Farthing v. State

2021 WY 114

DEWAYNE RAY FARTHING, Petitioner, v. THE STATE OF WYOMING, Respondent.

No. S-21-0052

Supreme Court of Wyoming

October 14, 2021

Petition for Writ of Certiorari District Court of Natrona County The Honorable Catherine E. Wilking, Judge

Representing Petitioner: Diane Lozano, State Public Defender Kirk A. Morgan, Chief Appellate Counsel; David E. Westling Senior Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kristen R. Jones, Assistant Attorney General.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice

[¶1] Dewayne Ray Farthing contends the district court abused its discretion when it revoked his probation. We affirm.

FACTS

[¶2] In July 2018, the State charged Mr. Farthing with conspiracy to deliver methamphetamine. After accepting his guilty plea, the district court in Casper, Wyoming sentenced him to three to four years imprisonment but suspended his sentence on the condition that he successfully complete three years of supervised probation. The court imposed various probation terms and conditions in his judgment and sentence, including: "1. That [Mr. Farthing] be under the direct supervision of the Wyoming Department of Corrections, Probation and Parole, and shall obey that Department's rules and regulations."

[¶3] The State petitioned to revoke Mr. Farthing's probation in February 2020.^[1] In two separate allegations, the State claimed that Mr. Farthing had failed to report to his probation officer as directed since November 15, 2019^[2] and failed to comply with a sanction his probation officer imposed in October 2019 that increased his reporting requirements for the next 60 days.^[3] It asserted that both failures violated the condition in his judgment and sentence that required him to be under the supervision of the Department of Corrections, and to obey its rules and regulations.

[¶4] Mr. Farthing's probation officer, Agent Andrew Gitlitz, testified at the March 2020 revocation hearing. Agent Gitlitz took over Mr. Farthing's case in June 2019, at which time Mr. Farthing was required to report at least once a month. At an October 10 meeting, however, due to missed report dates, Agent Gitlitz imposed a sanction that required Mr. Farthing to report in person every other week for the next 60 days. He explained to Mr. Farthing that if he needed to miss a report, he was to contact Agent Gitlitz to reschedule. After excusing Mr. Farthing from his October 25 reporting, Agent Gitlitz tried to arrange a home visit with Mr. Farthing in early November but could not reach him.

[¶5] Agent Gitlitz testified that he heard nothing from Mr. Farthing until November 25, when he received a text message saying "I got to take my son somewhere safe right now his mom is being crazy and kicked us both out in the cold. I can[']t let him suffer. I[']ll let you know when I find out more." On November 27, Agent Gitlitz replied via a text message that said "[y]ou need to update me[.]" Agent Gitlitz again heard nothing from Mr. Farthing until January 2020. On January 14, Mr. Farthing sent a text message that said "[l]ife has been very chaotic this last month. Lots of change. I'll be back in town on Monday. To drop my son off. Will I be a[b]le to see you[?]" Agent Gitlitz did not know whether Mr. Farthing attempted to report that following Monday because it was a holiday and the probation office was closed. After that, Agent Gitlitz testified, he was unable to reply to Mr. Farthing and thought that maybe Mr. Farthing's phone was shut off.

[¶6] Mr. Farthing testified that he remembered Agent Gitlitz sanctioning him with increased reporting requirements in October 2019. Then he explained that when his fiancée kicked him out in November 2019, he and his son were homeless with no other option than to go stay with his sister in Rock Springs, Wyoming. The rest of Mr. Farthing's testimony was vague, and contradictory at times. He first testified that he did not contact Agent Gitlitz again until he brought his son back to Casper, and he could not remember when that was. He then said that he tried to call when he got to Rock Springs, but he could not remember whether he called the probation office or Agent Gitlitz directly, and he could not remember how many times he tried to call, but he believed he left a voice message.

[¶7] According to Mr. Farthing, he was in Rock Springs for "maybe two weeks" before coming back to Casper in early December so his son could see his mom, then he went back to Rock Springs "for a short time" before returning to Casper and getting an apartment- he said he could not recall the dates for these events. He also said he thought he last reported to Agent Gitlitz in November 2019, he was arrested on December 23 and/or January 28, ^[4] and he believed he tried to call Agent Gitlitz sometime in December and texted him sometime in December or January.

[¶8] At the close of the hearing, the court found that the State proved Mr. Farthing's probation violations by a preponderance of the evidence and further found that those violations were willful. The court revoked Mr. Farthing's probation and sentenced him to two and a half to three and a half years imprisonment with credit for time served.

[¶9] This matter is before us on a petition for writ of certiorari, which we granted after Mr. Farthing's counsel failed to file a timely appeal. See Foote v. State, 751 P.2d 884 (Wyo. 1988) (holding that certiorari is the appropriate remedy when counsel fails to file a timely appeal as requested).

STANDARD OF REVIEW

[¶10] We review a district court's probation revocation decision for an abuse of discretion. Ramos v. State 2021 WY 22, ¶ 6, 479 P.3d 777, 779 (Wyo. 2021) (citing Sena v. State, 2019 WY 111, ¶ 25, 451 P.3d 1143, 1149 (Wyo. 2019)). Though the court "must afford the defendant due process and base decisions on justifiable facts, 'all that is necessary to uphold [the 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. (quoting Stroble v. State, 2020 WY 158, ¶ 8, 478 P.3d 649, 651 (Wyo. 2020)). "We view the evidence in the light most favorable to the district court's determination and uphold its factual findings unless they are clearly erroneous '[b]ecause the trial court heard and weighed the evidence, assessed witness credibility, and made the necessary inferences and deductions from the evidence.'" Id. (quoting Stroble, ¶ 8, 478 P.3d at 651).

DISCUSSION

[¶11]

Courts employ a two-part process for probation revocation. The first part is the adjudicatory phase where the district court determines if the probationer violated the terms of his probation. The State is required to prove the probation violation by a preponderance of the evidence. If the district court finds the State met its burden, it moves to the dispositional phase in which it determines the appropriate punishment.

Id. ¶ 7, 479 P.3d at 779 (internal citations omitted). If the basis for the revocation is a violation of probation terms "not involving the payment of money, the violation must either be willful or threaten the safety of society." Miller v. State, 2015 WY 72, ¶ 8, 350 P.3d 742, 745 (Wyo. 2015) (quoting Sinning v. State, 2007 WY 193, ¶ 10, 172 P.3d 388, 390 (Wyo. 2007)). "A court may infer from the evidence presented that a probation violation was willful." Sena, ¶ 27, 451 P.3d at 1149 (citation omitted).

[¶12] Mr. Farthing contends the court erred by finding that he willfully violated his probation when he failed to report to Agent Gitlitz as required. He asserts his violations were not willful, but rather that he was unable to report due to factors beyond his control. Whether Mr. Farthing's violations were willful is a question of fact we review for clear error. See Miller, ¶ 11, 350 P.3d at 745; Ramos, ¶ 6, 479 P.3d at 779. Viewing the evidence in the light most favorable to the district court's determination, we conclude the court's finding that Mr. Farthing's violations were willful was not clearly erroneous.

[¶13] Willful means "intentionally, knowingly, purposely voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently,...