mitragyna
speciosa) native to Southeast Asia, with leaves that contain compounds that can have psychotropic (mind-altering)
effects.” https://www.drugabuse.gov/publications/drugfacts/kratom (last visited Aug. 30, 2018).
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DISCLOSES HIS INVOLVEMENT IN HIS SOUTH DAKOTA CRIME, AND THAT HIS
DISCLOSURE IS VERIFIED WITH A POLYGRAPH.” Le Veque timely filed a notice of
appeal from the order revoking probation.
Notwithstanding the district court’s recommendation that Le Veque be placed in a sex
offender treatment program, the Department placed Le Veque in a substance abuse program. Le
Veque successfully completed the substance abuse program and the Department recommended
that he be placed on probation. The prosecutor joined in the recommendation, despite concerns
that Le Veque had not been placed into a sex offender program.
The district court relinquished jurisdiction, noting that he had not completed the
polygraph examination that the district court had addressed in its previous order. The district
court acknowledged that the Department determines the type of treatment provided but stated
that Le Veque “could’ve arranged for a full disclosure polygraph that was passable or passed
either before you went on your [second] rider or after you returned, and you haven’t . . . .” Le
Veque and his attorney then inquired if the district court would allow additional time for Le
Veque to take a polygraph examination. The district court denied that request and entered its
order relinquishing jurisdiction.
Le Veque timely appealed from the order relinquishing jurisdiction, which was treated as
an amended notice of appeal. Thus, the two matters before the Court on appeal are: (1) the
district court’s revocation of Le Veque’s probation and (2) the district court’s subsequent
relinquishment of jurisdiction.
II. STANDARD OF REVIEW
When considering a case on review from a decision of the Court of Appeals, this Court
gives due consideration to the conclusions of the Court of Appeals, but reviews the district
court’s decision directly. State v. Rogers, 140 Idaho 223, 226, 91 P.3d 1127, 1130 (2004). This
Court exercises free review over constitutional questions. Guzman v. Piercy, 155 Idaho 928, 934,
318 P.3d 918, 924 (2014).
“The decision to relinquish jurisdiction or grant probation is committed to the district
judge’s discretion.” State v. Coassolo, 136 Idaho 138, 143, 30 P.3d 293, 298 (2001). “Once a
probation violation has been proven, the decision of whether to revoke probation is within the
sound discretion of the court.” State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007).
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When this Court reviews an alleged abuse of discretion by a trial court the
sequence of inquiry requires consideration of four essentials. Whether the trial
court: (1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by
the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (emphasis in original)
(citing Hull v. Geisler, 163 Idaho 247, 250, 409 P.3d 827, 830 (2018)).
III. ANALYSIS
A. The district court did not abuse its discretion when it revoked Le Veque’s
probation.
The decision to revoke probation is a two-step process. State. v. Garner, 161 Idaho 708,
710, 390 P.3d 434, 436 (2017). First, “[a] court may not revoke probation without a finding that
the probationer violated the terms of probation.” Rose, 144 Idaho at 765, 171 P.3d at 256. “The
trial court’s factual findings in a probation revocation proceeding, including a finding that a
violation has been proven, will be upheld if they are supported by substantial evidence.” Id.
Second, “[o]nce a probation violation has been proven, the decision of whether to revoke
probation is within the sound discretion of the court.” Id.
The district court revoked Le Veque’s probation after finding that Le Veque had willfully
violated his probation in three separate ways. Le Veque does not dispute the district court’s
factual finding that he had violated his probation on appeal. Instead, Le Veque argues that the
district court abused its discretion when it revoked his probation because it did not recognize its
authority to rule on the propriety of the sex offender terms of his probation at the revocation
hearing. Because of the nature of Le Veque’s challenge, we review the district court’s decision
for an abuse of discretion.
First, the Court must determine whether the district court recognized its discretion on
this issue. Ultimately, the district court did revoke Le Veque’s probation after finding that he had
violated its terms. A court is not required to explicitly make a finding regarding its discretion if
the record clearly shows that the court correctly perceived the issue. See State v. Dunlap, 155
Idaho 345, 364, 313 P.3d 1, 20 (2013). It is clear from the record that the district court
recognized its discretion to revoke Le Veque’s probation upon finding that he had violated the
terms.
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Second, the Court must determine “whether the trial court acted within the outer
boundaries of its discretion. Manifestly, the decision to revoke probation was within the bounds
of its discretion.
The third part of the standard of review governing discretionary decisions is squarely
presented by this appeal, i.e., that the district court must have acted “consistently with the legal
standards applicable to the specific choices available to it . . . .” Hull, 163 Idaho at 250, 409 P.3d
at 830 (quoting Athay v. Stacey, 142 Idaho 360, 366, 128 P.3d 897, 903 (2005)). Le Veque
argues that the district court is required by State v. Jones, 123 Idaho 315, 847 P.2d 1176 (Ct.
App. 1993), to determine whether the terms of probation that he has been accused of violating
are valid before revoking probation based upon violation of those terms. See also State v. Hayes,
99 Idaho 713, 587 P.2d 1248 (1978); State v. Mummert, 98 Idaho 452, 566 P.2d 1110 (1977);
State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968). Hayes, in particular, makes clear that, whether
a particular term of probation is invalid should be declared “where there is no evidence of a
relationship to rehabilitation” at a revocation hearing. 99 Idaho at 715, 587 P.2d at 1250.
However, rehabilitation and public safety are dual goals of probation. State v. Gawron, 112
Idaho 841, 843, 736 P.2d 1295, 1297 (1987). Whether the terms of probation are valid is a
question of law, freely reviewed by this Court. Mummert, 98 Idaho at 454, 566 P.2d at 1112;
State v. Wardle, 137 Idaho 808, 810, 53 P.3d 1227, 1229 (Ct. App. 2002); Jones, 123 Idaho at
318, 847 P.2d at 1179.
Le Veque argues that rather than analyzing Le Veque’s motion as required, the district
court believed that its hands were tied by the Department’s decision to impose terms of probation
that it uses to supervise sex offenders. Le Veque cites to the district court’s statement that:
I don’t have the jurisdiction to tell an executive branch agency like the
[Department] how to supervise you. It is their business and their business alone
how they choose to classify you, what terms and conditions they choose to put
upon you, and you’ve violated those terms and conditions.
However, Le Veque’s argument on this issue ignores the reality that the district court had
previously twice ruled upon Le Veque’s motions on this subject. In those decisions, the district
court indicated that it was deferring to the judgment and expertise of the Department in
determining how to best serve the goals of Le Veque’s probation. While it is true that courts may
consider the validity of probation terms imposed by the Department, the district court here had
already done so twice. Le Veque did not appeal the district court’s two previous rulings and we
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decline to consider the issue now through the lens of the revocation hearing. Accordingly, we
can find no abuse of the district court’s discretion by its reliance on its previous rulings regarding
the validity of the terms and conditions of Le Veque’s probation.
Finally, the Court must determine whether the district court’s decision was reached
through an exercise of reason. The district court acted consistently with the facts presented to it
and the applicable law. The district court heard a wealth of evidence that Le Veque had violated
the terms of his probation. Thus, Le Veque has not shown that the district court abused its
discretion when it revoked his probation.
B. The district court abused its discretion when it relinquished jurisdiction.
The district court relinquished jurisdiction based upon Le Veque’s failure to comply with
its recommendation that he take a polygraph examination. Le Veque argues that the district court
violated his Fifth Amendment rights by relinquishing jurisdiction solely because he had not
taken a court-ordered polygraph examination. The State argues that the district court did not
abuse its discretion by relinquishing jurisdiction and attempts to distinguish the facts in this case
from the facts in State v. Van Komen, 160 Idaho 534, 376 P.3d 738 (2016). This Court reviews
the district court’s decision to relinquish jurisdiction for an abuse of discretion. As such, the four
prongs of the abuse of discretion test identified above will be applied to the district court’s
decision.
To analyze this issue, we must first determine whether the district court recognized its
discretion on this issue. The district court did not refer to its discretion when relinquishing
jurisdiction. However, as noted, a court is not required to explicitly make a finding regarding its
discretion if the record clearly shows that the court correctly perceived the issue. Dunlap, 155
Idaho at 364, 313 P.3d at 20. Although the district court did not make an explicit finding
regarding its discretion, we are satisfied that the record shows that the district court recognized
the issue as one of discretion.
Second, the decision to relinquish jurisdiction is clearly a matter within the bounds of its
discretion.
Third, we would typically consider “whether the trial court acted . . . consistently with the
legal standards applicable to the specific choices available to it . . . .” Hull, 163 Idaho at 250, 409
P.3d at 830. Le Veque argues that the district court acted inconsistently with the applicable legal
standards by violating his Fifth Amendment rights. However, “[t]his Court will not address
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constitutional issues when a case can be decided upon other grounds.” State v. Smith, 161 Idaho
782, 785, 391 P.3d 1252, 1255 (2017) (quoting State v. Lee, 153 Idaho 559, 563, 286 P.3d 537,
541 (2012)). “It is well established that when a case can be decided upon a ground other than a
constitutional ground, the Court will not address the constitutional issue unless it is necessary for
a determination of the case.” City of Sandpoint v. Indep. Highway Dist., 161 Idaho 121, 124, 384
P.3d 368, 371 (2016) (quoting Mullinix v. Killgore’s Salmon River Fruit Co., 158 Idaho 269,
279, 346 P.3d 286, 296 (2015)).
Due to the nature of Le Veque’s challenge, deciding whether the district court’s decision
is consistent with the applicable legal standards would require answering serious constitutional
questions. Consistent with the doctrine laid forth above, we decline to answer these
constitutional questions because we find that the district court’s decision was not reached by an
exercise of reason.
“The role of this Court, in determining if the district court reached its decision by an
exercise of reason, is to review the process the district court engaged in to make its decision.”
Palmer v. Spain, 138 Idaho 798, 801, 69 P.3d 1059, 1062 (2003). The hallmark of a
discretionary decision that is not reached by an exercise of reason is arbitrariness. See State v.
Dopp, 124 Idaho 481, 483, 861 P.2d 51, 53 (1993). The district court explained that it
relinquished jurisdiction over Le Veque because Le Veque did not comply with what the district
court viewed as an order to Le Veque to obtain a polygraph examination. At the hearing, the
district court explained what it viewed as its order to Le Veque:
Most recently on this rider, “The Court specifically recommends sex offender
treatment after he fully discloses his involvement in his South Dakota crime and
that his disclosure is verified with a polygraph. This offender needs as much
cognitive restructuring as possible. He is not honest.” And while certainly the
Department . . . determines what treatment you’re given, you could’ve arranged
for a full disclosure polygraph that was passable or passed either before you went
on your rider or after you returned, and you haven’t . . . .
Certainly, courts have the power to enforce their lawfully issued orders. State v. Garcia,
159 Idaho 6, 13, 355 P.3d 635, 642 (2015) (citing Shillitani v. United States, 384 U.S. 364, 370
(1966) (“There can be no question that courts have inherent power to enforce compliance with
their lawful orders . . . .”); see also In re Weick, 142 Idaho 275, 278, 127 P.3d 178, 181 (2005);
Marks v. Vehlow, 105 Idaho 560, 566, 671 P.2d 473, 479 (1983). We find, however, that the
district court did not relinquish jurisdiction over Le Veque for his failure to obey a lawful order
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for two reasons: the alleged order was neither specific nor definite as to what it required and to
whom it was directed.
In the contempt context, district courts are empowered to “adjudge . . . any person who
willfully disobeys a specific and definite order of the court.” State v. Rogers, 143 Idaho 320,
322, 144 P.3d 25, 27 (2006) (emphasis added) (quoting Conley v. Whittlesey, 126 Idaho 630,
636, 888 P.2d 804, 810 (Ct. App. 1995)). Allowing punishment only for disobedience to specific
and definite orders accords with notions of fairness and due process. The alleged order that the
district court pointed to when it relinquished jurisdiction was this statement in the order revoking
Le Veque’s probation and committing him to the custody of the Department: “THE COURT
SPECIFICALLY RECOMMENDS SEX OFFENDER TREATMENT AFTER HE FULLY
DISCLOSES HIS INVOLVEMENT IN HIS SOUTH DAKOTA CRIME, AND THAT HIS
DISCLOSURE IS VERIFIED WITH A POLYGRAPH.” We find that this language does not
have the specificity and definition needed to be considered an order directing Le Veque to obtain
a polygraph examination.
First, the language is ambiguous. The district court did not use a term like “shall” or
“must” that would have made the district court’s desires unambiguous commands, even though it
had done so in previous orders that will be discussed below. Instead, the court recommended a
course of action. The district court had, in an earlier hearing, made it clear that it did not view its
recommendations as orders during this exchange with Le Veque’s attorney:
District court: When did I order your client to obtain an interstate compact to
Washington?
Attorney: In your order you allowed my client—you recommended, allowed my
client for interstate compact.
District court: Okay. So your prior statement that I ordered your client to get an
interstate compact to Washington was a misstatement on your part, correct?
Attorney: Your Honor, your order says what it says.
District court: Please answer my question [].
Attorney: When a judge recommends something on their order—
...
District court: Is that a misstatement[] that your client has been trying to abide by
this Court’s order to get an interstate compact?
Attorney: No, your Honor.
District court: I find it is. There has been no order by the Court for your client
to get an interstate compact. Term and condition of probation was that the
Court recommends an interstate compact, and that was put in at the time he
was put on probation because your client wished to get an interstate compact, and
the Court can’t order an interstate compact, never has been able to.
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(Emphasis added).
Even if the district court’s recommendation had been couched as a command, it is unclear
who the subject of the recommendation is. Certainly, the Department could have understood that
the recommendation was addressed to it, rather than being a direct order to Le Veque. This is
consistent with the district court’s previous recognition of the Department’s primary role in Le
Veque’s supervision: “I don’t have the jurisdiction to tell an executive branch agency like the
[Department] how to supervise you.”
Unlike the recommendation in question, the district court’s previous orders to Le Veque
were specific, definite, and unambiguous when requiring that Le Veque take certain actions:
WEEKLY RANDOM UA/BREATH/ETG TESTING IS REQUIRED FOR
THE FIRST YEAR OF YOUR PROBATION. IF THE [DEPARTMENT] IS
NOT ABLE TO PROVIDE THIS FREQUENCY OF RANDOM TESTING,
YOU MUST SET UP SUCH RANDOM TESTING AT YOUR OWN
EXPENSE, WITH THE RESULTS OF SUCH TESTING BEING
PROVIDED TO YOUR PROBATION OFFICER. YOU MUST
IMMEDIATELY AFTER TODAY’S HEARING, GO TO ABSOLUTE OR
SOME OTHER DRUG TESTING SERVICE APPROVED BY [THE
DEPARTMENT], AND BEGIN WEEKLY RANDOM TESTING. WEEKLY
RANDOM TESTING BEGINS IMMEDIATELY AND YOU ARE NOT
ALLOWED TO WAIT UNTIL YOU MEET WITH [THE DEPARTMENT]
FOR ORIENTATION OR YOUR FIRST VISIT WITH YOUR
PROBATION OFFICER.
Comparing this earlier order with the polygraph recommendation shows the arbitrary
nature of the district court’s decision. The district court utilized specific language in its previous
order—making it abundantly clear that the order was directed to Le Veque and he was required
to act. By contrast, the district court’s recommendation for a polygraph examination does not
utilize this type of specific language and is unclear to whom the recommendation is directed. As
such, relinquishing jurisdiction over Le Veque because he failed to follow an ambiguous
recommendation—rather than a specific and definite order—was not a decision reached through
an exercise of reason.
The district court made other arbitrary decisions at the relinquishment hearing that help
inform our conclusion that it abused its discretion in relinquishing jurisdiction over Le Veque.
For example, the district court had previously recognized the Department’s primary role in
supervising Le Veque and determining the appropriate programming. The district court stated: “I
don’t have the jurisdiction to tell an executive branch agency like the [Department] how to
9
supervise you.” However, at the hearing where the district court relinquished jurisdiction, the
district court stated:
I know your attorney has gone on and on and on about how you shouldn’t have
been—how you shouldn’t have been supervised as a sex offender, but you have
that in your past record so I don’t know how the [Department] can supervise you
as anything other than that. . . . And because of that, at least as far as I can tell
right now you are incapable of being placed on probation.
The Department—for whatever reason—decided to place Le Veque in a substance abuse
program rather than the sex offender treatment program that the district court had recommended.
To punish Le Veque by relinquishing jurisdiction, even in part, because the Department had
decided on a course of treatment contrary to the district court’s recommendation represents an
unreasonable change in position from the court’s earlier deference to the Department.
Further, since the Department had decided not to enroll Le Veque in sex offender
treatment, it is not clear what purpose would have been served by requiring Le Veque to
complete the polygraph examination. The district court’s recommendation appears to have
contemplated that Le Veque’s sex offender programming would be informed by the results of the
polygraph examination. The Department’s decision not to provide Le Veque with sex offender
programming eliminated the apparent value of the examination.
We therefore hold that that the district court abused its discretion when it relinquished
jurisdiction over Le Veque solely because he failed to follow an ambiguous recommendation
from the court. The order relinquishing jurisdiction must be vacated and a new jurisdictional
review hearing conducted. On remand, a different district judge must be assigned to decide
whether Le Veque should be placed on probation. State v. Van Komen, 160 Idaho 534, 540, 376
P.3d 738, 744 (2016).
IV. CONCLUSION
The district court’s decision to revoke Le Veque’s probation was not an abuse of
discretion. However, the district court’s decision to relinquish jurisdiction was an abuse of
discretion. Therefore, we affirm the district court’s decision revoking Le Veque’s probation,
vacate the order relinquishing jurisdiction, and remand this case for a jurisdictional review
hearing to be conducted by a different district judge.
Chief Justice BURDICK, and Justices BRODY, BEVAN and Justice Pro Tem
MELANSON CONCUR.
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