Probation Revocation: Skipping the Dispositional Phase (and Mitigation Right) Is Plain Error

Introduction

In Jeremy S. Velasquez v. The State of Wyoming, 2026 WY 11 (Jan. 22, 2026), the Wyoming Supreme Court reversed a district court order revoking Jeremy S. Velasquez’s probation and imposing the previously suspended prison sentence. The central issue was procedural: after the court found probation violations at the adjudicatory phase, it immediately found the violations “willful,” revoked probation, and imposed the underlying sentence—without conducting the required dispositional phase and without affording Mr. Velasquez the opportunity to address the court in mitigation.

The Court’s decision reinforces that probation revocation is a two-phase proceeding under due process principles and W.R.Cr.P. 39, and that the second phase cannot be omitted even if the court believes the outcome is foreordained by a probationer’s prior statements or history.

Summary of the Opinion

The Court held that the district court committed plain error by moving directly from adjudication to revocation and sentencing without conducting the dispositional phase required by W.R.Cr.P. 39(a)(5). Because Wyoming law places the willfulness determination in the dispositional phase, and because Rule 39 grants the probationer the right to make a statement in mitigation at disposition, skipping disposition violated a clear rule of law and materially prejudiced Mr. Velasquez by undermining the fairness and integrity of the proceeding. The Court rejected the State’s arguments that Mr. Velasquez was barred by judicial estoppel, waiver, or invited error based on statements he made in an earlier revocation proceeding. The case was reversed and remanded for the district court to conduct a proper dispositional phase.

Analysis

Precedents Cited

  • Mason v. State, 631 P.2d 1051 (Wyo. 1981) (superseded by rule on other grounds as stated in Robinson v. State, 2016 WY 90): The Court relied on Mason as the foundational due process statement that revocation requires a two-part hearing: (1) verified facts proving a violation; (2) whether probation should be revoked in light of the violation. Velasquez uses Mason to frame the two-phase structure as a due process mandate that modern Rule 39 implements rather than replaces.
  • Robinson v. State, 2016 WY 90, and Miller v. State, 2015 WY 72: These decisions supply the key doctrinal placement of willfulness. Velasquez quotes Robinson (quoting Miller) for the rule that, for non-monetary violations, revocation requires a violation that is willful or threatens public safety—and that “willfulness” is addressed during the dispositional phase. This made the district court’s immediate willfulness finding legally mis-timed and procedurally defective.
  • Bazzle v. State, 2019 WY 18: Bazzle provides the Court’s articulation of the two phases and the dispositional considerations (violation, reasons conditions were imposed, circumstances of violation). Importantly, Velasquez distinguishes Bazzle on prejudice: Bazzle found no material prejudice where the defendant had litigated willfulness and the court held several dispositional hearings after an early willfulness finding. In Velasquez, there was no dispositional hearing at all.
  • Villafana v. State, 2022 WY 130, and Jewkes v. State, 2022 WY 90: These cases anchor the plain-error framework and explain that unpreserved procedural errors in criminal proceedings are reviewed under plain error. Jewkes is also used to emphasize that sentencing-related procedural errors implicate system legitimacy and fairness.
  • Bruce v. State, 2015 WY 46: Cited for the definition of material prejudice in plain-error review—whether there is a reasonable probability of a more favorable result absent the error.
  • Rosales-Mireles v. United States, 585 U.S. 129 (2018): Used (via quotation in Jewkes) to underscore that fairness and opportunities for error correction are central to legitimacy, particularly in sentencing contexts—supporting the conclusion that bypassing disposition undermines integrity.
  • Black v. State, 2017 WY 135, and Watts v. State, 2016 WY 40: Cited (through Jewkes) for the broader fairness-and-integrity lens when evaluating prejudice.
  • Allen v. Allen, 550 P.2d 1137 (Wyo. 1976), and Matter of JDV, 2025 WY 46: These authorities define the narrow scope of judicial estoppel in Wyoming—barring irreconcilably inconsistent factual positions successfully adopted by a court. Velasquez uses them to reject the State’s attempt to treat Mr. Velasquez’s earlier mitigation statements as binding factual positions.
  • Minchew v. State, 685 P.2d 30 (Wyo. 1984): Reinforces that revocation is not a new criminal trial; it is an extension of sentencing with due process protections. This undercuts the State’s effort to import doctrines designed for inconsistent positions across separate “actions.”
  • Benedict v. State, 2024 WY 55: Supplies the distinction between true waiver (intentional relinquishment) and forfeiture (mere failure to object). The Court used Benedict to explain why Mr. Velasquez did not waive future dispositional rights by making emotional mitigation statements in 2023.

Legal Reasoning

  1. Plain error, prong one (clear record): The transcript showed exactly what occurred: after adjudication evidence/argument, the court recessed, returned, found violations and willfulness, revoked probation, and imposed the sentence—without opening a dispositional phase or inviting mitigation.
  2. Plain error, prong two (clear rule of law transgressed):
    • Two phases are required. Under W.R.Cr.P. 39 and long-standing due process doctrine (Mason), revocation includes an adjudicatory phase and a dispositional phase.
    • Willfulness belongs to disposition. Under Robinson v. State and Miller v. State, willfulness is addressed during the dispositional phase.
    • Mitigation right is explicit. Rule 39 provides: “The probationer shall have the right . . . at the dispositional stage to make a statement in mitigation of revocation.” The district court’s process eliminated that right.
    • No separate hearing is required—but the phase must occur. The Court accepted that adjudication and disposition can occur in a single setting, and evidence can overlap, but rejected the idea that the dispositional phase may be skipped entirely.
  3. Plain error, prong three (substantial right and material prejudice): The Court focused on structural fairness. The denial of the dispositional phase deprived the parties of the opportunity to present additional argument or information tailored to the appropriate sanction and the reasons for the violation, and deprived the probationer of his Rule 39 mitigation statement. Even if the district court believed prison was inevitable, the required process matters; skipping it “calls into question the fairness and integrity of the proceedings.”
  4. Rejection of judicial estoppel, waiver, and invited error:
    • Judicial estoppel: The Court held Mr. Velasquez’s earlier statements (“send me to prison if I mess up again”) were mitigation arguments, not sworn factual representations, and not irreconcilably inconsistent with insisting on Rule 39’s procedures in a later revocation.
    • Waiver: There was no knowing, advised, prospective waiver of future dispositional rights; mere failure to object triggers plain-error review, it does not establish intentional relinquishment.
    • Invited error: Prior mitigation rhetoric did not “induce” the district court to bypass disposition in 2025; the court retains an independent obligation to conduct disposition and consider appropriate consequences under Rule 39 and Bazzle.

Impact

Procedural rule clarified and operationalized: Velasquez strengthens Wyoming revocation practice by making explicit that although adjudication and disposition may occur in a single hearing setting, the court must clearly conduct both phases. Courts must do more than announce adjudicatory findings and immediately impose the underlying sentence; they must meaningfully open the dispositional stage, address willfulness in the proper phase, and provide the probationer the Rule 39 opportunity to speak in mitigation.

Limits on “you promised” reasoning: The decision cautions against treating prior mitigation statements as dispositive of later procedural entitlements. Even where a defendant previously urged harsh consequences for future violations, the district court must still apply Rule 39’s dispositional framework to the new allegations.

Appellate consequences: By holding that skipping disposition constitutes plain error warranting reversal, the Court increases the likelihood of remand in cases where the record does not show a distinct dispositional opportunity (argument, mitigation statement, and willfulness assessment) after adjudication.

Complex Concepts Simplified

  • Adjudicatory phase: The “did it happen?” part. The State must prove a probation condition was violated by a preponderance of the evidence, generally using ordinary evidence rules.
  • Dispositional phase: The “what should we do about it?” part. The court decides consequences (continue probation, modify conditions, jail, prison, etc.), considers circumstances and reasons for conditions, and evidence rules are relaxed.
  • Willfulness: Whether the violation was a deliberate choice rather than something beyond the probationer’s control. In Wyoming, for most non-payment violations, the court must address willfulness (or a threat to public safety) before revoking.
  • Plain error: A strict appellate test used when no objection was made in the district court. The appellant must show (1) a clear record of the error, (2) violation of a clear legal rule, and (3) material prejudice.
  • Judicial estoppel: A narrow doctrine preventing a party from winning by asserting a fact in one proceeding and then asserting the opposite fact later. It does not generally apply to non-factual mitigation pleas or to insisting on procedural rights later.
  • Waiver vs. forfeiture: Waiver is knowingly giving up a right; forfeiture is merely failing to object. Forfeiture leads to plain-error review; waiver can eliminate the claim entirely.
  • Invited error: A party cannot complain about an error they caused the court to make. Prior pleas for leniency (or prior “send me to prison next time” statements) do not, by themselves, invite a court to skip required phases.

Conclusion

2026 WY 11 establishes a practical and enforceable procedural boundary in Wyoming probation revocations: even when violations are proven, a court commits plain error if it revokes probation and imposes sentence without conducting the dispositional phase required by W.R.Cr.P. 39, including the probationer’s right to make a mitigation statement and the court’s consideration of willfulness at the proper stage. The decision’s broader significance lies in its emphasis that revocation outcomes must be reached through the prescribed, fairness-preserving process—not through truncation driven by prior history or perceived inevitability.