State v. Hardwick, 87-0450-CR

• Decision Date: 30 March 1988
• Docket Number: No. 87-0450-CR,87-0450-CR
• Citation: 144 Wis.2d 54,422 N.W.2d 922
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Wallace HARDWICK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 922

422 N.W.2d 922

144 Wis.2d 54

STATE of Wisconsin, Plaintiff-Respondent, v. Wallace HARDWICK, Defendant-Appellant.

No. 87-0450-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 24, 1988.

Opinion Released March 30, 1988.

Opinion Filed March 30, 1988.

Donald T. Lang, Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Wallace Hardwick appeals from an order denying a motion to vacate the sentence imposed following a probation revocation hearing. His argument is that he was not afforded the assistance of counsel at a prior hearing extending the probation. He also contends that the trial court did not make the determination of "good cause" necessary to extend probation. Hardwick's arguments are unpersuasive; we affirm.

Hardwick pled guilty to a charge of homicide by intoxicated use of a vehicle. Sentence was withheld and he was placed on probation for three years on the condition that he pay costs, attorney's fees and $25 per month restitution to the victim's family. Approximately two weeks prior to the expiration of the term of probation, Hardwick appeared without counsel before the trial court at a probation extension hearing. After hearing from both Hardwick and his probation officer, the trial court extended Hardwick's probation for two years and continued the requirement that he pay restitution. Hardwick's probation was subsequently revoked during the term of extended probation, and he was sentenced to a term of not more than five years in prison.

Hardwick argues that the trial court was deprived of the "authority/jurisdiction" to revoke his probation and impose sentence because the prior extension was ordered in violation of his right to counsel at all "critical stages" of criminal proceedings, citing U.S. Const. amend. VI and Wis. Const. art. I, sec. 7, and in violation of his due process right to counsel, citing U.S. Const. amend. V and Wis. Const. art. I, sec. 8.

We agree with the state that there is no right to counsel in probation extension proceedings under either the sixth amendment or art. I, sec. 7 of the Wisconsin Constitution. The right to counsel under those provisions is applicable only to critical stages of criminal proceedings. White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193 (1963); State v. Strickland, 27 Wis.2d 623, 635, 135 N.W.2d 295, 302 (1965). While sentencing following probation revocation is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967); Strickland, 27 Wis.2d at 635, 135 N.W.2d at 302, probation itself is not a sentence but an alternative to sentencing. ¹ Prue v. State, 63 Wis.2d 109, 114-16, 216 N.W.2d 43, 45-46 (1974). Moreover, a probation proceeding--whether it be for revocation or extension of probation--is not a criminal proceeding. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972); State ex rel. Lyons v. DHSS, 105 Wis.2d 146, 149, 312 N.W.2d 868, 870 (Ct.App.1981). As probation proceedings are not criminal in nature, they cannot be termed "critical stages" of criminal proceedings to which the right to counsel attaches.

The question remains whether due process confers a right to counsel at probation hearings. We find no case law directly on point. Both parties cite cases involving the right to counsel at probation and parole revocation proceedings, not extensions. ² Hardwick contends that his due process right to counsel at a probation extension hearing arises under the principles of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), a probation revocation case.

In Scarpelli, the Court held that there was no absolute right to counsel at a probation revocation hearing. Id. at 787. Rather, the Court held that "the decision as to the need for counsel must be made on a case-by-case basis, in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system." Id. 411 U.S. at 790, 93 S.Ct. at 1763. Hardwick seeks to have us apply this conditional right to counsel to the extension process.

However, not all situations mandate the same kind of procedural safeguards. Morrissey, 408 U.S. at 481, 92 S.Ct. at 2600. Due process is flexible and requires such procedural protections as the particular situation demands. Id. Consideration of what process is due begins with a determination of the private interests affected by governmental action and the precise nature of the government function involved. Id.

Scarpelli dealt with a probation revocation hearing. There are two possible consequences for the probationer at a revocation hearing: probation will be revoked with resulting incarceration, or the probation will not be revoked and the probation term will continue. The potential for loss of liberty due to incarceration following a revocation hearing is what convinced the Scarpelli Court that there exists a conditional right to counsel at revocation hearings. Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761. While the probationer's liberty is conditional subject to the terms of probation, see State v. Evans, 77 Wis.2d 225, 230, 252 N.W.2d 664, 666 (1977), the termination of that liberty inflicts a "grievous loss" on the probationer. Morrissey, 408 U.S. at 482, 92 S.Ct. at 2601. Because a probationer is exposed to the possibilities of a "grievous loss" at a revocation hearing, procedural protections are due. Id. at 481, 92 S.Ct. at 2600.

At a probation extension hearing, the potential loss faced by a probationer is markedly less than that considered by the Court in Scarpelli. There are three possible outcomes of a probation extension hearing. First, the term of probation may be terminated. Second, the term and conditions of probation may be extended. Third, the court may find reason to believe that the conditions of probation have been violated and will refer the matter to probation authorities for revocation proceedings. This possibility, referral for revocation, leads to a completely separate set of proceedings in which the probationer will receive the benefit of the full panoply of procedural safeguards available under Scarpelli.

While we recognize that the extension of probation entails the continuance of restrictions on the liberty of probationers, we conclude that an extension of probation is not a "grievous loss" as is revocation and subsequent incarceration. Skipworth v. United States, 508 F.2d 598, 601 (3d Cir.1975). Thus, the substantial loss a probationer faces in an extension hearing lies not in the continued restrictions on liberty but in the possibility of future revocation. Id. While such a loss is no doubt serious, it is only a potential at the time of extension, and the due process clause clearly provides safeguards in the event of its occurrence. Id. at 601-02.

Extension proceedings recognize that there is a continuing need to further the goals of probation through extended probation. Unlike revocation proceedings in which the benevolent attitude of the state and probation officer may change, see Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761, both the state and the probationer have an interest in seeing that the rehabilitative goals of probation are not unnecessarily interrupted, resulting in the termination of an otherwise successful but incomplete effort at rehabilitation. Cf. Scarpelli at 785, 93 S.Ct. at 1761.

The inquiry at an extension hearing, unlike revocation proceedings, is generally factual in nature: has the probationer complied with the terms of probation; has he paid restitution; and what is his status and ability to pay...