               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45925

STATE OF IDAHO,                                 )
                                                ) Filed: March 2, 2020
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
ROBERT DEL CRITCHFIELD,                         )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Scott L. Wayman, District Judge.

       Order revoking probation, affirmed; order denying I.C.R. 35 motion for reduction
       of sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Robert Del Critchfield appeals from the district court’s order revoking probation and
ordering the originally imposed sentence executed. Critchfield additionally appeals from the
district court’s order denying his motion for reduction of sentence. For the reasons set forth
below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       After being convicted of lewd conduct with a minor and sexual abuse of a minor,
Critchfield motioned for a new trial. The district court granted the motion, and Critchfield
ultimately entered an Alford 1 plea to an amended charge of felony injury to a child. The district



1
       See North Carolina v. Alford, 400 U.S. 25 (1970).

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court imposed a unified sentence of ten years with three years determinate. The sentence was
suspended and Critchfield was placed on probation following the completion of 180 days in jail.
       While on probation, the State filed a report alleging Critchfield had violated his probation
on three separate occasions. 2      Critchfield admitted to one allegation and the remaining
allegations were withdrawn by the State. While disposition of this violation was pending, the
State filed an addendum alleging additional violations. 3 Critchfield admitted to violating his
probation as to one of the allegations. After an evidentiary hearing, the district court determined
Critchfield had also violated his probation as to the other allegations. Subsequently, the district
court revoked Critchfield’s probation, ordered the original sentence executed, but retained
jurisdiction. Following the period of retained jurisdiction, the district court placed Critchfield
back on supervised probation for two years.
       Subsequently, the State filed another report of probation violation, alleging eight distinct
violations, including possessing sexually explicit photos and videos.4 Critchfield admitted to
violating his probation in all of the manners alleged by the State except the allegation regarding a
polygraph examination. The State subsequently withdrew that allegation. At the probation
disposition hearing, the State called the supervisor for Critchfield’s probation officer. She
testified that an individual, the sister of Critchfield’s girlfriend, forwarded her sexually explicit
photographs depicting Critchfield and several female individuals. One individual was identified
as a nineteen-year-old female who would have been seventeen at the time the photo was taken.
The supervisor also testified Critchfield had allegedly taken the photos.         The photos were
admitted into evidence at the hearing over Critchfield’s objection that the testimony and the
photos violated his right to confront adverse witnesses. The district court overruled the objection
without explanation.



2
       (1) making unwanted romantic advances; (2) getting terminated from sex-offender
treatment; and (3) failing to provide truthful information on two polygraph examinations.
3
       (1) initiating and maintaining contact with a minor; and (2) consuming alcohol.
4
         (1) possessing an unauthorized cell phone; (2) maintaining unauthorized email, social
media, and dating accounts; (3) consuming alcohol; (4) pursuing a romantic relationship with an
individual whom his probation officer had forbidden; (5) pursuing a romantic relationship with
an individual who had a minor child; (6) having contact with a minor without permission;
(7) failing to take a polygraph examination as requested; and (8) possessing sexually explicit
photos and videos.
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          Following the hearing, the district court revoked Critchfield’s probation and ordered the
originally imposed sentence executed. Critchfield filed an Idaho Criminal Rule 35(b) motion for
reduction of sentence which was denied. Critchfield timely appeals.
                                                   II.
                                              ANALYSIS
A.        The District Court Did Not Violate Critchfield’s Right To Confront Adverse
          Witnesses
          Critchfield argues the district court violated his constitutional right to due process when it
denied him the right to confront witnesses at his probation disposition hearing. Specifically, that
allowing testimony and evidence related to sexually explicit photographs was in error. The State
asserts there is no constitutional due process right to confront witnesses at a probation disposition
hearing, especially when the violation has already been admitted.
          The determination whether constitutional requirements have been satisfied is subject to
free review. State v. Klingler, 143 Idaho 494, 496, 148 P.3d 1242, 1244 (2006). Probationers do
not enjoy the full panoply of constitutional protections afforded criminal defendants. Morrissey
v. Brewer, 408 U.S. 471, 480 (1972).            A motion to revoke probation is not a criminal
prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). However, a probationer has a
protected liberty interest in continuing his probation. State v. Blake, 133 Idaho 237, 243, 985
P.2d 117, 123 (1999). Consequently, a court may not revoke probation without a finding that the
probationer violated the terms of probation. Id. Once a probation violation has been proven,
however, the decision whether to revoke probation and execute a suspended sentence is within
the sound discretion of the trial court. State v. Knowlton, 123 Idaho 916, 921, 854 P.2d 259, 264
(1993).
          Critchfield cites to Morrissey, which determined a parolee 5 has the limited right to
confront and cross-examine adverse witnesses unless the hearing officer specifically finds good
cause for not allowing the confrontation. Morrissey, 408 U.S. at 488-489. Critchfield argues the
State in this case never provided any good cause for its failure to produce witnesses at the
disposition hearing.      This argument, though accurate, excludes one key fact:            Critchfield
admitted to the majority of the allegations prior to the disposition hearing including the
allegation related to the photographs:
5
       The due process rights identified in Morrissey apply to probationers as well as to
parolees. Gagnon v. Scarpelli, 411 U.S. 778, 779-782 (1973).
                                                    3
       Court:          The eighth violation is that you violated conditions of probation
                       specifically the sex offender agreement of supervision. It looks
                       like by possessing photographs and videos depicting female
                       nudity. Do you admit or deny that violation?
       Defendant:      I admit.
       Court:          Are you entering all of these admissions freely and voluntarily?
       Defendant:      Yes, I am.
       Court:          Are you admitting to all of these probation violations because in
                       fact you did violate probation as alleged?
       Defendant:      Yes, sir.
       Court:          I will accept your admissions. I’ll find they’re knowingly,
                       voluntarily and intelligently entered . . . .
Further, the allegation he denied was the polygraph examination violation, which is not the
allegation discussed by the testimony at issue. 6 His claim is that by allowing testimony and
evidence on the sexually explicit photographs, he was denied his right to confront an adverse
witness. However, he had already voluntarily admitted to this violation.
       As noted by the State, Idaho’s precedent recognizes “the reason for the attachment of due
process protection to proceedings such as [probation] is to assure that the finding of a parole [or
probation] violation will be based on verified facts and that the exercise of discretion will be
informed by an accurate knowledge of the [probationer’s] behavior.” State v. Chapman, 111
Idaho 149, 152, 721 P.2d 1248, 1251 (1986). The clear purpose is to ensure a violation is proven
with verified facts. This due process protection is not at issue when a defendant makes voluntary
admissions.
       The rights recognized in Morrissey do not apply in a separate probation disposition
hearing where the defendant has voluntarily admitted to the violations. In fact, there is no such
confrontation right at a criminal sentencing (which is the equivalent penalty phase of a criminal
proceeding) where a trial court may rely upon statements made in a presentence investigation
report. Idaho courts, as well as nearly all other jurisdictions, have consistently held the right to
confrontation does not require a criminal defendant be allowed to confront and cross-examine
witnesses at sentencing proceedings. See State v. Martinez, 154 Idaho 940, 942-43, 303 P.3d
627, 629-30 (Ct. App. 2013). A probationer’s due process rights are even more limited than
those of a criminal defendant at sentencing in light of the well-established principle that a
probationer does not enjoy the same rights as a criminal defendant. Morrissey, 408 U.S. at 480.


6
       Judge: “That is correct. He denied allegation 7 [allegation regarding polygraph].”
                                                 4
Thus, the probationer does not enjoy more due process rights at the disposition phase than a
defendant at sentencing.
       The State’s argument that Critchfield waived his right to confront adverse witnesses
when he admitted to violating his probation, just as a defendant waives his right by pleading
guilty, is well taken. Therefore, the district court did not err when it allowed testimony and
evidence at the disposition hearing on a previously admitted violation.
B.     The District Court Did Not Abuse Its Discretion By Revoking Critchfield’s
       Probation
       Critchfield argues the district court erred in revoking his probation because his repeated
probation violations did not justify that determination. 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 I.C.R. 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. 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: (1) correctly perceived the issue as one of discretion;
(2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards
applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). 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).


                                                 5
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 these standards, and having reviewed the record in this case, we cannot say that
the district court abused its discretion in revoking probation or in ordering execution of
Critchfield’s sentence.   Therefore, the order revoking probation and directing execution of
Critchfield’s previously suspended sentence is affirmed.
C.     The District Court Did Not Abuse Its Discretion By Denying Critchfield’s
       Rule 35(b) Motion
       Critchfield additionally argues the district court abused its discretion by denying his
motion for a reduced sentence. A motion for reduction of sentence under I.C.R. 35 is essentially
a plea for leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho
318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App.
1989). In presenting a Rule 35 motion, the defendant must show that the sentence is excessive
in light of new or additional information subsequently provided to the district court in support of
the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007).         In conducting
our review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987).
       Critchfield asserts his desire to support his children and obtain additional help is
sufficient to justify a reduced sentence. We disagree. Critchfield had numerous chances to
remain on probation. However, his continued disregard for the parameters of that probation led
to violation after violation. Given the nature of these violations, it is abundantly clear his
sentence is not excessive and the district court did not abuse its discretion in denying his
I.C.R. 35 motion.
                                               III.
                                        CONCLUSION
       The district court did not violate Critchfield’s due process rights when it overruled his
objections to testimony and exhibits related to his admitted probation violation. Additionally,
having reviewed the record in this case, we cannot say the district court abused its discretion
either in revoking probation or in ordering execution of Critchfield’s previously suspended
sentence.   Finally, the district court did not abuse its discretion by denying Critchfield’s
I.C.R. 35(b) motion for reduction of sentence. Therefore, the district court’s order revoking
                                                6
Critchfield’s probation and ordering the originally imposed sentence to be executed and its order
denying Critchfield’s motion for reduction of sentence are affirmed.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




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