Carradine v. United States, 79-100.

• Decision Date: 23 September 1980
• Docket Number: No. 79-100.,79-100.
• Citation: 420 A.2d 1385
• Parties: David CARRADINE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

420 A.2d 1385

David CARRADINE, Appellant, v. UNITED STATES, Appellee.

No. 79-100.

District of Columbia Court of Appeals.

Argued March 11, 1980.

Decided September 23, 1980.

William J. Mertens, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on the brief, for appellant.

Richard C. Bicki, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty. at the time the brief was filed, John A. Terry, Peter E. George, and Alexia Morrison, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, FERREN and PRYOR, Associate Judges.

FERREN, Associate Judge:

The trial court revoked David Carradine's probation after he voluntarily appeared in court, requesting more intensive psychotherapy than the outpatient care he was receiving as an express condition of probation. On appeal, Carradine asserts that the trial court's action deprived him of due process and, in any event, was an abuse of discretion, as there was no allegation or proof that he had violated the terms of his probation. We agree that Carradine was denied due process. We reverse the revocation order.¹

I.

On February 14, 1978, appellant David Carradine pleaded guilty to the charge of rape. D.C.Code 1973, § 22-2801. The trial court sentenced him to prison for a term of 15 years to life. The court suspended execution of the sentence, however, and placed Carradine on "strictly-supervised" probation for five years, subject to periodic court review and extension as warranted.

At the sentencing on May 23, 1978, the court announced specific conditions of probation, including:

Mr. Carradine [is to] remain in the Stepping Stones program and continue to participate in the Alcoholics Anonymous program; three, he has no choice in the matter, he must receive psychotherapy; fourthly, he must scrupulously comply with all probation regulations, including regular reporting; and, fifthly, there will be a review in open court of his probation every four months beginning September 12th, 1978. And I, of course, will receive regular reports from the Probation Office during that time.

One of the terms of the probation is that Mr. Carradine appear, beginning September 12, 1978, at nine o'clock in the morning in any court in which I may be sitting.²

The first court review of Carradine's compliance took place on September 12, 1978. On that occasion, the court learned that the Stepping Stones program had ceased operating sometime in August because of financial difficulties, and that Carradine, since that time, had been living with his former alcoholics counselor in Mt. Rainer, Maryland, as well as maintaining a room at Oxford House in northeast Washington. The court initially expressed concern over the instability of Carradine's living arrangements and lack of employment.³ At the end of the hearing, however, the court endorsed the joint recommendation of Carradine's probation officer and his therapist that the living arrangements, as of that time, continue. The court also urged Carradine to find paid employment in addition to the training programs and volunteer work with which he was then involved.

Two days after the hearing, appellant voluntarily reappeared in court before the sentencing judge to request assistance in obtaining more intensive psychotherapy and possible hospitalization.⁴ He acceded to the court's suggestion that he be committed forthwith to the Ugast Psychiatric Pavillion at D.C. General Hospital for an observation period.⁵ The court emphasized to Carradine, however, that it was not revoking probation at this time.⁶

The court set October 18, 1978, as the date for further hearing. Primarily because of delays in obtaining an evaluation of Carradine, the court continued his confinement at Ugast Pavillion for several months. Finally, on December 18 and 19, 1978, Carradine came before the court, once again, to request release. He asked permission to stay at a private half way house where a space was reserved for him. Although the probation officer at no time had requested revocation of Carradine's probation, and the prosecutor made no claim that Carradine had violated his probation, the prosecutor moved for revocation, contending that Carradine should be incarcerated for the protection of the public. Over defense objection,⁷ the court revoked Carradine's probation, giving the following reasons:

I'm convinced that alcoholism is not the real problem. The problem is one that has extended from Mr. Carradine's childhood and very frankly doesn't appear under the present situation to be improving.

I have reluctantly come to the conclusion at this time that Mr. Carradine is a walking time-bomb, because, I believe, that his problems are, while chronic in nature, more likely to manifest themselves accutely [sic] by spontaneous generation [of] which he may not be aware and of which-over which he has little control.

* * * * * *

. . . The Court is going to order the defendant be committed to the Federal Hospital at Springfield, Missouri or to the new Federal facility at Buckner [sic; Butner], North Carolina, with parole at the discretion of the Parole Board.

I feel that . . . Mr. Carradine needs intensive, twenty-four hour a day therapy, which cannot be provided on an outpatient basis . . . .

I will speak to the Bureau of Prisons today and ask that he be moved to a Federal Hospital immediately even if at this time it's a temporary location. He does not belong in jail but he does belong in a hospital surrounding.

The court then reduced Carradine's sentence to prison for a term of two years to life, with a recommendation that he be placed in a federal hospital.⁸

II.

Carradine contends that the trial court's revocation of his probation, in the absence of an allegation or proof that he had violated a condition of that probation, constituted a denial of his Fifth Amendment right to due process. He also asserts that the revocation, in any event, was an abuse of trial court discretion.

A. Since 1973, it has been clear that constitutional due process extends to probation revocation procedures. That was the year the Supreme Court decided Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), incorporating the analysis and adopting the procedural safeguards it had outlined a year earlier for minimum due process in parole revocation procedures. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Specifically, in Gagnon, supra, the Supreme Court acknowledged that the following analysis applies equally to probation and parole revocations:

"The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?" [Id. 411 U.S. at 784, 93 S.Ct. at 1760 (quoting Morrissey, supra at 479-80), 92 S.Ct. at 2599.]

Three weeks after Gagnon, supra, the Court decided Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973) (per curiam), reversing the trial court's revocation of petitioner's probation because the Court could perceive no violation of the conditions of that probation. The trial judge had ruled that petitioner's failure to report a traffic citation violated a condition requiring him to report "`[a]ll arrests . . . without delay.'" Id. at 430, 93 S.Ct. at 2200. The Supreme Court held that this ruling was "so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment." Id. at 432, 93 S.Ct. at 2200. In reaching this conclusion, the Court rejected the government's argument that the order revoking probation should be viewed as a determination by the trial judge that, under applicable state law, a traffic citation is the equivalent of an arrest, even though it is not accompanied by actual restraint.

[E]ven if it were clear that [the trial judge] had declared Missouri law to be that a traffic citation is the equivalent of an arrest, we would have to conclude that under the rationale of Bouie v. City of Columbia, 378 U.S. 347 [84 S.Ct. 1697, 12 L.Ed.2d 894] (1964), the unforeseeable application of that interpretation in the case before us deprived petitioner of due process. [Douglas, supra, 412 U.S. at 432, 93 S.Ct. at 2200 (emphasis added).]

In summary, the Supreme Court established in the Morrissey-Gagnon-Douglas trilogy that probation may not be revoked in the absence of a threshold determination that there has been a "violation" of the express conditions of probation, or of a condition so clearly implied that a probationer, in fairness, can be said to have notice of it.⁹

The decisions of this court under D.C. Code 1973, § 24-104¹⁰ implicitly have acknowledged this "foreseeable violation" principle.¹¹ Moreover, courts in other jurisdictions have held that in the absence of an express or clearly implied violation, a revocation of probation would either deny due process¹² or reflect an abuse of trial court discretion.¹³ Still other courts, without expressly citing due process or abuse of discretion, have recognized that revocation is improper unless a probationer has violated the law or the clearly understood terms of probation.¹⁴

B. In the present case, the government alleges that Carradine violated his probation, in effect, by failing to meet an implied condition: that he "effectively respond to his present living arrangement and outpatient counseling" and, as a result, "meet the rehabilitative goals of his probation." The government consequently argues that "where psychiatric treatment is a condition of probation," a failure to get better, rather than an overt violation of the probation order, will justify...