               IN THE SUPREME COURT, STATE OF WYOMING

                                    2014 WY 115

                                                      APRIL TERM, A.D. 2014

                                                               September 16, 2014


ANTOINE DEVONNE BUTLER,

Appellant
(Defendant),

v.                                                 S-13-0217

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                   Appeal from the District Court of Laramie County
                        The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D.
      Jackson, Faculty Director, Prosecution Assistance Program; David E. Singleton,
      Student Director; Samantha Daniels, Student Intern.

Before BURKE, C.J., and HILL, KITE*, and FOX, JJ., and CRANFILL, D.J.

* Chief Justice at time of expedited conference.
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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
CRANFILL, District Judge.

[¶1] Appellant Antoine Devonne Butler challenges the revocation of his probation. He
argues his probation was revoked based on violations for which he had previously been
punished with administrative sanctions, which is in violation of Wyo. Stat. Ann. § 7-13-
1107 (LexisNexis 2013). We agree the plain language of Wyo. Stat. Ann. § 7-13-1107
requires the State to choose between administrative sanctions or revoking the probation
of an Intensive Supervision Program participant who violates the rules. The State cannot
subject a person to both punishments based on the same violations. In this case, the
violations the State relied upon in their petition to revoke probation were the same
violations which had previously been subject to administrative sanctions. We therefore
reverse the order revoking probation and remand to the district court for an order granting
Butler’s motion to dismiss the State’s Petition for Probation Revocation.

                                          ISSUE

[¶2]   The parties generally agree the sole issue for our review is:

       Whether Mr. Butler’s probation was properly revoked based on Intensive
Supervision Program violations which had previously been subject to administrative
sanctions.

                                          FACTS

[¶3] On July 6, 2010, Mr. Butler was arrested for conspiracy to commit burglary and
accessory, aiding and abetting that same burglary. He pled guilty pursuant to a plea
agreement to the charge of conspiracy to commit burglary. He received a deferral under
Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2013), and in March of 2011, the district court
placed him on supervised probation for five years. The State filed a petition to revoke
that probation on July 25, 2011. The petition alleged the Defendant had violated his
probation in that he 1) did not report for a scheduled appointment with his supervising
agent; 2) moved without his agent’s knowledge or consent; 3) failed to perform
community service as directed by his supervising agent; and 4) had not paid his Victim’s
Compensation Fund fee. Mr. Butler admitted the allegations in the petition, and the
probation was revoked and reinstated.

[¶4] The State filed a second petition to revoke probation on January 4, 2013. The
petition alleged the Defendant had violated his probation in that he 1) left the state of
Wyoming without a valid travel permit or approval from his supervising agent; 2) failed
to report to the Probation/Parole office for scheduled appointments; 3) was convicted of
False Reporting-False Identification, a misdemeanor in Colorado; 4) had not actively
sought employment or participated in community service as directed by his supervising

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agent; and 5) failed to make consistent payments toward the court-ordered Victim’s
Compensation Fund surcharge, Public Defender fees, ASL/ASAM assessment fee and
Court automation fee. Mr. Butler admitted the allegations of the petition. The district
court revoked Mr. Butler’s deferral and imposed a four to seven year sentence, which was
suspended in favor of five years of supervised probation. The district court also placed
Mr. Butler in an intensive supervision program (ISP) pursuant to Wyo. Stat. Ann. § 7-13-
1101, et seq. (LexisNexis 2013).

[¶5] Mr. Butler committed eleven violations of the rules while in the ISP. The ISP
program gave him an administrative sanction for those violations by placing Mr. Butler in
a residential community corrections program, Cheyenne Transitional Center (CTC) for
sixty days. He was expelled from the CTC after only two days. The expulsion resulted
from Mr. Butler being allowed to go to a library, but an ISP employee was unable to
locate him there despite looking through the entire library twice.

[¶6] On June 17, 2013, the State filed another petition to revoke probation relying on
the eleven violations of the ISP rules that had led to placement at CTC. The petition
alleged the Defendant had violated his probation in that 1) his whereabouts were
unknown; 2) he violated condition #5 of the ISP Agreement by being off schedule on
April 17, 2013; 3) he failed to maintain employment; 4) he violated condition #5 of the
ISP Agreement by being off schedule on April 22, 2013; 5) he violated condition #12 of
the ISP Agreement by being at an unapproved location on April 22, 2013; 6) he violated
condition #15 of the ISP Agreement by having contact with an unapproved person on
April 22, 2013; 7) he violated condition #5 of the ISP Agreement by being off schedule
on April 30, 2013; 8) he violated condition #5 of the ISP Agreement by being off
schedule on May 27, 2013; 9) he violated condition #18 of the ISP Agreement by
removing his Electronic Monitor on May 27, 2013; 10) he violated condition #13 of the
ISP Agreement by being at an unapproved location on May 17, 2013; and 11) he violated
condition #15 of the ISP Agreement by having contact with an unapproved person on
May 27, 2013.

[¶7] Mr. Butler admitted and explained the allegations contained in the petition at the
probation revocation hearing. However, he argued the alleged violations could not form
the basis for a probation revocation because they had previously been subject to
administrative sanctions (placement at CTC). He also argued at the hearing that he
should not have been expelled from CTC because he was unaware he was required to
“check-in” with ISP when he arrived at the library. The district court revoked Mr.
Butler’s probation and imposed the underlying sentence of four to seven years with a
referral to the youth offender (Boot Camp) program. This appeal followed.




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                               STANDARD OF REVIEW

[¶8] Statutory interpretation is a question of law that this Court reviews de novo. MF v.
State, 2013 WY 104, ¶ 6, 308 P.3d 854, 857 (Wyo. 2013) (citing Rock v. Lankford, 2013
WY 61, ¶ 17, 301 P.3d 1075, 1080 (Wyo. 2013); In re DCP, 2001 WY 77, ¶ 7, 30 P.3d
29, 30 (Wyo. 2001)).

[¶9] A district court’s decision to revoke probation is reviewed for an abuse of
discretion. DeMillard v. State, 2013 WY 99, ¶ 11, 308 P.3d 825, 829 (Wyo. 2013).

              A district court’s decision to revoke probation and impose a
              sentence is discretionary and will not be disturbed unless the
              record demonstrates a clear abuse of discretion. Mapp v.
              State, 929 P.2d 1222, 1225 (Wyo. 1996). We review the
              district court’s decision to determine whether the court could
              reasonably conclude as it did. Id. “Upon review, 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 a condition of probation had been
              violated.” Sweets v. State, 2003 WY 64, ¶ 9, 69 P.3d 404,
              406 (Wyo. 2003).

Id., ¶ 11, 308 P.3d 829 (citing Forbes v. State, 2009 WY 146, ¶ 6, 220 P.3d 510,
512-13 (Wyo. 2009)).

                                      DISCUSSION

[¶10] In interpreting statutes, we seek to determine the legislature’s intent:

              All statutes must be construed in pari materia and, in
              ascertaining the meaning of a given law, all statutes relating
              to the same subject or having the same general purpose must
              be considered and construed in harmony. Statutory
              construction is a question of law, so our standard of review is
              de novo. We endeavor to interpret statutes in accordance with
              the legislature’s intent. We begin by making an inquiry
              respecting the ordinary and obvious meaning of the words
              employed according to their arrangement and connection. We
              construe the statute as a whole, giving effect to every word,
              clause, and sentence, and we construe all parts of the statute
              in pari materia. When a statute is sufficiently clear and
              unambiguous, we give effect to the plain and ordinary

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             meaning of the words and do not resort to the rules of
             statutory construction. Moreover, we must not give a statute a
             meaning that will nullify its operation if it is susceptible of
             another interpretation.

             Moreover, we will not enlarge, stretch, expand, or extend a
             statute to matters that do not fall within its express provisions.
             Only if we determine the language of a statute is ambiguous
             will we proceed to the next step, which involves applying
             general principles of statutory construction to the language of
             the statute in order to construe any ambiguous language to
             accurately reflect the intent of the legislature. If this Court
             determines that the language of the statute is not ambiguous,
             there is no room for further construction. We will apply the
             language of the statute using its ordinary and obvious
             meaning.

Stowe v. Stowe, 2014 WY 97 (Wyo. 2014) (citing Redco Const. v. Profile Properties,
LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 415–16 (Wyo. 2012)) (quoting Cheyenne
Newspapers, Inc. v. Building Code Bd. of Appeals of City of Cheyenne, 2010 WY 2, ¶ 9,
222 P.3d 158, 162 (Wyo. 2010) (which in turn cites BP Am. Prod. Co. v. Dep’t of
Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005)).

[¶11] The Legislature has given the Department of Corrections authorization to establish
an intensive supervision program (ISP) for probationers and parolees and also granted the
Department general supervisory authority over those who participate in the program.
Wyo. Stat. Ann. §§ 7-13-1101, -1102(a), and -1102(d) (LexisNexis 2013). The ISP
established under this article may require:

             (i)     Electronic monitoring, regimented daily schedules or
                     itineraries, house arrest, telephone contact, drug
                     testing, curfew checks or other supervision methods
                     which facilitate contact with supervisory personnel;
             (ii)    Community service work, family, educational or
                     vocational counseling, treatment for substance abuse,
                     mental health treatment and monitoring of restitution
                     orders and fines previously imposed on the participant;
                     and
             (iii)   Imposition of supervision fees to be paid by
                     participants.



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Wyo. Stat. Ann. § 7-13-1102(b).

[¶12] Participation in an ISP is a matter of grace and not of right. Wyo. Stat. Ann. § 7-
13-1103(a) (LexisNexis 2013). No person is allowed to participate in an ISP unless they
agree in writing to follow and abide by all the rules and regulations established by the
Department related to the operation of the program and agree to submit to the
administrative sanctions which may be imposed under Wyo. Stat. Ann. § 7-13-1107.
Wyo. Stat. Ann. § 7-13-1103(b). The Legislature has also given sentencing courts the
authority to place a defendant in an ISP as a condition of their probation. Wyo. Stat.
Ann. § 7-13-1105 (LexisNexis 2013). Section 1107 provides:

                    7-13-1107. Administrative sanctions for program
             violations.

          (a) The department is authorized to establish by rule and
              regulation a system of administrative sanctions as an
              alternative to probation or parole revocation for probationers
              and parolees who violate the rules and restrictions of an
              intensive supervision program established under this article.
          (b) Authorized sanctions may include:
             (i)     Loss or restriction of privileges;
             (ii)    Community service; and
             (iii)   Restriction on personal liberty including:
                   (A) Detention in county jail for a period not
             exceeding thirty (30) days;
                    (B) Placement in a residential community
             correctional program for a period not to exceed sixty (60)
             days.
Wyo. Stat. Ann. § 7-13-1107(a), (b) (LexisNexis 2013) (emphasis added).

[¶13] The emphasis that has been added to Wyo. Stat. Ann. § 7-13-1107(a) reflects a
legislative intent that when an ISP participant violates the program rules and regulations,
the State is required to choose between subjecting that participant to administrative
sanctions under the statute or revoking their probation. This Court came to the same
conclusion in Umbach v. State where we said “[i]f the State decides that a probationer
who has violated a program rule should be subjected to administrative sanctions, then it
shall not also seek probation revocation for that violation.” Umbach v. State, 2002 WY
42, ¶ 12, 42 P.3d 1006, 1009 (Wyo. 2002).

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[¶14] A plain language reading of Wyo. Stat. Ann. § 7-13-1107 does not permit the
State to both revoke Mr. Butler’s probation and subject him to administrative sanctions.
The imposition of both options violates the statute’s express terms. In this case, the State
chose to subject Mr. Butler to administrative sanctions for the eleven ISP violations by
placing him at CTC.

[¶15] The State argues that Mr. Butler was placed at CTC for violating the rules of the
intensive supervision program. They further argue he was removed from CTC because
he violated the ISP program rules, and it was at that time the district court revoked his
probation. The State urges this Court to conclude Mr. Butler’s probation was properly
revoked because he failed to fully serve the administrative sanction.

[¶16] A close examination of the Petition for Revocation of Probation and Affidavit for
and Request for Revocation of Probation Bench Warrant reveals that nowhere in the
petition does the State allege Mr. Butler’s probation should be revoked for a failure to
complete the administrative sanction. The State petitioned to have Mr. Butler’s probation
revoked based solely on his eleven ISP violations, which had already been subject to
administrative sanctions.

                                     CONCLUSION

[¶17] The district court erred when it granted the State’s Petition to Revoke Probation
because the violations contained in the petition had already been subject to administrative
sanctions. Using these same violations to revoke Mr. Butler’s probation is contrary to
Wyo. Stat. Ann. § 7-13-1107 and our ruling in Umbach.

[¶18] Reversed and remanded for proceedings consistent with this opinion.




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