State v. Gonzalez, C032034CR.

• Decision Date: 11 April 2007
• Docket Number: No. C032034CR.,No. A129039.,C032034CR.,A129039.
• Citation: 157 P.3d 266,212 Or. App. 1
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Andy Chavez GONZALEZ, aka Andy Chaves-Gonzalez, Defendant-Appellant.
• Court: Oregon Court of Appeals

157 P.3d 266

212 Or. App. 1

STATE of Oregon, Plaintiff-Respondent, v. Andy Chavez GONZALEZ, aka Andy Chaves-Gonzalez, Defendant-Appellant.

No. C032034CR.

No. A129039.

Court of Appeals of Oregon.

Submitted on Record and Briefs February 28, 2007.

Decided April 11, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and David Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

Defendant appeals a judgment revoking his probation. He assigns error to the trial court's admission of hearsay evidence at his probation revocation hearing. According to defendant, the admission of that evidence violated his Sixth Amendment confrontation right as articulated by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The state responds that probation revocation hearings are not criminal prosecutions to which the principles in Crawford apply. We agree with the state and affirm.

The relevant facts are not in dispute. Defendant was convicted of possession of a controlled substance (PCS) and driving under the influence of intoxicants (DUII). The trial court suspended the imposition of sentence and placed defendant on probation for 18 months. Among the conditions of probation were that defendant not drive unless properly licensed and insured and that defendant not consume or possess alcohol.

Less than a year later, defendant was stopped by a patrol officer while driving. Defendant did not have a valid driver's license at the time of the stop. Moreover, he had been drinking in a bar shortly before the stop, and he refused the officer's request that he take a breath test. At a subsequent probation revocation hearing, defendant's probation officer testified regarding those violations. Defendant objected to that testimony on the ground that it was inadmissible hearsay under Crawford. The trial court overruled that objection, explaining that, under ORS 40.015, hearsay is allowed in probation revocation hearings. The court found defendant to be in violation of his probation and issued a judgment extending the length of his probation.

On appeal, defendant argues that the trial court erred in overruling his objection to the hearsay testimony. He contends that, under Crawford, he has a Sixth Amendment right to confront witnesses who testify against him. The state responds that Crawford does not apply to this case, because the Sixth Amendment applies only to criminal proceedings not to other kinds of proceedings such as probation revocation hearings.

In Crawford, the Supreme Court interpreted the Sixth Amendment's Confrontation Clause to prohibit the admission of an out-of-court testimonial statement—even one that might otherwise fall within a traditional exception to the rule against hearsay—where the defendant has not been afforded the opportunity to cross-examine the declarant. The question in this case is whether Crawford applies to probation revocation proceedings.

Crawford is explicitly based on the Sixth Amendment. The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." (Emphasis added.) By its terms, the amendment applies only to criminal prosecutions. The United States Supreme Court has made plain that, by "criminal prosecutions," the Sixth Amendment refers to criminal trials. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 52-53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ("The opinions of this Court show that the right to confrontation is a trial right."); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ("[I]t is this literal right to `confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.").

The Court also has made clear that a probation revocation hearing is not a trial; that is, it is not a criminal proceeding that is subject to the Sixth Amendment right of confrontation. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (revocation proceeding "is not a stage of a criminal prosecution"). Our own cases likewise make clear that a probation revocation hearing is not a criminal proceeding. As we explained in State v. Kissell, 83 Or.App. 630, 634, 732 P.2d 940, rev. dismissed, 303 Or. 369, 736 P.2d 564 (1987),

"[a] probation revocation is not a criminal proceeding. It does not require proof of an offense and does not punish a new offense. The rules of evidence generally do not apply. A violation of a condition of probation may be proved by a preponderance of the evidence rather than by proof beyond a reasonable doubt."

(Citations omitted.) See also State v. Maricich, 101 Or.App. 212, 214, 789 P.2d 701 (1990) ("[A] probation revocation proceeding is not a criminal prosecution.").

Because a probation revocation hearing is not a criminal proceeding, it necessarily follows that the Sixth Amendment does not apply and that Crawford does not preclude the admission of hearsay testimony in the absence of an opportunity to cross-examine the declarant. In reaching that conclusion, we note that every federal circuit court that has addressed the issue has adopted similar reasoning and reached the same conclusion. See United States v. Rondeau, 430 F.3d 44 48 (1st Cir.2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.), cert. den., ___ U.S. ___, 126 S.Ct. 838, 163 L.Ed.2d 714 (2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2nd Cir.2004), abrogated on other grounds by United States v. Fleming, 397 F.3d 95 (2d Cir.2005); United States v. Martin, 382 F.3d 840, 845 (8th Cir.2004).

Defendant insists that the foregoing conclusion is inconsistent...