Minchew v. State, 83-255

• Decision Date: 06 August 1984
• Docket Number: No. 83-255,83-255
• Citation: 685 P.2d 30
• Parties: Wallace Edward MINCHEW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 30

685 P.2d 30

Wallace Edward MINCHEW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-255.

Supreme Court of Wyoming.

Aug. 6, 1984.

Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Kevin Martin, Legal Intern, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROONEY, Chief Justice.

Appellant words the single issue on appeal as follows:

"Whether the trial court abused its discretion by failing to consider alternatives to probation revocation."

We affirm inasmuch as we not only fail to find an abuse of discretion but we find a definite consideration of alternatives to revocation of probation.

After pleading guilty to a charge of unlawful delivery of a Schedule I controlled substance (marijuana), appellant was sentenced to two to four years in the penitentiary, with the execution of the sentence suspended and with appellant being placed on probation for a period of four years. Less than ten months later, he pleaded guilty in municipal court to violations of ordinances defining offenses of malicious destruction of property and engaging in disorderly conduct under the public intoxication statutes. He was sentenced by the municipal court to serve eighteen days in the county jail and to make restitution for the damage caused.

The county and prosecuting attorney filed a motion in the district court for revocation of probation on the grounds that the acts for which appellant pleaded guilty in municipal court were violations of the conditions of probation. After a hearing in the district court, appellant's probation was revoked with direction that the previously imposed sentence be executed.

A probation revocation hearing is not a trial on a new criminal charge. It is simply an extension of the sentencing procedure resulting from conviction of the basic charge, coupled with the requirement that the probationer be afforded due process of law before being deprived of the conditional right to liberty granted by probation.

"We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey v. Brewer, 408 U.S. 471, 488-489, 92 S.Ct. 2593 2604, 33 L.Ed.2d 484 (1972) re paroles with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) extending the same to probationers.

At the risk of being unduly repetitious, we repeat that said in Ketcham v. State, Wyo., 618 P.2d 1356, 1359-1360 (1980):

" * * * [I]t is appropriate to review the law as it relates to probation revocation.

" 'The imposition of probation and, therefore, the revocation, lie in the sound discretion of the district court.'

" ' " * * * All that is essential is the court's conscientious judgment after hearing the facts that the violation has occurred. This should not be an arbitrary action and should include a consideration of both the reasons underlying the original imposition of conditions, the violation of these, and the reasons leading to such violation. * * * " State v. Reisch, Wyo., 491 P.2d 1254, 1255 (1971). See Sanchez v. State, Wyo., 592 P.2d 1130 (1979).' Buck v. State, Wyo., 603 P.2d 878, 879 (1979).

" 'The sufficiency of the evidence to sustain an order revoking probation is a matter within the sound discretion of the trial court and its action will be reversed only upon a clear showing of abuse of discretion. The court cannot act arbitrarily, however, or according to whim or caprice.' 21 Am.Jur.2d Criminal Law § 568, p. 536 (1965).

"The evidence need not establish the violation beyond a reasonable doubt. 24 C.J.S. Criminal Law § 1572(4), p. 505 (1961); State v. Fortier, 20 Or.App. 613, 533 P.2d 187, 188 (1975).

" A probationer or parolee is not entitled to the 'full panoply of rights' that attend a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); United States v. Strada, 8 Cir.1974, 503 F.2d 1081.

" 'In such final hearing, the usual rules of evidence need not be applied, United States v. Cates, C.A.4th (1968), 402 F.2d 473, 474, and it is not required that the evidence have shown beyond a reasonable doubt that Mr. Mills violated the conditions of his probation, Manning v. United States, C.A.5th (1947), 161 F.2d 827, 829, certiorari denied (1947), 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374. If the evidence satisfies the presiding judge that the conduct of the probationer has not measured-up to the terms and conditions of his probation, in its discretion, the Court will revoke the probation. See Burns v. United States (1932), 287 U.S. 216, 221, 53 S.Ct. 154 , 77 L.Ed. 266, 269. * * * ' United States v. Mills, E.D.Tenn., 444 F.Supp. 26, 27 (1977).

"Revocation of probation because of a violation of law is not precluded although the probationer is acquitted in a criminal proceeding predicated on such violation. Johnson v. State, 142 Ga.App. 124, 235 S.E.2d 550 (1977); Jones v. State, 142 Ga.App. 274, 235 S.E.2d 681 (1977); Bernal-Zazueta v. United States, 9 Cir.1955, 225 F.2d 64. A few jurisdictions have taken a contrary position as to this point. See Annotation, Probation Revocation--Following Acquittal, 76 A.L.R.3d 564 (1977). Probation may be revoked on the basis of conduct which falls short of criminal conduct. United States v. Chambers, 3 Cir.1970, 429 F.2d 410; State v. Reisch, supra.

"In general, it can be said that the determination of whether or not a probationer has violated the terms and conditions of his probation is within the sound discretion of the court and is not subject to reversal on appeal unless the discretion is abused. State v. Reisch, supra.

" 'A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * ' Martinez v State, Wyo., 611 P.2d 831, 838 (1980)." (Emphasis added.)

Turning then to the procedure and facts relative to this matter, appellant was advised at the time he was placed on probation of the consequences of his conviction....