Brown v. U.S., No. 04-CO-1250.

• Decision Date: 08 June 2006
• Docket Number: No. 04-CO-1250.
• Parties: Charles W. BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 184

900 A.2d 184

Charles W. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 04-CO-1250.

District of Columbia Court of Appeals.

Submitted March 29, 2006.

Decided June 8, 2006.

Marc L. Resnick, was on the brief, for appellant.

Kenneth L. Wainstein, United States Attorney, with whom John R. Fisher, Assistant United States Attorney at the time the brief was filed, Elizabeth Trosman and Kathleen J. Monaghan, Assistant United States Attorneys, were on the brief, for appellee.

Before FARRELL and RUIZ, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

Following a show cause hearing, the trial court revoked appellant Charles Brown's probation. He contends on appeal that "the trial court committed reversible error when it revoked [his] probation without holding a hearing that afforded him due process of law." We agree, reverse, and remand for a new hearing.

I.

On January 4, 2002, appellant was convicted in a bench trial on one count of illegal dumping of automobile tires on an unauthorized dump site, in violation of D.C.Code § 8-902 (2001). He was sentenced to two years of supervised probation, coupled with a $1,000 fine payable in $500 installments during the first and second years of probation, respectively. Appellant was also ordered to undergo "drug testing and treatment as directed by probation," as well as to pay court costs of $50 on or before January 3, 2003, pursuant to the Victims of Violent Crime Compensation Act of 1981.¹

On October 1, 2002, the court received a "probation violation report" indicating that appellant had failed to report for office visits on two occasions, tested positive for cocaine on six occasions, and failed to report for drug testing on six occasions.² Two days later, the court scheduled a hearing for October 28, 2002, for appellant to show cause why his probation should not be revoked. Copies of the show cause order were mailed to appellant at three different addresses. On October 28, 2002, a bench warrant was issued after appellant failed to appear for the hearing.

Almost twenty-two months elapsed before appellant was arrested and returned to court on the bench warrant on August 9, 2004. The trial court set bond at $1,000 and scheduled another show cause hearing for a week later on August 16. On the day of the hearing, the trial court received an "Alleged Violation(s) Report" dated August 12, 2004, indicating that appellant was subject to an outstanding traffic warrant, had failed to report for further instructions since May 28, 2004, and had been arrested for driving under the influence (DUI).³ On August 16, 2004, the show cause hearing was continued to September 3, 2004. On August 18, appellant posted bond and obtained his release. On September 3, after the show cause hearing, the trial court revoked appellant's probation and sentenced him to ninety days in jail. The trial court also forfeited appellant's bond, but vacated the forfeiture four days later and ordered the return of the $1,000.

II.

After the conventional exchange of "good mornings" among court, counsel, and others at the hearing, the show cause hearing proceeded in its entirety as follows:

Court: Mr. Brown. This is [sic] matter is before the Court in order to show cause. Madam.

CSO:⁴ Yes, Mr. Brown has been noncompliant with his probation since August 2002. The last time, according to records—I just received this case on November of 03, and according to the last yes (indiscernible 09:42:13) of the last contact that was made by Mr. Brown was 9/30/02. And in reference to that conversation, he was afraid to report because he had a bench warrant. He didn't know who was going to care for his kids. Ever since then, there has been no contact with Mr. Brown. He failed to appear for a show cause hearing. A bench warrant was issued for failure to appear in Court, also for some traffic warrants. Probation is asking for revocation.

Court: The bench warrant was executed apparently on the 9th (indiscernible 09:42:48), which ultimately brings us to where we are today. Mr. [Appellant's Counsel]?

Counsel: Well, the question I have is whether or not if Mr. Brown has paid the $1,000 fine that was imposed by the Court, and I don't know what his explanation is for having been out of contact because I didn't tell the Court what happened?

Court: Well, I don't see any indication of anything. He hasn't done anything.

Appellant: I paid the $1,000.

CSO: I'm not sure about the fine. I haven't checked the file.

Court: I don't see anything in the record indicating. All right.

Counsel: Is there anything in the Court record that would—

Court: That's what I'm looking at.

Counsel: Oh.

Court: And I don't see anything. Okay.

Counsel: The $1,000 he paid was for bond, I think, Your Honor.

Court: Well, then that's a completely different matter.

Appellant: I put—I put paid money for my bond and paid the fine with.

Court: Nobody—I mean, I didn't forfeit it. I mean, nobody asked me for it, then.

Counsel: Well, our suggestion is that the Court consider doing that and terminating the probation as unsuccessful.

Court: I mean—I can only start to deal with one thing at a time.

Counsel: Of course, I'd note that he hasn't incurred any criminal violation since he was placed on probation by Your Honor.⁵

Court: Well, I believe that is what he is supposed to not do—

Counsel: Well, yes, I know. I understand that.

Court:—either. . . . He didn't pay the fine. He didn't pay the bond.

Unidentified speaker: Right, (indiscernible 09:44:37)

Court: Yes.

Unidentified Speaker: (Indiscernible 09:44:39)

Court: Okay, well he hasn't paid $50 Court cost, you know what I mean?

Unidentified Speaker: Okay.

Court: I mean, he literally did nothing. He hasn't done anything with regard to testing, treatment—hasn't paid for DBC [sic VVC].⁶ He was re-arrested?

CSO: Re-arrested, under the influence and the SAT⁷—there was a referral that was placed, but he failed to appear for the referral also, for the drug and after-care treatment.

Court: All right, and the recommendation is revocation? Government counsel?

Counsel:⁸ The government concurs and [sic] CSOSA's⁹ recommendation for revocation.

Court: And Mr. Brown, do you wish to speak, sir?

Appellant: Yes, Your Honor. The reason why I didn't have an address, your honor. I got evicted, and I became homeless.

Court: All right, Mr. Brown, your probation is revoked. The Court sentences you to 90 days and bond will be forfeited.

CSO: May I be excused, Your Honor?

Court: All right.

Appellant: Geez.

The total time of the hearing, as evidenced by clock references in the transcript, did not exceed three minutes.

III.

D.C.Code § 24-304 (2001)¹⁰ authorizes the trial court to revoke a convicted defendant's probation and to "require [the probationer] to serve the sentence or pay the fine originally imposed, or both,. . . or any lesser sentence." Applewhite v. United States, 614 A.2d 888, 891 (D.C. 1992). This court has interpreted § 24-304 as a broad grant of authority, permitting "the trial court great leeway and flexibility to tailor the decision on [revoking] probation to each probationer's needs." Carradine v. United States, 420 A.2d 1385, 1389 (D.C.1980) (quoting Jacobs v. United States, 399 A.2d 38, 41 (D.C.1979)). Thus, the decision to revoke probation is committed to the sound discretion of the trial court and typically involves a two step analysis: (1) a retrospective factual question whether the probationer has violated a condition of probation, and (2) a discretionary determination as to whether violation of a condition warrants revocation. Saunders v. United States, 508 A.2d 92, 95 (D.C.1986) (citing Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)); see Smith v. United States, 474 A.2d 1271, 1274 (D.C.1983). In making the latter, discretionary decision, the court "must balance the competing interests of the community in safety with the rehabilitative goals of probation." Applewhite, 614 A.2d at 891 (quoting Thompson v. United States, 444 A.2d 972, 974 (D.C. 1982)); see Resper v. United States, 527 A.2d 1257, 1260 (D.C.1987).

Supreme Court decisions have recognized that revocation of parole or probation "is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation); accord Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation revocation); Harris v. United States, 612 A.2d 198, 204 (D.C.1992) (probation revocation). As a result, probation revocation is governed by the "minimum requirements of due process." Young v. United States, 863 A.2d 804, 808 (D.C.2004) (quoting Morrissey, 408 U.S. at 489, 92 S.Ct. 2593). On the other hand, the due process clause of the Fourteenth Amendment (and, surely, the same clause in the Fifth Amendment applicable here) imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Bearden v. Georgia, 461 U.S. 660, 666, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

The Supreme Court has held that a probationer subject to a revocation proceeding is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition. Gagnon, 411 U.S. at 790, 93 S.Ct. 1756; Morrissey, 408 U.S. at 488, 92 S.Ct. 2593. To these ends, the Court has emphasized that all courts have "an interest in assuring that revocation proceedings are based on accurate findings of fact and, where appropriate, the informed exercise of discretion." Gagnon, 411 U.S. at 785, 93 S.Ct. 1756. Accordingly, a probationer "is entitled to [1] written notice of the claimed violation of his probation; [2] disclosure of the evidence against him; [3] an opportunity to be heard in person and to present witnesses...