Isaac v. State
| Decision Date | 23 December 1992 |
| Docket Number | No. 85S02-9212-CR-1025,85S02-9212-CR-1025 |
| Citation | 605 N.E.2d 144 |
| Parties | Lonnie ISAAC, Appellant (Defendant Below), v. STATE of Indiana and Wabash County Probation Department, Dallas Duggan, in his capacity as Chief Probation Officer, Appellees (Plaintiffs Below). |
| Court | Indiana Supreme Court |
Alan J. Zimmerman, Wabash, for appellant.
Mary Nold Larimore, Ice Miller Donadio & Ryan, Indianapolis, for appellees.
Appellant Lonnie Isaac's probation officer reported that he had failed to keep the scheduled appointments which were a condition of his probation. A petition to revoke probation was initiated, but the prosecutor moved to dismiss it and declined to present evidence. Isaac contends the trial court erred by denying the motion to dismiss and proceeding to question the probation officer. We grant transfer and hold otherwise.
Lonnie Isaac was found guilty of possession of marijuana and sentenced to two years in the Wabash County Jail. On April 18, 1989, he was placed on probation for a period to last until October 18, 1990. On September 6, 1989, the prosecuting attorney filed a petition for revocation of probation. At the revocation hearing on September 28, 1989, Isaac admitted violating his probation by using controlled substances. He was continued on probation and ordered to serve four consecutive weekends at the Wabash County Jail.
In March 1990, the prosecutor filed two more petitions to revoke Isaac's probation. The first petition alleged that Isaac violated his probation by using a controlled substance. The other petition, obviously initiated by Isaac's probation officer, alleged that Isaac violated his probation by failing to appear for regularly scheduled meetings with his probation officer. What occurred at the hearing on these two petitions is the subject of this litigation.
The court ordered a hearing on the petitions for June 29, 1990. The prosecuting attorney appeared, and Isaac appeared in person and by counsel. The prosecutor informed the judge that the parties had agreed that Isaac would admit the alleged probation violations in return for a one-year extension of his probation. The court refused to accept the agreement and recommended that the parties confer to see if they could come to a more satisfactory arrangement. When the hearing resumed a short time later, the prosecutor informed the court that the parties had not come to an alternative agreement, and he moved to dismiss both petitions. The court granted the motion to dismiss the first petition (controlled substances violation) because the prosecutor stated he did not have the witnesses present who were necessary to the admission of the results of Isaac's drug test. The court denied the motion to dismiss the second petition (failure to report to the probation officer) because Isaac's probation officer was present at the hearing and could testify about whether Isaac had appeared for his meetings.
The prosecutor then declined to present any evidence on the revocation petition, so the judge called the probation officer, Wendell Wilson, to the stand and asked Wilson whether Isaac had failed to report. Isaac's attorney then conducted cross-examination. Based on Wilson's testimony, the court found that Isaac failed to report for six consecutive appointments with his probation officer in violation of the terms of his probation.
The court stayed entry of its finding that probation was violated so the parties could brief on any procedural issues they might wish to raise. After considering these briefs the court held that its actions during the hearing were lawful. On March 7, 1991, it conducted a further hearing on an appropriate sanction for the violation. The court ordered that Isaac serve an additional ninety days executed time on the sentence previously entered and recommended work release. It granted a stay of execution pending Isaac's appeal.
On appeal, Isaac contended that the trial court erred in refusing to dismiss the petition on the prosecutor's motion. He also contended that by calling and questioning the probation officer, the court violated his rights under the equal protection and due process clauses. The Court of Appeals held that the trial court was authorized to refuse to dismiss and upheld the refusal. Isaac v. State (1992), Ind.App., 590 N.E.2d 606. We grant transfer and adopt the Court of Appeals opinion on this issue. Ind. Appellate Rule 11(B)(3).
The Court of Appeals also held that the trial court violated the separation of functions section of the Indiana Constitution by calling and questioning the probation officer. It therefore reversed. We now turn to Isaac's contentions concerning this procedure.
There is no right to probation, and the decision whether to grant probation is a matter within the discretion of the trial court. Farmer v. State (1973), 257 Ind. 511, 275 N.E.2d 783. The court determines the conditions of probation and may revoke probation if these conditions are violated. Ind. Code Ann. Secs. 35-38-2-1 to -3 (West 1986). As part of its supervisory duties, the court appoints probation officers who are directly responsible to the court and subject to its orders. Ind. Code Ann. Sec. 11-13-1-1 (West 1982). One of the duties of probation officers is to notify the court when a violation of a condition of probation occurs. Ind. Code Ann. Sec. 11-13-1-3(7) (West 1982).
Probation revocation is governed by Ind. Code Ann. Sec. 35-38-2-3 (West 1986). The statute does not specify who is to file a petition for probation revocation but common practice is that it may be filed by either the probation officer or the prosecuting attorney. See, e.g., Malone v. State (1991), Ind.App., 571 N.E.2d 329 (); Dalton v. State (1990), Ind.App., 560 N.E.2d 558 (); Indiana Judicial Center, Criminal Benchbook for Indiana Judges, Form 20.03 (2nd Ed.1984) (petition for probation revocation form to be signed by probation officer). When a petition to revoke is filed, the court must hold a hearing on the alleged probation violation. Ind. Code Ann. Sec. 35-38-2-3(c) (West 1986). 1 A revocation hearing is in the nature of a civil action, and the alleged violation need be proven only by a preponderance of the evidence. Henderson v. State (1989), Ind., 544 N.E.2d 507.
The prosecuting attorney is a constitutional officer and an officer of the court. Ind. Const. art. 7, Sec. 16; State ex rel. Latham v. Spencer Circuit Court (1963), 244 Ind. 552, 194 N.E.2d 606. A prosecutor's duties are prescribed in general terms by statute. Id.; Ind. Code Ann. Sec. 33-14-1-4 (West 1982). Although prosecuting attorneys are primarily concerned with prosecuting criminal matters, they also perform duties of a civil nature such as assisting the court by presenting evidence at probation revocation hearings. Cf. Latham, 244 Ind. at 556, 194 N.E.2d at 607. We perceive that refusals to perform this duty are rare. The question posed in this case is what options are available to the court when such a refusal does occur.
One possible option open to a judge when the prosecutor refuses to present evidence on a revocation petition is to appoint a special prosecutor. The court has a duty to relieve a prosecutor where he is disqualified by reason of prejudice or hostility to the state's interest. Hendricks v. State (1964), 245 Ind. 43, 196 N.E.2d 66. This does not mean that a prosecutor is subject to an arbitrary order of disqualification at the whim of a trial judge. King v. State (1979), Ind.App., 397 N.E.2d 1260. If the regular prosecutor objects to his disqualification, the trial court must afford the regular prosecutor an opportunity to be heard before making a determination of disqualification. Id. at 1266.
Because probation is subject to the court's supervision, a petition to revoke probation may not be dismissed without the court's permission. 2 If a prosecutor refuses to proceed with the evidence after his motion to dismiss is denied, the court may relieve him. The prosecutor would be disqualified by reason of his failure to act. The court may then appoint a special prosecutor to go forward with the evidence of the alleged violation. Cf. Dukes v. State (1858), 11 Ind. 557, 563 ().
Because of the costs and delays involved in appointing a special prosecutor, however, this cannot be the only option available to a judge faced with a potential probation violator and no prosecutor to present evidence of the violation. The judge faced with this problem in the case at bar chose to question the probation officer himself. Isaac claims that by calling and questioning the probation officer, the judge abandoned his judicial role and took on the role of prosecutor, thereby violating his due process right to a hearing before a neutral and detached hearing officer.
A defendant at a probation revocation hearing is not endowed with all the same rights he possessed prior to his conviction. Henderson, 544 N.E.2d at 512. Formal procedural and evidentiary rules required at criminal trials are not required at probation revocation hearings. Gagnon v. Scarpelli, 411 U.S. 778, 789, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). There are certain due process rights, of course, which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached hearing body. Gagnon, 411 U.S. at 782, 93 S.Ct. at 1760; Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). Indiana Code Sec. 35-38-2-3(d) (West 1986) 3 also ensures the probationer...
To continue reading
Request your trial
-
Smith v. State
...the credibility of the defendant.'"). Isaac v. State, 590 N.E.2d 606 (Ind.Ct.App.), opinion adopted in part, vacated in part, 605 N.E.2d 144 (Ind.1992), cert. denied, 508 U.S. 922, 113 S.Ct. 2373, 124 L.Ed.2d 278 (1993) ("When a trial judge undertakes to impeach or discredit, he or she aban......
-
Whatley v. State
...the credibility of the defendant.” ’). Isaac v. State, 590 N.E.2d 606 (Ind.Ct.App.), opinion adopted in part, vacated in part, 605 N.E.2d 144 (Ind.1992), cert. denied, 508 U.S. 922, 113 S.Ct. 2373, 124 L.Ed.2d 278 (1993) (‘When a trial judge undertakes to impeach or discredit, he or she aba......
-
Williams v. State
...in order to promote clarity or dispel obscurity, the trial judge may not assume an adversarial role in the proceedings. Isaac v. State, 605 N.E.2d 144, 148 (Ind.1992); Fox v. State, 497 N.E.2d 221, 227 (Ind.1986). See also Brannum v. State, 267 Ind. 51, 57, 366 N.E.2d 1180, 1182 (1977). In ......
-
Cox v. State
...U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Isaac v. State, 605 N.E.2d 144 (Ind.1992). But "[t]he Due Process Clause of the Fourteenth Amendment [does] impose[ ] procedural and substantive limits on the revocation ......