Premature Willfulness Findings in Probation Revocations Are Error but Not Plain Error Absent Material Prejudice (Smith v. State)

1. Introduction

In David Lee Smith v. The State of Wyoming, 2026 WY 81, the Wyoming Supreme Court reviewed a district court order revoking David Lee Smith’s probation after he was terminated from an Adult Community Corrections (ACC) program and convicted of escape. The central procedural question was not whether violations occurred—Smith conceded termination from the Casper Re-Entry Center (CRC) and his escape conviction—but when the district court was permitted to decide whether the violations were willful.

Smith argued the district court violated due process by determining willfulness during the adjudicatory phase (fact-finding on whether a violation occurred) rather than the dispositional phase (whether probation should be revoked and what consequence is appropriate). Because Smith did not object at the hearing, the Supreme Court applied plain error review and ultimately affirmed.

2. Summary of the Opinion

The Court held that it is a clear error for a district court to make a willfulness determination during the adjudicatory phase of a probation revocation proceeding. However, Smith failed to show the error caused material prejudice, the third requirement of plain error. The record showed Smith had a meaningful opportunity to present his explanation (medication-induced blackout) before the district court imposed sentence, and the willfulness-related evidence overlapped with issues properly addressed during adjudication (including the voluntary nature of “escape” and alcohol consumption). The Court also emphasized that Smith committed an additional, uncontested violation (alcohol use on May 20, 2025), independently supporting revocation.

3. Analysis

3.1. Precedents Cited

Two-phase revocation process and placement of “willfulness”

  • Velasquez v. State, 2026 WY 11: The Court reaffirmed that due process requires a two-part revocation hearing: (1) verification of facts establishing a violation, and (2) a determination whether revocation is warranted. The Smith Court relied on Velasquez to underscore that procedural structure matters, while also borrowing Velasquez’s recognition that evidence can overlap between phases.
  • Crouse v. State, 2017 WY 133: Cited for the core division of labor between phases—adjudication determines whether conditions were violated; disposition determines consequences. The Court also drew from Crouse the requirement that disposition considers the original reasons for probation conditions and the circumstances of the violation.
  • Mapp v. State, 929 P.2d 1222: Quoted (via Crouse) for the dispositional obligation to consider the reasons conditions were imposed and the circumstances surrounding the violation. This frames willfulness as a dispositional inquiry tied to culpability and appropriateness of continued probation.
  • Sinning v. State, 2007 WY 193: Cited for the proposition that willfulness is addressed in the dispositional phase. Smith treats this as settled law and uses it to identify the district court’s sequencing as error.
  • Brumme v. State, 2018 WY 115 and Robinson v. State, 2016 WY 90: Cited (through Bazzle) as additional authority confirming that willfulness belongs in disposition. These cases function as part of the Court’s consistent line of decisions enforcing the two-phase framework.

Plain error framework

  • Bazzle v. State, 2019 WY 18: The controlling analog. Like Smith, Bazzle involved an erroneous willfulness finding made during adjudication. In both cases, the Court found error but no material prejudice because the defendant had the opportunity to address reasons for the violations and the court did not skip disposition. Smith’s outcome largely tracks Bazzle, reinforcing that mis-timing alone does not establish reversal without prejudice.
  • Johns v. State, 2018 WY 16: Used (via Bazzle) to restate the three-prong plain error test: clear record, violation of a clear and unequivocal rule of law, and denial of a substantial right causing material prejudice.

Invited error, waiver vs. forfeiture

  • Vaught v. State, 2016 WY 7: Provided the definition of invited error as appellate review-barred error induced by a party’s affirmative conduct—treated as a “species of knowing waiver.”
  • Helms v. State, 2026 WY 24: Clarified the distinction between waiver (knowing, intelligent relinquishment) and forfeiture (failure to timely assert a right). Smith uses Helms to reject the State’s invited-error argument, finding the record ambiguous: counsel’s statements could reflect an attempt to contest elements of escape rather than a knowing surrender of procedural sequencing.

“Escape” as a general intent crime

  • Seymore v. State, 2007 WY 32, abrogated on other grounds by Granzer v. State, 2008 WY 118: Cited for the proposition that escape is a general intent crime. This matters because Smith’s “blackout” narrative could be framed as disputing voluntary action (and thus the general intent element), blurring the line between adjudicatory fact-finding (did he violate?) and dispositional mitigation (was it willful?).

Statutes and rules

  • Wyo. Stat. Ann. §§ 7-13-302 through -305 and W.R.Cr.P. 39: These authorities anchor the two-phase revocation structure and the court’s obligations at revocation hearings. Smith treats them as part of the due process framework governing revocations.

3.2. Legal Reasoning

(a) The Court rejected invited error and proceeded under plain error

The State argued Smith “invited” the district court’s willfulness finding during adjudication by framing his defense as “not willful.” The Court declined to apply invited error because the record could also be read as counsel attempting to contest whether Smith’s conduct satisfied the voluntary component of escape (a general intent crime). Relying on Helms v. State and Vaught v. State, the Court emphasized that invited error requires intentional waiver, and ambiguity—especially where the argument overlaps with elements of the alleged violation—does not establish knowing relinquishment.

(b) Plain error prongs one and two were satisfied

The record clearly showed the district court made a willfulness finding during adjudication, satisfying prong one. Prong two was satisfied because Wyoming precedent consistently places willfulness in the dispositional phase (e.g., Crouse v. State, Sinning v. State, and Bazzle v. State). The Court expressly characterized the district court’s sequencing as a violation of a “clear and unequivocal rule of law.”

(c) No material prejudice: overlap of evidence, opportunity to be heard, and an independent violation

The decision turns on prong three: whether the error denied Smith a substantial right resulting in material prejudice.

  • Overlap and relevance in both phases: The Court reasoned that evidence about voluntariness (did Smith voluntarily fail to return?) was relevant to adjudication (escape-based violation) and also to disposition (willfulness). Citing Velasquez v. State, the Court acknowledged that evidence can properly relate to both phases, reducing the likelihood that the phase mislabeling undermined fairness.
  • Meaningful opportunity to present mitigation: As in Bazzle v. State, Smith testified about his claimed blackout and reiterated his argument before the court found willfulness and again before sentence was imposed. The Court viewed this as satisfying the minimum due process requirement that the court inquire into reasons behind the violation and consider what consequences should follow.
  • Disposition was not dispensed with: Unlike the prejudicial scenario discussed in Velasquez v. State (where a court dispensed with the dispositional phase), the district court in Smith still proceeded to a dispositional discussion, invited recommendations, heard Smith’s allocution, and only then reimposed the underlying sentence.
  • Additional uncontested violation: The district court also found Smith knowingly consumed alcohol on May 20, 2025, a separate violation contributing to CRC termination. Smith presented no developed claim that this violation was non-willful. This provided further support for revocation independent of the timing error on willfulness.

3.3. Impact

  • Reinforcement of the sequencing rule—paired with a prejudice gate: Smith reaffirms that determining willfulness during adjudication is error, but it also strengthens the practical message of Bazzle: appellate relief is unlikely without a concrete showing that the mistiming affected the ability to present mitigation, the court’s actual consideration at disposition, or the outcome.
  • Encouragement for defense counsel to object and to build a prejudice record: Because Smith lost on plain error’s prejudice prong, the case signals that defendants should (1) object contemporaneously to preserve a less deferential standard of review, and (2) identify what additional evidence or argument would have been presented in a properly structured dispositional hearing.
  • Clarification on invited error in revocation settings: The Court’s refusal to apply invited error where counsel’s phrasing could be read as contesting elements of the violation (escape voluntariness) narrows the State’s ability to convert ambiguous litigation positions into waiver.
  • Practical handling of overlapping issues (voluntariness/willfulness): Smith acknowledges that some “willfulness-adjacent” evidence will appear during adjudication, especially where the alleged violation is a crime requiring voluntary action. Future courts may treat the two-phase requirement as primarily about the decision point and opportunity to be heard, not about rigid exclusion of such evidence from phase one.

4. Complex Concepts Simplified

  • Adjudicatory vs. dispositional phases: Adjudication asks, “Did you violate probation?” Disposition asks, “Given that violation, should probation be revoked, and what sanction is appropriate?” Wyoming law places “willfulness” in the second question because it helps determine blameworthiness and appropriate consequences.
  • Willfulness: In this context, willfulness generally concerns whether the violation was a matter of choice/voluntary conduct rather than circumstances beyond the probationer’s control—important to deciding whether revocation is justified and what sanction to impose.
  • Plain error: When a defendant fails to object in the trial court, appellate relief requires showing: (1) the record clearly shows the error, (2) the error violated a clear legal rule, and (3) the error caused material prejudice (it mattered in a way that affected fairness or outcome).
  • Invited error; waiver vs. forfeiture: Invited error is a form of waiver—an intentional surrender of a right by inducing the court’s action. Forfeiture is merely failing to object in time. Smith treats ambiguous defense framing as forfeiture (plain error review), not invited error (no review).
  • General intent crime: A general intent offense (like escape, as described in the opinion) typically requires that the defendant acted voluntarily, even if not with a specific purpose beyond the act. That is why Smith’s “blackout” claim could be argued both as an attack on the violation itself and as mitigation.

5. Conclusion

2026 WY 81 cements a familiar Wyoming rule—willfulness belongs in the dispositional phase—while emphasizing an equally important limit: on plain error review, mistiming alone does not warrant reversal absent a concrete showing of material prejudice. By aligning closely with Bazzle v. State and distinguishing the more structurally defective revocation process addressed in Velasquez v. State, the Court signals that due process in revocations is satisfied where the defendant is heard on the reasons for violations and the court meaningfully conducts a dispositional inquiry before imposing sentence, even if the court’s willfulness finding is articulated prematurely.