               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41916

STATE OF IDAHO,                                 ) 2015 Opinion No. 80
                                                )
       Plaintiff-Respondent,                    ) Filed: December 4, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
WILLIAM DEE VAN KOMEN, JR.,                     )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Order relinquishing jurisdiction and executing a unified five-year sentence with
       two years determinate for possession of a controlled substance with intent to
       deliver, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant. Maya P. Waldron argued.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________

GRATTON, Judge
       William Dee Van Komen, Jr., appeals from the district court’s order relinquishing
jurisdiction and executing a unified five-year sentence with two years determinate for possession
of a controlled substance with intent to deliver. Van Komen asserts the district court violated his
Fifth Amendment right against self-incrimination by considering his refusal to submit to a
polygraph evaluation in deciding to relinquish jurisdiction at his retained jurisdiction review
hearing. We affirm.
                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       In 2010, Van Komen pled guilty to possession of a controlled substance with the intent to
deliver, Idaho Code § 37-2732(a)(1)(B), and possession of drug paraphernalia, I.C. § 37-2734A.

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The district court imposed a unified five-year sentence with two years determinate and retained
jurisdiction. Following the period of retained jurisdiction, the district court placed Van Komen
on probation for five years.
       In February 2013, the State filed a probation violation report alleging Van Komen had
consumed alcohol, driven under the influence of alcohol, and consumed a controlled substance.
Van Komen admitted to violating his probation, and the court continued his probation. In
August 2013, the State filed a second probation violation report alleging Van Komen failed to
report for drug testing and was having a relationship with a sixteen-year-old female (A.O.) who
was on juvenile probation. Van Komen admitted to violating the terms of his probation, and the
district court revoked his probation and again retained jurisdiction.
       In retaining jurisdiction for the second time, the court also ordered that Van Komen
submit to a polygraph examination “to assess truthfulness as to (1) no drugs or alcohol after
March 28th, 2013, and (2) the extent of sexual activity with [A.O.].” Encouraging Van Komen
to be truthful regarding these issues, the court stated:
       If you test deceptive as to either of those things, then I will likely impose the
       prison sentence, have you serve the rest of your time in prison regardless of
       whether you do well on the rider. If you want to change your story, now would
       be the time to do it. If you test deceptive after this on either of those two
       questions, I’ll send you to prison.
Van Komen then spoke with his attorney, who informed the court that “[Van Komen will] agree
to the polygraph arrangement, Your Honor. He didn’t use, and he didn’t have any--I don’t know
what sexual activity means.”
       At Van Komen’s review hearing following the second period of retained jurisdiction, the
court inquired as to whether Van Komen submitted to the previously ordered polygraph
examination. In response to the court’s inquiry, Van Komen’s counsel stated, “I don’t think
there would be an issue in regards to drugs, Judge. However, in regards to any potential crime,
uh, regarding some contact with the individual who I believe is a minor, I would advise him to
assert his Fifth Amendment rights as to that.”
       The district court relinquished jurisdiction and imposed Van Komen’s underlying
sentence, giving him credit for his time served. In doing so, the court stated:
              The reason that I am revoking your probation is you haven’t done what I
       ordered you to do when I sent you on a rider, and that was to get a polygraph
       evaluation to assess both the truthfulness of no alcohol or drugs after March 28,
       2013, and the extent of any sexual activity with [A.O.].
                                                   2
The court then expressed concern that Van Komen may have been attempting to contact A.O.
during the period of retained jurisdiction, and stated that Van Komen had failed to make progress
as to his ability to comply with orders and the law. Van Komen timely appeals.
                                                 II.
                                           ANALYSIS
       Van Komen claims the district court abused its discretion when it relinquished
jurisdiction in this case. The decision to place a defendant on probation or whether, instead, to
relinquish jurisdiction over the defendant is a matter within the sound discretion of the district
court and will not be overturned on appeal absent an abuse of that discretion. State v. Hood,
102 Idaho 711, 712, 639 P.2d 9, 10 (1981); State v. Lee, 117 Idaho 203, 205-06, 786 P.2d 594,
596-97 (Ct. App. 1990). When a trial court’s discretionary decision is reviewed on appeal, the
appellate court conducts a multi-tiered inquiry to determine:        (1) whether the lower court
correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). Van Komen argues the court
did not act consistently with applicable legal standards by relinquishing jurisdiction because he
asserted a Fifth Amendment right against self-incrimination at his review hearing.
       The Fifth Amendment, made applicable to the states through the Fourteenth Amendment,
guarantees that “no person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. There is no case law directly addressing the application of the
Fifth Amendment right against self-incrimination at a retained jurisdiction review hearing.
However, a review of how the United States Supreme Court has recognized the right at the
various stages of a criminal proceeding is instructive. The Supreme Court has applied the right
differently in these stages depending on the interests the defendant has at stake.
       A criminal defendant’s Fifth Amendment right against self-incrimination applies with the
most force leading up to and during a criminal prosecution, when the defendant’s liberty interests
may depend on the assertion of the right. To protect these interests before trial, the Supreme
Court requires the government to tell criminal defendants they have the right and warn them the
government will use their statements against them, Miranda v. Arizona, 384 U.S. 436, 444-45
(1966), and prevents the prosecution from using any unwarned statements at trial, Oregon v.

                                                 3
Elstad, 470 U.S. 298, 307 (1985). To protect these interests at trial (the guilt phase), the
Supreme Court prevents prosecutors from commenting on a defendant’s silence, Griffin v.
California, 380 U.S. 609, 615 (1965), and requires courts to instruct juries that they may not
draw any adverse inferences from a defendant’s silence, Carter v. Kentucky, 450 U.S. 288, 299-
303 (1981).
       Although a defendant’s Fifth Amendment right against self-incrimination remains intact
during sentencing1 (the penalty phase), the right applies differently than at trial because “the
Fifth Amendment interests of the defendant are different.” White v. Woodall, 134 S. Ct. 1697,
1703 (2014) (quoting United States v. Whitten, 623 F.3d 125, 131-132, n.4 (2d Cir. 2010)
(Livingston, J., dissenting)). At sentencing, the defendant’s Fifth Amendment interests shift
from seeking liberty to mitigating penalties. Although these are important interests, the right
against self-incrimination yields somewhat to the judge’s broad sentencing discretion.           See
Mitchell v. United States, 526 U.S. 314, 338-339 (1999) (Scalia, J., dissenting). In Mitchell, the
Supreme Court prohibited judges from drawing adverse inferences from a criminal defendant’s
silence at sentencing, but explicitly limited the prohibition “to factual determinations respecting
the circumstances and details of the crime.” Id. at 328. This limitation “leaves open the
possibility that some inferences might permissibly be drawn from a defendant’s penalty-phase
silence.” White, 134 S. Ct. at 1703 (holding that Mitchell cannot be read to require a blanket no-
adverse-inference instruction at every penalty-phase trial). Because judges at the penalty phase
might permissibly draw adverse inferences from a defendant’s silence that the jury at the guilt
phase may not, the Fifth Amendment right against self-incrimination is less absolute at
sentencing than during trial.
       After sentencing, a criminal defendant’s Fifth Amendment right against self-
incrimination changes once again. Because the trial court has determined the defendant’s guilt
and fixed a penalty for the convicted crime, the defendant’s Fifth Amendment interests shift to
avoiding additional penalties. Accordingly, the Supreme Court has limited the application of a
criminal defendant’s Fifth Amendment right in post-sentencing proceedings to situations where
the consequences of asserting the right result in the imposition of an additional penalty. See
McKune v. Lile, 536 U.S. 24, 49-50 (2002). In McKune, a plurality of four justices noted that “a
valid conviction and the ensuing restrictions on liberty . . . . necessarily place limitations on the

1
       Estelle v. Smith, 451 U.S. 454, 463 (1981).
                                                 4
exercise of a defendant’s privilege against self-incrimination” and rehabilitation is a legitimate
penological interest that must be weighed against a defendant’s exercise of his right against self-
incrimination. Id. at 36-38. Although the plurality and Justice O’Connor disagreed on what
standard applies to define a liberty interest, they agreed that there can be no compulsion where
the consequences of invoking the right do not implicate a defendant’s post-sentencing liberty
interests. In her concurrence, Justice O’Connor stated that longer incarceration “as a penalty for
refusing to incriminate oneself would surely implicate a ‘liberty interest’” and constitute
compulsion. Id. at 52. The plurality and Justice O’Connor further agreed that the Constitution
does not prevent the government from requiring criminal defendants to choose between
exercising the right and facing difficult consequences. Id. at 37-38, 41, 52-53.2 Thus, where a
defendant’s post-sentencing liberty interests are not implicated, there is no compulsion, and
hence, no violation of the right against self-incrimination.
       We turn then to application of the right against self-incrimination at a retained
jurisdiction review hearing. The purpose of retaining jurisdiction after imposing a sentence is to
afford the trial court added time for evaluation of a defendant’s rehabilitation potential and
suitability for probation. State v. Goodlett, 139 Idaho 262, 264, 77 P.3d 487, 489 (Ct. App.
2003). During this period, the defendant is in the custody of the Department of Correction for
the purposes of such evaluation. Id. At the end of the retained jurisdiction period, the court may
suspend the defendant’s sentence and place him on probation or relinquish jurisdiction over him,
thereby executing his already imposed sentence. Id. If the court relinquishes jurisdiction, it may
also reduce the defendant’s sentence at that time. Id.




2
        The Court held the consequences the defendant faced--a reduction in incentive level and
transfer from a medium-security to maximum-security part of the prison--did not amount to
compulsion, in part because his prison sentence was not increased. McKune v. Lile, 536 U.S. 24,
38, 50-52 (2002). In other post-sentencing situations, the Supreme Court has held there was no
compulsion where a probationer feared the court would revoke his probation absent truthful
statements to his probation officer, Minnesota v. Murphy, 465 U.S. 420, 434-39 (1984); the
Griffin rule does not apply to state prison disciplinary hearings, Baxter v. Palmigiano, 425 U.S.
308, 319 (1976); and there is no Fifth Amendment right against self-incrimination at a clemency
interview, Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 286 (1998). Thus, in the
post-sentencing context, the Supreme Court has limited a criminal defendant’s Fifth Amendment
right against self-incrimination. The Idaho Supreme Court has followed suit. See State v.
Crowe, 131 Idaho 109, 952 P.2d 1245 (1998) (probation revocation).
                                                  5
        In State v. Coassolo, 136 Idaho 138, 30 P.3d 293 (2001), the Idaho Supreme Court
addressed whether the defendant in that case possessed a constitutionally protected liberty
interest that would require a review hearing before the district court relinquished jurisdiction. In
determining that due process did not require a review hearing, the Court first expressly
differentiated a sentencing proceeding from a retained jurisdiction review hearing stating, “We
first note that the constitutional protections required at sentencing are not applicable to the
retained jurisdiction program because sentencing occurs before the period of retained
jurisdiction, not when jurisdiction is relinquished.” Id. at 142-43, 30 P.3d at 297-98. The
Supreme Court held that a hope or expectation of probation at the conclusion of the retained
jurisdiction period is not a liberty interest protected by the Due Process Clause. Id. at 143,
30 P.3d at 298.
        Therefore, based on the McKune holding that there can be no compulsion where the
consequences of invoking the right against self-incrimination do not implicate a defendant’s
liberty interests, and the Coassolo holding that defendants in the retained jurisdiction program do
not have a liberty interest in probation, we conclude that the district court’s demands did not
amount to compulsion in regard to the Fifth Amendment analysis. Van Komen did not have a
liberty interest in probation, so relinquishing jurisdiction could not implicate his liberty interests.
Because relinquishing jurisdiction could not implicate Van Komen’s liberty interests,
relinquishing jurisdiction also could not amount to compulsion. While Van Komen’s choice
between refusing the polygraph and receiving his underlying sentence was no doubt a difficult
one, the court did not violate the Constitution by requiring him to choose. Thus, the district court
did not violate Van Komen’s Fifth Amendment rights or abuse its discretion when it relinquished
jurisdiction.3

3
         Van Komen’s reliance on United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005) is
misplaced. In Antelope, the district court initially sentenced Antelope to five years of probation.
Id. at 1131. The court required Antelope to submit to random polygraph evaluations in a
rehabilitative camp as a term of his probation. Id. Antelope failed to comply with several
probation conditions and repeatedly refused to submit to polygraph evaluations. Id. At the
probation revocation hearing, a camp counselor testified that he told Antelope that he would
likely disclose any criminal polygraph admissions to authorities. Id. at 1135. The counselor also
testified he had disclosed other defendants’ criminal polygraph admissions to authorities and his
reports led to additional punishment for those defendants. Id. The district court revoked
probation and sentenced Antelope to an additional ten months of incarceration. Id. at 1131-32.
On appeal, the Ninth Circuit held a defendant must prove “(1) that the testimony desired by the
                                                  6
                                                III.
                                          CONCLUSION
       The district court did not violate Van Komen’s Fifth Amendment right against self-
incrimination or abuse its discretion when it relinquished jurisdiction. The district court’s order
relinquishing jurisdiction is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




government carried the risk of incrimination, and (2) that the penalty he suffered amounted to
compulsion” to establish a Fifth Amendment claim. Id. at 1134 (citations omitted). Based on
the camp counselor’s testimony, the Ninth Circuit held the testimony desired by the government
carried the risk of incrimination. Id. The Antelope Court grounded its analysis of compulsion in
Justice O’Connor’s McKune concurrence stating, “Justice O’Connor made clear in
her McKune concurrence that she would not have found a penalty of ‘longer incarceration’ such
as that here to be constitutionally permissible.” Id. at 1138. Accordingly, the Court held the
additional ten months of incarceration Antelope received for asserting his Fifth Amendment right
against self-incrimination amounted to unconstitutional compulsion. Id.
        Here, the district court did not and could not subject Van Komen to longer incarceration
for asserting his right against self-incrimination, the penalty the Antelope Court held amounted to
compulsion. Moreover, Van Komen was not threatened with the use of any information in a
separate criminal proceeding.
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