Rheuport v. State, 2--58557

• Citation: 238 N.W.2d 770
• Decision Date: 18 February 1976
• Docket Number: No. 2--58557,2--58557
• Parties: Dennis Kirk RHEUPORT, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 770

238 N.W.2d 770

Dennis Kirk RHEUPORT, Appellant, v. STATE of Iowa, Appellee.

No. 2--58557.

Supreme Court of Iowa.

Feb. 18, 1976.

Philip F. Miller, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

McCORMICK, Justice.

Petitioner Dennis Kirk Rheuport appeals denial of postconviction relief. He was convicted and sentenced upon a plea of guilty to larceny of a motor vehicle under Code § 321.82 in November 1973. He was granted bench probation from an indeterminate ten-year prison sentence. In March 1974, while on probation, he was arrested and charged with another larceny of a motor vehicle offense. The violation was reported and, after hearing, his probation was ordered revoked. We dismissed his attempted appeal from the revocation order on jurisdictional grounds. State v. Rheuport, 225 N.W.2d 122 (Iowa 1975). He subsequently brought this postconviction action. In this appeal he attacks the revocation proceeding and the postconviction proceeding. We affirm the denial of postconviction relief.

The questions are whether the postconviction court erred in upholding the revocation of probation and followed proper procedures in the postconviction proceeding.

I. The probation revocation hearing. Petitioner makes seven complaints about the revocation hearing. They include allegations the trial court erred in revoking his probation (A) in allowing use of an alleged criminal act as a basis for revocation without a conviction having been obtained, (B) in revoking the probation upon inadequate proof, (C) in imposing a penalty upon him for his silence in the revocation proceeding, (D) in revoking probation in a single-step hearing, (E) in refusing to order a psychiatric examination, (F) in refusing to consider alternatives or mitigating circumstances, and (G) in failing to enter written findings.

A. Absence of conviction for the alleged violation. Petitioner was charged but not convicted of the violation for which his probation was revoked. In State v. Hughes, 200 N.W.2d 559, 562 (Iowa 1972), a majority of this court held it is not necessary to seek and obtain a conviction to show violation of a probation condition requiring the person to conduct himself in obedience to law; it is only necessary to establish he violated the law. Under that holding, it was unnecessary for the State to prove petitioner had been convicted of the larceny of a motor vehicle offense upon which revocation was sought.

B. Proof of the violation. In State v. Hughes, supra, this court also held the requisite degree of proof in a revocation proceeding is a preponderance of the evidence. The court also held strict rules of evidence in criminal trials do not apply in revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972). It is sufficient if the violation is established by evidence which is competent.

Here the Hughes standard was met. Although petitioner was charged with violation of three conditions of his probation, we believe the record shows his probation was revoked because of his stealing of a car. Two witnesses testified directly from first-hand knowledge to the alleged violation. One was a car salesman from whom petitioner allegedly took the car on a pretext he wanted to drive it around the block to try it out. The other was a police officer who testified he arrested petitioner driving the car two days later in another part of the city. This evidence was sufficient for the trial court to find the violation was established by a preponderance of competent evidence.

Admittedly, petitioner's probation officer was permitted to express an opinion, over objection, that she believed petitioner had violated probation. However, she had previously testified in detail to the facts upon which that opinion was based. Although the opinion was probably superfluous, we do not believe the trial court erred in receiving it for purposes of the revocation proceeding.

C. Petitioner's silence. Although petitioner testified in the revocation proceeding, he elected not to discuss the alleged larceny of a motor vehicle. His testimony was instead directed to his reasons for not having maintained contact with his probation officer and his need for psychiatric examination. Petitioner's assertion his failure to testify about the alleged larceny offense in the revocation proceeding was held against him is based on a comment made by the trial court (Perkins, J.) in explaining his decision to revoke probation. The court said, in part, 'And in this case the other offense * * * which you've committed And have not in any way denied here, and these witnesses came in and told the court about, certainly seems to me to be a situation that warrants revocation of your probation.' (Italics added). The problem with petitioner's argument is that this comment does not establish what he claims for it; it does not show the judge penalized him for his silence. Petitioner confuses the court's remark with the kind of situation presented in cases like Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), in which comments on a defendant's silence are addressed to the jury which must pass on the defendant's guilt. Such comments infringe the defendant's privilege against self-incrimination. However, the comment here could not have influenced such a determination. In fact, it appears in a statement in which the judge told the defendant the violation had in fact been established by the testimony which was given.

Although authority exists for consideration of a defendant's silence in a revocation proceeding, United States v. Farmer, 512 F.2d 160, 162 (6 Cir. 1975), we rest our rejection of petitioner's contention on a finding that Judge Perkins did not in fact penalize him for his silence in the revocation proceeding.

D. The single hearing. Petitioner contends the entire revocation proceeding concerned whether he had violated his probation and did not include a separate stage in which, once it was determined he had done so, circumstances in mitigation and dispositional alternatives would be considered. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court held due process requires a probation revocation proceeding to encompass these two analytically distinct components but did not dictate that two separate proceedings be conducted.

Here, we find the trial court did substantially comply with the Gagnon mandate in revoking petitioner's probation. Evidence was not only received concerning the alleged violation of probation. Evidence was received regarding petitioner's request for psychiatric examination. The thrust of this testimony was to provide the court with evidence in mitigation or to assist it in selecting a dispositional alternative to revocation. His asserted mental aberration was the only factor in mitigation advanced by petitioner then or now.

It is obvious from the trial court's statement at the time of revocation that the hearing included and the court considered not only the first step, whether a violation had been proved, but the second step, what should be done about it:

'The reason for probation, of course, is to assist you and help you and get you straightened out when you're granted probation. The other part is that it is the opinion of the Court at that time that it is no risk to the community and that to let you continue to work in society and live in society doesn't pose any risk to the community at-large. And in this case the other offense * * * which you've committed and have not in any way denied here, and these witnesses came in and told the Court about, certainly seems to me to be a situation that warrants revocation of your probation. It's not a pleasant task to impose a sentence like this on a young man, but I don't think I have any alternative. We wanted to see you make good, and when I gave you probation I certainly hoped that I'd never see you in this court again, but you're the guy that wrote the ticket and you made the choice, and if you need psychiatric care why I hope they give it to you up there at Anamosa and you get what help you need and * * * come back in the community the next time * * * ready to obey the rules and live up to the standard that the community expects from people. So it is the judgment and order of the Court that the probation heretofore granted this man be and it is hereby revoked and the sentence originally imposed is to be served.'

We find no merit in petitioner's assertion he was denied due process because of trial court non-compliance with the Gagnon two-step hearing principle.

E. Refusal of psychiatric examination. Petitioner filed an application for psychiatric examination three days before the revocation hearing, alleging an examination was reasonable and necessary to the court's findings regarding probation revocation and was in petitioner's best interest. Evidence was received in support of this application during the revocation hearing. Petitioner contends the trial court abused its discretion and denied him due process, equal protection, and effective assistance of counsel by refusing to sustain his application and by failing to defer the revocation decision until after receipt of a psychiatric evaluation.

He argues he should be accorded the same right to offer psychiatric testimony in mitigation or to assist in selection of a dispositional alternative as a person with means. He asserts his indigency should not be permitted to deny him that right.

We discussed the standards applicable to determination of an indigent's application for psychiatric examination at public expense in State v. McGhee, 220 N.W.2d 908 (Iowa 1974). There the issue was whether the examination should have been ordered to permit the defendant to...