                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44299


 STATE OF IDAHO,                         )
                                         )               Boise, August 2017 Term
       Plaintiff-Respondent,             )
                                         )               2017 Opinion No. 111
 v.                                      )
                                         )               Filed: November 6, 2017
 KODY RAY GIBBS,                         )
                                         )               Karel A. Lehrman, Clerk
       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.

       Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise, for appellant.
       Reed P. Anderson argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Theodore S. Tollefson argued.
                                _________________________

HORTON, Justice.
       Kody Ray Gibbs (“Gibbs”) appeals the Kootenai County district court’s order extending
his probation. Gibbs argues that: (1) he was denied his constitutional right to due process because
his case was not heard by an impartial judge; and (2) the district court abused its discretion by
increasing, sua sponte, his probation from a term of six years to life. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       In March of 2013, Gibbs was charged with delivery of a controlled substance after he
sold methamphetamine to a minor. Pursuant to plea negotiations, Gibbs pled guilty to delivery of
a controlled substance, and the district court dismissed allegations that the delivery was to a
minor and that Gibbs was a persistent violator. On August 9, 2013, the district court imposed a
suspended sentence of fifteen years, with ten years fixed, and placed Gibbs on probation for five




                                                 1
years. One condition of Gibbs’ probation required him to successfully complete mental health
court.
         On July 2, 2014, Gibbs tested positive for using spice and was ordered to serve seven
days of discretionary jail time. On August 6, 2014, Gibbs was again ordered to serve seven days
of discretionary jail time after he admitted to using spice, frequenting a bar, and associating with
people involved in criminal activity. After these violations, Gibbs remained on probation, but his
mental health court progress reports began reflecting concerns, with one report noting that Gibbs
“needs to take this program seriously.”
         On November 19, 2014, Gibbs’ probation officer filed a report of probation violation
alleging that Gibbs had engaged in sexual activity with a fourteen year-old girl. The State filed a
motion to show cause why probation should not be revoked. Gibbs was subsequently terminated
from mental health court.
         On March 26, 2015, Gibbs and the State entered into a Rule 11 Plea Agreement, in which
Gibbs agreed to plead guilty to a felony charge of injury to a child (“the 2014 Case”), and to be
sentenced to a unified term of five years, with two and one-half years fixed, with the court
retaining jurisdiction.
         Gibbs admitted that he violated the terms of his probation in the current case, and the
district court extended the term of probation by one year, ordered Gibbs to continue probation on
the same terms originally imposed, and added the requirement that Gibbs successfully complete
the retained jurisdiction in the 2014 Case. Gibbs satisfactorily completed the rider.
         On February 23, 2016, Gibbs’ probation officer filed another report alleging that Gibbs
had violated his probation by: (1) committing the felony crime of sexual exploitation of a child;
(2) using methamphetamine; (3) possessing three unauthorized smart phones; (4) knowingly
associating with his methamphetamine supplier; and (5) making prohibited contact with a victim.
The State filed a motion to show cause why probation should not be revoked.
         On April 27, 2016, the parties informed the district court that Gibbs had been indicted by
a federal grand jury for possessing child pornography. The State requested a continuance of the
probation violation hearing, and the parties informed the district court that they intended to enter
into a plea agreement whereby Gibbs would plead guilty to the federal charge and the State
would move to dismiss the probation violation proceedings in the current case and the 2014 Case



                                                 2
as well as the new sexual exploitation charge. The district court expressed concern about the
proposed agreement, stating:
       Well, if the State does withdraw the allegations, I intend to proceed on an order to
       show cause. I have the ability to enforce my orders, and if these allegations are
       proven to be true, my intention is to impose your Idaho prison sentence, so we can
       proceed at a later date but it would be on an evidentiary hearing even if the State
       wants to withdraw these allegations. . . .
       I think both sides need to research my ability to go forward. I mean I don’t want
       to do something illegal, but my understanding is that the Court has the power to
       enforce its own orders, and if you’re going to strip the Court of that power, I’m
       not — you’d better be sure you can do it.
       On May 17, 2016, the parties filed a written plea agreement in which the State committed
to dismissing the pending felony charge and the probation violation allegations in the 2014 Case
and the current case if Gibbs pled guilty to the federal charge. On May 23, 2016, Gibbs’ lawyer
sent the district court a letter regarding the pending probation violation proceeding. The letter
explained the federal charges against Gibbs, the sentence he would likely receive, and the
possibility of supervised release following his incarceration.
       In a May 25, 2016, hearing, the district court acknowledged that it had reviewed the letter
from Gibbs’ counsel as well as the proposed plea agreement. The district court clarified its
position stating:
               All right. And I’ve read the plea agreement. On April 27th I indicated that
       if the plaintiff were to withdraw the allegation or not prosecute on the probation
       violation or the order to show cause, that I was planning on proceeding ahead
       with an order to show cause of my own, and I think the appropriate way to
       proceed beyond that would be to appoint a special prosecutor, so why . . . I would
       not want to enforce my order and impose Mr. Gibbs’ prison sentence in the state
       of Idaho if he didn’t do — if he did what he was accused of doing.
       The prosecuting attorney responded that “it was my decision [after consultation with his
superiors] to use my discretion, my prosecutorial discretion, to dismiss the case essentially
without prejudice to see what the feds were going to do.” The prosecuting attorney went on to
say that “this doesn’t happen a lot to [sic] where I’ll dismiss a case if it goes federal, but it’s
happened a handful of times in my practice where I’ve done just that.” The State indicated it had
filed motions to dismiss in Gibbs’ other state court cases and noted that Gibbs would be serving
significant time on the federal charge and, upon release, would be required to register as a sex
offender.



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       The district court granted the State’s motion to dismiss the motion to show cause, but it
also made its own order to show cause, informing the parties, “I’m going to appoint a special
prosecutor and we’ll have an evidentiary hearing, and I’m just — I’m not going to let the
judiciary’s ability to enforce its own orders be tramped . . . .”
       On June 6, 2016, the district court informed the parties that while it previously intended
to appoint a special prosecutor, it found the “simpler solution” to be increasing the length of
Gibbs’ probation. The district court stated:
               I’m not increasing the sentence. I don’t have the ability to do that. I would
       be increasing the length of probation . . . . I’m happy to reconsider this if there is
       legal argument to the – that should cause me to reconsider, but I will get an order
       out today increasing the length of probation, same terms and conditions, to life,
       and then when Mr. Gibbs gets out, if I’m still a judge, then I can decide whether
       or not to proceed with a probation violation, and if I don’t, then you’re still on
       probation which I think would be a benefit to the public that you be on probation
       in addition to any parole that you might be on with the federal system . . . .
       The district court entered an order placing Gibbs on supervised probation for life on the
same terms and conditions that were imposed on August 9, 2013, and as modified on November
20, 2014. The district court explicitly reserved the right to bring an order to show cause and
hearing on the February 23, 2016, Report of Violation, following Gibbs’ completion of his
federal prison sentence. Gibbs timely appealed. His appeal asserts that he was denied his due
process right to an impartial judge and that the district court abused its discretion when it
extended his probation.
                                  II. STANDARD OF REVIEW
       Gibbs did not advance his constitutional claim before the district court. Therefore, we
apply the fundamental error test articulated in State v. Perry, 150 Idaho 209, 245 P.3d 961
(2010). This three-part test requires:
       (1) the defendant must demonstrate that one or more of the defendant’s unwaived
       constitutional rights were violated; (2) the error must be clear or obvious, without
       the need for any additional information not contained in the appellate record,
       including information as to whether the failure to object was a tactical decision;
       and (3) the defendant must demonstrate that the error affected the defendant’s
       substantial rights, meaning (in most instances) that it must have affected the
       outcome of the trial proceedings.
Id. at 226, 245 P.3d at 978.
        A district court’s decision to extend probation is reviewed for abuse of discretion. State
v. Breedon, 129 Idaho 813, 815, 932 P.2d 936, 938 (1997). To determine whether a trial court

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abused its discretion, this Court considers “(1) whether the lower court rightly perceived the
issue as one of discretion; (2) whether the court acted within the outer boundaries of such
discretion and consistently with any legal standards applicable to specific choices; and (3)
whether the court reached its decision by an exercise of reason.” State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989) (internal citation omitted).
                                         III. ANALYSIS
       As noted earlier, Gibbs’ appeal presents two claims: that he was denied his constitutional
right to due process because his case was not heard by an impartial judge, and that the district
court abused its discretion when it extended Gibbs’ probation from six years to life after the State
dismissed the probation violation allegations. We will address these claims in turn.
A.     Gibbs has failed to establish that the district court judge who presided over his case
       was not impartial.
       Gibbs contends that he was denied his constitutional right to due process because his case
was not heard by an impartial judge. Gibbs argues that the district court judge was upset that the
parties entered into a plea agreement which, in his view, “tramped” his ability to enforce his
orders. Specifically, Gibbs argues that his right to due process was violated when the district
court judge rejected the plea deal offered by the parties and increased Gibbs’ probation on his
own accord, thereby stepping into the role of the prosecutor. Gibbs reasons that if this case had
been heard by an impartial judge, his probation would not have been extended because the State
had moved to dismiss the charges and had not suggested that any additional punishment would
be proper. Further, Gibbs contends that “[t]he judge’s continued involvement in this case –
culminating in his order extending Mr. Gibbs’ probation to a term of life and indicating his intent
to potentially pursue the probation violation allegations against Mr. Gibbs after Mr. Gibbs
completes his federal prison sentence – violated Mr. Gibbs’ right to procedural due process.”
       We start with the observation that we are not presented with a situation where the district
court actually appointed a special prosecutor to advance probation violation allegations where
the county prosecutor has refused to do so and then presided over a probation violation hearing.
We do not reach this question because the issue is not ripe and we do not address constitutional
questions such as separation of powers that we are not required to address. See State v. Doe, 140
Idaho 271, 273, 92 P.3d 521, 523 (2004) (“[W]hen 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.”).
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       The Fourteenth Amendment to the United States Constitution prohibits the State from
depriving any person of life, liberty, or property, without due process of law. U.S. Const. amend
XIV, section 1. Due process demands the parties be heard by an impartial trial judge. State v.
Lankford, 116 Idaho 860, 875, 781 P.2d 197, 212 (1989) (internal citation omitted). Accordingly,
a judge who engages in “prosecutorial acts” may violate a defendant’s constitutional rights. Id.
       However, the narrow question presented by this appeal is whether the district court’s
action in extending Gibbs’ probation must be reversed due to a lack of impartiality. In order to
disqualify a judge for prejudice, it must be shown that the prejudice is directed against the party
and is “of such nature and character as would render it improbable that the party could have a
fair and impartial trial in the particular case pending.” Id. (internal citations omitted). Even if a
trial judge has been exposed to prejudicial information, judges are presumed “capable of
disregarding that which should be disregarded.” Pizzuto v. State, 134 Idaho 793, 799, 10 P.3d
742, 748 (2000) (citing Sivak v. State, 112 Idaho 197, 205, 731 P.2d 192, 200 (1986)). “[T]he
standard for recusal of a judge, based simply on information he has learned in the course of
judicial proceedings, is extremely high.” Bach v. Bagley, 148 Idaho 784, 792, 229 P.3d 1146,
1154 (2010).
       In determining whether judicial bias is present such that a recusal may be warranted, this
Court has held:
       First, judicial rulings alone almost never constitute valid basis for a bias or
       partiality motion . . . and can only in the rarest circumstances evidence the degree
       of favoritism or antagonism required . . . . Almost invariably, they are proper
       grounds for appeal, not for recusal. Second, opinions formed by the judge on the
       basis of facts introduced or events occurring in the course of the current
       proceedings, or of prior proceedings, do not constitute a basis for a bias or
       partiality motion unless they display a deep seated favoritism or antagonism that
       would make fair judgment impossible. Thus, judicial remarks during the course of
       a trial that are critical or disapproving of, or even hostile to, counsel, the parties,
       or their cases, ordinarily do not support a bias or partiality challenge . . . .
State v. Dunlap, 155 Idaho 345, 391, 313 P.3d 1, 47 (2013) (citing Liteky v. United States, 510
U.S. 540, 555–56 (1994)).
       Once a person is convicted of a crime or has entered a guilty plea, “the court in its
discretion may . . . suspend the execution of judgment . . . and may place the defendant on
probation under such terms and conditions as it deems necessary and appropriate.” I.C. § 19-
2601(2). After a defendant is placed on probation, Idaho Code section 20-222 “empowers the


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court to extend the probation period, so long as the total term does not exceed the maximum
period for which the defendant might have been imprisoned.” State v. Breeden, 129 Idaho 813,
815, 932 P.2d 936, 938 (1997) (internal citations omitted).
       In State v. Lankford, this Court reviewed numerous actions taken by a district court to
determine whether there was evidence of bias or a prejudicial attitude by the judge. 116 Idaho at
875, 781 P.2d at 212. Specifically, this Court reviewed the district court’s sua sponte
consideration of two additional aggravating factors during sentencing and found that the district
court’s action was “not evidence of a prejudicial attitude but rather constitutes the trial court’s
proper performance of its statutory duties.” Id. (finding that the judge is required to determine
sentencing and the prosecuting attorney merely provides sentencing recommendations). In the
present case, it appears that the district court believed it was acting within the statutory
framework to monitor and extend Gibbs’ probation period pursuant to Idaho Code section 20-
222. We do not find that the district court’s action in response to information presented to it in
the course of its handling of Gibbs’ case constitutes a “prosecutorial act” because action to
extend probation may only be done by the court. Although this is a close case, we conclude that
Gibbs has failed to meet the “extremely high” burden imposed on those asserting judicial bias
based upon information acquired in the course of judicial duties. This case does, however, raise a
significant question as to whether the district court’s decision constituted an abuse of discretion.
B.     The district court did not abuse its discretion when it modified Gibbs’ probation
       from a term of six years to a term of life.
       Gibbs argues that the district court abused its discretion when it lengthened, sua sponte,
his probation after the probation violation allegations were dismissed. In this case, it is evident
that the district court recognized that it had the discretion to extend the term of Gibb’s probation.
As Gibbs’ underlying conviction was for delivery of a controlled substance, a crime which
carries a maximum penalty of life imprisonment, the district court’s decision was within the
outer boundaries of its discretion. The district court’s decision was based upon reason, as it
reflected the district court’s view that it was appropriate for the protection of society. The
remaining question is whether the decision was consistent with the applicable legal standards
governing decisions to modify the duration of probation. This last question is one which we have
not previously explored.
       There are two statutes addressing the trial courts’ authority to modify probation. Idaho
Code section 20-221(1) provides that “the court may impose and may at any time modify any
                                                  7
terms or conditions of probation or suspension of sentence.” Idaho Code section 20-222(1) states
that “[t]he period of probation or suspension of sentence shall be fixed by the court and may at
any time be extended or terminated by the court. Such period with any extension thereof shall
not exceed the maximum period for which the defendant might have been imprisoned.”
       Both statutes authorize the courts to act “at any time” and neither statute provides explicit
conditions under which the courts may exercise this authority. In view of the similar language
employed by these two statutes (not to mention that they are codified adjacent to one another),
we believe that the same legal standards ought to govern decisions made under both statutes.
       Idaho Code section 20-221(2) authorizes “[a]ny party or the board of correction” to
request a modification of the terms and conditions of probation. The request need only “[set]
forth the facts upon which the request is based.” Indeed, Idaho Code section 20-221(2)
authorizes courts to rule upon such requests “without a hearing.” Likewise, Idaho Code section
20-221(3) authorizes courts to exercise the power granted by Idaho Code section 20-222(1) to
terminate probation “without a hearing.”
       In the absence of any prior decision from this Court addressing this important question,
we start with a few observations. First, the statutes permit the trial court to alter conditions and
the duration of probation. There are times when the trial court may wish to reduce the burdens of
probation for a defendant. For example, a court may wish to reward a defendant for good
performance while on probation, either by reducing the length of probation or removing
burdensome conditions, e.g., travel restrictions. We can discern no principled basis for imposing
different legal standards for increasing the burden on a probationer from those instances where
the burden is reduced. Second, there are occasions when the trial court may become aware that
the defendant has rehabilitative needs that may be addressed through probation which were not
apparent at the time of sentencing. Frequently, a defendant’s substance abuse or mental health
issues only become apparent after supervision has begun. There is no discernable purpose for
requiring adversarial proceedings (i.e., probation violation proceedings) as a prerequisite to
addressing a defendant’s immediate needs through probation. Finally, given the limited
supervision resources available to the Department of Correction, it makes no sense whatsoever to
restrict the ability of trial courts to terminate probation for low-risk offenders to those instances
where a probation violation has been proved.



                                                 8
         Thus, we hold that the applicable legal standard governing probation modification
proceedings is this: If, in the regular course of his or her duties, a judge becomes aware of
circumstances constituting good cause for modification of the conditions or duration of probation
(whether that be adding or eliminating conditions of probation or extending, reducing or
terminating the duration of probation), after notice to the parties and affording the parties an
opportunity to be heard, the trial court may modify the terms or duration of probation pursuant to
Idaho Code section 20-221(1) or 20-222(2).
         We note that Gibbs’ briefing on appeal 1 does not address the trial court’s authority to
extend the length of his probation under Idaho Code section 20-222(1). Although the failure to
acknowledge the legal basis for the trial court’s action would ordinarily have been fatal to his
claim that the trial court erred, we will consider his claim of error under the standard that we
have just articulated.
         Here, the district court was provided substantial information in the course of its duties
that were germane to its evaluation of the risk that Gibbs presented to society. The district court
knew that Gibbs was on probation for delivery of methamphetamine to a minor. The district
court knew that Gibbs violated that probation by having sexual contact with a minor, resulting in
the 2014 Case. Based upon representations to the district court from both parties, the district
court knew that Gibbs had been charged in federal court with a felony offense of child
pornography, that he intended to plead guilty to the charge, and that Gibbs would receive a
substantial federal prison sentence. In short, the district court was aware of significant facts
which persuaded it that Gibbs’ continuing criminal conduct necessitated extending probation for
the protection of society.
         As is frequently the case in sentencing review cases, if we were acting in the role of the
trial court, we might well have reached a different conclusion as to whether probation for life
was necessary in Gibbs’ case. However, as “our task is not to determine whether we agree with”

1
  In the proceedings before the trial court, Gibbs’ attorney acknowledged the court’s statutory authority to extend
probation, but objected on the grounds that Gibbs “was sentenced to a particular term, and this would be an increase
of that.” This Court has rejected this argument. In Muchow v. State, 142 Idaho 401, 128 P.3d 938 (2006), the district
court extended the defendant’s probation by an additional year pursuant to Idaho Code section 20-222. Id. at 402,
128 P.3d at 939. The defendant violated his probation during the extended period of probation, and the district court
revoked probation and imposed the previously suspended sentence. Id. On appeal, the defendant contended that the
district court could not revoke probation after the original probationary period would have expired. We made short
work of this argument: “Idaho Code § 20-222 is clear on its face. The term ‘maximum period for which the
defendant might have been imprisoned’ simply means the total number of days a defendant may be placed in
physical custody for a particular crime.” Id. at 403, 128 P.3d at 940.

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the district court’s decision, State v. Windom, 150 Idaho 873, 881, 253 P.3d 310, 318 (2010), we
may not reverse the district court’s decision in the absence of an abuse of discretion. As the
district court recognized its discretion, acted within the boundaries of that discretion and
consistent with applicable legal standards, and reached its decision through the exercise of
reason, we are duty-bound to affirm.
                                       IV. CONCLUSION
       We affirm the district court’s order extending the term of Gibbs’ probation.


       Chief Justice BURDICK, and Justices EISMANN and BRODY CONCUR.


JONES, J. concurring in part and dissenting in part:

       I reluctantly concur with Section A of the majority opinion, but only because the standard
of review is whether the district court abused its discretion. Extending my deference of the
district court’s discretion to its absolute maximum, I agree that the district court did not exhibit
bias against Gibbs. Turning, however, to Section B of the majority opinion, I simply cannot
agree that the district court did not abuse its discretion when it modified Gibbs’ probation term. I
firmly believe that the district court judge fell far short of the permissible discretion when he
extended Gibbs’ probation from a term of six years to a term of life. Specifically, I believe that
the district court’s conclusion was not reached through an exercise of reason.
       The majority thinks that this is a close case with respect to the issue of bias, but also
recognizes that this case raises a significant question as to whether the district court’s decision
constitutes an abuse of discretion. The majority admits that it “might well have reached a
different conclusion as to whether probation for life was necessary in Gibbs’ case.” However, the
majority then acknowledges that it is not our task to determine whether we agree with the district
court’s decision, but instead it is our task to decide whether the district court abused its
discretion. Although I agree with the majority’s statements, I simply cannot agree that there was
no abuse of discretion here.
       Looking at the facts of this case, it is apparent that the district court was dissatisfied with
the parties’ plea agreement in which the prosecutor proposed dismissing the state court
proceedings in exchange for Gibbs’ guilty plea to federal charges regarding possession of child
pornography, which would likely result in a substantial federal sentence. Upon receiving notice

                                                 10
of the parties’ intent to dismiss the allegations that Gibbs violated his probation, the judge
acknowledged various steps that could be taken before he would proceed with modifying
probation, e.g., appointing a special prosecutor and holding an evidentiary hearing. However,
upon realizing that these alternative options “seemed to be a lot of work,” the judge placed Gibbs
on probation indefinitely and justified his decision by stating that it was in the best interest of
society. For a decision to be reached through an exercise of reason, especially a decision
extending probation, I believe that a probationer must be given the opportunity to dispute
allegations upon which a probation extension is based.
       Despite the prosecution’s decision to dismiss the motion to show cause, the judge
assumed that the probation violation allegations originally levied against Gibbs were true, and he
based his decision to extend Gibbs’ probation on these unproven allegations. The judge began by
stating that he had “the ability to enforce [his] own orders, and if these allegations are proven
true, my intention is to impose [Gibbs’] Idaho prison sentence.” (Emphasis added). At the next
hearing, the judge changed course and determined that it would be appropriate to appoint a
special prosecutor and hold an evidentiary hearing. Had an evidentiary hearing been held, I
would have no problem with the result because Gibbs would have had an opportunity to be heard
and defend himself before the modification of his probation. However, thereafter, the judge
changed course again, stating that he had reached a “simpler solution” and would:

       [G]et an order out today increasing the length of probation, same terms and
       conditions, to life, and then when Mr. Gibbs gets out [from his federal prison
       sentence], if I’m still a judge, then I can decide whether or not to proceed with a
       probation violation, and if I don’t, then [Gibbs is] still on probation which I think
       would be a benefit to the public that [Gibbs] be on probation in addition to any
       parole [Gibbs] might be on with the federal system . . . .
       In response to defense counsel’s inquiry as to whether the district court would still be
appointing a special prosecutor, the judge replied no, “that seemed to be a lot of work and - - and
I think this is a better result for the public. I think I can protect the public better this way than
what I was proposing doing earlier.” While the result may be a “simpler solution,” it offends
principles of due process.
       As noted by the majority, there is no doubt that a court has the power to modify the terms
or duration of probation for good cause after notifying the parties and affording the parties an
opportunity to be heard. I.C. § 20-221; I.C. § 20-222(2). However, a review of the transcript in


                                                 11
the present case shows no discussion, analysis, or argument on the modification of the terms of
probation. Moreover, the judge did not offer the parties a reasonable opportunity to be heard, i.e.,
to offer information in mitigation. The parties arrived at the hearing believing that they would be
discussing the appointment of a special prosecutor. Instead, the judge essentially ambushed the
parties with a sua sponte decision to extend Gibbs’ probation. I firmly believe that the judge was
not happy with the proposed plea agreement and decided that—instead of appointing a special
prosecutor—the “simpler solution” was to punish the defendant by increasing the probation from
a term of six years to life, and to leave him with the threat that the judge might revive the
probation violation at a later time.
       It is firmly established that, in reviewing whether a lower court has abused its discretion,
this Court must determine “(1) whether the lower court rightly perceived the issue as one of
discretion; (2) whether the court acted within the outer boundaries of such discretion and
consistently with any legal standards applicable to specific choices; and (3) whether the court
reached its decision by an exercise of reason.” State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989) (internal citation omitted).
       In the present case, there is no question that the district court rightly perceived the issue
as one of discretion, and acted within the outer bounds of such discretion—although, the district
court certainly toed the line of the outer bounds of its discretion by imposing a lifetime of
probation. However, as I indicated earlier, there was no “reason” involved in any of this
proceeding. There was absolutely no reason exercised in any of the interplay between the
defendant, the prosecutor, and the district court. In short, the plea agreement proposed by the
parties upset the judge, and the proceeding degenerated into an argument in which the judge
sought to determine what he could do within his discretion to upset the prosecutor’s plan to
dismiss the probation violation allegations. Ultimately, the judge succumbed to a knee-jerk
reaction, extending Gibbs’ probation to a term of life and putting the probation violation issue on
hold until the federal process is complete.
       As an example of judicial discretion, the context of this proceeding would leave a
damaging image in an observer’s mind, of a judge who handed out an arbitrary sentence based
on no reasoning whatsoever. The transcript of these proceedings will certainly not paint a
favorable impression of judicial conduct to the average citizen. Instead, the picture it portrays is
that of a defendant caught up in a dispute between a prosecutor and a judge that ends with a

                                                 12
lifetime of probation. This order was entered by a judge that, although probably not biased, was
at least angry enough to impose a life term of probation.
       Instead of acting reasonably, the district judge repeatedly showed his disdain for the
parties’ plea agreement, and when the parties disagreed with him, he independently elected to
proceed with an order that will affect Gibbs for the rest of his life. The bottom line is that the
judge’s decision to extend Gibbs’ probation to a term of life was rooted in his anger rather than
through an exercise of reason.




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