Isaac v. State

• Decision Date: 20 April 1992
• Docket Number: No. 85A02-9106-CR-00248,85A02-9106-CR-00248
• Parties: Lonnie ISAAC, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 606

590 N.E.2d 606

Lonnie ISAAC, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 85A02-9106-CR-00248.

Court of Appeals of Indiana Second District.

April 20, 1992.

Alan J. Zimmerman, Wabash, for appellant-defendant.

SULLIVAN, Judge.

Lonnie Isaac (Isaac) appeals from the trial court's revocation of probation. ¹ More accurately, however, Isaac challenges the refusal of the court to permit the prosecutor to dismiss the revocation petition and asserts that he was denied due process of law because, subsequent to its denial of the State's motion, the trial court improperly assumed the role of prosecutor.

We reverse.

Isaac was found guilty of possession of marijuana and sentenced to two years in the Wabash County Jail. On April 18, 1989, the court granted Isaac's request to serve the remainder of his sentence on probation, said probationary period to last until October 18, 1990. On September 6, 1989, the State filed a petition for revocation of probation based upon Isaac's continued use of marijuana. Isaac admitted the charges contained in the petition at a September 28, 1989 revocation hearing, whereupon the court ordered Isaac to spend four additional weekends in the county jail. On March 2, 1990, the State filed another petition for revocation of probation, again based upon continued use of marijuana. On March 28, 1990, the State filed yet another petition for revocation of probation, this time based upon Isaac's failure to appear at regularly scheduled meetings with his probation officer. On June 29, 1990, a hearing was conducted pursuant to the State's two pending petitions for revocation.

At the hearing, the Prosecutor informed the judge that the State and Isaac had agreed that Isaac would admit the violations alleged in the petitions and that the State would recommend only a one-year extension of probation. The State's leniency was a result of Isaac having tested negative for marijuana use several times, having married, and securing employment and joining a labor union--all since the March 28, 1990 petition for revocation was filed. However, the judge refused to accept the arrangement, and instructed the Prosecutor and Isaac to confer outside of the courtroom in order to arrange a more acceptable alternative. After conferring briefly, the State reported that the two sides could not agree upon an alternative, and consequently the State moved to dismiss both petitions.

The court granted the State's motion as to the March 2 petition (marijuana use), but denied the motion as to the March 28 petition (failure to attend meetings with the probation officer). The Prosecutor informed the court that the State had no evidence to present, whereupon the judge expressed his intention to call a witness on behalf of the court, a procedure to which Isaac's counsel objected. The court then called Wendell Wilson (Wilson), the probation officer whose appointments Isaac allegedly failed to keep. The court questioned Wilson concerning the violations alleged in the petition.

Isaac argues that the court's actions in the June 29 hearing violated his due process rights. ²

I. Statutory Dismissal by Prosecutor

Isaac contends that the judge's actions were contrary to I.C. 35-34-1-13 (Burns Code Ed.1985), which states:

"(a) Upon motion of the prosecuting attorney, the court shall order the dismissal of the indictment or information. The motion may be made at any time before sentencing and may be made on the record or in writing. The motion shall state the reason for dismissal."

Isaac correctly notes that the statute uses the mandatory "shall," indicating that the court may not deny a prosecutor's motion to dismiss. Indeed, our courts have consistently held that courts have no discretion to deny a prosecutor's motion to dismiss an indictment or information. See, e.g., Burdine v. State (1987) Ind., 515 N.E.2d 1085; Maxey v. State (1976) 265 Ind. 244, 353 N.E.2d 457. However, no Indiana court has decided whether the provision is applicable to a motion to dismiss revocation of probation petitions.

In the context of the issue now before us, the filing of indictments and informations differs most notably from the filing of a petition to revoke probation because of the nature of the court's participation in the respective proceedings. The trial court's task as trier of fact and arbiter of the law in a criminal prosecution does not begin until criminal charges are filed. Its role is limited, as will be hereinafter discussed, to deciding matters properly placed before it. In that sense its role is passive. Its participation comes generally in the form of reaction (i.e., to motions, requests, evidence and the like, as well as to ensure observance of applicable rules, deadlines and procedures), as opposed to action generated upon its own volition.

Probation, on the other hand, is pursuant to court discretion and supervision from the outset. I.C. 35-38-2-2.3 (Burns Code Ed.Supp.1991). Its involvement ranges from the granting of probation and setting of terms to making a determination whether probation has been violated and what, if any, sanctions to impose for such violation. Seemingly, then, a trial court's role in revocation proceedings is appropriately more active than its role in the underlying criminal proceedings. Among other reasons, the court is involved in a supervisory capacity before a petition to revoke is ever filed. The two situations are not sufficiently similar so as to be interchangeable for purposes of construing the statute. We therefore decline to extend the mandate of I.C. 35-34-1-13 to include motions to dismiss revocation of probation proceedings. Ind.Code 35-34-1-13 clearly includes only indictments and informations within its ambit, and we must assume that a more expansive application of its prohibition, if intended, would have been made manifest in its language. ³ To be sure, if the court refuses to accept the State's Motion to Dismiss a revocation petition, it is very likely that the court will subsequently inject itself into the proceedings so as to run afoul of constitutional principles hereinafter discussed. However, in such a case, as here, the error requiring reversal occurs not when the trial court fails to grant the State's motion, but rather in the Court's subsequent actions.

II. Separation of Functions

Isaac argues that the trial court committed fundamental error when it called Wilson as a witness and conducted the examination. An error is fundamental if it is blatant, and if it would deny the petitioner fundamental due process if left unrectified. Bailey v. State (1985) Ind., 472 N.E.2d 1260, 1263.

It is axiomatic that in Indiana due process includes the right to a fair trial by an impartial judge and jury. Kennedy v. State (1972) 258 Ind. 211, 280 N.E.2d 611, 615. Although a revocation proceeding is not a trial in the strictest sense, it is, like a trial, a hearing at which evidence is presented by which the State seeks to prove facts which may result in the deprivation of personal liberty. Accordingly, the United States Supreme Court has held that in revocation of probation proceedings, although a defendant is not accorded the full panoply of rights due in a criminal prosecution, certain due process rights nonetheless inhere. Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. Included in these rights is the right to a neutral and detached hearing body. Id., 411 U.S. at 786, 93 S.Ct. at 1762. The question posed in the instant appeal is whether the trial court's actions in the hearing were inconsistent with its duty to remain neutral and detached.

The Indiana Constitution states:

"The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." Ind.Const. art. 3, Sec. 1.

Therefore, the judiciary may not exercise any function constitutionally assigned to either of the legislative or executive branches. State ex rel. Indiana State Board of Finance v. Marion County Superior Court, Civil Division (1979) 272 Ind. 47, 396 N.E.2d 340. Although probation is administered under court supervision, it does not necessarily follow that every facet of the probation process is conducted under the auspices of the judiciary. Because Indiana courts have not addressed this particular subject, we look to the law of other states for assistance.

In People v. Williams (1990) 186 Mich.App. 606, 465 N.W.2d 376, the defendant committed a crime while on probation. The prosecutor filed a petition seeking to revoke probation. At the revocation hearing, the court inquired whether the prosecutor would decline to file criminal charges for the activity which served as the basis for the revocation petition. ⁴ Apparently based upon the prosecutor's negative response, the trial court upon its own motion dismissed the petition. In reversing the trial court's dismissal, the appellate court discussed the separate functions of the judicial and executive branches.

The court noted that the trial court's authority over the prosecutor's office in the discharge of its duties is limited to three areas: 1) the trial court may determine whether probable cause exists relative to charges brought against defendants, and therefore decide whether a defendant is to be bound over for trial; 2) similarly, the trial court may review the decision to bind a defendant over for trial for abuse of discretion; and 3) sitting as fact-finder, the trial court may decide whether the prosecutor has met the applicable burden of proof in establishing a defendant's guilt. Williams, supra, 465 N.W.2d at 379. The court stated that the trial court does not have authority to review the prosecuting attorney's exercises of discretion outside of the aforementioned areas,...