The Blaine County Prosecuting Attorney's Office has filed a court motion challenging the sentence of confessed marijuana grower Daniel E. Collins, a situation that Collins' attorney described as a violation of an earlier written agreement.
Deputy Prosecuting Attorney Matt Fredback filed the motion on June 22, the day after Collins was sentenced. It specifically addresses the withheld judgment, a legal procedure that could later allow a felony conviction for possession of marijuana to be removed from Collins' criminal record.
The motion isn't called a challenge. Instead it is titled a "motion to clarify sentence." Nonetheless, the motion alleges that 5th District Court Judge Robert J. Elgee "did not make the appropriate findings under the statute governing drug cases" in awarding the withheld judgment.
Meanwhile, Collins, a former Blaine County resident who now lives in Las Vegas, Nev., drove from Nevada to Blaine County on Monday, dutifully reported to the Blaine County jail as required and was turned away.
"No paperwork," Collins said Tuesday. "I think it's kind of funny that they can't get their paperwork together to get me into the jail."
Collins, 65, is a Vietnam War veteran who claims he smokes marijuana to relieve pain from a back injury he received while serving aboard the USS American aircraft carrier. He has acknowledged that he had been growing about a half dozen marijuana plants at his home north of Ketchum when it was raided in September by the Blaine County Narcotics Enforcement Team.
Originally charged with manufacturing a controlled substance, Collins pleaded guilty in May to a lesser crime of felony possession of the drug. At sentencing on June 21, he was given the withheld judgment, placed on probation for three years and given a 21-day jail sentence, which was supposed to commence Monday.
In a written statement provided to the Idaho Mountain Express, Blaine County Prosecuting Attorney Jim Thomas explained the reason for filing the motion.
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"As the prosecuting attorney, I do not have a problem with the underlying sentence that Judge Elgee imposed," Thomas wrote. "The basis for the motion for clarification is to allow the judge an opportunity to make findings on the record as required by law to determine whether Collins is entitled to a withheld judgment."
The motion states that Elgee is required by statute to determine if Collins cooperated with law enforcement in its investigation and if there is an "abiding conviction" that Collins will successfully comply with the probationary requirements, one of which requires that he not use illegal drugs.
Hailey attorney Douglas Werth, who is representing Collins under his public defender contract with Blaine County, said Monday that the prosecutor's motion violates a plea agreement wherein the prosecutor's office agreed to "stand silent" on a defense request for a withheld judgment.
"It appeared to be a clear breach of the plea agreement," Werth said. "I don't see how you can stand silent and still file a motion against a withheld judgment—unless you use invisible ink or something."
Collins alleged that the motion was filed because of pressure from the Narcotics Enforcement Team, commonly referred to as the NET.
Four NET officers attended the June 21 sentencing hearing and left as a group when Elgee announced he was awarding Collins a withheld judgment.
"That's because those guys were pissed off," Collins said. "They were there to intimidate the court. They were there to intimidate the judge, and when they didn't get their way they stormed out as a group."
Thomas acknowledged that the NET officers may have left the court in protest, but said they did not influence his decision to file the motion for clarification.
"As to Collins' allegation of law enforcement pressure, no one exerted any pressure on this office, nor were any police officers consulted about the filing," Thomas stated.
Elgee said he "didn't attach any significance to it at the time" when the NET officers left during the hearing.
"People go in and out of the courtroom all the time, and as long as it is not disruptive, I don't pay any attention to it," Elgee said.
He declined to comment when asked if he attaches any significance to it now, more than a week later.
The Blaine County Sheriff's Office, which oversees the NET, reported Monday that the officers left the hearing before it was over because they were called to a meeting. However, several of the officers were seen either in the prosecutor's office or milling about the halls in the court building more than a half hour after the hearing ended.
A hearing on the prosecutor's motion is scheduled before Elgee for Monday, July 12.
Terry Smith: tsmith@mtexpress.com
Daniel Collins
