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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38310

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MARK STEPHEN WICKLUND,

Defendant-Appellant.

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2012 Unpublished Opinion No. 313

Filed: January 10, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Thomas F. Neville, District Judge. 

Order denying motion to modify probation, affirmed.

Jacob D. Deaton, Eagle, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

PERRY, Judge Pro Tem

Mark Stephen Wicklund appeals from the district court’s denial of his motion to modify 

his probation. We affirm.

I.

FACTS AND PROCEDURE

In 2001, Wicklund was indicted on the charge of sexual battery of a minor child sixteen 

or seventeen years of age, I.C. § 18-1508A. Pursuant to a written plea agreement, Wicklund 

pleaded guilty. On November 15, 2001, the district court filed a judgment of conviction wherein 

it imposed a unified term of imprisonment of seven years, with two years fixed. The judgment 

further provided that:

The Court does hereby suspend execution of the above sentence and places the 

defendant on probation for a seven (7) year period upon the following terms and 

conditions.

. . . .
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e. The defendant shall pay a $20,000 fine at the minimum rate of $250 per 

month.

In 2008, the district court found Wicklund in violation of one of the terms of his probation. On 

August 8, 2008, the district court entered an order reinstating probation, adding additional terms 

and extending the time of probation “through November 13, 2011.”

On October 19, 2010, Wicklund filed a motion seeking relief from the fine imposed as a 

term of probation.1 He contended, among other things, that his changed financial circumstances 

made it impossible for him to pay the fine. The district court denied the motion. Wicklund 

appealed.

On December 13, 2011, this Court entered an order noting that the appellate record 

showed that Wicklund’s probation was set to expire on November 13, 2011. In the order, we 

allowed the parties seven days to inform this Court why this case is not moot. The State did not 

respond. Wicklund responded, contending that the case was not moot because he asserts he can 

still be found in contempt for failing to pay the fine.2

 Without addressing the merits of 

Wicklund’s argument, we turn to his underlying issue raised on appeal, that is, it is “impossible” 

for Wicklund to pay the remainder of his fine as a condition of his probation.

II.

ANALYSIS

On appeal, Wicklund contends that the district court erred in denying his motion to set 

aside the fine because his present financial circumstances render it impossible for him to pay it. 

Idaho Code Section 19-2601(2) gives the trial court the discretion to place a defendant on 

probation “under such terms and conditions as it deems necessary and expedient.” However, the 

statute does not provide the trial court with the authority to impose arbitrary or unreasonable 

conditions. State v. Wakefield, 145 Idaho 270, 273, 178 P.3d 635, 638 (Ct. App. 2007). 

 

1 See State v. Cross, 105 Idaho 494, 670 P.2d 901 (1983) (holding that a fine may be 

imposed as a term of probation). See also State v. McCool, 139 Idaho 804, 87 P.3d 291 (2004).

2 In his response Wicklund cited to State v. Schorzman, 129 Idaho 313, 924 P.2d 214 

(1996). In Schorzman, the Supreme Court addressed the trial court’s contempt powers when a 

defendant fails to pay a fine that is part of the sentence. It was not an instance where the fine 

was a condition of probation and is therefore completely inapplicable here.
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Imposition of a term of probation impossible of fulfillment is an abuse of discretion. State v. 

Sandoval, 92 Idaho 853, 861, 452 P.2d 350, 358 (1969).

For two reasons, Wicklund’s claim of error is without merit. First, in this appeal 

Wicklund improperly relies upon unsworn statements in his motion to establish the evidentiary 

basis for his current claim of impossibility. He claims in his appellate brief that the “facts as set 

forth in Wicklund’s motion stand uncontroverted.” Although Wicklund apparently submitted an 

affidavit along with his motion, he has failed to make that affidavit part of the record in this 

appeal. The motion itself is not evidence, however. It is the responsibility of the appellant to 

provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 

Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on 

appeal to support the appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 

103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991).

Second, even if this Court were to accept the assertions of Wicklund in his motion as 

true, he has failed to show that his financial condition makes it impossible for him to pay the 

fine. Among other things, Wicklund stated that he lives at home and cares for his elderly parents

and that he has paid over $5,000 of his fine. He claims he has been disabled and unable to work 

since 2006, and that the district court’s term of probation restricting his use of the Internet leaves 

him without alternative gainful employment. He concedes that he collects a monthly disability 

payment of $1,300; however, he states it does not cover his living expenses. He also points out 

that the probation office has waived his monthly supervision fee. Wicklund fails to show that his 

compliance with the term of probation is “impossible” because “[a]lleging difficulty in meeting 

the payments, as opposed to impossibility, is not sufficient to find an abuse of discretion.” State 

v. Cross, 105 Idaho 494, 496, 670 P.2d 901, 903 (1983).

The district court’s order denying the motion to modify probation is affirmed. 

Chief Judge GRATTON and Judge MELANSON CONCUR.