State v. Hass

• Decision Date: 03 March 1978
• Docket Number: No. 615,615
• Citation: 264 N.W.2d 464
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Marvin Edward HASS, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 464

264 N.W.2d 464

STATE of North Dakota, Plaintiff-Appellee, v. Marvin Edward HASS, Defendant-Appellant.

Crim. No. 615.

Supreme Court of North Dakota.

March 3, 1978.

Daniel J. Chapman, Bismarck, for defendant-appellant.

Richard L. Schnell, State's Atty., Mandan, for plaintiff-appellee.

PAULSON, Judge.

This is an appeal by the probationer, Marvin Edward Hass, from the order of the Morton County District Court entered June 10, 1977, in which Hass' probation was revoked and from the subsequent imposition of sentence entered by the same court on June 27, 1977. Hass contends that various prejudicial errors were committed with regard to the revocation proceedings and he requests this court to reverse both the order revoking probation and the subsequent imposition of sentence.

On October 5, 1976, Hass entered a plea of guilty on a charge of the class C felony of reckless endangerment. On October 12, 1976, the Morton County District Court, pursuant to § 12-53-13 of the North Dakota Century Code, issued an order deferring imposition of sentence on the guilty plea for a period of one year commencing retroactively from October 5, 1976, and placing Hass on probation for a period of one year pursuant to § 12-53-14, N.D.C.C.

On May 2, 1977, a criminal complaint was filed in the Morton County District Court charging Hass with the criminal act of terrorizing. On May 3, 1977, Martin Stivers, a deputy sheriff for Morton County, filed a verified petition for revocation of Hass' probation with the Morton County District Court. Stivers alleged in the petition that Hass had violated the terms of his probation on May 1, 1977, when he "did threaten a number of people with a .22 (caliber) rifle and threatened to kill them and did in fact fire several shots". The petition requested the court to order that Hass be brought before the court to show cause why his probation should not be revoked. This incident, by which Hass allegedly violated the terms of his probation, was the same incident upon which the criminal complaint was filed against Hass on May 2, 1977.

On May 9, 1977, the Morton County District Court issued an order stating that, based upon the verified petition filed by Stivers, Hass may have violated conditions of his probation, and ordering that Hass be brought before the court for probation revocation proceedings.

On May 11, 1977, Hass was personally served with a copy of the Petition for Revocation of Probation and Order to Apprehend Probationer.

On May 18, 1977, Hass appeared before the court, with counsel, on the matters relating to his probation revocation, and requested a continuance until his retained counsel, who was not able to attend the hearing because of a conflicting commitment, could be present to represent him. The court granted the continuance, and the probation revocation hearing was subsequently held on May 25, 1977.

Both the State and Hass called witnesses to testify at the hearing. Hass also chose to testify on his own behalf.

Rule 5 of the agreement Hass had signed as a condition of his probation stated "I will not own, purchase, borrow, possess or carry firearms or weapons". The trial court concluded that the state had proved by a preponderance of the evidence that Hass had violated this condition of his probation agreement. Consequently, the court revoked Hass' probation, and, on June 27, 1977, the court sentenced Hass on the reckless endangerment conviction to the North Dakota State Farm for a period of one year, with eight months of this sentence to be suspended upon the condition that Hass pay the costs of the revocation hearing.

Hass has raised the following issues on appeal as grounds upon which he requests this court to reverse the order revoking his probation and the subsequent imposition of sentence:

1. Whether Hass was denied his right to a sufficiently specific notice of the probation revocation hearing and of his alleged probation violations.

2. Whether Hass was denied his right to a preliminary probable cause probation revocation hearing.

3. Whether Hass was unconstitutionally compelled to choose between asserting his constitutional right to testify at the probation revocation hearing or his constitutional right against compelled self-incrimination at the subsequent criminal trial regarding the same incident.

When the trial court defers imposition of sentence pursuant to § 12-53-13, N.D.C.C., the defendant is placed on probation and becomes subject to the orders and regulations of the parole board and to such terms and conditions as the court may impose. The trial court retains jurisdiction over the defendant for the purpose of revoking his probation and of passing sentence at some future date. John v. State, 160 N.W.2d 37 (N.D.1968). The procedures set forth in Rule 32(f) of the North Dakota Rules of Criminal Procedure must be followed for the revocation of probation in those cases in which the trial court has retained jurisdiction over the defendant-probationer. In addition, the potential deprivation of liberty consequent to probation revocation entitles the probationer to certain procedural due process rights under the United States Constitution. 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); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

Hass' first issue on appeal is whether he received adequate written notice of the revocation hearing and of his alleged violations of his probation conditions. Hass asserts that the written notice did not include a statement of the time or place for the hearing and that the notice did not adequately disclose the nature of his alleged probation violations.

The probationer is entitled to a prior written notice of his alleged violations of probation. Rule 32(f), N.D.R.Crim.P.; Scarpelli, supra. This court held, in McGuire v. Warden of State Farm, 229 N.W.2d 211 (N.D.1975), that such notice must contain "sufficient specificity to enable the defendant and his counsel to know and understand the nature of the charge against him and to prepare for a hearing on the charge". The petitioner in the McGuire case asserted that the probation revocation notice he received was legally inadequate in that it failed to sufficiently disclose the nature of the claimed probation violation. The notice received by the petitioner was a court order which stated the court had reason to believe the petitioner was violating the terms of his probation, but which did not contain any specific allegations. This court agreed with petitioner's contention that the notice was legally inadequate and ordered that petitioner be released from confinement subject to the State's right to invoke new probation revocation proceedings.

The notice received by Hass in the instant case is clearly distinguishable from the notice received by the petitioner in McGuire, supra. Hass was personally served with a copy of the Petition for Revocation of Probation and Order to Apprehend Probationer on May 11, 1977. The petition stated, in relevant part, as follows:

"That upon information and belief, the aforesaid defendant has violated one or more of the conditions of probation in the following particulars:

"That on May 1, 1977, the defendant, Marvin Hass, did threaten a number of people with a .22 rifle and threatened to kill them and did in fact fire several shots and further that said Marvin Hass is currently charged with the crime of terrorizing as a result of said incident."

The revocation hearing proceedings and the trial court's findings upon which Hass' probation was revoked were directed solely toward the circumstances surrounding the incident on May 1, 1977, referred to in the petition. We conclude that the written notice received by Hass was sufficiently specific to enable Hass and his counsel to know and understand the nature of the probation violation charges against him and to prepare for the probation revocation hearing.

Hass further asserts that the written notice was inadequate because it failed to contain a statement of the time and place for the probation revocation hearing. There may be circumstances in which failure to provide written notice of the time and place of the probation revocation hearing will prejudice a probationer's right to a probation revocation hearing. However, the record in this case demonstrates beyond dispute that Hass was not prejudiced by failure of the notice to contain a statement of the time and place of the hearing. On May 18, 1977, Hass appeared with counsel before the court and requested a continuance. The trial court granted the request for a continuance, the probation revocation hearing was rescheduled to May 25, 1977, and Hass appeared at the May 25, 1977, hearing with retained counsel. We conclude that Hass received adequate prior written notice of the probation revocation hearing and of his alleged probation violations.

The second issue Hass raises on this appeal is whether he was denied his right to a preliminary probable cause probation revocation hearing.

Rule 32(f), N.D.R.Crim.P., provides that "Upon probable cause to believe that a probationer has violated a condition of his probation" the court having jurisdiction can order that the probationer be taken into custody and brought before the court for a probation revocation hearing. A preliminary probation revocation hearing is not required under Rule 32(f), N.D.R.Crim.P., where the court has retained jurisdiction over the probationer. Nor do we believe that the probationer, under the facts of this case, has a constitutional right to a preliminary probation revocation hearing.

In Morrissey, supra, the United States Supreme Court set forth the procedural due process rights to which a parolee is entitled with regard to parole revocation, and these rights include a preliminary probable cause determination by an independent officer who need not be a judicial...