author: Bjorgen, J.P.T.

text:
    STATE of Washington, Respondent, v. P.M.P., Appellant.
    No. 50821-4-II
    Court of Appeals of Washington, Division 2.
    Filed February 20, 2019
    Vitaliy Kertchen, Kertchen Law, PLLC, 917 S. 10th St., Tacoma, WA, 98405-4522, for Appellant.
    Mark Von Wahlde, Pierce County Prosecuting Attorney Office, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402-2102, for Respondent.
    PUBLISHED OPINION
   Bjorgen, J.P.T.

¶ 1 P.M.P. appeals from a superior court order denying his motion to seal his juvenile record concerning charges of indecent liberties by forcible compulsion and first degree child molestation. P.M.P. argues the superior court erred when it denied his motion to seal his juvenile record.

¶ 2 We hold that P.M.P's 1993 conviction of indecent liberties by forcible compulsion remains a class B felony under Rivard v. State , 168 Wash.2d 775, 781-82, 231 P.3d 186 (2010), and that the plain language of RCW 13.50.260(4)(b) unambiguously compels the superior court to grant a motion to seal records for class B offenses if the specified statutory conditions are met. Further, once the records for that conviction are sealed, the conviction is treated as if it never occurred. Therefore, under RCW 13.50.260(4)(a), P.M.P.'s conviction of indecent liberties by forcible compulsion would not preclude the court from sealing his records for first degree child molestation, a class A offense. Under the plain language of RCW 13.50.260(4)(a), the superior court must grant a motion to seal his records for first degree child molestation if the specified statutory conditions are met.

¶ 3 For these reasons, the superior court erred when it denied P.M.P.'s motion to seal his juvenile record. We reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 4 On December 28, 1993, P.M.P. pled guilty to one count of child molestation and one count of indecent liberties by forcible compulsion. In his plea statement, P.M.P. stated in his own words what he did that resulted in being charged with the offenses. P.M.P.'s written statement was as follows:

On or about April 30, 1991, I had sexual contact with [G.C.] who I am not married to, then being 3 y[ea]rs younger than me in Pierce County, W[ashington].
On or about April, 1990, I had sexual contact with [D.C.], a person I am not married to, by forcible compulsion, in Pierce County, W[ashington].

Clerk's Papers (CP) at 19.

¶ 5 As part of P.M.P.'s juvenile sexual offender dispositional order, the court ordered community supervision with a variety of conditions including, for example, registration as a sex offender. The superior court relieved P.M.P. from his obligation to register as a sex offender on December 7, 2001.

¶ 6 On October 27, 2016, P.M.P. filed a motion to seal his juvenile record based on RCW 13.50.260, with a declaration in support. P.M.P.'s motion erroneously listed indecent liberties as a class A felony. On November 7, the State filed a response, arguing that the by "forcible compulsion" language included in the plea statement precluded P.M.P. from sealing the indecent liberties count under RCW 13.50.260(4)(a)(v), because the offense was committed with actual forcible compulsion.

¶ 7 On November 21, after hearing argument from the parties, the superior court commissioner denied P.M.P.'s motion to seal. The court commissioner's order found, in relevant part, that:

5. The respondent's juvenile adjudication is Rape in the First Degree, Rape in the Second Degree, or Indecent Liberties with Forcible Compulsion that was actually committed with forcible compulsion. The respondent does not meet this requirement ( RCW 13.50.260(4)(a)(v) ).

CP at 24-25. The order also found that P.M.P. had satisfied the other elements of RCW 13.50.260(4)(a)(i)-(vi).

¶ 8 P.M.P. filed a motion for revision, which was denied. On revision, the superior court entered additional findings of fact relating to the commissioner's finding 5, as follows:

(a) The respondent's guilty plea statement on the above-listed charge[s] is presumptively valid. Words "Forcible Compulsion" satisfies statute in plea.
(b) Pursuant to State v. J.C., 192 Wn. App 122 [366 P.3d 455] (2016), the court's analysis ends with the finding of the presumptively valid underlying guilty plea. No further inquiry shall be conducted.

CP at 32. The superior court's order again found that P.M.P. had satisfied the other elements of RCW 13.50.260(4)(a)(i)-(vi).

¶ 9 On January 17, 2017, P.M.P. filed his notice of appeal. However, he withdrew his appeal after recognizing an error in the original motion that he had filed with the superior court-namely, that indecent liberties by forcible compulsion was not a class A felony, but was a class B felony in 1993 and remained a class B felony under Rivard , 168 Wash.2d 775, 231 P.3d 186.

¶ 10 P.M.P. filed another motion to seal with the superior court and, this time, he properly listed the indecent liberties charge as a class B felony. The State agreed that the indecent liberties by forcible compulsion was a class B felony at the time P.M.P. was convicted, although the crime was later elevated to a class A felony in 2001. Still, the State argued that the reclassification did not change the analysis or result as to whether P.M.P.'s record could be sealed. The superior court agreed with the State, and its order essentially mirrored the superior court commissioner's order originally entered on November 21, 2016.

¶ 11 P.M.P. appeals.

ANALYSIS

I. RCW 13.50.260(4)

¶ 12 P.M.P. argues that the superior court erred when it denied his motion to seal his juvenile record. We agree.

A. Standard of Review

¶ 13 Statutory interpretation is a question of law that we review de novo. State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007). The objective of statutory interpretation is to determine and implement the legislature's intent. Id . at 110, 156 P.3d 201. We determine legislative intent from the plain language enacted by the legislature, considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole. State v. Evans , 177 Wash.2d 186, 192, 298 P.3d 724 (2013).

¶ 14 We presume the legislature is aware of judicial interpretation and construction of prior statutes. State v. Otton , 185 Wash.2d 673, 685-86, 374 P.3d 1108 (2016). Absent evidence of legislative intent to overrule the common law, new legislation will be presumed to be consistent with prior judicial decisions. Id .

¶ 15 In interpreting a statute, we look first to its plain language. Armendariz , 160 Wash.2d at 110, 156 P.3d 201. If the plain language of the statute is unambiguous, then our inquiry is at an end, and the statute is to be enforced in accord with its plain meaning as an expression of legislative intent. Id. Where the plain language of the statute is open to more than one reasonable interpretation, though, it is ambiguous. Id. We may attempt to determine the legislative intent underlying an ambiguous statute from its legislative history. Id. at 110-11, 156 P.3d 201.

B. Sealing P.M.P.'s Conviction for Indecent Liberties (Class B Felony)

¶ 16 P.M.P. essentially argues that the superior court must seal his conviction for indecent liberties, as he has met all the requirements of RCW 13.50.260(4)(b). For the following reasons, we agree with P.M.P. and reverse and remand to the superior court for further proceedings consistent with this opinion.

¶ 17 RCW 13.50.260(4)(b) provides:

The court shall grant any motion to seal records for class B, class C, gross misdemeanor, and misdemeanor offenses and diversions made under subsection (3) of this section if:
(i) Since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, or completion of the diversion agreement, the person has spent two consecutive years in the community without being convicted of any offense or crime;
(ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
(iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
(iv) The person is no longer required to register as a sex offender under RCW 9A.44.130 or has been relieved of the duty to register under RCW 9A.44.143 if the person was convicted of a sex offense; and
(v) The person has paid the full amount of restitution owing to the individual victim named in the restitution order, excluding restitution owed to any insurance provider authorized under Title 48 RCW.

(Emphasis added.)

¶ 18 In this case, P.M.P. was convicted of indecent liberties under former RCW 9A.44.100(1)(a) (1993), which at the time he was convicted in 1993 was a class B felony. Indecent liberties by forcible compulsion became a class A felony in 2001. LAWS OF 2001, 2d Spec. Sess., ch. 12, § 359. P.M.P. cites Rivard , 168 Wash.2d at 781-82, 231 P.3d 186, for the proposition that "the subsequent reclassification of an offense from a class B to a class A felony has no effect on a prior conviction for that offense and does not retroactively convert the conviction to a class A felony."

¶ 19 The State counters by pointing out that RCW 13.50.260(4)(a)(v) states:

The court shall grant any motion to seal records for class A offenses made pursuant to subsection (3) of this section if:
....
(v) The person has not been convicted of rape in the first degree, rape in the second degree, or indecent liberties that was actually committed with forcible compulsion.

Br. of Resp't at 6-7. The State argues that this provision focuses on the elements of indecent liberties committed by forcible compulsion, not its offense classification. The State thus argues that the statutory language directs the superior court to "actually" consider the elements of the specified offenses; that is, first and second degree rape and indecent liberties that was actually committed with forcible compulsion. The State claims that this focus on elements, not offense classification, distinguishes Rivard , where the classification determined the right to possess a firearm.

¶ 20 The State, however, did not address the critical issue in Rivard . In Rivard , our Supreme Court was asked to determine the effect of the savings clause, RCW 10.01.040, "on persons convicted of vehicular homicide before its reclassification from class B to class A." 168 Wash.2d at 779, 231 P.3d 186. RCW 10.01.040 provides, in relevant part:

Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act.

¶ 21 Rivard concluded that there was no indication the legislature intended the reclassification of vehicular homicide to apply retroactively. 168 Wash.2d at 781-82, 231 P.3d 186. Rivard held, therefore, that the savings clause precluded retroactive application of the reclassification of the vehicular homicide statute. Id .

¶ 22 The same is the case in this appeal. The State has presented no authority indicating that the legislature intended the reclassification of the indecent liberties statute to apply retroactively. In fact, the legislature's intent is not expressly declared in the act reclassifying the offense. See generally LAWS OF 2001, 2d Spec. Sess., ch. 12, § 359. Rivard 's holding that "the subsequent reclassification of an offense from a class B to a class A felony has no effect on a prior conviction for that offense and does not retroactively convert the conviction to a class A felony,"

applies with full force to P.M.P.'s conviction of indecent liberties by forcible compulsion. 168 Wash.2d at 781-82, 231 P.3d 186.

¶ 23 The State also argues that in 2011, when the provision in RCW 13.50.260(4)(a)(v) noted above was amended, indecent liberties with forcible compulsion was a class A offense and had been so since 2001. The State contends that nothing in the record suggests any legislative intent to distinguish consideration of pre-2011 indecent liberties with forcible compulsion cases from post-2011 indecent liberties cases.

¶ 24 What this argument ignores, though, is that the 2011 amendments to RCW 13.50.260(4)(a)(v) applied only to class A offenses and, as shown above, Rivard and the savings clause require us to treat P.M.P.'s indecent liberties conviction as a class B offense. For these reasons, P.M.P.'s conviction of indecent liberties by forcible compulsion remains a class B felony for the purposes of our analysis in accord with RCW 10.01.040 and Rivard .

¶ 25 The State also argues that even though RCW 13.50.260(4)(b) requires the sealing of class B felonies if the specified statutory conditions are met, sealing P.M.P.'s conviction for indecent liberties by forcible compulsion under former RCW 9A.44.100(1)(a) would defeat the legislative intent expressed in RCW 13.50.260(4)(a)(v) for class A offenses.

¶ 26 As noted, RCW 13.50.260(4)(a)(v) provides, in part:

The court shall grant any motion to seal records for class A offenses ... if:
....
(v) The person has not been convicted of rape in the first degree, rape in the second degree, or indecent liberties that was actually committed with forcible compulsion .

(Emphasis added.) The State argues that if P.M.P.'s indecent liberties conviction is sealed because it was a class B felony under former RCW 9A.44.100(1)(a), then that conviction must be treated as if it never occurred. In that case, the State argues, P.M.P.'s conviction for first degree child molestation must then also be sealed, as RCW 13.50.260(4)(a)(v) would no longer preclude him from sealing that conviction. Thus, the State claims that allowing P.M.P. to seal his class B felony produces a conflict that defeats the legislature's intent to preclude a person convicted of "indecent liberties that was actually committed with forcible compulsion" from sealing records for class A offenses. Br. of Resp't at 8-9.

¶ 27 In 1997, RCW 13.50.050 categorically prohibited juveniles with a class A felony or sex offenses from sealing records. LAWS OF 1997, ch. 338, § 40. In 2011, the legislature amended this statute to allow juveniles with class A felony offenses to seal those records, so long as "[t]he person has not been convicted of rape in the first degree, rape in the second degree, or indecent liberties that was actually committed with forcible compulsion." LAWS OF 2011, ch. 338, § 4. In 2014, the legislature recodified the sealing statute in a new section, RCW 13.50.260. LAWS OF 2014, ch. 175, §§ 3-4. Both parties appear to agree that we should apply the current sealing statute.

¶ 28 Thus, on the one hand, we apply the felony classification scheme in place at the time P.M.P. was convicted. See Rivard , 168 Wash.2d at 781-82, 231 P.3d 186. On the other hand, we agree with both parties that we apply the current sealing statute. With that, we turn to the plain language of the relevant statutes.

¶ 29 The juvenile record sealing statute provides that after a convicted person meets certain conditions, that person can petition the court to "order the sealing of the official juvenile court record, the social file, and records of the court and of any other agency in the case." RCW 13.50.260(3). Once that person receives a court order sealing their juvenile court records,

[t]hereafter, the proceedings in the case shall be treated as if they never occurred , and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.

RCW 13.50.260(6)(a) (emphasis added). After receiving an order sealing their juvenile records and adjudications, the juvenile offender is treated as not having "previously been convicted" under RCW 9.41.040(3) ; see also, e.g. , Barr v. Snohomish County Sheriff , 4 Wash. App. 2d 85, 94-95, 419 P.3d 867, review granted , 191 Wash.2d 1019, 428 P.3d 1171 (2018) (holding the petitioner was not prohibited from obtaining a concealed pistol license because, under the juvenile sealing statute, sealed adjudications are to be "treated as if they never occurred").

¶ 30 RCW 13.50.260(4)(b) provides that "[t]he court shall grant any motion to seal records for class B" felonies if the specified statutory conditions are met. "It is well settled that the word 'shall' in a statute is presumptively imperative and operates to create a duty, rather than to confer discretion." In re Matter of K.J.B. , 187 Wash.2d 592, 601, 387 P.3d 1072 (2017). More specifically, use of the word "shall" highlights the mandatory nature of the statutory requirements that must be met to obtain an order sealing juvenile offender records. Eubanks v. Brown , 180 Wash.2d 590, 596 n.1, 327 P.3d 635 (2014). Accordingly, if the statute imposes a mandatory obligation to seal, and if a person meets the specified statutory conditions, our Supreme Court has stated, "Rather than disturbing the careful policy judgments at issue, we have always given effect to the statutory procedures and requirements for sealing juvenile records." State v. S.J.C. , 183 Wash.2d 408, 422-23, 352 P.3d 749 (2015). Thus, under the unambiguous plain language of RCW 13.50.260(4)(b), the superior court must grant a motion to seal a juvenile offender's court records when the specified statutory conditions are met for all class B offenses.

¶ 31 Because the statute at issue here is unambiguous, we must give effect to its plain meaning as an expression of legislative intent. Armendariz , 160 Wash.2d at 110, 156 P.3d 201. The superior court did not enter findings of fact or conclusions of law that address whether P.M.P.'s conviction for indecent liberties by forcible compulsion under former RCW 9A.44.100(1)(a), which remains a class B felony under Rivard and RCW 10.01.040, should be sealed pursuant to RCW 13.50.260(4)(b). We do not make findings of fact and, where the superior court failed to enter sufficient findings, remand is the proper remedy. State v. Barber , 118 Wash.2d 335, 342, 823 P.2d 1068 (1992).

¶ 32 Accordingly, if on remand the superior court finds that the statutory conditions contained in RCW 13.50.260(4)(b)(i)-(v) are met, then it must grant P.M.P.'s motion to seal his conviction for indecent liberties by forcible compulsion under former RCW 9A.44.100(1)(a), which remains a class B felony under Rivard , 168 Wash.2d at 781-82, 231 P.3d 186.

C. Sealing Conviction for First Degree Child Molestation (Class A Felony)

¶ 33 RCW 13.50.260(4)(a)(i)-(ii) provides:

The court shall grant any motion to seal records for class A offenses ... if :
(i) Since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent five consecutive years in the community without committing any offense or crime that subsequently results in an adjudication or conviction;
(ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
(iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
(iv) The person is no longer required to register as a sex offender under RCW 9A.44.130 or has been relieved of the duty to register under RCW 9A.44.143 if the person was convicted of a sex offense;
(v) The person has not been convicted of rape in the first degree, rape in the second degree, or indecent liberties that was actually committed with forcible compulsion ; and
(vi) The person has paid the full amount of restitution owing to the individual victim named in the restitution order, excluding restitution owed to any insurance provider authorized under Title 48 RCW.

(Emphasis added.)

¶ 34 As above, the plain language of RCW 13.50.260(4)(a) requires the superior court to grant a motion to seal records for class A offenses when the specified statutory conditions are met. If on remand the superior court concludes that P.M.P.'s conviction for indecent liberties by forcible compulsion under former RCW 9A.44.100(1)(a) must be sealed pursuant to RCW 13.50.260(4)(b), then that conviction must be treated as if it never occurred under RCW 13.50.260(3). Then, if the superior court finds that the statutory conditions contained in RCW 13.50.260(4)(a)(i)-(vi) are met, it must likewise grant P.M.P.'s motion to seal his conviction for first degree child molestation under former RCW 9A.44.083 (1990).

CONCLUSION

¶ 35 We hold the superior court erred when it denied P.M.P.'s motion to seal his juvenile record. We therefore reverse and remand for further proceedings consistent with this opinion.

We concur:

Maxa, C.J.

Lee, J.

      Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW 2.06.150.

      The appellant requests our court to change the caption in this case to State v. P.M.P. After giving the parties notice and the opportunity to object, we changed the caption to State v. P.M.P pursuant to RAP 3.4.

      In April 1990, indecent liberties by forcible compulsion was a class B felony. Laws of 1988, ch. 146, § 2. On April 30, 1991, first degree child molestation was a class A felony. Laws of 1990, ch. 3, § 902. These are the classifications of P.M.P.'s offenses when he committed them and when he was sentenced for them.

      Indecent liberties by forcible compulsion became a class A felony in 2001. Laws of 2001, 2d Spec. Sess., ch. 12, § 359.

      Under former RCW 9A.44.100(1)(a), "[a] person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another ... [b]y forcible compulsion."

      In addition, the legislature amended RCW 13.50.260(4) in 2011, after the decision in Rivard by the Supreme Court in 2010. We presume the legislature to know the existing case law in the areas in which it is legislating. State v. Young , 125 Wash.2d 688, 696, 888 P.2d 142 (1995). Thus, the fact that the legislature did not include indecent liberties with forcible compulsion in the statutory section addressing class B felonies shows that the legislature intended RCW 13.50.260(4)(a)(v) to apply only to crimes classified as class A felonies after 2001.


source: Caselaw Access Project

author: KAUTZ, Justice.

license: Public Domain

text:
    Caleb Dwight BAZZLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0124
    Supreme Court of Wyoming.
    February 11, 2019
    Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General. Argument by Ms. Martens.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   KAUTZ, Justice.

[¶1] Caleb Dwight Bazzle appeals from the district court's order revoking his probation and imposing the original suspended sentence. We affirm.

ISSUES

[¶2] Mr. Bazzle presents the following issue on appeal:

To revoke probation, the State must prove that the probationer willfully violated the conditions of probation. During the adjudicatory stage of proceedings, after concluding that Mr. Bazzle had failed to prove that he had complied with the conditions of his probation and finding that his alleged violations were willful, the district court revoked his probation. Did the court err in its conclusions[ ] and were its findings supported by the evidence?

The State raises an additional issue:

A defendant's waiver of his appellate rights will be enforced unless the appellate issue is outside the scope of the waiver, the waiver was not knowing and voluntary, and enforcing the waiver would result in a miscarriage of justice. In his plea agreement, Bazzle agreed not to file "any ... appeals." Bazzle does not address his waiver.
Should this Court enforce the waiver and refuse to consider the issue he raises?

FACTS

[¶3] On December 15, 2015, the State charged Mr. Bazzle with five drug-related crimes-possession of marijuana (third offense); endangering children; and three counts of delivery of a controlled substance (buprenorphine). On February 2, 2016, the State and Mr. Bazzle entered into a plea agreement, memorialized in a document entitled "Statement of Agreement." Mr. Bazzle agreed to plead guilty to the first count-possession of marijuana (third offense), and the State agreed to dismiss the remaining charges. They jointly recommended to the district court that Mr. Bazzle receive a sentence of incarceration for three to five years, to be suspended in favor of five years of supervised probation. Under the terms of the agreement, Mr. Bazzle was required to "enroll in, and successfully complete, the Sublette County Treatment Court Program." Mr. Bazzle also agreed "not to file any post guilty plea/post-conviction motions, requests for sentence reduction, appeals or post-conviction relief petitions."

[¶4] The district court held a change of plea and sentencing hearing on June 27, 2016. The prosecutor outlined the terms of the plea agreement, specifically mentioning the requirement that Mr. Bazzle enroll in and successfully complete the Treatment Court Program and that he was waiving his right to appeal. The district court addressed Mr. Bazzle, as follows:

COURT: You would be required under this agreement to enroll in and successfully complete the Sublette County Treatment Court Program as a condition. Do you have any questions about that?
....
DEFENDANT: I do not, [Y]our Honor.
COURT: Implicit in that requirement is that you would enroll in and successfully complete in-patient treatment for substances, alcohol or both as recommended in the Presentence Investigation Report in order to get you to a level that the Sublette County Treatment Court Program would accept you. Do you have any questions about the treatment requirement that is implied under this Sublette County Treatment Court Program requirement?
DEFENDANT: I do not, [Y]our Honor.

[¶5] The district court accepted the plea agreement and Mr. Bazzle's guilty plea, imposed the recommended three to five year sentence, suspended the sentence, and placed him on supervised probation for five years. The Court Probation Terms and Conditions Order, filed June 28, 2016, stated in relevant part:

32) Defendant shall not own, transport, consume, inhale, ingest, use, possess, purchase, manufacture, sell, bargain, give away, receive, be under the influence of, handle, or engage in any other act that a person may be capable of doing regarding or in connection with, any controlled substances, illicit substances, toxic substances, medications ... or paraphernalia associated with such, unless prescribed by a licensed practitioner. In the event that a substance or medication has been prescribed to Defendant, Defendant shall strictly follow the terms of [the] prescription, including, but not limited to, taking only the dosage(s) and amount(s) prescribed strictly within the time(s) prescribed[.] (Defendant shall not over-medicate, under-medicate, take more frequently, or less frequently than strictly prescribed).
....
37) Defendant shall strictly follow and successfully complete ... any and all recommendations made in the Addiction Severity Index (ASI/ASAM)[.]
....
39) As directed by his Agent, Defendant shall enroll in and Defendant shall thereafter successfully complete ... an ASAM Level III.5 clinically managed high intensity residential treatment program or comparable treatment program approved by the probation agent, and ... attend any and all recommended after-care, relapse prevention, and/or recovery maintenance program(s)....
40) As directed by his Agent, Defendant shall apply for the Sublette County Treatment Court Program, or comparable treatment court program approved by the probation agent, and if accepted ... successfully complete said program. Defendant shall abide by any and all policies, rules, regulations, directives, or orders of the Treatment Court Program and strictly follow any and all directives of the Treatment Court team members.

[¶6] After he began serving his probation, Mr. Bazzle started using a prescription drug, buprenorphine, without telling his probation agent. Buprenorphine is a synthetic opioid that is used to treat opioid dependence. In August 2016, probation agent, Jeannie Whinnery, learned that Mr. Bazzle was using buprenorphine when he tested positive for the drug. Ms. Whinnery informed him that he could not participate in the Treatment Court Program if he was taking buprenorphine.

[¶7] Mr. Bazzle began residential drug treatment in November 2016 and was discharged, at his request, with "maximum benefits" on January 12, 2017. While in treatment, Jed Shay, M.D. switched Mr. Bazzle's medication to Suboxone, another synthetic opioid that contains buprenorphine and is used to treat opioid dependence. www.suboxone.com.

[¶8] On January 26, 2017, Kathy Anderson, the coordinator of the Sublette County Treatment Court, sent Mr. Bazzle a letter informing him that he would not be allowed to "commence participation in the Treatment Court until [he] titrate[d] off all opioid-type prescriptions, including but not limited to Buprenorphine, S[u]boxone, or any similar synthetic opioid." The letter acknowledged that Mr. Bazzle had provided the Treatment Court with a prescription from Dr. Shay, which stated that tapering off Suboxone should take six months. Ms. Anderson instructed Mr. Bazzle to provide a more detailed titration plan. She also stated that his acceptance in the Treatment Court Program would "remain open until July 12, 2017 (six (6) months from the date of the titration prescription sheet by Dr. Shay)," but that if he was still using any opioid or synthetic opioid prescription drug at that time, his "acceptance in the Treatment Court program [would] be revoked and [he would] be prohibited from participating in the program."

[¶9] On July 12, 2017, Ms. Anderson informed Ms. Whinnery that Mr. Bazzle would not be allowed to participate in the Treatment Court Program because he had not titrated off Suboxone. A few days later, the State filed a petition to revoke Mr. Bazzle's probation. The State alleged that Mr. Bazzle had violated the terms of his probation which required him to successfully complete residential drug treatment and the Treatment Court Program.

[¶10] Mr. Bazzle denied the State's allegations and filed a memorandum asserting that he had not willfully violated his probation. He argued that his dismissal from residential treatment was not willful, as evidenced by the fact he was awarded "maximum benefits." He also claimed that he had not willfully violated the probation condition that required him to complete the Sublette County Treatment Court Program. While Mr. Bazzle acknowledged he was still using Suboxone, he maintained his use was justified because his physicians recommended continuing the medication.

[¶11] The district court held an adjudicatory hearing on the State's petition to revoke Mr. Bazzle's probation on November 21, 2017. Ms. Anderson testified that Mr. Bazzle was discharged from residential drug treatment with maximum benefits in January 2017, but the Treatment Court did not consider that a successful completion of treatment. She also explained that the Treatment Court did not allow participants to use Suboxone because it was subject to abuse, can be used to "get high," and may be sold or distributed illegally. Ms. Anderson confirmed that she sent Mr. Bazzle the January 26, 2017, letter which informed him that he needed to stop using Suboxone and directed him to submit a detailed titration plan prepared by his healthcare provider. She testified that he had provided a handwritten titration plan in June 2017, but he did not follow the plan and was still using Suboxone. Therefore, he was not allowed to attend the Treatment Court Program.

[¶12] Brad Bell, a case manager at the residential treatment facility, testified that Mr. Bazzle did not complete the program and was "manipulative" and "resistant to treatment." Carol Mitchelson was the probation agent who supervised Mr. Bazzle while he attended residential drug treatment. She testified that patients typically attend the treatment program for four to six months, but Mr. Bazzle attended for only 58 days. Ms. Mitchelson described Mr. Bazzle as defensive, dishonest and manipulative with the staff.

[¶13] Ms. Whinnery testified that she had discussed Mr. Bazzle's probation conditions with him when he began serving his probation. She informed him that "he needed a successful discharge from [residential drug] treatment and that [a] maximum benefit [discharge] was not acceptable." She also explained that he could not use buprenorphine /Suboxone while in the Sublette County Treatment Court Program. He said he would taper off the drug over a six-month period in accordance with Dr. Shay's prescription, but he did not.

[¶14] After the State finished its presentation, Mr. Bazzle testified. He claimed that he was told a maximum benefits discharge amounted to "successful completion" of the program. Mr. Bazzle said that he had been prescribed Suboxone to help control his cravings for opioids and, according to his doctors, there was a "high" risk of relapse if he stopped taking the medication. He presented an unsigned note from Dr. Shay, dated March 1, 2017, which stated that Mr. Bazzle should continue to use Suboxone to manage his opioid dependence and reduce the possibility of relapse.

[¶15] On cross examination, Mr. Bazzle admitted he knew he was required to stop using Suboxone before he could enter the Treatment Court Program and conceded that he had never given Dr. Shay's March 2017 note to his probation agent or anyone in the Treatment Court Program. He knew he was supposed to submit a titration plan to the Treatment Court but claimed he had to "handwrite one [him]self" because none of his doctors would provide one. Mr. Bazzle admitted he had not followed the plan and was still using Suboxone.

[¶16] The district court ruled that Mr. Bazzle had violated the terms of his probation which required him to successfully complete residential drug treatment and the Sublette County Treatment Court Program. It also found the conditions were material and his violations were willful.

[¶17] The district court subsequently held two separate disposition hearings. At the first disposition hearing, on January 11, 2018, Mr. Bazzle stated that he had reapplied to the Treatment Court Program and was awaiting a decision on his application. He believed that he could now "get off the medication," although he was still using it at the time of the hearing. The district court expressed reservation about the chance of Mr. Bazzle being readmitted to the Treatment Court Program but decided to defer the disposition pending the program's decision. On January 18, 2018, the Sublette County Treatment Court denied Mr. Bazzle's application.

[¶18] On March 8, 2018, the district court held the final disposition hearing. Mr. Bazzle was still taking Suboxone and had been denied entry into the treatment court programs in Sublette, Sweetwater and Teton counties. The district court revoked his probation and imposed the suspended sentence. Mr. Bazzle filed a timely notice of appeal.

DISCUSSION

1. Waiver of Right to Appeal Probation Revocation

[¶19] The State asserts this Court should not consider Mr. Bazzle's appeal of his probation revocation because he waived his right to appeal in his plea agreement. This Court has adopted the Tenth Circuit's three-part test to determine whether a plea agreement waiver precludes an appeal in a given case. The test, which is meant to be applied by the appellate court, considers: " '(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice[.]' " Henry v. State, 2015 WY 156, ¶ 12, 362 P.3d 785, 789 (Wyo. 2015) (quoting United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam)).

[¶20] We interpret plea agreements as a matter of law using contract principles. Schade v. State, 2002 WY 133, ¶ 5, 53 P.3d 551, 554 (Wyo. 2002). Under general contract law, "we read the contract as a whole to find the plain meaning of all the provisions[.]" Bear Peak Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 17, 403 P.3d 1033, 1041 (Wyo. 2017) (citing Thornock v. PacifiCorp , 2016 WY 93, ¶ 13, 379 P.3d 175, 180 (Wyo. 2016) ). However, in criminal plea agreement cases, "ambiguities in a waiver of appellate rights are interpreted against the State." Henry , ¶ 13, 362 P.3d at 789 (citing Hahn, 359 F.3d at 1325, 1328 ). See also United States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011) (waivers of appellate rights are to be construed narrowly).

[¶21] The Statement of Agreement signed by the prosecutor and Mr. Bazzle provided: "Because the recommended sentence in this case is based upon the foregoing consideration and Agreement, [Mr. Bazzle] hereby agrees not to file any post guilty plea/post-conviction motions, requests for sentence reduction, appeals or post-conviction relief petitions." The scope of Mr. Bazzle's appeal waiver is broad, prohibiting him from filing any post-guilty plea and post-conviction motions or appeals. The plain meaning of the term "any" in this context is "every" or "all." Webster's Third New Int'l Dictionary (2012). The agreement also refers to "appeals," in the plural form. However, considering the entire agreement, the focus of the waiver was to prohibit Mr. Bazzle from challenging his conviction or sentence on the original charge, either in a direct appeal or a post-guilty plea or post-conviction petition. The waiver does not mention an appeal from a future probation revocation.

[¶22] Mr. Bazzle's appellate waiver, therefore, could be read in different ways. The reference to "any ... appeals" could be interpreted as including appeals from the original conviction or from challenges to the conviction through any post-guilty plea or post-conviction motion, but not an appeal from a subsequent probation revocation. It could also mean, as the State advocates, any appeal whatsoever, including an appeal from a future probation revocation. As we stated above, any ambiguity in the scope of an appellate waiver is interpreted against the State. We could simply apply this rule and end our inquiry, but there are federal cases which provide additional guidance.

[¶23] In United States v. Porter, 905 F.3d 1175, 1178-80 (10th Cir. 2018), the Tenth Circuit ruled the general appeal waiver in Ms. Porter's plea agreement did not preclude her subsequent appeal of an order revoking her supervised release because she did not specifically waive that right. Id. Similarly, in United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008), the Eleventh Circuit rejected "the government's argument that the appeal waiver in Carruth's original plea agreement extend[ed] to his later revocation of supervised release," because the plea agreement did not include specific language to that effect.

[¶24] The Tenth Circuit noted that revocation of supervised release involves certain procedural protections for the defendant and new factual findings by the district court. Porter, 905 F.3d at 1179. The same is true when a Wyoming district court revokes a defendant's probation. Although, as the State points out, probation revocation is an extension of the sentencing procedure, see generally , DeMillard v. State, 2013 WY 99, ¶ 19, 308 P.3d 825, 832 (Wyo. 2013), there is a specific procedure for revocation of probation and the district court issues a separate order reflecting its decision. See W.R.Cr.P. 39. The revocation procedure and the district court's factual findings and legal conclusions are subject to appellate challenge on grounds separate and distinct from the original proceeding. See, e.g., Brumme v. State, 2018 WY 115, 428 P.3d 436 (Wyo. 2018) ; Robinson v. State, 2016 WY 90, 378 P.3d 599 (Wyo. 2016).

[¶25] The appellate waiver in Mr. Bazzle's plea agreement does not contain language evidencing his intent to waive his right to appeal from a probation revocation decision. We decline the State's invitation to interpret Mr. Bazzle's waiver as applying to this appeal simply because the parties used the terms "any" and "appeals" in the appellate waiver. At most, the use of those terms creates an ambiguity, which is interpreted against the State and in favor of the defendant. Henry, ¶ 13, 362 P.3d at 789 ; Porter, 905 F.3d at 1179. Therefore, the scope of Mr. Bazzle's appellate waiver did not include his right to appeal from the order revoking his probation, so we will consider his appeal.

2. Revocation Decision

a. General Law on Probation Revocation

[¶26] Probation revocation is governed by W.R.Cr.P. 39. Under Rule 39, "[t]he proceedings for probation revocation consist of a two-part process." Sinning v. State, 2007 WY 193, ¶ 9, 172 P.3d 388, 390 (Wyo. 2007) (quoting Mapp v. State, 929 P.2d 1222, 1226 (Wyo. 1996) ). The first part is the adjudicatory phase in which the State bears the burden of proving, by a preponderance of the evidence, that the defendant violated a condition of his probation. Id. ; Rule 39(a)(5). If the district court concludes the defendant violated a probation condition, it moves on to the second part of the revocation hearing - the dispositional phase. Id. In the dispositional phase, the district court must consider the violation, the reasons the condition was originally imposed, and the circumstances surrounding the violation in determining the appropriate consequences for the defendant's violation. Id.

In addition to the requirements of W.R.Cr.P. 39, we have said that in order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must either be willful or threaten the safety of society. The willfulness of a probationer's violation is addressed during the dispositional phase.

Robinson, ¶ 20, 378 P.3d at 606 (quoting Miller v. State , 2015 WY 72, ¶ 8, 350 P.3d 742, 745 (Wyo. 2015) ) (other citations omitted). See also Crouse v. State, 2017 WY 133, ¶ 10, 405 P.3d 216, 219 (Wyo. 2017).

b. Procedural Claims

[¶27] Mr. Bazzle claims the district court employed improper procedures in revoking his probation. Specifically, Mr. Bazzle asserts the district court erred by: 1) assigning him the burden of proving he did not violate the conditions of his probation; and 2) analyzing whether he had willfully violated the terms of his probation during the adjudicatory phase of the revocation proceeding.

[¶28] Mr. Bazzle did not raise either of his claims in the district court. Therefore, the plain error standard applies. See, e.g ., Robinson, ¶ 31, 378 P.3d at 608 (reviewing claim that district court erred by admitting hearsay evidence during the adjudicatory phase for plain error because the defendant did not object at the hearing); Shaw v. State, 998 P.2d 965, 967-68 (Wyo. 2000) (ruling that the failure to serve defendant with the petition to revoke probation amounted to plain error); Daves v. State, 2011 WY 47, ¶ 20, 249 P.3d 250, 257 (Wyo. 2011) (applying plain error standard to claim that the district court committed a procedural error). Under plain error review, the defendant must establish: 1) the record clearly shows the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) the defendant was denied a substantial right resulting in material prejudice. Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) (citing Schmuck v. State , 2017 WY 140, ¶ 32, 406 P.3d 286, 297 (Wyo. 2017) and Collins v. State , 2015 WY 92, ¶ 10, 354 P.3d 55, 57 (Wyo. 2015) ).

[¶29] Mr. Bazzle claims the district court placed the burden on him to prove he did not violate the conditions of his probation when it made the following statement during the adjudicatory hearing:

The last thing that I wanted to hear on a probation revocation is a mini[-]trial about what happened or didn't happen at the [t]reatment [p]rogram[.] I only cared about one of two things, the Defendant is successful or he is not successful. It has not been shown to me that the Defendant successfully completed the treatment program that was ordered by the [c]ourt, and I don't believe that's the State's burden[.] [I]t's the Defendant's burden in order to maintain the privilege of his probation.

The statement is clear in the record, so we turn to the question of whether the district court violated a clear and unequivocal rule of law.

[¶30] As we stated above, the law clearly and unequivocally imposes upon the State the burden of proving the defendant violated the conditions of his probation. Rule 39(a)(5). To determine whether the district court violated this rule, we must view the cited passage in context. Immediately prior to the statement, the district court read into the record the probation condition that required Mr. Bazzle to successfully complete residential drug treatment. Immediately after the statement, it read the probation condition that required him to successfully complete the Treatment Court Program. When the statement is read within this context, it is clear the district court was explaining what the probation term required (successful completion of treatment) and that it was Mr. Bazzle's responsibility to comply with that term "in order to maintain the privilege of probation." The district court was not saying Mr. Bazzle had the burden of proof at the probation revocation hearing.

[¶31] Furthermore, other parts of the record demonstrate that the district court charged the State with the burden of proving Mr. Bazzle violated the probation conditions. At his initial appearance, the district court informed Mr. Bazzle: "The State must prove that you violated terms and conditions of your probation by ... a preponderance of the evidence." At the adjudicatory hearing, the State presented its witnesses first. Once the State finished its presentation, Mr. Bazzle testified. The State followed with rebuttal testimony. The order of the presentations indicates that the district court properly placed the burden of proof upon the State. See Ketcham v. State, 618 P.2d 1356, 1362 (Wyo. 1980) (although the probation revocation proceeding was initiated with an order to show cause presumably directing the defendant to demonstrate that he had not violated the terms of his probation, the organization of the hearing clearly showed that the district court assigned the burden of proof to the state). The record shows the district court did not violate a clear and unequivocal rule of law as it did not shift the burden of proof to Mr. Bazzle.

[¶32] Mr. Bazzle's second challenge to the procedure employed by the district court is that it improperly found his probation violations were willful during the adjudicatory phase of the revocation proceeding. The record confirms the district court determined, during the adjudicatory phase, that Mr. Bazzle's violations of the probation conditions were willful. The district court verbally announced that finding during the November 21, 2017 adjudicatory hearing. It also issued an Order Upon Probation Revocation Adjudicatory Hearing which stated that "the Defendant willfully violated the terms and conditions of his probation ... [and] the conditions of probation which were willfully violated by Defendant were material violations [that] did not involve the payment of money."

[¶33] We have consistently stated that the determination of whether the defendant willfully violated the conditions of his probation should be made during the dispositional phase. Brumme, ¶ 12, 428 P.3d at 441 ; Robinson , ¶ 20, 378 P.3d at 606. The district court, therefore, erred by making its willfulness finding during the adjudicatory phase. However, Mr. Bazzle must show that he was denied a substantial right resulting in material prejudice before we will reverse the district court's order revoking his probation. Johns, ¶ 12, 409 P.3d at 1264.

[¶34] Mr. Bazzle claims in "finding that his alleged failures to comply were willful during [the] first stage of [the] proceedings, the court in effect took from him the opportunity to present mitigation evidence" and the district court "did not appear to truly consider the materials Mr. Bazzle presented during the dispositional stage of [the] proceedings." The record does not support his contentions.

[¶35] Mr. Bazzle submitted a memorandum to the district court prior to the adjudicatory hearing, focusing entirely upon his lack of willfulness. The district court acknowledged receiving the memorandum at the beginning of the hearing. Mr. Bazzle, therefore, addressed willfulness prior to the district court's finding. Furthermore, after finding Mr. Bazzle's violations were willful, the district court held two dispositional hearings. At those hearings, Mr. Bazzle addressed the court and offered evidence regarding the reasons for his actions and the proper disposition of his case. The court obviously took into account his presentation during the first hearing because it deferred disposition of his case for three months-from January until March 2018, to give him "[o]ne more chance" to qualify for and be admitted into the Treatment Court Program. Even after learning that Mr. Bazzle did not get into the program, the district court heard considerable evidence and argument at the second dispositional hearing about why he continued to take the Suboxone and why his actions should not result in imposition of the underlying sentence. The district court discussed the evidence in announcing its disposition decision. Although the district court should not have determined that Mr. Bazzle's probation violations were willful during the adjudicatory phase of the revocation proceeding, the record does not demonstrate that he was materially prejudiced by its premature conclusion.

c. Sufficiency of the Evidence to Support the District Court's Findings that Mr. Bazzle Willfully Violated his Probation

[¶36] In his final argument, Mr. Bazzle asserts the district court improperly concluded that he willfully violated his probation conditions. As we explained recently in Brumme , ¶ 11, 428 P.3d at 441,

[w]e review probation revocation proceedings under an abuse of discretion standard. Forbes v. State , 2009 WY 146, ¶ 6, 220 P.3d 510, 512 (Wyo. 2009) (citation omitted). "A district court's decision to revoke probation and impose a sentence is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion." Id. ¶ 6, 220 P.3d at 512-13 (citation omitted).
Although the district court's decision must be based upon verified facts and the defendant must be afforded due process, all that is necessary to uphold a district 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.
Miller v. State , 2015 WY 72, ¶ 10, 350 P.3d 742, 745 (Wyo. 2015) (citations omitted). 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. ¶ 11, 350 P.3d at 746 (citations omitted)[.]

(emphasis omitted).

[¶37] The determination of whether a probation violation was willful is a question of fact. Id., ¶ 23, 428 P.3d at 444. "For purposes of probation revocation, 'willful' means 'intentionally, knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly.' " Id. (quoting Forbes, ¶ 8, 220 P.3d at 513 ).

[¶38] The district court found that Mr. Bazzle had willfully violated the condition of his probation which required him to successfully complete residential drug treatment. Mr. Bazzle enrolled in a residential drug treatment program, but he voluntarily left the program 58 days later and was given a maximum benefits discharge. Ms. Mitchelson testified that the standard duration of that treatment program was four to six months. So, Mr. Bazzle stayed in residential drug treatment for less than half of the standard time.

[¶39] Probation agent Whinnery testified that she explained to Mr. Bazzle before he began the program that "he needed a successful discharge from treatment and that maximum benefit was not acceptable." Ms. Anderson testified that a maximum benefits discharge can be given to a person "who is very resistant to change the way [he] think[s], to recovery, and refuses to engage in [his] full recovery process." Mr. Bazzle was defensive and manipulative in treatment, and he was given the option "to either continue in the program and begin engaging in his program or be max benefitted from the program and he chose to max benefit."

[¶40] Mr. Bazzle testified a staff member told him that a maximum benefits discharge was a successful completion of the program and he was given a certificate "awarding" him maximum benefits. He argues that, given the inconsistent information about the effect of a maximum benefits discharge, his violation could not be considered willful under the rationale of Neidlinger v. State, 2007 WY 204, 173 P.3d 376 (Wyo. 2007). Mr. Neidlinger was placed on probation after he pleaded no contest to one count of taking indecent liberties with a minor. Id., ¶¶ 3-4, 173 P.3d at 377. The probation conditions required him to submit to a sex offender evaluation and successfully complete a sex offender treatment program. Id., ¶ 4, 173 P.3d at 377. The district court revoked Mr. Neidlinger's probation because he refused to admit his criminal conduct during the evaluation. Id., ¶¶ 5-7, 173 P.3d at 377-78. The question presented on appeal was "whether [Mr.] Neidlinger was required to admit his criminal sexual conduct in order to comply with the probation requirement that he submit to a sex offender evaluation." Id., ¶ 10, 173 P.3d at 378. We reversed the order revoking his probation because the terms of Mr. Neidlinger's probation did not sufficiently inform him that he would be required to admit his criminal conduct as part of the evaluation process. Id., ¶¶ 11-12, 173 P.3d at 379. We said "[a]s a matter of due process, a probationer must know and understand what is expected of him in order to maintain his probationary status. Otherwise, an alleged violation cannot be considered willful as required under law to justify a probation revocation." Id., ¶ 12, 173 P.3d at 379.

[¶41] Mr. Bazzle's situation is much different than Mr. Neidlinger's. Mr. Bazzle's probation order clearly stated that he was required to successfully complete residential drug treatment and he was informed, prior to starting residential treatment, that a maximum benefits discharge was not successful completion of the program. On the day he was discharged, Mr. Bazzle was given the option to stay and engage in the program or accept a maximum benefit discharge. He chose the latter and was discharged after completing less than half the standard time for residential treatment. The district court flatly stated it did not believe Mr. Bazzle's testimony that he thought a maximum benefits discharge was successful completion of residential treatment. We defer to the district court's findings of credibility. Brumme, ¶ 11, 428 P.3d at 441. The evidence clearly demonstrates that, unlike Mr. Neidlinger, Mr. Bazzle understood that a maximum benefits discharge was not a satisfactory completion of treatment, but he intentionally and voluntarily chose the "maximum benefits" discharge instead of staying and engaging in the treatment program. The district court's finding that Mr. Bazzle willfully violated the residential treatment condition of his probation is supported by the evidence.

[¶42] The district court also found that Mr. Bazzle willfully violated the condition of his probation that required him to successfully complete the Treatment Court Program. Before he was sentenced, Mr. Bazzle was notified that he was eligible for Treatment Court. Ms. Whinnery met with Mr. Bazzle when he began serving his probation to discuss his probation conditions. She told him that he could not take buprenorphine while in the Treatment Court Program. She became aware that he was using buprenorphine after he tested positive for the substance. He had not informed her about his use of the drug and when confronted about the positive tests, he "denied at first." Eventually, he admitted to using buprenorphine for back pain and said he had obtained the drug using an old prescription. During his residential drug treatment, he switched to Suboxone, which contains buprenorphine.

[¶43] Ms. Anderson stated that participants in the Treatment Court Program were not allowed to use Suboxone because

it is a drug that can be abused, it's also a drug that is sold or distributed illegally.... A lot of people actually ... get high from taking it as a replacement rather than helping them come off of the opioid addiction and they end up addicted to it as well.

[¶44] Ms. Anderson informed Mr. Bazzle in the January 26, 2017 letter that he must stop using Suboxone before he could start the Treatment Court Program. She said his acceptance to the program would remain open for six months (until July 12, 2017) so that he could taper off the drug in accordance with Dr. Shay's prescription. Ms. Anderson specifically informed him in the letter that, if he did not stop using the drug by then, his acceptance would be revoked. Ms. Anderson also directed him to submit a more detailed titration plan from a healthcare provider.

[¶45] Mr. Bazzle did not provide a titration plan prepared by a healthcare provider. Instead, in June 2017, he provided a plan he had handwritten showing that he intended to wean himself off the drug over a period of three and a half weeks. On July 12, 2017, Ms. Anderson sent a letter to Ms. Whinnery stating that Mr. Bazzle had not titrated off Suboxone and, therefore, could not enter the Treatment Court Program. That letter prompted the State to file the petition to revoke his probation.

[¶46] Mr. Bazzle claims this evidence was insufficient to show that he willfully failed to complete the Treatment Court Program. There is no dispute that he did not begin, much less complete, the program. However, Mr. Bazzle asserts that his failure to comply with the probation condition was not willful and should have been excused.

[¶47] Mr. Bazzle maintains that he could not submit a sufficient titration plan to the Treatment Court because his doctors would not provide one. His focus on the difficulties he had in obtaining a titration plan misses the point. His probation conditions required him to successfully complete the Treatment Court Program. He was refused entry into the program, not because he did not have a sufficient titration plan, but because he continued to take Suboxone. While he was directed to provide a sufficient titration plan, the objective was for him to quit taking the prohibited drug. Because he did not cease taking Suboxone, he was not allowed to participate in the Treatment Court Program, which violated the conditions of his probation.

[¶48] Mr. Bazzle also argues that he was placed in an impossible situation by the terms of his probation. As we have discussed, one condition required him to complete the Treatment Court Program. Another condition stated:

In the event that a substance or medication has been prescribed to Defendant, Defendant shall strictly follow the terms of [the] prescription, including, but not limited to, taking only the dosage(s) and amount(s) prescribed strictly within the time(s) prescribed[.] (Defendant shall not over-medicate, under-medicate, take more frequently, or less frequently than strictly prescribed).

Mr. Bazzle claims that, if he had ceased using Suboxone, he would have violated the probation condition that required him to take his prescribed medications. That is not true. Dr. Shay wrote a prescription in January 2017 for Mr. Bazzle to taper off Suboxone over a six-month period. Had he done that, he could have complied with both probation conditions.

[¶49] Mr. Bazzle also asserts that the Treatment Court should not have required him to cease using Suboxone as a condition of participating in the program. He directs us to a letter from Brent Blue, M.D., that he submitted to the district court prior to the second disposition hearing. Dr. Blue said he had been treating Mr. Bazzle since 2013 and recommended that he continue taking buprenorphine/Suboxone to reduce the cravings associated with opioid addiction and help prevent relapse. Dr. Blue's letter was appended to a letter written by Mr. Bazzle's attorney to the Treatment Court asking it to "reconsider [its] policy of whether use of Medication Assisted Treatment should prohibit a person from enrolling in [T]reatment [C]ourt."

[¶50] Regardless of the medical opinion about whether Mr. Bazzle should or should not be taking Suboxone, he was still obligated to comply with his court-ordered probation conditions. A defendant cannot unilaterally determine that he is "the arbiter of which of the terms of his probation required his obedience and which of those terms might be excused[.]" Johnson v. State, 6 P.3d 1261, 1263 (Wyo. 2000). See also, Leyba v. State, 882 P.2d 863, 865 (Wyo. 1994) (stating a defendant is not entitled to "take the law into his own hands and defy the conditions of his probation[.]"). If he cannot abide by the terms of his probation, the defendant should petition the district court for modification of the terms. Leyba, 882 P.2d at 865.

[¶51] Mr. Bazzle was obligated, under the probation order, to successfully complete the Treatment Court Program. He was aware that he could not participate in the program until he ceased using Suboxone. If he was unable or unwilling to comply with the probation condition, he was required to petition the district court for modification rather than make the unilateral choice not to comply. The district court's conclusion that Mr. Bazzle willfully violated the term of his probation that required him to successfully complete the Treatment Court Program is supported by the evidence.

[¶52] The district court did not abuse its discretion by revoking Mr. Bazzle's probation.

[¶53] Affirmed.

      The parties, various witnesses, and the district court used the terms "titrate" or "titration" to describe the process of weaning Mr. Bazzle off buprenorphine or Suboxone. Technically, titration refers to the process of determining the dosage of medication that reduces the patient's symptoms to the greatest degree with the least amount of side effects. See, e.g. , https://www.verywellmind.com/what-does-titration-of-medication-mean-20899; https://www.webmd.com/add-adhd/guide/adhd-medication-titration. The more correct term for gradually ceasing use of a drug altogether is tapering. See, e.g ., https://www.mayoclinic.org/diseases-conditions/prescription-drug-abuse/in-depth/tapering-off-opioids-when-and-how/art-20386036. Regardless of the nomenclature, it is clear those involved in this case were describing Mr. Bazzle's complete cessation of the drugs.

      This opinion should not be interpreted as a decision on the validity of any particular waiver of the right to appeal a future probation revocation.

      The district court gave little weight to Dr. Shay's unsigned March 1, 2017 note that said Mr. Bazzle should remain on Suboxone. The note contradicted Dr. Shay's earlier prescription, and there was no explanation of why the doctor had changed his mind. Under our standard of review, we accept the district court's assessment of the weight of the evidence. See Brumme, ¶ 11, 428 P.3d at 441.


author: GRAY, Justice.

text:
    In the MATTER OF the Coroner's Inquest in the Death of Anthony Lee BIRKHOLZ,
    Paul Cassidy and Bruce Hayse, M.D., Appellants (Petitioners), v. Teton County Coroner, Appellee (Respondent).
    S-18-0156
    Supreme Court of Wyoming.
    February 15, 2019
    Representing Appellants: Frank R. Chapman, Marci Crank Bramlet, and Patrick J. Lewallen, Chapman Valdez & Lansing, Casper, Wyoming; Deidre J. Bainbridge, Jackson, Wyoming. Argument by Mr. Lewallen.
    Representing Appellee: Keith M. Gingery, Teton County Attorney's Office, Jackson, Wyoming. Argument by Mr. Gingery.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   GRAY, Justice.

[¶1] Appellants, Paul Cassidy and Bruce Hayse, M.D., filed a W.R.C.P. Rule 60 motion to set aside the Coroner's Inquest Verdict. The district court dismissed the motion, concluding it lacked subject matter jurisdiction. We affirm.

ISSUE

[¶2] Appellants raise two issues, one of which is dispositive and rephrased as:

Does the district court have subject matter jurisdiction in a post-coroner inquest proceeding?

We do not address Appellants' second issue, whether post-inquest proceedings are governed by Wyoming's Administrative Procedure Act because that question is moot: the time for an administrative appeal has passed. When no controversy exists, courts will not consume their time dealing with moot questions.

Reno Livestock Corp. v. Sun Oil Co. , 638 P.2d 147, 154 (Wyo. 1981) ; Northern Utilities, Inc. v. Public Service Commission , 617 P.2d 1079 (Wyo. 1980).

FACTS

[¶3] This case arises from a seldom used proceeding, the coroner's inquest. Anthony Lee Birkholz and Dr. Hayse were among a group of six people gathered at Dr. Hayse's home in the early morning hours of January 17, 2017. While at Dr. Hayse's house, Mr. Birkholz suffered a medical event and 911 was called. An ambulance transported him to St. John's Medical Center in Jackson, Wyoming. He was subsequently transferred to Eastern Idaho Regional Medical Center in Idaho Falls, Idaho. Mr. Birkholz died January 18, 2017. Kenneth Krell, M.D., an Idaho physician who cared for him in the Eastern Idaho Regional Medical Center, signed his death certificate, which stated that the cause of death was brain death due to out-of-hospital cardiac arrest.

[¶4] Nearly four months later, the Teton County Coroner, Brent Blue, M.D., conducted a coroner's inquest. Dr. Blue empaneled a jury, called witnesses, and presided over the inquest. The proceedings were transcribed. Dr. Blue questioned witnesses, and at times, gratuitously construed witness testimony for the jury. He spoke with individuals who were not called as witnesses and reported these conversations to the inquest jury. Dr. Blue presented Mr. Birkholz's toxicology results to the inquest jury. No court order authorized the release of these reports and no notice of the public release was given to Mr. Birkholz's father, Paul Cassidy.

[¶5] The proceeding resulted in a Coroner's Inquest Verdict of "Death due to Aspiration Secondary to Alcohol and 5-methoxy-DMT Ingestion." The verdict listed contributing factors as failure to timely call 911 and failure to protect his head and airway when dragging Mr. Birkholz down the stairs. The Coroner's Inquest Verdict was filed in the District Court of Teton County, Ninth Judicial District Agency No. 1701P-2322. Paul Cassidy and Dr. Hayse filed a W.R.C.P. Rule 60 motion to set aside the inquest verdict. The district court clerk opened a new civil action (Civil Action No. 17667) and filed the motion in that action.

[¶6] The Teton County Coroner entered an order denying the motion to set aside the inquest verdict. The order was captioned in the coroner's inquest matter (Agency No. 1701P-2322) but was filed in the Civil Action 17667. The Teton County Coroner also filed a Motion to Dismiss the W.R.C.P. Rule 60 motion to set aside the inquest verdict in the civil action. The motion to dismiss alleged lack of subject matter jurisdiction (pursuant to W.R.C.P. Rule 12(b)(1) ), and failure to state a claim upon which relief can be granted (pursuant to W.R.C.P. Rule 12(b)(6) ). The district court concluded that it lacked subject matter jurisdiction and granted the motion to dismiss. This appeal follows.

STANDARD OF REVIEW

[¶7] "Subject-matter jurisdiction refers to the power of a court to hear and determine cases of the general class to which the proceedings in question belong." Christiansen v. Christiansen , 2011 WY 90, ¶ 4, 253 P.3d 153, 155 (Wyo. 2011) (citing Granite Springs Retreat Ass'n, Inc. v. Manning , 2006 WY 60, ¶ 5, 133 P.3d 1005, 1009 (Wyo. 2006) ). "If the district court lacked subject matter jurisdiction, this Court has jurisdiction on appeal, not on the merits, but only as to the jurisdictional issue." Rock v. Lankford , 2013 WY 61, ¶ 18, 301 P.3d 1075, 1080 (Wyo. 2013) (quoting Hall v. Park Cty ., 2010 WY 124, ¶ 3, 238 P.3d 580, 581 (Wyo. 2010) ). "The existence of subject matter jurisdiction is a question of law that we review de novo." Excel Constr., Inc. v. Town of Lovell , 2011 WY 166, ¶ 12, 268 P.3d 238, 241 (Wyo. 2011) (quoting Madsen v. Bd. of Trustees of Mem'l. Hosp. of Sweetwater Cty. , 2011 WY 36, ¶ 9, 248 P.3d 1151, 1153 (Wyo. 2011) ).

DISCUSSION

[¶8] "An inquest proceeding is a statutorily authorized, nonbinding inquiry into the death of an individual, traditionally conducted by the coroner, to determine the cause of death." 18 C.J.S. Coroners § 10, Westlaw (database updated February 2019). An inquest is neither a prosecution nor a lawsuit, but is an inquisitorial proceeding aimed at establishing the truth. It can contribute to accountability for wrong-doing but is not directly intertwined with criminal process. Paul MacMahon, The Inquest and the Virtues of Soft Adjudication , 33 Yale L. & Pol'y Rev. 275, 291-93 (Spring 2015).

[¶9] Coroners originated in England around 1194. Id. at 280. They were, at that time, officers of the crown with multifaceted roles. Id. These roles encompassed the responsibilities of a modern-day sheriff, coroner, and judge. Id. From the beginning, the coroner's most significant duty was the coroner's inquest. Id. When notified of a dead body, the coroner would call a jury whose duty was to inquire into the death and determine the manner and cause of death. Id.

[¶10] American colonists brought the institution of the coroner to the United States and coroner's inquests were common through the nineteenth century. Id. at 281. They have, however, become relatively obscure in recent history. Id. In many states, the coroner has been replaced by a medical examiner or by a combination medical examiner-coroner. Id. at 282-83. Only eleven states, including Wyoming, still have a coroner-only process. Coroner, Figure 7.1. Map of coroner and ME systems in the United States , ScienceDirect.com, https://www.sciencedirect.com/topics/medicine-and-dentistry/coroner (last visited Feb. 12, 2019).

[¶11] In Wyoming, statutes establish the coroner's duties and the inquest process. "When the coroner is notified that ... the death resulted from injury sustained within the county and he suspects that the death is a coroner's case, he shall conduct an investigation which may include ... [a]n inquest." Wyo. Stat. Ann. § 7-4-201 (LexisNexis 2017). If a coroner decides to hold an inquest, he must summon three county citizens to act as jurors. Id. The coroner may issue subpoenas and compel the attendance of witnesses. He has the same authority to enforce attendance of witnesses and punish for contempt as circuit court judges. See Wyo. Stat. Ann. §§ 1-21-901 through -909 (LexisNexis 2017); Wyo. Stat. Ann. § 7-4-203. The coroner is required to ensure all testimony in an inquest is recorded. Wyo. Stat. Ann. § 7-4-204. At the end of the proceeding, the jurors are required to give the coroner their signed inquisition stating the name of the deceased person and when, how and by what means, if known, he came to death. Wyo. Stat. Ann. § 7-4-205. The coroner must then return the inquisition, the written evidence, and a list of witnesses to the district court. Wyo. Stat. Ann. § 7-4-206. The statute makes no provision for appeal or review of the coroner's inquest. See Wyo. Stat. Ann. §§ 7-4-201 through -206.

[¶12] Wyo. Stat. Ann. § 7-4-206 directs: "The coroner shall return to the district court the inquisition, the written evidence and a list of witnesses providing material testimony." The significant term in this provision is "inquisition." Id. Appellants argue that this language contains a clear directive by the legislature conferring jurisdiction on the district court. Their argument turns on the meaning of the word "inquisition" in the statute.

[¶13] We have held this Court applies a de novo standard of review to issues of statutory construction and interpretation. Ramirez v. State , 2016 WY 128, ¶ 7, 386 P.3d 348, 349 (Wyo. 2016). "In any question of statutory interpretation, our primary objective is to give effect to the legislature's intent." Cheyenne Newspapers, Inc. v. Bd. of Trustees of Laramie Cty. Sch. Dist. No. One , 2016 WY 113, ¶ 10, 384 P.3d 679, 682 (Wyo. 2016) (citing L & L Enters. v. Arellano (In re Arellano) , 2015 WY 21, ¶ 13, 344 P.3d 249, 252 (Wyo. 2015) ). We "first look to the plain language of the statute to determine the legislature's intent." In re Estate of Meyer , 2016 WY 6, ¶ 17, 367 P.3d 629, 634 (Wyo. 2016) (citing Wyo. Cmty. Coll. Comm'n v. Casper Cmty. Coll. Dist. , 2001 WY 86, ¶¶ 16-17, 31 P.3d 1242, 1249 (Wyo. 2001) ; Fontaine v. Bd. of Cty. Comm'rs , 4 P.3d 890, 894 (Wyo. 2000) ; State ex rel. Motor Vehicle Div. v. Holtz , 674 P.2d 732, 736 (Wyo. 1983) ). When we examine "plain language," we often are guided by dictionary definitions of the terms used in the statute. See, e.g. , BJ Hough, LLC v. City of Cheyenne , 2012 WY 140, ¶ 25, 287 P.3d 761, 770 (Wyo. 2012).

[¶14] "Inquisition" is defined by Black's Law Dictionary as "1. The record of the finding of the jury sworn by the coroner to inquire into a person's death. 2. A judicial inquiry, esp. in a derogatory sense. 3. Hist . Eccles. law . A persistent, grueling examination conducted without regard for the examinee's dignity or civil rights." Inquisition , Black's Law Dictionary (10th ed. 2014). The Merriam-Webster Dictionary alternatively defines inquisition as

1 a capitalized : a former Roman Catholic tribunal for the discovery and punishment of heresy
b : an investigation conducted with little regard for individual rights
c : a severe questioning
2 : a judicial or official inquiry or examination usually before a jury also : the finding of the jury
3 : the act of inquiring : EXAMINATION[.]

Inquisition, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/inquisition (last visited Feb. 6, 2019). If in place of the statutory language, we substitute the Merriam-Webster definition for an inquisition, "a judicial or official inquiry or examination usually before a jury" it opens the door a crack for the argument the legislature meant the district court to have jurisdiction in post-inquest proceedings. Id. If we, instead, substitute the definition found in Black's, "[t]he record of the finding of the jury sworn by the coroner to inquire into a person's death," the jurisdiction argument meets a closed door. Inquisition , Black's Law Dictionary.

[¶15] The district court, applying the doctrine of noscitur a sociis (a word is known by the company it keeps), found that the word "inquisition" in Wyo. Stat. Ann. § 7-4-205 means the documentary record of the jury's finding.

The doctrine of construction-noscitur a sociis -teaches that "the meaning of particular terms in a statute be ascertained by reference to words associated with them in the statute; and that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other."

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts , at 195 (2012) (citing City of Fort Worth v. Cornyn , 86 S.W.3d 320, 327 (Tex. App. 2002) ). Under this rule of construction, we construe the phrases "the inquisition," the "written evidence," and "a list of witnesses" in reference to each other. While the word inquisition could refer to the official inquiry conducted by the jury, there is no doubt given "its company" that it refers to the record of the findings of the jury. We agree with the district court, the meaning of the word "inquisition" is evident. We find Appellant's interpretation of the meaning of "inquisition" unpersuasive. The statute directs that a record of the proceedings be filed with the district court.

[¶16] Appellants next argue that the district court has inherent equitable power to address post-inquest proceedings and that such a view is consistent with other jurisdictions. Appellants direct our attention to Estate of Severt v. Wood , 107 Ohio App. 3d 123, 128, 667 N.E.2d 1250, 1253 (1995) (the underlying statute provides for court review of a coroner's verdict); Harshfield v. Harshfield , 842 P.2d 535, 538 (Wyo. 1992) (a district court has inherent equitable power to modify a final judgment); Matter of Kimball's Estate , 583 P.2d 1274, 1275 (Wyo. 1978) (courts have inherent equitable power to grant relief from accident or mistake); Holmes v. Holmes , 66 Wyo. 317, 211 P.2d 946, 953 (1949) (courts have the power to correct clerical errors); and W.R.C.P. Rule 60.

[¶17] These cases are distinguishable from the case before us. Severt is at odds with our case because Ohio statutes specifically authorize post-inquisition review by the court. Id. , 667 N.E.2d at 1253. The Wyoming cases are distinguishable because they apply W.R.C.P. Rule 60 to modify final orders or judgments. Harshfield , 842 P.2d at 538 ; Kimball's Estate , 583 P.2d at 1275 ; Holmes , 211 P.2d at 953. Here, the inquest verdict is not a judgment.

[¶18] Courts differ on whether a coroner acts in a judicial capacity when conducting an inquest. 18 Am. Jur. 2d Coroners § 8, Westlaw (database updated February 2019). Yet, "every court that has examined the issue" has held that the verdict was not subject to review, because it is "merely advisory," and has "no probative effect." In re Boston , 112 Wash. App. 114, 118-19, 47 P.3d 956, 958 (2002), 78 A.L.R.2d 1218 (1961) (citing Smalls v. State , 101 Ga. 570, 28 S.E. 981 (1897) ). We have said, "[t]he verdict of a coroner's jury is merely advisory and has no probative effect." Raigosa v. State , 562 P.2d 1009, 1015 (Wyo. 1977) (citing 18 Am. Jur. 2d. Coroners § 15, at [650] ).

[¶19] Washington, like Wyoming, does not address post-inquest proceedings in its statutes. In re Boston , 47 P.3d at 958. The Washington Court of Appeals held,

[A]n inquest jury's verdict is not a 'final decision of a court .' It is at most a 'final decision' of an advisory panel of jurors as to the answers to certain questions the coroner (or judge acting as the coroner) has asked them. The jury's verdict does not adjudicate the rights of anyone, nor does it affect anyone's rights. It merely supplies the executive with the jury's opinion as to the cause of death and criminal responsibility of those involved.

Id. at 959 (emphasis in original).

[¶20] Here, as in Washington, Wyoming Statutes establish an inquisition proceeding outside of the courts. Wyo. Stat. Ann. § 7-4-201 et seq. The coroner's inquisition is an executive function, and the Coroner's Inquest Verdict is binding on no one. Wyoming Statutes set out the coroner's duties and responsibilities. See Wyo. Stat. Ann. §§ 7-4-201 through -206. The statutes direct that at the conclusion of inquest proceedings, certain documents be filed with the district court. Wyo. Stat. Ann. § 7-4-206. The filing of these records with the district court does not, without more, confer jurisdiction on the district court. A coroner's inquest verdict is not a final order or judgment and the Court's equitable powers to grant relief do not come into play. Questions raised about the propriety of the process, the lack of fundamental safeguards in an inquisition, and bias in the proceeding can best be addressed by the legislature. The district court properly dismissed the appellant's W.R.C.P. Rule 60(b) motion for lack of jurisdiction.

CONCLUSION

[¶21] A coroner's inquest is an executive matter conducted outside of the courts. The Coroner's Inquest Verdict is not a final order and has no probative effect. The filing of the Coroner's Inquest Verdict and other associated documents with the district court is ministerial and does not confer jurisdiction on the district court. The district court properly dismissed Appellants' W.R.C.P. Rule 60(b) motion for lack of subject matter jurisdiction. We affirm.

      The breakdown of states that use coroners only, medical examiners only, or a mixture in the United States is: county medical examiners only (4 states); statewide medical examiners (16 states and the District of Columbia); district medical examiner (1 state); coroner offices by county or multi-county districts (11 states including Wyoming); and mixture of medical examiner and coroner's offices (18 states). Coroner, Figure 7.1. Map of coroner and ME systems in the United States , ScienceDirect.com, https://www.sciencedirect.com/topics/medicine-and-dentistry/coroner (last visited Feb. 12, 2019).


author: Judge MANNHEIMER.

text:
    Stephanie HAMBURG, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-13165
    Court of Appeals of Alaska.
    October 5, 2018
    Kevin W. Coe, Assistant Public Advocate, Anchorage Criminal Defense Section, and Chad Holt, Public Advocate, Anchorage, for the Appellant.
    A. James Klugman, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge MANNHEIMER.

Stephanie Hamburg stands charged with manslaughter and criminally negligent homicide stemming from the death of her two-year-old daughter, who died of severe iron deficiencyanemia and congestive heart failure. Hamburg's eligibility for bail release is governed by the pre-2018 version of Alaska's bail statute, former AS 12.30.011, and Hamburg currently remains in custody pursuant to a "no-bail" order that the superior court issued under that statute.

Because Hamburg is charged with manslaughter (a class A felony), her bail release is governed by subsection (d)(2) of the statute. This subsection declares that when a criminal defendant is charged with certain types of offenses, including any class A felony, there is a presumption that the defendant should not be released on bail - or, in the words of the statute, a "rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the [defendant] or the safety of the victim, other persons, or the community".

This presumption is contrary to Article I, Section 11 of the Alaska Constitution, "Rights of Accused". This section of our state constitution guarantees that, "in all criminal prosecutions", the accused "is entitled ... to be released on bail, except for capital offenses when the proof is evident or the presumption great".

The Alaska Supreme Court has declared that Article I, Section 11 does not literally mean that all criminal defendants are entitled to be "released" on bail. But section 11 (in conjunction with section 12, the provision that prohibits excessive bail) guarantees that the court must set reasonable conditions of bail release for a defendant who has not yet been convicted. Martin v. State , 517 P.2d 1389, 1393-95 (Alaska 1974).

See also Gilbert v. State , 540 P.2d 485, 485-86 (Alaska 1975), where the supreme court declared that "[ Martin ] held that an order denying bail to one accused of a crime, but not yet convicted, was in violation of Article I, Section 11 of the Constitution of the State of Alaska".

The Martin decision involved the 1967 amendments to Alaska's bail law. The State argued that these 1967 amendments allowed a court to hold a criminal defendant without bail if the court found that, no matter what conditions of bail were imposed, the defendant would continue to "pose a danger to other persons and the community." Id. at 1396.

The supreme court rejected the State's interpretation, concluding that it was inconsistent with the statutory scheme as a whole. Id. at 1396-97. However, the supreme court added that even if the legislature had intended to allow defendants to be held without bail, such a statute would have violated the constitutional right of bail guaranteed by Article I, Section 11 of the Alaska Constitution. Ibid.

Our study of Article I, section 11... compels a conclusion that the Alaska Constitution without doubt guarantees to every accused person the right to be released on bail except for capital offenses where the proof is evident or the presumption great. Some jurisdictions with similar bail provisions have created an implied limitation on this constitutional right. But in Alaska such an implied limitation would necessarily contravene both the plain language of this constitutional provision and its intended purpose as stated at the constitutional convention.

Martin , 517 P.2d at 1394.

The 2017 version of AS 12.30.011(d)(2) - the statute at issue in the present case - establishes a presumption that, when a court is asked to set bail for certain classes of felony offenders, the court must presume that no conditions of bail will guarantee the defendant's appearance at future court proceedings and the safety of the victim and the public. In other words, the court must presume that the defendant cannot be released on bail.

In its brief in the present case, the State urges us to construe this statutory presumption according to the literal wording of the statute. That is, the State contends that, for the classes of defendants covered by the statute, a court must presume that the defendant should not be released on bail under any conditions. According to the State, the defendant bears the burden of overcoming this presumption by convincing the court that there are, in fact, conditions of bail that will satisfy the twin goals of assuring the defendant's appearance at future court proceedings and protecting the victim and the public. And until such time as the defendant succeeds in convincing the court that there are adequate conditions of bail, the defendant is to be held without bail.

But the Alaska Constitution (unlike the federal constitution) contains a specific guarantee of pre-conviction bail. If the bail statute were interpreted as the State proposes, the statute would clearly violate the Alaska Constitution's guarantee of pre-conviction bail as interpreted in Martin .

In prior cases raising this same issue, the State has taken a different approach to the statute. In those prior cases, the State has suggested that the statutory presumption against bail release does not place the burden of persuasion on the defendant. Rather, the State has suggested that the "presumption" against bail release merely requires defendants to come forward with some articulable bail proposal (i.e. , a proposal that specifies the defendant's proposed conditions of release). According to this alternative interpretation of the statute, once a defendant presents an articulable bail proposal, the State bears the burden of persuasion - i.e. , the burden of convincing the court that the defendant's proposed conditions of release are inadequate.

(For an example of a case where the State has taken this position, see the State's bail brief in Vaneyck v. State , Court of Appeals File No. A-13021, and the bail order that we issued in that case on February 7, 2018.)

But this alternative interpretation of the statute does nothing to eliminate the statute's constitutional infirmity. Even under this alternative reading of the statute, if the State succeeds in convincing the court that the defendant's bail proposal is inadequate, the court is then authorized to hold the defendant without bail until such time as the defendant succeeds in proposing bail conditions that are satisfactory to the court. This, too, violates the Alaska Constitution's guarantee of pre-conviction bail.

We therefore conclude that the pre-2018 version of AS 12.30.011(d)(2) is unconstitutional. We direct the trial court to set bail conditions for Hamburg.