               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43313

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 346
                                                )
       Plaintiff-Respondent,                    )    Filed: January 27, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
JESS WADE YOST,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Order revoking probation, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jenny C. Swinford, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgenson, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Jess Wade Yost appeals from the order revoking probation, and for the first time on
appeal, he argues this order violates his constitutional rights to equal protection and due process
because the district court revoked probation due to his indigent status. For the reasons set forth
below, we affirm.
                                                I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Yost engaged in a sexual relationship with a minor child, videotaped the interaction, and
posted the video to Internet sites. Yost was charged and pleaded guilty to sexual battery of a
minor child. The district court imposed a twenty-five-year sentence, with five years determinate.
Yost served a period of retained jurisdiction and was placed on supervised probation for a period
of ten years. After approximately nine months on supervised probation, the State filed a report
of probation violations alleging Yost had been discharged from sex-offender treatment, had

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utilized the internet, and had viewed pornography. Yost entered admissions to those allegations,
and the matter was set for disposition. The first disposition hearing was continued by the district
court to allow Yost an opportunity to re-enter the sex-offender treatment program. Yost had
been discharged from sex-offender treatment because he failed to stay current with the financial
requirements of the treatment provider and failed to attend treatment sessions after his account
was placed on hold for lack of payment. The district court allowed Yost additional time to make
the necessary payments and attend the necessary treatment sessions.
          At the second disposition hearing, Yost again argued that he should be placed on
probation. Yost argued that despite the fact that he was employed and often had the money
saved to pay for his treatment sessions, his inconsistent attendance at treatment should be
excused because he had other financial obligations. In revoking probation, the district court
stated:
                  The Court is very concerned about the nature of the violation. The Court,
          after the admissions were entered, did subsequently hold disposition open for
          purposes of allowing the defendant to come into compliance with the terms and
          conditions. Certainly, the Court does understand the financial concerns; however,
          given the nature of the underlying offense, if the defendant does not have the
          financial ability to fully and completely participate in sex offender treatment, as
          required in the community, certainly that treatment is available in the correctional
          setting and financial ability does not interfere.
                  It does appear that while Mr. Yost did get re-engaged and began again
          attending in April of this year that even then, he missed three of the eight groups.
          There’s still an indication, as of June 4, 2015, that the defendant has not
          scheduled his individual sessions and has not participated in the required
          maintenance polygraphs.
          The district court revoked Yost’s probation and imposed the sentence, after reducing the
determinate portion of the sentence to three years.          Yost appeals the order revoking his
probation.
                                                  II.
                                             ANALYSIS
          Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262


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(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
error. The Perry Court held that an appellate court should reverse an unobjected-to error when
the defendant persuades the court that the alleged error:       (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978.
        Here, the constitutional rights at issue are Yost’s due process and equal protection rights.
Yost contends that he was denied equal protection of the law and his due process rights were
violated because the district court revoked his probation on the basis that Yost was unable to pay
for that treatment.   We have recognized the United States Supreme Court “has long been
sensitive to the treatment of indigents in our criminal justice system, because there can be no
equal justice where the kind of trial a man gets depends on the amount of money he has.” State
v. Braaten, 144 Idaho 606, 608, 167 P.3d 357, 359 (Ct. App. 2007) (quoting Bearden v. Georgia,
461 U.S. 660, 664 (1983) and Griffin v. Illinois, 351 U.S. 12, 19 (1956) (plurality opinion)).
However, the Court also provided that “a balancing test that includes elements of due process
analysis and elements of equal protection must be applied to determine whether a criminal
defendant’s indigence may permissibly affect the sentence.” Id. The “appropriate question is
whether consideration of a defendant’s financial background in setting or resetting a sentence is
so arbitrary or unfair as to be a denial of due process.” Id. (quoting Bearden, 461 U.S. at 666
n.8).
        It is within the trial court’s discretion to revoke probation if any of the terms and
conditions of the probation have been violated. Idaho Code §§ 19-2603, 20-222; State v.
Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho
1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713,
717 (Ct. App. 1988). In determining whether to revoke probation, a court must examine whether
the probation is achieving the goal of rehabilitation and consistent with the protection of society.
State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at
325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation
violation has been established, order that the suspended sentence be executed or, in the
alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett,

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122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct.
App. 1989). The court may also order a period of retained jurisdiction. State v. Urrabazo, 150
Idaho 158, 162, 244 P.3d 1244, 1248 (2010). A decision to revoke probation will be disturbed
on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at
325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the
inquiry is the conduct underlying the trial court’s decision to revoke probation. State v. Morgan,
153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the
elements of the record before the trial court relevant to the revocation of probation issues which
are properly made part of the record on appeal. Id.
       In this case, the record does not support Yost’s claims that his probation was revoked due
to his indigent status or solely because he was unable to pay for sex-offender treatment. We first
note that Yost does not challenge that he admitted to violating the terms and conditions of his
probation when he admitted to using the internet and viewing pornography in violation of his
probation. Because the factual basis of the underlying conviction is that Yost videotaped the
sexual encounter and posted it to the internet, these violations are significant and indicate an
unwillingness to comply with the terms of probation and be rehabilitated. The district court did
not abuse its discretion in revoking Yost’s probation, and its decision is supported by Yost’s
admissions to these violations.
       Yost’s arguments on appeal focus on his claim that the district court revoked his
probation because he was unable to pay for sex-offender treatment. As noted above, the district
court was concerned with Yost’s failure to participate in the sex-offender treatment given the
serious nature of the charge; however, the district court gave Yost adequate opportunity to
comply with this term of probation prior to revoking probation. Yost admitted that he failed to
participate in sex-offender treatment, and when the court asked, “And why is it you admit that
allegation?” Yost responded, “I didn’t go.” Yost also admitted he was discharged from the
treatment program for financial reasons. At the first disposition hearing, the district court
continued the hearing and delayed disposition for an additional three months to allow Yost the
opportunity to re-enter the treatment program.         This concession was based on Yost’s
representations to the court that he had money to pay off his account with the treatment provider
and he would re-enter the treatment program. However, at the final disposition hearing, despite
Yost’s representations that he was employed and had funds available to pay for the treatment

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sessions, the district court found that Yost had missed three of eight group sessions and had not
scheduled the required individual sessions or polygraphs. Yost argued he continued to have
financial problems because he missed work due to a work-related injury and because he had
other financial obligations such as rent, insurance, credit card debt, and other court-ordered
financial obligations. Therefore, it appears that Yost had funds to meet some of his financial
obligations, but made the decision not to apply those resources to his sex-offender treatment,
which was a condition of his probation. Further, Yost did not provide the district court with any
documentation or evidence of his financial status, but instead relied on his argument that he was
utilizing his income to pay other debts. Given the record before the district court, we cannot
agree that the court violated Yost’s constitutional rights to equal protection and due process. The
record does not support Yost’s claim that he was indigent or that the district court’s decision to
revoke probation was based solely on Yost’s inability to pay for treatment. Rather, the decision
to revoke probation was based on the concern that Yost had made a decision not to attend his
treatment. Therefore, we cannot hold that the order revoking probation was so arbitrary or unfair
as to constitute a denial of due process. For these reasons, we conclude that Yost has failed to
meet his burden under the first prong of Perry because he has failed to meet his burden to show
that a constitutional right was violated, and we need not address the other prongs of the Perry
analysis.
                                               III.
                                        CONCLUSION
       For the reasons set forth above, we hold the district court did not abuse its discretion in
revoking Yost’s probation. In addition, the district court’s order does not amount to fundamental
error, and Yost failed to show that his constitutional rights to equal protection and due process
were violated. Accordingly, the district court’s order revoking probation is affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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