Free v. State

• Decision Date: 21 December 1993
• Docket Number: No. 20300,20300
• Citation: 874 P.2d 571,125 Idaho 760
• Parties: James V. FREE, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 571

874 P.2d 571

125 Idaho 760

James V. FREE, Jr., Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 20300.

Court of Appeals of Idaho.

Dec. 21, 1993.

Petition for Review Denied March 10, 1994.

Alan E. Trimming, Ada County Public Defender; Steven A. Botimer, Deputy Public Defender, Boise, for petitioner-appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

In this appeal from the district court order denying James V. Free, Jr.'s application for post-conviction relief, we are asked to determine whether the jurisdictional review hearing procedures utilized at the North Idaho Correctional Institution ("NICI") deprived Free of due process. For the reasons stated below, we conclude that Free was denied due process. Therefore, we vacate the order of the district court and remand this case for further proceedings.

Free was sentenced in 1988 on a conviction of rape, I.C. § 18-6101, to a term of imprisonment of not less than three years nor more than ten years. The district court retained jurisdiction pursuant to I.C. § 19-2601(4) for an initial period of 120 days, which was later extended to 180 days, and Free was remanded to the custody of the Board of Correction and assigned to NICI. Near the conclusion of the 180-day period, the Jurisdictional Review Committee at NICI conducted a hearing on Free's suitability for probation. Following the hearing, the committee sent a report to the sentencing judge recommending against probation for Free. The court then relinquished jurisdiction, thereby requiring Free to serve the remainder of his sentence.

On October 18, 1992, Free filed an application for post-conviction relief pursuant to I.C. § 19-4901 alleging, inter alia, that his due process rights were violated by the procedures of the NICI Jurisdictional Review Committee. A trial was conducted at which the district court heard evidence on the alleged due process violations. The court thereafter denied Free's application for relief.

The purpose of the retained jurisdiction procedure authorized by I.C. § 19-2601(4) is to provide a period for evaluation of the offender's potential for rehabilitation and suitability for probation. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). With the benefit of a report from the correctional facility, the sentencing court may modify the sentence or suspend the sentence and place the defendant on probation. Wolfe, 99 Idaho at 385, 582 P.2d at 731; McDonald v. State, 124 Idaho 103, 105, 856 P.2d 893, 895 (Ct.App.1992).

In Wolfe, our Supreme Court held that an inmate possesses a liberty interest in the proceedings by which correctional facility staff develop their report to the sentencing court. This liberty interest entitles the inmate to minimal due process safeguards.

Before a report is sent back to the sentencing judge (pursuant to the retained jurisdiction of I.C. § 19-2601), certain procedures must be followed. The prisoner must be given adequate notice before the hearing, including notice of the substance of all matters that will be considered. The prisoner must be given an opportunity to explain or rebut any testimony or recommendations. In addition, the prisoner must be free to call witnesses in his behalf from among the employees and other prisoners at NICI. This information should be included in the report sent back to the sentencing judge.

Free argues that during the jurisdictional review proceedings at NICI his due process rights were violated in the following respects: (1) He was not allowed to meet with the jurisdictional review committee until after it had reached a tentative decision, at which time he was merely given an after-the-fact opportunity to rebut the decision that had already been made; (2) he was not provided a complete or coherent statement of the reasons for the committee's preliminary decision to recommend that jurisdiction be relinquished; (3) he was not allowed to read the staff evaluations considered by the committee; (4) he was not allowed to see the psychological evaluation considered by the committee; (5) he was deprived of the ability to meet with witnesses who could testify on his behalf and was denied the right to call witnesses at the rebuttal hearing; (6) he was denied writing materials by which to prepare a written rebuttal statement or prepare notes for an oral rebuttal. We will address each of these contentions in turn.

I. STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983). Like a civil plaintiff, the petitioner must prove by a preponderance of evidence the allegations upon which the request for relief is based. Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). Where the district court conducts a hearing and enters findings of fact and conclusions of law, we will disturb the findings of fact only if they are clearly erroneous, but we freely review the conclusions of law drawn by the district court from those facts. Gee v. State, 117 Idaho 107, 110, 785 P.2d 671, 674 (Ct.App.1990); Reeves v. State, 105 Idaho 844, 845, 673 P.2d 444, 445 (Ct.App.1983).

II. DISCUSSION

1. Lack of opportunity to meet with the Jurisdictional Review Committee prior to its tentative recommendation.

Free first alleges that he was not allowed to be present at the initial meeting of the NICI Jurisdictional Review Committee at which the committee tentatively decided to recommend that jurisdiction be relinquished. This, he alleges, denied him an opportunity for a fair proceeding because the committee had already reached a decision before hearing from Free.

We recently addressed this same issue in a similar case, Bradford v. State, 124 Idaho 788, 864 P.2d 626 (Ct.App.1993), where we stated:

In Wolfe the Supreme Court held that inmates are entitled to comment upon or rebut the information relied upon, or the recommendation made by, the committee. However, Wolfe does not mandate that the inmate be present during the entire process by which a decision is reached by the committee. Although the initial meeting of the NICI committee is often referred to as a "hearing," it is in fact merely a conference where the committee reviews the inmate's record, considers staff evaluations, and develops a tentative recommendation as to whether the inmate should be placed on probation. An inmate does not have a right to be present during this meeting. So long as the inmate is provided the information upon which the committee bases its tentative decision, the committee does not rely upon secret information and the inmate is thereafter given an opportunity to present rebuttal evidence to the committee, the due process standards mandated by Wolfe have been met. [Citations omitted.]

That analysis is applicable in the instant case. Although Free was not allowed to be present at the initial conference of the Jurisdictional Review Committee, he was informed of the committee's preliminary conclusion and afforded a hearing at which he could comment upon or rebut the recommendation. Accordingly, we find no error in the district court's denial of Free's application on this ground.

2. Lack of a complete statement of the reasons for the committee's preliminary decision.

Next, Free contends that he was given an "incomplete, incoherent, misleading" statement of the committee's reasons for its tentative recommendation. The district court found that Free was given adequate notice of the substance of the matters to be considered. This finding is supported by substantial, competent evidence.

At the initial meeting on February 27, 1989 between Free and the committee chairman, Free was given a form which advised him of the matters to be discussed at his rebuttal hearing the following day. A handwritten portion of the form advised Free that the following matters would be considered at the hearing:

Staff evaluations in regard to institutional [sic] were positive although noted a "poor me" attitude and another was skeptical concerning reoffense. The psychological evaluation was very negative regarding amenability to treatment. Based on the directive that sex offenders cannot be released on probation the [sic] recommends that the court drop jurisdiction.

Free asserts that the obvious omission of certain words in this handwritten form made the statement incomprehensible and prejudiced his ability to prepare a rebuttal. We disagree. While certainly not a model of clarity, the form made Free aware of the basic substance of the matters that were of concern to the committee and would be considered at his rebuttal hearing. As discussed below, Free was also allowed to read the staff evaluations (though not the psychological evaluation) referenced in the report and thereby learn specifically how those evaluations raised concerns about his attitude and his potential for reoffense. Based upon that information, Free could formulate comments and a rebuttal to the basis for the committee's decision. Therefore, we agree with the district court's conclusion that there was no denial of due process stemming from the omissions in the handwritten explanation of the matters to be considered at the hearing.

3. Alleged denial of access to staff evaluations.

Free further asserts that he was not allowed to review the staff evaluations considered by the committee and, therefore, had no opportunity to rebut them. The district court found to the contrary, and this finding is supported by substantial evidence. Terry Turner, chairman of the Jurisdictional Review Committee, testified that in addition to being given the form referenced above Free was also allowed to read the actual staff evaluations. Free denied that he was provided any of the staff evaluations. The evidence on this issue was in dispute, and it was the district court's prerogative, as the finder of fact, to attribute greater credibility to...