STATE of Idaho, Plaintiff-Respondent, v. Andrew Dallas MORGAN, Defendant-Appellant.
No. 39057.
Court of Appeals of Idaho.
July 10, 2012.
Review Denied Nov. 29, 2012.
288 P.3d 835
Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON concur.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
GRATTON, Chief Judge.
Andrew Dallas Morgan appeals from the Idaho Supreme Court‘s order denying his motion to augment the record and the district court‘s order revoking his probation. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Morgan with one count of burglary,
In August 2009, the State filed a report alleging that Morgan violated his probation. The report listed several probation violations including failing to complete the required treatment program, failing to inform his probation officer that he had been terminated from his employment, failing to inform his probation officer that he had been prescribed
On appeal, Morgan filed a motion to suspend the briefing schedule and to augment the appellate record with transcripts of the probation violation admission hearing held November 29, 2009, and the probation violation dispositional hearing held January 14, 2010, that were associated with his first probation violation. The State objected to the motion. The Idaho Supreme Court denied Morgan‘s motion without comment and reset the due date for the filing of Morgan‘s appellant‘s brief. Morgan‘s appellate brief challenges the Idaho Supreme Court‘s order denying his motion to augment the record and the district court‘s order revoking his probation.
II.
ANALYSIS
Morgan claims that the Idaho Supreme Court violated his due process and equal protection rights and his right to effective assistance of counsel by denying his motion to augment the record on appeal. He also contends that the district court abused its discretion when it revoked his probation.
A. Denial of Motion to Augment
We begin by disclaiming any authority to review and, in effect, reverse an Idaho Supreme Court decision on a motion made prior to assignment of the case to this Court on the ground that the Supreme Court decision was contrary to the state or federal constitutions or other law. Such an undertaking would be tantamount to the Court of Appeals entertaining an “appeal” from an Idaho Supreme Court decision and is plainly beyond the purview of this Court. Nevertheless, if a motion is, in effect, renewed by the movant, and new information or a new or expanded basis for the motion is presented to this Court that was not presented to the Supreme Court, we deem it within the authority of this Court to evaluate and rule on the renewed motion in the exercise of our responsibility to address all aspects of an appeal from the point of its assignment to this Court. Such may occur, for example, if the completed appellant‘s and/or respondent‘s briefs have refined, clarified, or expanded issues on appeal in such a way as to demonstrate the need for additional records or transcripts, or where new evidence is presented to support a renewed motion.
It is not clear that the present case presents such a circumstance, i.e., that Morgan has presented to this Court any new information or justification for his motion to augment the record. However, assuming arguendo that the arguments in Morgan‘s appellant‘s brief may properly be entertained by this Court as a renewed motion to augment the record, we find his arguments to be without merit.
First, we examine whether Morgan‘s constitutional rights will be infringed if he is not allowed an augmentation of the record to include the transcripts of hearings associated with his first probation violation. We conclude
The transcript from the disposition hearing provides an accurate account of the district court‘s evaluation of Morgan‘s revocation of probation. The district court stated:
You don‘t follow through. You don‘t make your appointments. You make it impossible for probation to actually work, and then you suggest that you should continue on probation even though you don‘t do the most basic things of probation, which is make your appointments and follow through with what you are supposed to follow through with.
The district court‘s primary focus was the many opportunities and failures during Morgan‘s probation. The information the district court relied on is within the record, specifically, a letter from the Idaho Department of Health and Welfare and the Report of Probation Violation documents. Additionally, Morgan has admitted to missing appointments and failing to follow the terms of his probation. Morgan argues his appeal will be meaningless because it will be presumed that the missing transcripts support the district court‘s order revoking his probation. That is not true, however. This Court will not assume the omitted transcripts would support the district court‘s revocation order since they were not before the district court in the second probation violation proceedings, and the district court gave no indication that it based its revocation decision upon anything that occurred during those prior hearings.
Morgan asserts that this Court‘s decision in State v. Hanington, 148 Idaho 26, 218 P.3d 5 (Ct.App.2009), requires a review of the entire record of proceedings in the trial court up to and including the revocation of probation. Morgan reads Hanington too broadly. As stated in Hanington, in reviewing the propriety of a probation revocation, we will not arbitrarily confine ourselves to only those facts which arise after sentencing to the time of the revocation of probation. Id. at 28, 218 P.3d at 8. However, that does not mean that all proceedings in the trial court up to and including sentencing are germane. The focus of the inquiry is the conduct underlying the trial court‘s decision to revoke probation. 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.
Morgan‘s argument that denial of his motion to augment the record infringes his right to due process is without merit. The parties to an appeal have twenty-eight days from the service of the record to request additions or corrections to the record.
Morgan‘s equal protection argument is equally unpersuasive. Morgan argues that he was denied the requested transcripts because he was indigent, constituting a violation of his equal protection rights. “[O]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.” Burns v. Ohio, 360 U.S. 252, 257 (1959) (citing Griffin v. Illinois, 351 U.S. 12 (1956)). Morgan was not denied the transcripts because of indigency. Morgan was afforded the opportunity to designate not only the standard clerk‘s record, but also additional records necessary for inclusion in the clerk‘s record on appeal. He had time to review the record and make any objections, corrections, additions, or deletions prior to settling of the record, pursuant to
Morgan argues that he cannot obtain effective assistance of counsel on appeal if he is denied the requested transcripts.
B. Probation Revocation
Morgan argues that the district court abused its discretion when it revoked his probation and executed his suspended sentence. It is within the trial court‘s discretion to revoke probation if any of the terms and conditions of the probation have been violated.
Morgan was placed on probation for grand theft by wrongfully taking a Fentanyl pain patch from the prescribed user. Morgan has admitted numerous probation violations, including failing to complete the first required treatment program, using medications contrary to the manner prescribed by a physician, failing to obtain a valid driver‘s license, being terminated from the second required treatment program due to poor attendance and violations of his behavior contract, and having contact with another probationer.
III.
CONCLUSION
Morgan has failed to show a constitutional violation by the denial of his motion to augment the record on appeal by the Idaho Supreme Court. The district court did not abuse its discretion by revoking Morgan‘s probation. Accordingly, the district court‘s order revoking Morgan‘s probation is affirmed.
Judge LANSING and Judge MELANSON concur.