State v. Dawson
| Decision Date | 29 September 1981 |
| Docket Number | No. 14760,14760 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Ronald Cecil DAWSON. |
Syllabus by the Court
1. The preliminary revocation hearing is a hearing held at the time of arrest and detention to determine whether there is probable cause to believe that the accused has committed a violation of his probation or parole. The hearing must be held by an independent officer as promptly as convenient after arrest.
2. "In determining whether a preliminary hearing for an alleged probation violation has been held without unreasonable delay, three factors should be considered: (1) the length of and reason for the delay; (2) the probationer's assertion of his right; and, (3) the prejudice to the defendant." Syllabus Point 1, State ex rel. Ostrander v. Wilt, W.Va., 262 S.E.2d 420 (1980).
3. Principles of double jeopardy will not ordinarily be applied to probation or parole revocation hearings, at least in the absence of any claim of bad faith.
Sanders & Austin and Derek Craig Swope, Princeton, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, for defendant in error.
In this appeal from a probation revocation, the probationer contends the court erred in not granting him a timely preliminary revocation hearing. Additionally, probationer claims that the court's midtrial break of the final probation revocation hearing in order to accord the probationer an independent preliminary hearing resulted in a double jeopardy bar to the subsequent resumption of the final probation revocation hearing. Other alleged errors are that there was insufficient evidence to sustain the probation revocation decision; that the trial judge erred in not recusing himself from the case; and, that the record does not affirmatively show that counsel was present when the probation agreement was signed. For reasons set out below, we decline to reverse.
The probationer originally entered a plea on a charge of forgery and several similar charges were dropped. He was placed on probation on October 16, 1978, by the Circuit Court of Mercer County. The probationer was arrested in Georgia; but, the exact nature of these charges are unclear. His probation violation charges were a conviction for public intoxication, leaving the State without the permission of his probation officer, failing to make monthly reports to his probation officer and associating with a person having a criminal record. He was returned to Mercer County on January 17, 1979, where he was incarcerated awaiting the probation revocation hearing.
His counsel obtained two continuances of the revocation hearing and did not ask for a preliminary hearing, nor was one set. When the parties appeared for the final probation revocation hearing on March 27, 1979, the probationer's counsel raised the point that no preliminary hearing had ever been held, citing Louk v. Haynes, W.Va., 223 S.E.2d 780 (1976).
The circuit judge initially took this matter under advisement and the prosecutor proceeded to put on his witnesses in regard to the probation violations. However, before the State's case was concluded, the judge, after a thorough review of Louk v. Haynes, supra, concluded that he was without jurisdiction to hold the final hearing until the preliminary hearing was completed. The pertinent statement from Louk is:
In State ex rel. Ostrander v. Wilt, W.Va., 262 S.E.2d 420 (1980), we had our first occasion to determine the standard for an unreasonable delay in holding a preliminary hearing on a probation revocation, stating in Syllabus Point 1:
"In determining whether a preliminary hearing for an alleged probation violation has been held without unreasonable delay, three factors should be considered: (1) the length of and reason for the delay; (2) the probationer's assertion of his right; and, (3) the prejudice to the defendant."
In Ostrander we held that a period of 47 days between the date the probationer was returned to this State under arrest and the date of his preliminary hearing was not unreasonable. This holding was predicated mainly on the fact that the probationer's attorney had engendered most of the delay by requesting the preliminary hearing be set at the convenience of his schedule. Here, we cannot conclude as we did in Ostrander that the failure to hold a prompt preliminary hearing is solely attributable to delay caused by probationer's counsel.
Louk states that the reason for a preliminary hearing is "to determine whether there is probable cause to believe that the accused has committed a violation of his probation or parole." 223 S.E.2d at 789. Another reason for holding a prompt preliminary hearing is to determine whether a probationer, who has lost his conditional liberty interest, should continue in detention. A prompt preliminary hearing also affords probationer the opportunity to learn of the facts and witnesses that will confront him at the final hearing. Gagnon v. Scarpelli, 411 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). 1
Most courts which have dealt with the failure to accord a probationer or parolee a prompt preliminary hearing focus on whether any prejudice has resulted. Unless prejudice can be shown which affects the integrity of the final revocation hearing, it will not be reversed. E. g., People v. Knowles, 48 Ill.App.3d 296, 362 N.E.2d 1087 (1977); People v. Hunt, 29 Ill.App.3d 416, 330 N.E.2d 883 (1975); Wilson v. State, 403 N.E.2d 1104 (Ind.App.1980); People v. Blakely, 62 Mich.App. 250, 233 N.W.2d 523 (1975); Ewing v. Wyrick, 535 S.W.2d 442 (Mo.1976); Richardson v. New York State Board of Parole, 341 N.Y.S.2d 825, 41 A.D. 179 (1973), aff'd, 33 N.Y.2d 23, 347 N.Y.S. 179, 300 N.E.2d 716.
One of the factors in the Ostrander test is whether prejudice can be shown as a result of the failure to hold a prompt preliminary hearing. It is this aspect which forms the central inquiry in this case. Probationer does not assert that any prejudice resulted from the failure to hold a prompt preliminary hearing. Probationer's argument seems to be that the failure to hold the preliminary hearing creates a presumption of prejudice, but this is not the law. The foregoing cases as well as Ostrander require some showing of prejudice. We decline to hold that the probation revocation must be reversed for the failure to hold a prompt preliminary revocation hearing.
The second assignment of error is the assertion of a double jeopardy claim. The final revocation hearing was terminated at the conclusion of the State's case, when the trial court concluded that the probationer had a right to a preliminary hearing. Upon the completion of the preliminary hearing and the magistrate's finding of probable cause, the court held another final revocation hearing approximately one month later. The State presented essentially the same evidence that it had at the previous final revocation hearing. Probationer asserts that the break in the first hearing after evidence was presented to the court resulted in a jeopardy bar. We do not agree.
Courts have been reluctant to apply double jeopardy principles in probation or parole revocation proceedings on the theory that such hearings are not criminal in nature since they do not involve ascertainment of criminal guilt. 2 Although it is recognized that a revocation hearing can result in incarceration and thereby a loss of the probationer's or parolee's conditional liberty status, the courts reason that the incarceration comes about through the reimposition of the original criminal sentence after it has been determined that the defendant is not fit to continue on probation or parole status. We expressed much this same thought in regard to the purpose of a final revocation hearing in State v. Ketchum, W.Va., --- S.E.2d ---- (No. 14301, 6/23/81):
(footnote omitted) Slip Op. p. 3.
State v. Eckley, 34 Or.App. 563, 579 P.2d 291 (1978), summarized the reasons why double jeopardy does not attach at a second...
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