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Anderson v. State3/28/2002
ired to make a conscientious judgment that the alleged violation occurred after considering the reasons underlying the conditions of probation, the violation of those conditions, and the reasons leading to the violation. Moehr v. State, 13 P.3d 1114, 1116 (Wyo. 2000); Johnson v. State, 6 P.3d 1261, 1263 (Wyo. 2000). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). The district court's determination that the probation agreement has been violated "must be based upon verified facts and must be made pursuant to due process protections[.]" Counts v. State, 899 P.2d 1341, 1343-44 (Wyo. 1995) (quoting Gailey v. State, 882 P.2d 888, 891 (Wyo. 1994)).
[ ] In addition, we have also expressed a general agreement with the proposition that in order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must be willful, or, if not willful, must presently threaten the safety of society. Kupec v. State, 835 P.2d 359, 362 (Wyo. 1992); and see Johnson, 6 P.3d at 1263. We have also held that notice to a probationer of the grounds for revocation is fundamental and that failure of notice is a defect affecting a substantial right and may be prejudicial to the probationer's cause. Shaw v. State, 998 P.2d 965, 967-8 (Wyo. 2000).
DISCUSSION
[ ] The petition to revoke probation alleged multiple circumstances that might have served as bases for revocation. However, as is more fully set out above, the decision to revoke was based upon Anderson's failure to report to her probation agent in March of 2000 and her failure to complete counseling.
[ ] There is direct evidence that Anderson failed to appear in person in March of 2000, though Anderson did testify, and a witness corroborated that testimony, that she attempted to make telephone contact with her probation agent. Whether it was fully deserved or not, the record was rife with unverified information indicating that Anderson was not a particularly credible witness. However, we are unable to conclude that this circumstance alone is an adequate basis for the revocation of her probation, given the record's clarity with respect to the fact that Anderson had been on probation for a period of about 33 months without apparent incident. We continue to agree that probation is a privilege and not a right. Burk v. State, 848 P.2d 225, 236 (Wyo. 1993). Further, no violation of a probation agreement should be viewed as minor. Collins v. State, 712 P.2d 368, 371 (Wyo. 1986). However, we must also give full recognition to the valuable and important rights that inhere in probation once it is granted. See Pearl v. State, 996 P.2d 688 (Wyo. 2000).
[ ] The initial evidence offered that Anderson did not attend and/or complete counseling was in the form of hearsay testimony from a probation agent, and appropriate objections were made and sustained. The only evidence in the record to support a conclusion that Anderson had not attended and/or completed counseling was then the probation agent's testimony that Anderson was required to prove her attendance at, and successful completion of, counseling, and tha t she had failed to do so. It is clear that W.R.Cr.P. 39(a)(5)(B), as it read during the proceeding applicable to Anderson, required that the rules of evidence be applied to the adjudicative phase of the proceedings to revoke her probation. In Swackhammer v. State, 808 P.2d 219, 223 (Wyo. 1991), we held as follows at a time when the use of hearsay wa
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