1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44545

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

NICHOLAS SHANE CLAUSEN ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2017 Opinion No. 60

Filed: November 15, 2017
Karel A. Lehrman, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen , District Judge.
Order finding probation violation, revoking probation, imposing sanction, and retaining jurisdiction, reversed , and case remanded

. Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster
, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Judge Nicholas Shane Clausen appeals from the district court’s order finding probation violation, revoking probation, imposing sanction, and retaining jurisdiction. Clausen argues the order should be reversed because the district court did not make an express f inding that his probation violation was willful. The district court’s order is reversed and the case remanded.
I.
FACTUAL AND PROCEDURAL BACKGROUND In 2015, Clausen pleaded guilty 1 to grand theft. The district court imposed a unified sentence of five ye ars, with two years determinate , suspended the sentence, and placed Clausen

on a period of supervised probation for two and one

- half years. As a condition of Clausen’s probation, he was required to successfully complete mental health court. However, Clau sen was

1 Clausen entered an Alford plea. See North Carolina v. Alford , 400 U.S. 25 (1970).2 terminated from the mental health court program due to noncompliance with its rules. At a probation violation hearing, Clausen admitted his termination from mental health court constituted a violation of his probation. The willfulness of the probation violation was no t expressly addressed by the State, Clausen
, or the district court. The district court revoked Clausen’s probation and executed the five

- year sentence, with two years determinate
, and retained jurisdiction

. Clausen timely appeal ed

. II.
STANDARD OF REVIEW

“ Review of a probation revocation proceeding involves a two

- step analysis. First, it is determined whether the terms of probation have been violated. If they have, it is then determined whether the violation justifi es revoc ation of the probation.” State v. Garner , 161 Idaho 708, 710, 390 P.3d 434, 436 (2017) (citations omitted)

. With regard to the first step, a district court may revoke probation only upon evidence that the probationer has violated probation.

. . . A court’ s finding that a violation has been proved will be upheld on appeal if there is substantial evidence in the record to support the finding.

. . . As to the second step, the decisio n whether to revoke a defendant’ s probation for a violation is within the discretion of the di strict court. Thus, we review a district court’ s decision to revoke probation under an abuse of discretion standard. 

### State v. Knutsen , 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003) (citations omitted)

. When a trial cou rt’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi

- tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger , 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
III.
ANALYSIS Preliminarily, this Court notes the State’s argument that this case should be reviewed for
fundamental error. The fundamental error analysis articulated in State v. Perry , 1 50 Idaho 209, 245 P.3d 961 (2010 ) did not replace the abuse of discretion standard applicable to claims that a district court erred in revoking probation. If the Perry opinion intended to replace the abuse of3 discretion standard with a fundamental error standard, almost every direct appeal from an underlying criminal case would be revi ewed for fundamental error, as criminal procedural rules stem from constitutional provisions. We do not read Perry that broadly. The appropriate, two

step abuse of discretion standard of review is set forth above.
Clausen contends the district court a bused its discretion by revoking his probation because it did not make an express finding that his probation violation was w illful. In support of this argument, Clausen directs the C ourt to the language of Idaho Criminal Rule 33(f) and
Garner , which appli es th is rule. Clausen also raises a due process argument in his reply brief, but because it was not addressed in his initial brief before this Court, we do not address it

. Monahan v. State , 145 Idaho 872, 877, 187 P.3d 1247, 1252 (Ct. App. 2008)

. Idaho Criminal Rule 33(f) states a trial court may not revoke probation unless “there is an admission by the defendant or a finding by the court, following a hearing, that the defendant willfully violated a condition of probation.” 2 In Garner , the Idaho S upreme Court reviewed a
district court’s finding that a defendant willfully violated a condition of probation. Garner , 161
Idaho at 71 2

- 13 , 390 P.3d at 438

- 39

. After a probation revocation hearing, the district court entered an amended judgment which con tained an express finding that the defendant was in
willful violation of a term of his probation which required he abide by a no

- contact order

. Id. at
712
, 390 P.3d at 438

. On appeal, the defendant challenged the finding as being unsupported by substantial and competent evidence , but limited his challenge to whether the violation was
willful

. The Idaho Supreme Court reviewed the evidence before the district court to determi ne if the district court could infer willfulness from the evidence presented at the probation revocation hearing. In that review, the Court noted the defendant was sitting in a vehicle near the victim’ s place of employment
, the defendant looked and smiled at the vic tim through his rearview mirror
, the defendant sent a text message to a friend stating the victim would “bust” him for being there
, and the defendant gave inconsistent explanations for his presence near the victim’s place of employment. From th is evidence , the Court determined the district court’s finding that the

2 Idaho Criminal Rule 33(f) was amended in 2012 to include the quoted language. The Criminal Rules Advisory Committee minutes indicate the “Committee considered whether this rule should be amended to reiterate that a violation of probation must be willful.” The Committee noted that this “is already the law but some have been concerned about revocation of probation, particularly in the area of nonpayment of fines, without a finding that it w as a willful violation, especially since no finding of ability to pay is required before a fine is imposed.”4 defendant willfully violated a term or condition of his probation was supported by substantial and competent evidence because the district court “could reasonably infer” that the defen dant’s violation of probation was willful

. Id. The Court also determined the district court did not abuse its discretion in revoking the defendant’s probation after it made this finding. Id. at 7 13. As Clausen argues, Garner is distinguishable from the facts of his case. In Garner , the district court made an express finding of willfulness, which was then reviewed for substantial and competent evidence by the Idaho Supreme Court. However, here, the district court did not
mak e an express finding of willfulness, leaving th is Court with nothing to review for substantial and competent evidence or otherwise. Even if this Court proceeded to examine the evidence presented at the probation revocation hearing to determine if the dist rict court made an implicit finding of willfulness, the evidenc e does not support such a finding

. During the probation revocation hearing, neither party articulated wh ich specific rules of
mental health court Clausen violated in order to merit termination. Additionally, n o exhibits
were entered into evidence to specifically identify the rules Clausen had broken , although Clausen admitted he had been terminated from the mental health drug program due to noncompliance with its rules. Clausen also spoke dire ctly to the district court about an incident involving prescription drugs. He stated that without consulting mental health court officials, he obtained a prescription for pain medication and antibiotics which he then filled at a ph armacy

. He stated that while he was waiting for the prescription to be filled at the pharmacy, he called an official at the mental health court to notify him about the prescription. The official said he would fax paperwork to the doctor, and after receiving the paperwork from t he doctor, the official
authorized Clausen to take the medication. Clause n then stated that the next day the mental
health court sanctioned him for these actions, claiming that Clausen’s actions broke mental
health court rules

. Clausen s aid that during the time he was serving his three

- week sanction in jail , the mental health court decided to terminate him from the program. Thus, it can be inferred that one rule of the mental health court was to not see a doctor, obtain a prescription, o r take medication without providing notice to the mental health court. However, it cannot be inferred from Clausen’s statements that Clausen broke this rule willfully. If true, b ased on the assurance
Clausen stated he received
, Clausen may have believed his actions were compliant with the rules
rather than willful violations of the rules

.5 Also d uring the hearing, Clausen’s probation officer was asked
, “Can you please describe for the Court some of the behavior that led to your authoring this report of violation?” The probation officer offered a lengthy reply, during which counsel for the State interjected with clarifying questions. The officer testified that Clausen was on the fence about the program ; that he struggled accepting the challenges of the program ; that he was argumentative, confrontational,
and verbally abusive ; that he threatened lawsuits against officers; that he was kicked out of
several transitional homes ; and that he was not ready to be accountab le for his actions

. While this may amount to disagreeable behavior, these statements do not indicate any particular mental
health court rules that were broken nor do they indicate that Clausen broke them willfully
, particularly so because Clausen was diagnos ed with antisocial personality disorder

. Thus, the evidence provided at the probation revocation hearing would not support an implicit finding of willfulness by the district court.
Because the district court revoke d Clausen’s probation without making an express finding o f willfulness, and because there is not sufficient evidence in the record from which
willfulness could be inferred
, the district court abused its discretion. Although the district court correctly perceived the revocation issue as one of discretion, it did not act consistently with the legal standard requiring an express finding of willfulness and
, thus, its revocation of Clausen’s probation lacked an exercise of reason. 3
The State asserts that the district court’s abuse of discretion was harmless because regardless of the error, Clausen admitted he violated a term of his probation, a fact that controls
the case and would not change the district court’s decision even if it had made an express finding
of willfulness. However, if full review of the evidence by the district court does not support a finding of willfulness then revocation would be inappropriate. Based on the record in this case,

w e cannot say the district court’s error was not harmless.

3 To avoid uncertainty in future cases, we note that a better practice would be for the district court to accept an admission of a probation viola tion only if a defendant also admits the violation was willful. Additionally, allegations of probation violation s should list the specific rule violated, rather than the broad rule (as was done in this case)
, because the district court will necessarily ha ve to look at all the actions of the defendant that led to the termination in order to determine whether being terminated from mental health court was willful. For example, a belief tha t the defendant is simply not ready to be successful in a problem

- solv ing court may be a basis to terminate someone’s participation in a problem

- solving court
, but it is not a basis on which probation could be revoked absent specific behaviors that violated specific rules.6 Clausen asserts that because the district court abused its discretion by not making an express finding of willfulness, this Court’s decisi on in State v. Prelwitz , 132 Idaho 191 , 968 P.2d 1100 (Ct. App. 1998) mandates that Clausen’s probation be continued. In Prelwitz , this Court
directed the district court to re instate a defendant’s probation, but only because this Court also found that the defendant had not violated his probation. Id. at 194, 968 P.2d at 1103. Here, Clausen admitted to a violation of his probation. Thus, th e district court must now determine whether the violation was willful and if so, whether Clausen’s probation should be revoked.
IV.
CONCLUSION
The district court abuse d its discretion when it revoked Clausen’s probation without an express finding or admission of willfulness. We reverse t he district court’s order revoking probation and imposing the underlying sentence and remand the case to the district court for further action consistent with this opinion

. Chief Judge GRATTON and Judge GUTIERREZ CONCUR

.