State v. Nicole Louise McMillan

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 43302
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 611
)
Plaintiff-Respondent, ) Filed: July 27, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
NICOLE LOUISE MC MILLAN, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Lansing L. Haynes, District Judge.
Order revoking probation, affirmed.
Eric D. Fredericksen, Interim State Appellate Public Defender; Justin M. Curtis,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
Before MELANSON, Chief Judge; GUTIERREZ, Judge;
and HUSKEY, Judge
________________________________________________
PER CURIAM
Nicole Louise McMillan pleaded guilty to possession of a controlled substance,
methamphetamine, Idaho Code § 37-2732(c)(a). The district court imposed a unified sentence of
five years, with two years determinate, but after a period of retained jurisdiction, suspended the
sentence and placed McMillan on probation. Subsequently, McMillan admitted to violating the
terms of the probation, and the district court consequently placed McMillan on probation and
ordered her to successfully complete drug court. McMillan again violated the terms of her
probation, and the district court revoked probation, but after a second period of retained
jurisdiction, suspended the sentence and placed McMillan on probation. McMillan once again
violated the terms of probation. The district court revoked probation and ordered execution of
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the original sentence. McMillan appeals, contending that the district court abused its discretion
in revoking probation.
It is within the trial court’s discretion to revoke probation if any of the terms and
conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122
Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772
P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App.
1988). In determining whether to revoke probation a court must examine whether the probation
is achieving the goal of rehabilitation and consistent with the protection of society. State v.
Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834
P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation
has been established, order that the suspended sentence be executed or, in the alternative, the
court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at
325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989).
The court may also order a period of retained jurisdiction. State v. Urrabazo, 150 Idaho 158,
162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed on appeal
only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834
P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the
conduct underlying the trial court’s decision to revoke probation. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the
record before the trial court relevant to the revocation of probation issues which are properly
made part of the record on appeal. Id.Applying the foregoing standards, and having reviewed the record in this case, we cannot
say that the district court abused its discretion either in revoking probation or in ordering
execution of McMillan’s sentence. Therefore, the order revoking probation and directing
execution of McMillan’s previously suspended sentence is affirmed.
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