Black v. Romano

• Decision Date: 20 May 1985
• Docket Number: No. 84-465,84-465
• Citation: 105 S.Ct. 2254,471 U.S. 606,85 L.Ed.2d 636
• Parties: Lee Roy BLACK, Director, Missouri Department of Corrections and Human Resources and Dick D. Moore, Chairman, Missouri Board of Probation and Parole, Petitioners v. Nicholas J. ROMANO
• Court: U.S. Supreme Court

471 U.S. 606

105 S.Ct. 2254

85 L.Ed.2d 636

Lee Roy BLACK, Director, Missouri Department of Corrections and Human Resources and Dick D. Moore, Chairman, Missouri Board of Probation and Parole, Petitioners

v Nicholas J. ROMANO.

No. 84-465.

Argued March 18, 1985.

Decided May 20, 1985.

Rehearing Denied July 1, 1985.

See 473 U.S. 921, 105 S.Ct. 3548.

Syllabus

Respondent, upon pleading guilty in a Missouri state court to controlled substance offenses, was put on probation and given suspended prison sentences. Two months later, he was arrested for and subsequently charged with leaving the scene of an automobile accident, a felony. After a hearing, the judge who had sentenced respondent, finding that respondent had violated his probation conditions by committing a felony, revoked probation and ordered execution of the previously imposed sentences. After unsuccessfully seeking postconviction relief in state court, respondent filed a habeas corpus petition in Federal District Court, alleging that the state judge had violated due process requirements by revoking probation without considering alternatives to incarceration. The District Court agreed and ordered respondent released from custody. The Court of Appeals affirmed.

Held:

1. The Due Process Clause of the Fourteenth Amendment does not generally require a sentencing court to indicate that it has considered alternatives to incarceration before revoking probation. The procedures for revocation of probation—written notice to the probationer of the claimed probation violations, disclosure of the evidence against him, an opportunity for the probationer to be heard in person and to present witnesses and documentary evidence, a neutral hearing body, a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation, the right to cross-examine adverse witnesses unless the hearing body finds good cause for not allowing confrontation, and the right to assistance of counsel, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656—do not include an express statement by the factfinder that alternatives to incarceration were considered and rejected. The specified procedures adequately protect the probationer against revocation of probation in a constitutionally unfair manner. Pp. 610-614.

2. The procedures required by the Due Process Clause were afforded in this case, even though the state judge did not explain on the record his consideration and rejection of alternatives to incarceration. The revoca- tion of probation did not violate due process simply because the offense of leaving the scene of an accident was unrelated to the offense for which respondent was previously convicted or because, after the revocation proceeding, the charges arising from the automobile accident were reduced to the misdemeanor of reckless and careless driving. Pp. 615-616.

735 F.2d 319, (CA 8 1984), reversed.

John M. Morris, III, Asst. Atty. Gen., Jefferson City, Mo., for petitioners.

Jordan B. Cherrick, St. Louis, Mo., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

In this case we consider whether the Due Process Clause of the Fourteenth Amendment generally requires a sentencing court to indicate that it has considered alternatives to incarceration before revoking probation. After a hearing, a state judge found that respondent had violated his probation conditions by committing a felony shortly after his original prison sentences were suspended. The judge revoked probation and ordered respondent to begin serving the previously im- posed sentences. Nearly six years later, the District Court for the Eastern District of Missouri held that respondent had been denied due process because the record of the revocation hearing did not expressly indicate that the state judge had considered alternatives to imprisonment. The District Court granted a writ of habeas corpus and ordered respondent unconditionally released from custody. 567 F.Supp. 882 (1983). The Court of Appeals for the Eighth Circuit affirmed. 735 F.2d 319 (1984). We granted certiorari, 469 U.S. 1033, 105 S.Ct. 503, 83 L.Ed.2d 395 (1984), and we now reverse.

I

On November 15, 1976, respondent Nicholas Romano pleaded guilty in the Circuit Court of Laclede County, State of Missouri, to two counts of transferring and selling a controlled substance. The charges resulted from Romano's attempt to trade 26 pounds of marihuana, which he had harvested, refined, and packaged, for what he thought was opium. App. 15, 27-28, 40. After the Missouri Department of Probation and Parole completed a presentence investigation, the trial judge held a sentencing hearing on April 13, 1977. Romano's attorney urged the court to order probation. He argued that the offenses had not involved any victim, that Romano had no previous felony convictions, and that, except for running a stop sign, he had not violated the law after his arrest on the controlled substance charges. Id., at 31-36. Both the Probation Department and the prosecutor opposed probation. Id., at 33, 36-38. The trial judge nonetheless concluded that probation was appropriate because the underlying charges did not involve an offense against the person. Id., at 43.

The judge imposed concurrent sentences of 20 years on each count, suspended execution of the sentences, and placed Romano on probation for 5 years. Id., at 42-43, 47. The trial judge observed that Romano appeared to "have an uphill run on this probation," id., at 43, given the presentence report and the fact that his "past track record [was] not too good." Ibid. The trial judge warned that if any of the conditions of probation were violated, he would revoke probation and order Romano imprisoned under the terms of the suspended sentence. Id., at 41, 44. Only two months after being placed on probation, Romano was arrested for leaving the scene of an automobile accident. In an information issued on July 15, 1977, he was charged with violating Mo.Rev.Stat. §§ 564.450, 564.460 (1959), replaced by Mo.Rev.Stat. §§ 577.010, 577.060 (1978), a felony punishable by up to five years' imprisonment. The information alleged that Romano had struck and seriously injured a pedestrian with his automobile and, knowing that such injury had occurred, "unlawfully and feloniously" left the scene without stopping or reporting the accident. 1 Record 50.

On July 18, 1977, the judge who had sentenced Romano on the controlled substance charges held a probation revocation hearing. Several witnesses gave testimony indicating that Romano had run over a pedestrian in front of a tavern and then had driven away. Romano offered no explanation of his involvement in the accident. Instead, his counsel challenged the credibility of the witnesses, argued that the evidence did not justify a finding that Romano had violated his probation conditions, and requested the court to continue the defendant's probation. App. 99-102. Neither Romano nor his two lawyers otherwise proposed or requested alternatives to incarceration. The judge found that Romano had violated his probation conditions by leaving the scene of an accident, revoked probation, and ordered execution of the previously imposed sentence. Id., at 103. Although the judge prepared a memorandum of his findings, id., at 107-110, he did not expressly indicate that he had considered alternatives to revoking probation. On October 12, 1977, the State filed an amended information reducing the charges arising from the automobile accident to the misdemeanor of reckless and care- less driving. 1 Record 52. Romano was convicted on the reduced charges and ordered to pay a $100 fine. Id., at 53.

Romano was incarcerated in state prison following the revocation of his probation. After unsuccessfully seeking postconviction relief in state court, he filed a petition for a writ of habeas corpus in Federal District Court. The habeas petition, filed in November 1982, alleged that the state judge had violated the requirements of due process by revoking respondent's probation without considering alternatives to incarceration. The District Court agreed, and held that under the circumstances "alternatives to incarceration should have been considered, on the record, and if [the trial judge] decided still to send Romano to jail, he should have given the reasons why the alternatives were inappropriate." 567 F.Supp., at 886. Because Romano had been imprisoned for more than five years and had been paroled after he filed his federal habeas petition, the District Court concluded that the proper relief was to order him released from the custody of the Missouri Department of Probation and Parole. Id., at 887. The Court of Appeals agreed that due process required the trial judge to consider alternatives to incarceration in the probation revocation proceeding and to indicate on the record that he had done so. See 735 F.2d, at 322, 323.

II

The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Bearden v. Georgia, 461 U.S. 660, 666, and n. 7, 103 S.Ct. 2064, 2069, and n. 7, 76 L.Ed.2d 221 (1983). Both types of limits are implicated in this case. The opinions of the District Court and the Court of Appeals not only require consideration of alternatives to incarceration before probation is revoked, which is properly characterized as a substantive limitation, but also impose a procedural requirement that the sentencing court explain its reasons for rejecting such alternatives. These requirements, the courts below held, follow from Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). We disagree. Nothing in these decisions requires a sentencing court to state explicitly why it has rejected alternatives to incarceration....