Appeal from the District Court of Ransom County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.
The opinion of the court was delivered by: Crothers, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
Opinion of the Court by Crothers, Justice.
State v. PeralesNo. 20120114
[¶1] Anthony Perales appeals an amended criminal judgment revoking his probation and imposing a sentence of fourteen years incarceration followed by five years supervised probation. Perales argues that the sentence was illegal because the district court lacked authority to impose probation and that fourteen years incarceration is cruel and unusual punishment. We reverse and remand for further proceedings.
[¶2] On March 7, 2006, nineteen-year-old Perales was charged with class AA felony gross sexual imposition for engaging in sexual acts with a thirteen-year-old girl between December 24, 2005 and March 6, 2006. On December 20, 2006, Perales entered a guilty plea. On August 17, 2007, the district court sentenced Perales to ten years incarceration with credit for time served. The district court suspended the entire sentence and placed Perales on five years supervised probation.
[¶3] In June 2008, the State petitioned to revoke Perales' probation. The State alleged Perales committed several probation violations, including having contact with a child younger than eighteen. At a July 2008 revocation hearing, Perales admitted to several violations, including having continual contact with a seventeen-year-old girl. The district court revoked Perales' probation and resentenced Perales to ten years incarceration with all but three years and six months suspended for five years supervised probation. Perales served his prison sentence and was released.
[¶4] In December 2011, the State again petitioned to revoke Perales' probation. The State alleged Perales violated probation by failing to comply with sex offender registration requirements, consuming alcohol, loitering near a school and having a sexual relationship with a sixteen-year-old girl. At a February 2012 revocation hearing, Perales admitted to failing to update his sex offender registration by reporting termination of his employment and to drinking alcohol. He denied the remaining allegations. The State called three witnesses including Perales' probation officer, a detective who investigated Perales' relationship with the girl and the girl. The girl testified she was involved in a sexual relationship with Perales when she was sixteen years old. The district court found by a preponderance of the evidence that Perales had a sexual relationship with the girl ...