               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 90

                                                                APRIL TERM, A.D. 2016

                                                                         September 7, 2016

RUSSELL ROBINSON, JR.,

Appellant
(Defendant),

v.                                                   S-16-0003

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge


Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne Martens, Senior Assistant Attorney General;
      Jonathan C. Coppom, Assistant Attorney General. Argument by Mr. Coppom.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Russell Robinson Jr. disagrees with a district court’s decision to revoke
his probation. He contends that the district court erred at both the adjudicatory and
dispositional phases of the probation revocation process. We affirm the revocation and
imposition of his sentences.

                                               ISSUES

[¶2] Appellant raises three issues, which we have rephrased to more precisely reflect
the record and determinations of the district court:

       1.     Did the district court abuse its discretion during the adjudicatory phase of
the probation revocation hearings by concluding that Robinson had violated several
conditions of his probation?

       2.     Was it plain error to receive hearsay evidence during the adjudicatory phase
of the probation revocation process?

       3.     Did the district court err in not reinstating Robinson’s probation during the
dispositional phase of the probation revocation process?

                                               FACTS

[¶3] Pursuant to a plea agreement, Robinson pled no contest to one count of sexual
battery, a misdemeanor, in violation of Wyo. Stat. Ann. § 6-2-313 (LexisNexis 2015) and
to one count of false imprisonment, also a misdemeanor, in violation of Wyo. Stat. Ann.
§ 6-2-203(a) (LexisNexis 2015). Because the plea was one of no contest, Robinson was
not required to provide a factual basis himself.1

[¶4] Robinson was sentenced to one year incarceration on each count, to be served
consecutively, but the district court suspended execution of that sentence in favor of one
year of supervised probation on each count, which would result in two years of probation.
The probation conditions of the judgment and sentence required Robinson to sign a
probation agreement, remain employed, submit to a sex offender evaluation, and
complete any subsequently recommended sex offender counseling.




1
  “The purpose of a no contest or nolo contendere plea is to protect the defendant from use of the plea
against him in a later civil proceeding.” Balderson v. State, 2013 WY 107, ¶ 8 n.2, 309 P.3d 809, 811 n.2
(Wyo. 2013). The factual basis for the plea was provided to the satisfaction of the court and counsel by
the original information and supporting affidavit, which charged first degree sexual assault.


                                                    1
[¶5] Robinson also signed a sex offender probation agreement with the Wyoming
Department of Corrections. It contained greater detail concerning the conditions in the
judgment and sentence. It stated in pertinent part that he would:

              16. . . . [S]ubmit to sex offender evaluation by a Sex Offender
              Therapist approved by my Agent and will successfully
              complete any recommended treatment at my own expense. I
              will comply with all requirements and actively participate in
              treatment until released by my treatment provider.
              Furthermore, I will not miss individual or group therapy
              without the prior permission of my Agent or Sex Offender
              Therapist.

                                      *      *      *

              18. . . . [S]ubmit to, participate in, and pay for sex offender
              assessment including, but not limited to, polygraph
              examinations at the request of my Agent or Sex Offender
              Therapist.

                                      *      *      *

              22. . . . [R]emain gainfully employed and support my
              dependents in an occupation determined appropriate by my
              Agent, in conjunction with my Sex Offender Therapist, unless
              approved otherwise due to a disability or other circumstances.

              23. . . . [W]ill not begin new employment or change existing
              employment until given prior approval by my Agent and I
              will immediately notify my Agent if I am disciplined,
              terminated or dismissed from work for any reason.

Robinson initialed each provision of the agreement, and signed it at the end.

[¶6] A few months later, the State filed a petition to revoke Robinson’s probation. In
support of the petition, an affidavit from Robinson’s probation agent, Salli Perryman, was
attached. The affidavit asserted, inter alia, that Robinson (1) “failed to report loss of
employment to his [probation agent],” (2) “failed to submit to, participate in and pay for a
polygraph examination” and (3) “failed to enroll in Sex Offender Treatment.” Robinson
denied the allegations set forth in the petition.

[¶7] In accordance with W.R.Cr.P. 39(a)(5), an adjudicative hearing was held, and the
State called Ms. Perryman as its only witness. She explained Robinson’s failures


                                              2
concerning the sex offender evaluation, submitting to a polygraph test, and confirming
his employment. With respect to Robinson’s sex offender evaluation, Ms. Perryman
testified:

             Q. [Prosecutor] What gave rise to the allegation wherein you
             assert that he has failed to complete his sex offender
             treatment?

             A. [Ms. Perryman] When he came in to meet with me on July
             9th, he denied his offense, so I referred him to our sex
             offender therapist, Chuck Mueller.

             Q. And who completes a sex offender treatment program, if
             you will, with an individual defendant?

             A. Who completes it?

             Q. Who signs them up for that, does an evaluation?

             A. I make the referral, and then Chuck Mueller does the
             evaluation.

             Q. Okay. So did the evaluation take place?

             A. Yes.

             Q. Okay. And what part of the process, as alleged in
             paragraph 4 of the affidavit wherein you allege he failed to
             enroll in sex offender treatment, why do you assert that?

             A. I assert that because he went and met with Chuck Mueller.
             He denied that he committed the offense. Because he denied
             that he committed his offense, Chuck Mueller has nothing to
             treat, so because of that, he cannot enroll in sex offender
             treatment.

             Q. Okay. So that’s the basis – that part of his sentence, his
             judgment and sentence is at a standstill in other words?

             A. Correct.

             Q. And you had recited that that was a condition of his
             judgment and sentence that was signed by this Court?


                                           3
             A. Yes.

[¶8] Because Robinson denied committing the offenses he had pled to, and could not
therefore enroll in sex offender treatment, he was referred for a polygraph examination,
as expressly provided for in the probation agreement. See supra, ¶5. Ms. Perryman
explained:

             Q. [Prosecutor] Okay. What steps do you take as a probation
             agent in an instance like this wherein somebody does not
             successfully enroll in sex offender treatment?

             A. [Ms. Perryman] What we do is re-refer them for an instant
             offense polygraph, which is a polygraph over their offense,
             and then based on the outcome of that, we take a step either to
             return them back to treatment, or for further assessment.

             Q. Okay. And is that requirement articulated in any of these
             documents?

             A. Yes

             Q. Okay. Which document?

             A. It is articulated in the Probation and Parole agreement,
             condition number 18.

[¶9] Ms. Perryman testified that she made three attempts to have Robinson take a
polygraph, all of which were unsuccessful. On the first attempt, she provided Robinson
notice of the appointment several days in advance; however, at the appointment Robinson
said that he was in too much pain and could not stay because he had a doctor’s
appointment scheduled. As a result, the polygraph was rescheduled, and Ms. Perryman
asked him to bring documentation showing that he did in fact have a medical
appointment. Robinson never provided that documentation.

[¶10] At the second attempt, Robinson called the morning of the scheduled examination
and left a message saying he was too sick to attend. Ms. Perryman asked him to provide
documentation of medical services he received for his illness that day, which he never
did.

[¶11] The polygraph was then rescheduled a third time. For two weeks Ms. Perryman
tried to contact Robinson and confirm that he was indeed going to show up at the
scheduled time and date. He never returned her calls. Two days before the scheduled


                                            4
appointment, Ms. Perryman went to his house to confirm the date and time. Robinson
was home, and Ms. Perryman was able to speak with him and assure that he knew of the
appointment. Robinson prophetically told her that he would be sick in two days and
unable to take the polygraph at that time. Ms. Perryman asked for any kind of medical
documentation regarding his approaching sickness, a request that went unfulfilled.

[¶12] In the end, Robinson did provide some emergency room documentation of his
visits there, but those visits were on days other than when the polygraphs had been
scheduled. In other words, he never provided medical documentation of illness on any of
the three days he was scheduled to take the polygraph.

[¶13] With respect to Robinson’s failure to maintain employment, Ms. Perryman
testified that Robinson told her he was employed as the general manager at a grocery
store. In accordance with her normal procedure, Ms. Perryman repeatedly requested
proof of employment such as a pay stub or other documentation, which Robinson never
provided. Because Robinson did not comply with the request, Ms. Perryman called the
grocery store. She asked to speak with the human resources hiring manager, who
informed her that they had never had an employee with Robinson’s name.

[¶14] Based upon this evidence presented at the adjudicatory phase, the district court
concluded that the State had proved the allegations in the petition by a preponderance of
the evidence. Specifically, it determined Robinson had violated the terms of his
probation because he failed to prove that he maintained employment and repeatedly
failed to submit to a polygraph.2 The district court explained its decision as follows:

                      As to the employment allegation, he lied to a probation
               officer. That’s the evidence in front of me. More than once,
               and perhaps a wholesale lie, if what we heard secondhand
               from an employer turned out to be the case. You are not
               supervisable, or at least you’re not a primary candidate for
               supervision if you are not honest with the agent.

                                          *       *       *

                      As to the second allegation that he participated – you
               say he participated, he went there. The State isn’t – isn’t
               denying what you argued, that he showed up. But there’s a
               reason, and it actually stems from law developed in the
               Wyoming Supreme Court, out of this jurisdiction, I think,
2
  Ms. Perryman was evidently unfamiliar with Neidlinger v. State, 2007 WY 204, 173 P.3d 376 (Wyo.
2007), which we discuss at length below. Although she (and perhaps the prosecutor) evidently believed
that Robinson’s probation could be revoked for failing to admit conduct which would permit sex offender
treatment, the district court did not rely on his denial of misconduct when it adjudicated him.


                                                   5
why the polygraph is a separate requirement of the probation .
. . . [P]rosecutors and defense attorneys . . . make agreements
often to avoid victim testimony, for instance, to get past bad
memories or drunken conduct by the Defendant. Whatever
you do, you do.

       I’m here on the record, however, of a no contest plea.
I reviewed the transcript [of the plea hearing], and I went into
detail with Mr. Robinson about what a no contest plea meant
and what it is used for. It arose actually at an odd place in our
proceeding, because at the time, I think they had come in with
a guilty plea sort of agreement, but he pled no contest instead.
I reviewed that colloquy, back and forth between myself and
Mr. Robinson at the time of the change of plea, and of course,
the sentencing proceeding where we talked about the order
that would be imposed.

       So I find he’s been completely informed of all the
consequences. And the polygraph, as I mentioned, is a
separate condition because of that case law. Individuals, once
all of you have used your reasons and employed your
negotiating skills, you come to agreements, but sex offender
treatment requires acknowledgment of the conduct, and a no
contest plea doesn’t provide a factual basis, so there is no
acknowledgment. But if the therapist gets it, or the evaluator
gets no admission of the conduct, he has failed in the
treatment.

       Now, over the years, this additional condition has been
added to sort of catch this. In other words, you’ve got to take
a polygraph in the end game, and that’s going to determine
for us – short of revocation, that will determine for the agents
whether or not to hold someone to the sex offender
evaluation.

       The emergency room sickness, or a blood clot here or
there, after the fact information supplied, wasn’t the point at
all, and at one point, two days before the third meeting, the
agent had to find him. Now, at that point, as I did this, a
couple months in – not even a couple of months in from
sentencing, his agent finds him, tells him – makes sure he
knows about the appointment, and what happens? He tells her
then and there that two days from now I’m too sick.


                                6
                      She, of course, wrote to the District Attorney, because
               she was – perhaps didn’t believe. It’s not for her believing or
               not believing. He didn’t testify. She did. Secondhand what I
               know and I believe that when confronted, he had no current
               medical excuse, maybe for any of them, the exact dates, but
               even if I gave him the benefit of the doubt of being sick
               during the period, being confronted two days before it, your
               freedom being at stake, that’s an act of decision making by
               Mr. Robinson about complying with at least the third exam,
               and he clearly violated that provision as well.

                     And any of those standing alone would be sufficient
               and would result in revocation, and this will. His probation
               must be revoked, and consideration of disposition is next.

[¶15] At the disposition hearing, the district court considered whether to impose
Robinson’s sentence or whether to continue him on some form of probation with
additional conditions or perhaps community corrections. The State maintained that
Robinson should be incarcerated because he willfully failed to comply with the
conditions of his probation.

[¶16] For his part, Robinson’s attorney explained that Robinson had become compliant
after the fact. That is, during the interval between the adjudicatory and dispositional
phases, Robinson took the polygraph and attended several sessions of sex offender
treatment.3 Robinson was given a chance to make a statement, which he chose to do.
The dispositional hearing transcript reflects as follows in relevant part:

               [District Court] Mr. Robinson, you’re not required to say
               anything, but you may say something on your behalf if you
               wish. Go ahead.

               [Robinson] Your honor, I have participated in the classroom,
               and I have admitted to what I did in my classes.

                                        *       *      *

               [District Court] Well, that’s too much of a factual difference.

               [Robinson] Sorry.

3
   The district court acknowledged that the truthfulness of answers given during the polygraph was
irrelevant and what mattered was instead whether he showed up and took the test.


                                                 7
             [District Court] He just said he’s admitted --

             [Robinson] Yes, I have.

             [District Court] -- misconduct, sexual misconduct, sexual
             battery.

             [Robinson] Yes, I have.

[¶17] The district court asked the State if what Robinson said was true. The prosecutor
quickly investigated the claim, and informed the district court that “neither in treatment
nor during the polygraph testing did Mr. Robinson make any admissions.” The district
court asked Robinson if he had anything further to say, to which Robinson said he could
prove his admission during the classes. The district court responded, saying “Why don’t
you just admit to me right now, Mr. Robinson, so I know what you did, and so do they.”
Robinson admitted to his conduct, and again stated he made these admissions in his sex
offender classes. He then tried to explain that he did not understand the polygraph
process.

[¶18] The district court remarked that if he did not understand something about the
process, he could have simply asked for clarification. In the end, the district court felt
that Robinson had “sandbagged” from the time he entered the no contest plea, and that no
further chances at probation were warranted.

[¶19] In sum, the district court concluded that Robinson had violated both the polygraph
and employment conditions of his probation. Based upon these willful violations, and his
unsuitability for supervision, Robinson’s probation was revoked and the suspended
sentences were imposed. He then timely perfected this appeal.

                                     DISCUSSION

[¶20] W.R.Cr.P. 39 governs probation revocation proceedings. We recently reaffirmed
that

             [t]he proceedings for probation revocation consist of a two-
             part process. The first part, the adjudicatory phase, requires
             the district court to determine by a preponderance of the
             evidence whether a condition of probation was violated. The
             second, dispositional phase, is triggered only upon a finding
             that a condition of probation was violated. In this phase, the
             district court must deliberate not only upon the violation, but
             also the reasons the conditions were originally imposed and


                                             8
              the circumstances surrounding the violation. After
              consideration of all these factors, the district court must then
              determine the appropriate consequences of the probationer’s
              violation. In addition to the requirements of W.R.Cr.P. 39,
              we have said that in order to revoke probation for the
              violation of a condition of probation not involving the
              payment of money, the violation must either be willful or
              threaten the safety of society. The willfulness of a
              probationer’s violation is addressed during the dispositional
              phase.

Miller v. State, 2015 WY 72, ¶ 8, 350 P.3d 742, 745 (Wyo. 2015) (citations and quotation
marks omitted).

[¶21] Robinson argues that the district court erred in both the adjudicatory and
dispositional phases of the probation revocation process. We will address his issues
dealing with the adjudicatory hearing first, and then follow up with his complaint as to
the dispositional phase.

Determination of Probation Violation during the Adjudicative Phase

[¶22] Robinson frames his first issue in such a way as to suggest that the district court’s
reason for finding a probation violation was based upon his failure to admit the sexually
inappropriate conduct, in addition to his failure to take a polygraph. Robinson’s version
of the decision veers off course.

[¶23] As noted above, after carefully reviewing the record, we conclude that the district
court determined by a preponderance of the evidence that two separate conditions of
probation had been violated—Robinson failed to establish employment and did not take a
polygraph. See supra, ¶14. The district court did not find that a condition of probation
had been violated because of Robinson’s failure to admit his conduct.

[¶24] This is not a situation, as Robinson suggests, like that in Neidlinger v. State, 2007
WY 204, 173 P.3d 376 (Wyo. 2007). There the defendant pled no contest to one count of
indecent liberties with a minor. Id. at ¶ 3, 173 P.3d at 377. The probation conditions
included requirements that the defendant participate in the intensive supervised probation
program, submit to a sex offender evaluation and successfully complete a sex offender
treatment program. Id. at ¶ 4, 173 P.3d at 377. During his probation, the defendant
refused to admit any inappropriate sexual behavior to a sex offender therapist. As a
result, the therapist would not provide sex offender treatment. Id. The State filed a
petition to revoke Neidlinger’s probation for failure to participate in sex offender
treatment, and the district court revoked, reasoning that because he failed to admit any



                                             9
sexual misconduct, the defendant effectively failed to comply with the requirement that
he submit to a sex offender evaluation. Id. at ¶ 7, 173 P.3d at 378.

[¶25] On appeal, we concluded that admission of criminal conduct was not a condition
of probation, and that therefore the district court had abused its discretion. Id. at ¶ 11,
173 P.3d at 379. We explained:

              . . . The probationary condition at issue simply required
              Neidlinger to “submit to and pay for a sex offender evaluation
              by a sex offender counselor approved of by the probation
              agent.” While the district court certainly could have
              conditioned Neidlinger’s probationary status on Neidlinger’s
              admission of criminal conduct to the sex offender evaluator, it
              did not expressly do so. By requiring Neidlinger to admit
              criminal conduct as part of the evaluation, the district court
              extended the probationary condition beyond its express
              language.

                      Further, there is no indication in the record that
              Neidlinger was ever advised he would have to admit to
              criminal conduct in order to fulfill that condition. As a matter
              of due process, a probationer must know and understand what
              is expected of him in order to maintain his probationary
              status. Otherwise, an alleged violation cannot be considered
              willful as required under law to justify a probation revocation.

                     In this case, Neidlinger never admitted to the criminal
              conduct underlying his conviction. Under the circumstances,
              it is unreasonable to assume that Neidlinger would reverse
              course without express direction from the district court.
              Without such express direction, we believe Neidlinger could
              not have anticipated the district court’s construction of the
              term “submit.” Given the state of affairs, Neidlinger’s failure
              to admit to criminal conduct cannot be considered a willful
              violation of a condition of probation.

                      We find Neidlinger complied with the condition of
              probation that he submit to a sex offender evaluation. He met
              with Mueller, the probation officer’s chosen sex offender
              counselor, on two separate occasions. Mueller testified at the
              revocation hearing that he completed a sex offender
              evaluation on Neidlinger. We understand the district court’s
              frustration that the evaluation did not go as it envisioned, but


                                              10
                the evaluation was consistent with the requirements of
                Neidlinger’s probation.

Id. at ¶¶ 11-14, 173 P.3d at 379 (citations omitted).

[¶26] The circumstances here are distinguishable. The express terms of Robinson’s
probation required him to submit to a polygraph and to also maintain employment. See
supra, ¶5. All Robinson had to do was submit to the test. He did not have to admit to
any of the conduct supporting the offenses to which he pled no contest, and he did not
have to pass the polygraph.4 See Johnson v. State, 6 P.3d 1261, 1263-64 (Wyo. 2000).
Instead he failed to keep three testing appointments and produced no medical
documentation to explain why he had failed to comply. Simply put, this situation is not
similar to Neidlinger.5

[¶27] Requiring Robinson to take the polygraph was not a pointless exercise. As we
noted in Johnson, although he was not required to test truthful on the examination, if he
did so while denying misconduct, the probation agent would know that it was pointless to
continue to encourage him to participate in sex offender therapy. On the other hand, if he
failed, the agent would know that it was worthwhile to continue to encourage him to own
up to his misconduct and engage in therapy.

[¶28] Robinson also failed to show that he was employed when all he had to do was
provide documentation to his probation agent. By failing to do so, he also failed to
confirm that he was gainfully employed and therefore in compliance with that condition
of his probation.

[¶29] Adhering to our standard of review in cases dealing with probation revocation, see
Miller, ¶ 10, 350 P.3d at 745, we find that the district court did not abuse its discretion in
determining that revocation was warranted because Robinson had violated conditions of
probation.

Admission of Hearsay Evidence during the Adjudicative Phase

[¶30] Robinson also argues that the district court erred in admitting hearsay evidence
during the adjudicative phase. Robinson contends that hearsay statements of the

4
  After oral argument, Robinson filed a Notice of Additional Authority pursuant to W.R.A.P. 7.04,
bringing to the Court’s attention the federal case of United State v. Von Behren, 822 F.3d 1139 (10th Cir.
2016). In Von Behren, the Tenth Circuit held that it was a violation of the defendant’s Fifth Amendment
privilege against self-incrimination when a condition of his supervised release required him to take a
polygraph and answer specific questions about past sexual history that was not relevant to the actual
charges pled to. There is no such requirement in this case, and Von Behren therefore is distinguishable.
5
  Indeed, even the district court fairly implied that Neidlinger would forbid a revocation based upon
something not agreed to as an express term of probation. See supra, ¶14.


                                                    11
employee at the grocery store where he supposedly worked was the basis for the finding
that he failed to maintain employment, and that his probation was improperly revoked
because revocation cannot be based solely upon hearsay.6

[¶31] Because Robinson did not object to the hearsay, our review is for plain error.
“Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there
was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the
error was denied a substantial right which materially prejudiced him.” Young v. State,
2016 WY 70, ¶ 13, 375 P.3d 792, 796 (Wyo. 2016) (citations omitted). This Court has
explained that “[u]nder the plain error standard of review, we reverse a district court’s
decision only if it is so plainly erroneous that the judge should have noticed and corrected
the mistake even though the parties failed to raise the issue.” Id. at ¶ 14, 375 P.3d at 796.
“Stated another way, plain error is a clear or obvious error that should have been readily
apparent to the district judge, such that failure to object would not deprive the court of a
reasonable opportunity to correct it.” Id. (citations and quotation marks omitted).

[¶32] Robinson’s complaint centers upon a small segment of Ms. Perryman’s testimony
during the adjudicative hearing. As we have noted, Ms. Perryman explained that after
requesting and not receiving documentation from Robinson to confirm his employment,
she went above and beyond to verify whether Robinson was indeed employed or not.
She testified, without objection, that she called the grocery store where Robinson
allegedly worked, and the human resources hiring manager informed her that no one by
Robinson’s name had ever been employed there. See supra, ¶13.

[¶33] The first prong of the plain error test is satisfied because the record clearly reflects
Ms. Perryman’s testimony about her conversation with the hiring manager at the grocery
store. The second prong requires proof of a transgression of a clear and unequivocal rule
of law. With regard to the use of hearsay evidence in the adjudicatory phase of the
probation revocation process, the Wyoming Rules of Criminal Procedure provide:

               Hearing. – At the hearing upon the petition for revocation of
               probation, the state must establish the violation of the
               conditions of probation alleged in the petition by a
               preponderance of the evidence.

                      (A) The probationer shall have the right to appear in
               person and by counsel, to confront and examine adverse
               witnesses, and at the dispositional stage to make a statement
               in mitigation of revocation.


6
  This claimed error would not address the other basis for revoking probation, that Robinson willfully
failed to take a polygraph exam. This violation may have been sufficient if stood alone.


                                                   12
                    (B) The Wyoming Rules of Evidence shall apply to the
             adjudicative phase of probation revocation hearings; however,
             hearsay that is probative, trustworthy and credible may be
             received into evidence. The Wyoming Rules of Evidence do
             not apply to the dispositional stage.

W.R.Cr.P 39(a)(5)(A)-(B).

[¶34] Our longstanding case law on the matter is fairly consistent with the current rule,
although part of our precedent needs updating to conform with rule changes. In 1981,
this Court explained that the law governing probation revocation is controlled by the
Fourteenth Amendment right to due process, as well as by Wyoming statute and case law.
Mason v. State, 631 P.2d 1051, 1055 (Wyo. 1981). We relied on the United States
Supreme Court’s pronouncements that the Fourteenth Amendment requires a probationer
be given a hearing before his probation may be revoked. Id. Although a probation
revocation proceeding is not a criminal prosecution and thus does not give rise to the full
panoply of rights available under the Sixth Amendment, it may nevertheless result in a
loss of liberty and therefore triggers the fundamental protections of the due-process
clause of the Fourteenth Amendment. Id. Consequently, due process requires that
defendants in probation revocation cases be provided a two-part hearing. The first part is
to determine if there are facts proving a violation of probation conditions, and the second
part is to determine whether in light of a proven violation the probation should be
revoked. Id. Regarding the use of hearsay evidence during such a proceeding, this Court
reasoned:

                    It is impossible for the defendant to test the accuracy
             and truth of the State’s witnesses if they are not at the hearing
             to give their testimony. . . . Both the defendant and the social
             system have a stake in making sure the factual determination
             in a revocation hearing is not an arbitrary one but is based on
             facts which pass the Morrissey, truth-seeking test of cross-
             examination. In this case the only evidence presented was in
             the form of hearsay which the defense was unable to test and
             verify. This was a clear violation of the appellant’s right to
             due process. The State must make a good-faith attempt to
             produce the witnesses at a probation- or parole-revocation
             hearing or else show cause why they cannot appear. If for
             some valid reason a witness is unavailable, whether or not the
             information may be introduced through hearsay will be
             determined by the use of a balancing test. This test will weigh
             the defendant’s interest in confronting and cross-examining
             the witnesses against him with the practical difficulties of
             producing the witness.


                                             13
Id. at 1056 (citations omitted).

[¶35] Ten years later, in Swackhammer v. State, we reaffirmed the pronouncements of
Mason that there is a conditional right to confront witnesses adverse to the probationer,
because that right is not as strong as it is in a criminal proceeding and therefore the
admission of hearsay evidence without confrontation of witnesses is not categorically
barred in revocation proceedings. 808 P.2d 219, 223 (Wyo. 1991). This Court stated that
“(1) probation revocation may not be based solely on the use of hearsay evidence; and (2)
if hearsay evidence is admitted, the trial court must apply the indicated balancing test
before receiving such evidence.” Id.7

[¶36] When Mason and Swackhammer were decided, there was no Wyoming Rule of
Criminal Procedure governing these evidentiary issues in probation revocation
proceedings. In 1992, however, the rules were amended and the following was added to
W.R.Cr.P. 39(a)(5)(B): “The Wyoming Rules of Evidence shall apply to the adjudicative
phase of probation revocation hearings, but not to the dispositional stage.” See
W.R.Cr.P. June 1992 Revised Edition; see also Order Amending Rules . . . 39 . . .
Wyoming Rules of Criminal Procedure dated July 22, 1993.

[¶37] In the 1996 case of Mapp v. State, this Court again explained the two-part process
for probation revocation, and went on to recap the pronouncements of our precedent:

                        The process due a probationer at the adjudicatory stage
                is found in W.R.Cr.P. 39 and case law. This includes the right
                to disclosure of the evidence against the defendant, the right
                to call witnesses and present documentary evidence, and the
                conditional right to confront and cross-examine adverse
                witnesses. The determination of whether the defendant
                violated his release agreement must be based on verified
                facts.

                       Thus, in Mason, and later in Swackhammer, we held
                that probation revocation may not be based solely on the use
                of hearsay evidence. In both cases, the hearsay evidence
                admitted by the district court directly affected the

7
  The State also had an argument based on Swackhammer. It contended that all that was required to
support a revocation of probation was “the court’s conscientious judgment, after hearing the evidence,
that a violation of probation has occurred.” This is a direct quote from Swackhammer. 808 P.2d at 224.
However, as discussed below, our rules of criminal procedure have been amended, and the version of
Rule 39(a)(5) in effect now and at the time of these proceedings required the State to “establish the
violation of the conditions of probation alleged in the petition by a preponderance of the evidence,” which
now sets our standard of review.


                                                     14
                probationer’s ability to confront witnesses at the adjudicatory
                stage of the proceeding. In these cases, we determined that
                before hearsay evidence is admitted at the adjudicatory stage,
                the court must conduct a balancing test to weigh the need of
                petitioner to confront the witness against the practical
                difficulty of producing the witness at the hearing.

Mapp v. State, 929 P.2d 1222, 1226 (Wyo. 1996) (citations and quotation marks omitted);
see also Gailey v. State, 882 P.2d 888, 891 (Wyo. 1994).

[¶38] In 2001, the current version of W.R.Cr.P. 39(a)(5), which we quoted above, was
adopted. See supra, ¶33. The current version changed the law, as the balancing test set
out in Mason and Swackhammer was replaced with a test that allows hearsay that is
probative, trustworthy and credible to be received. While the rule that probation
revocation may not be based solely on the use of hearsay remains, the test for admitting
hearsay evidence has been altered. Under the current Rule 39(a)(5)(B), if the proffered
hearsay evidence is determined to be probative, trustworthy and credible, there is no need
to conduct a good cause balancing test, as reliability constitutes good cause. See 6
Wayne R. LaFave et al., Criminal Procedure § 26.10(c) (4th ed., updated Dec. 2015)).

[¶39] Robinson did not object to the hearsay evidence, and as a result, the district court
did not have an opportunity to expressly find whether it was probative, trustworthy and
credible under W.R.Cr.P. 39(a)(5)(B). In any event, although the district court may have
relied to some extent upon the hearsay statement, there was also direct evidence of
noncompliance. As we have already described, see supra, ¶¶8-13, Ms. Perryman testified
that Robinson failed to submit to a polygraph and also failed to confirm his employment
after she requested him to do so. This testimony was not hearsay, but was instead based
upon her personal knowledge.8

[¶40] The district court did not transgress a clear and unequivocal rule of law.
Consequently, Robinson cannot establish the second prong of the plain error test.



8
  We also point out the unfairness of a failure to object followed by a complaint on appeal that there was
inadequate proof of the trustworthiness of a hearsay statement. Robinson complains that the probation
agent did not testify as to certain details, such as the name of the employee she spoke to, that person’s
title, etc. We have no way of knowing what details the probation agent could have provided if there had
been an objection. This kind of unfairness has led other courts to refuse plain error review when there has
been no objection to foundation of testimony later challenged on that basis on appeal. State v. Honsinger,
386 S.W.3d 827, 829 (Mo. App. 2012) (court would not review for plain error when appellant did not
object to qualifications of police officer to administer horizontal gaze nystagmus test); People v. Sparks,
780 N.E.2d 781, 784 (Ill. App. 2002) (court would not review admission of evidence that devices used to
measure distances were accurate due to the lack of a foundation objection at trial). However, we will
leave this issue for another case.


                                                     15
Declining to Reinstate Probation during the Dispositional Phase

[¶41] In his final issue, Robinson says the district court erred by not reinstating his
probation because he would not admit to improper conduct underlying the offenses to
which he pled. Our review of the record again contradicts his claim.

[¶42] At the dispositional hearing, Robinson chose to exercise his right to make a
statement in mitigation, although he did not have to do so. W.R.Cr.P. 39(a)(3)(B)
(probationer is not required to make a statement, any statement he makes may be used
against him); W.R.Cr.P. 39(a)(5)(A). When a defendant does choose to make a
statement, he has the opportunity to make a misrepresentation. This is what the State
claimed Robinson did – he misrepresented that he had admitted his conduct. See supra,
¶¶16-17. If the statement had been true, perhaps this could have been a mitigating factor
which might have led the court to reinstate probation.

[¶43] After concluding that it had been lied to, the district court admonished Robinson
for doing so, and found that he had amply demonstrated that he would not comply with
his conditions of probation, and decided that imposing his suspended sentences was
appropriate to protect the public. The State had proven that Robinson failed to take a
polygraph, and at the very least had failed to show that he had maintained employment, if
he had not in fact lied outright to the probation officer. Given a chance to apologize for
or explain these failures, Robinson chose instead to tell what the judge concluded was a
lie, which could not have helped his claim that he could be supervised. See Edrington v.
State, 2008 WY 70, ¶ 7, 185 P.3d 1264, 1266-67 (Wyo. 2008).

[¶44] A determination to revoke probation and impose a sentence is discretionary, and
this Court will not interfere with such a ruling unless the record shows a clear abuse of
discretion. Miller, ¶ 10, 350 P.3d at 745. “Although the district court’s decision must be
based upon verified facts and the defendant must be afforded due process, all that is
necessary to uphold a district court’s decision to revoke probation is evidence that it
made a conscientious judgment, after hearing the facts, that the defendant willfully
violated a condition of his probation.” Id.

[¶45] The determination of whether a probationer’s violation of a probation condition
was willful is a question of fact, and we will uphold a district court’s factual findings
unless they are clearly erroneous. This Court has explained:

             Because the trial court heard and weighed the evidence,
             assessed witness credibility, and made the necessary
             inferences and deductions from the evidence, the trial court’s
             factual findings are not disturbed on appeal unless they are
             clearly erroneous, and the evidence is viewed in the light
             most favorable to the trial court’s determination.


                                             16
Miller, ¶ 11, 350 P.3d at 745-46 (quoting Robinson v. State, 2003 WY 32, ¶ 15, 64 P.3d
743, 747-48 (Wyo. 2003)).

[¶46] Considering all the evidence in the light most favorable to the district court’s
decision, we cannot say that its determination that Robinson willfully violated his
probation was clearly erroneous, or that it abused its discretion in revoking it.

[¶47] Affirmed.




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