State v. Ellefson

• Decision Date: 25 May 1983
• Docket Number: No. 13965,13965
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard James ELLEFSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 56

334 N.W.2d 56

STATE of South Dakota, Plaintiff and Appellee, v. Richard James ELLEFSON, Defendant and Appellant.

No. 13965.

Supreme Court of South Dakota.

Argued April 19, 1983.

Decided May 25, 1983.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee, Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Craig A. Kennedy of Doyle, Bierle, Porter & Kennedy, Yankton, for defendant and appellant.

WOLLMAN, Justice.

This is an appeal from an order revoking suspended sentence. We affirm.

In 1978 defendant was sentenced to ten years in the penitentiary for second degree rape. Following an appeal to this court, State v. Ellefson, 287 N.W.2d 493 (S.D.1980), defendant was resentenced, again to ten years in the penitentiary. In December of 1980, the trial court entered an order suspending the sentence under certain terms and conditions. Defendant was convicted of burglary and first degree sexual assault in Nebraska on March 26, 1982. He was appealing this conviction at the time of the revocation hearing.

During the period from February 9, 1982, to July 22, 1982, the State obtained, but did not serve, three separate bench warrants for defendant's arrest based upon the Nebraska charges against defendant. On August 4, 1982, defendant gave notice to the Yankton County State's Attorney of the fact of his imprisonment and requested final disposition of the revocation proceedings. The revocation hearing began on the morning of September 10, 1982. The court adjourned the hearing until the afternoon of that day upon learning that a petition for revocation had not yet been served upon defendant. Upon resumption of the hearing in the afternoon, the trial court asked defendant's counsel if he had had a reasonable time to prepare a defense to the revocation petition, which had been served upon defendant during the adjournment, to which counsel responded, "[A]t this time I am not requesting the court for a continuance." After receiving certified copies of the judgments entered on the Nebraska convictions, the trial court entered findings of fact, conclusions of law, and an order revoking the order of suspension and reinstating the sentence.

Defendant's first contention is that he was denied his right to a preliminary hearing prior to the revocation hearing and that he received inadequate notice of the claimed violations that formed the basis of the revocation hearing.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), enumerates the following requirements of due process for parole revocation:

(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.

408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), extended these requirements to probation revocation proceedings. We addressed the requirement of a probable cause hearing in State v. Lohnes, 266 N.W.2d 109, 112 (S.D.1978), where we stated:

[A] probationer is entitled to a two-step due process proceeding before his probation may be revoked. The first step--a probable cause hearing to determine if there are reasonable grounds to believe that probation violations have occurred and to hold him for further hearing--is not involved here. The appellant does not contest the fact that he escaped twice and where violations are admitted, no probable cause hearing is necessary.

In referring to the requirements established in Morrissey, the Court stated in Gagnon, "Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing ... to determine whether there is probable cause," 411 U.S. at 781, 93 S.Ct. at 1759, 36 L.Ed.2d at 661. This requirement, however, has been held not to apply where a probationer is not deprived of his freedom pending the holding of a revocation hearing. In discussing the preliminary hearing requirement laid down by Morrissey and Gagnon, the Court of Appeals for the Eighth Circuit stated:

The preliminary hearing requirement of these cases is founded upon the concern that a person not be wrongfully imprisoned pending final probation revocation proceedings if probable cause to believe that a violation has occurred cannot be established. Persons on parole or probation generally are attempting to reintegrate themselves into society and establish a normal life; a wrongful interruption of this process is likely to cause the person and his or her family serious harm....

In this case, however, appellant was already confined; he had been legally deprived of his liberty and was in the custody of the State of Missouri. Therefore, no interruption of his "liberty" occurred. Detention on the alleged probation violation did not interfere with any attempt by Sutton to re-establish his life. Furthermore, appellant has not established that he was prejudiced or harmed in any other manner by the failure of the district court to hold a preliminary probable cause hearing.

United States v. Sutton, 607 F.2d 220, 222 (8th Cir.1979).

As stated earlier by that court:

One rationale for the Morrissey preliminary hearing requirement was to provide procedural safeguards with regard to the loss of liberty that accompanied an arrest for parole violations. 408 U.S. at 485-487, 92 S.Ct. 2593. Thus, Gagnon extends the right to such a hearing only to those probationers who are taken into custody and deprived of their conditional freedom. This is not the situation in the instant case. Appellant was not taken into custody until sometime after an adversary evidentiary hearing and a finding by the court that appellant had violated the terms of his probation. Thus the holdings in Morrissey and Gagnon are not applicable.

United States v. Strada, 503 F.2d 1081, 1084 (8th Cir.1974). See also United States v. Sciuto, 531 F.2d 842 (7th Cir.1976); United States v. Tucker, 524 F.2d 77 (5th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976); Curtis v. State, 175 Ind.App. 76, 370 N.E.2d 385 (Ind.1977); State v. Tech, 240 N.W.2d 658 (Iowa 1976); State v. Malbrough, 5 Kan.App.2d 295, 615 P.2d 165 (1980); Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 ...