Resper v. United States, 86-121.

• Decision Date: 10 June 1987
• Docket Number: No. 86-121.,No. 86-384.,86-121.,86-384.
• Parties: Diane N. RESPER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

527 A.2d 1257

Diane N. RESPER, Appellant, v. UNITED STATES, Appellee.

No. 86-121.

No. 86-384.

District of Columbia Court of Appeals.

Submitted May 4, 1987.

Decided June 10, 1987.

David Mehler, Washington, D.C., was on brief, for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Mary Ellen Abrecht, Thomas F. McCarthy, and Jody Goodman, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEBEKER, MACK, and FERREN, Associate Judges.

FERREN, Associate Judge:

Diane Reaper appeals the revocation of her probation. Following Resper's conviction for distribution of heroin, D.C.Code § 33-541(a)(2) (1986 Supp.), and a misdemeanor violation of the District of Columbia bail law, id. § 23-1327(a)(2) (1981), the trial court sentenced her to consecutive prison terms of five to fifteen years and one year, respectively. The court, however, suspended execution of these sentences on the condition that Reaper enter and complete a drug rehabilitation program administered by the Comprehensive Alcohol and Drug Abuse Center (CADAC). Five months later, the court revoked Resper's probation and reimposed the prison sentences. We conclude that in doing so the trial court erred, because the record does not support an inference that Reaper violated any requirement imposed by the court as a condition of her probation. Accordingly, we reverse and remand for reinstatement of probation.

I

At the sentencing hearing, the trial court acceded to Reaper's request for permission to attend the CADAC program. The court made clear, however, that it had considerable reservations about Reaper's willingness and ability to reform her drug habit. The trial judge told Resper that he was "less than impressed [with] people who, when suddenly faced with fifteen years in jail, are now very eager to start drug treatment." He then said,

I am going to place you on probation on the condition that you enter and complete the CADAC program, which is the six-month residential program and fourteen-month follow-up program; and, thereafter, you continue on probation and drug treatment probation for another two years. . . .

If you stay off drugs, you don't sell them any more, you don't use them any more, it will be over. But if you have just been spinning me and have decided that now is a good time to tell the judge I am ready to reform so I don't have to go to jail, well, then I am sure that when you are brought back because you didn't complete the program or because you are once again using drugs, then, needless to say, you will have violated the conditions of probation and you will serve the full sentence.

The judge ordered that Resper remain incarcerated until a place became available for her at CADAC: "I am going to hold her in confinement here on the condition that she not be released until she is admitted to the CADAC program. At that point she will be directed to the program and complete it."

Contrary to the trial court's order, the jail mistakenly released Reaper on May 22, 1985, although CADAC had not informed the jail a place was available for her. Thus, Resper was not turned over to a CADAC official; she simply went home. Soon afterward, a space did open at CADAC. On May 30, Ernest Ricks, a CADAC employee, went to the jail to obtain Resper's release and take her to begin the program. Ricks learned then that Reaper had left the jail. In June 1985, the trial judge issued a bench warrant for Reaper's arrest and reincarceration. In July 1985, before the warrant had been executed, Reaper herself called Ricks, whom she had met during a pre-sentence interview to determine whether CADAC would be willing to take her. As Ricks recalled later at the revocation hearing, "I suggested that she come over and see me Monday." Resper said she would but did not appear. She called Ricks again four days later "inquiring about a bed" at CADAC. Ricks testified that when he asked her why she had not kept the first appointment, Resper replied that ulcers on her leg had prevented her. Ricks testified that he "advised her to come see me and to bring probation papers with her," which Resper said she would do. But, according to Ricks, Resper did not come; nor did she call Ricks again. Ricks did not testify he had told Resper that a space was available for her at CADAC, or that failure to keep either appointment would jeopardize or foreclose her entering the program, or that failure to enter the program by a certain date would end her opportunity to do so.

In September 1985, Resper was arrested on the bench warrant and returned to custody. The probation revocation hearing took place in October. At the hearing, Ricks recounted his telephone conversations with Reaper. When the court asked whether he could have placed Resper in the CADAC program if she had kept her appointments with him in July, Ricks responded, "I believe I would have." Mary Cross, a probation officer assigned responsibility for Reaper's case, testified that Reaper's file showed no record that she had contacted any probation officer during her interval of freedom between May and September 1985. The court concluded that Resper was

placed on probation on the condition that she enter the [CADAC] program. She was released from jail, and she made no effort to enter the program. That there was an administrative oversight and she was not handed over to anyone would be something the Court would overlook if the defendant had gone to the [CADAC] program and made arrangements to enter; but the truth of the matter is — and I so find — that this defendant never made any effort to go to the program and was invited to come over specifically so that arrangements could be made and she in fact did not appear and she appears now only when she had been rearrested on this Court's warrant for failure to comply with the conditions of probation, and the Court places no credence in her desire to enter into the program.

The court observed that a drug rehabilitation program can succeed only if the patient is willing to enter and complete it. The court stated, "I see no reason to place this lady in a program when it is quite plain she's not interested, except under pain of not [sic] going to jail."

II.

Resper first contends the trial court lacked jurisdiction to revoke her probation because she had not begun her probationary term at the time of the actions giving rise to the revocation. This court has held that:

"If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation . . . the court could revoke or change the order of probation."

Wright v. United States, 315 A.2d 839, 841 (D.C. 1974) (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)). Thus, the court has jurisdiction from the date of sentencing to revoke probation when a probationer commits a crime even before probation has begun. We hold the same principle applies to violations of any other condition of probation.

Resper argues, however, that her probation could not properly be revoked before her probationary term actually began, because she could not violate a condition of probation without being on probation. Even if we assume Resper was not on probation between May and September, 1985, we disagree with her premise here. Some probationary terms, such as the prohibition on committing further crimes, can be violated even before the probation begins; others, such as reporting to a probation officer, cannot. The question, then, is not whether probation has begun but whether the probationer did, in fact, violate a condition of her probation. If she did, the trial court is perfectly within its power to revoke probation if it concludes that doing so would serve "the ends of justice and the best interest of the public, or the defendant." Id.

III.

Resper next argues the trial court erred because she did not violate any condition of her probation. Constitutional due process requires that, before revoking probation, the court must first determine that the probationer "`has in fact acted in violation of one or more conditions'" of his or her probation. Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973) (quoting Morissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972)). Thus, "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." Carradine v. United States, 420 A.2d 1385, 1389 (D.C. 1980) (footnote omitted). In effect, the loss of probation must have been a foreseeable consequence of the probationer's actions. Id. at 1389-90; see also Douglas v. Buder, 412 U.S. 430, 432, 93 S.Ct. 2199, 2200, 37 L.Ed.2d 52 (1973).

Once the trial court has determined that a probationer did violate a condition of probation, the decision to revoke or to continue the probation lies within the sound discretion of the trial court. E.g., Saunders v. United States, 508 A.2d 92, 95 (D.C. 1986) (citing cases). The threshold determination whether a probationer violated a condition of probation, however, is not discretionary; it is instead a mixed question of fact (primarily, what actions did the probationer take?) and of law (did these actions constitute a violation of the probationary conditions?).¹ In the present case, the facts of Resper's conduct are not in dispute; nor are the express terms of her probation announced by the trial judge at the May 1985 sentencing hearing....