State v. Hays, 92-1647-CR

• Decision Date: 23 December 1992
• Docket Number: No. 92-1647-CR,92-1647-CR
• Citation: 173 Wis.2d 439,496 N.W.2d 645
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Wendy J. HAYS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 645

496 N.W.2d 645

173 Wis.2d 439

STATE of Wisconsin, Plaintiff-Respondent, v. Wendy J. HAYS, Defendant-Appellant. ^d

No. 92-1647-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 24, 1992.

Opinion Released Dec. 23, 1992.

Opinion Filed Dec. 23, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Tyroler, Asst. State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen. and Sally L. Wellman, Asst. Atty. Gen.

Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.

ANDERSON, Judge.

Wendy J. Hays appeals from an order modifying her probation by adding a condition of nine months confinement in the county jail. Hays contends that the hearing on the request to modify her probation was chaotic, violated minimal due process protections invoked when a party faces the grievous loss of liberty, and lacked the formality required by statute. We hold that a hearing on a request to modify the conditions of probation is not a criminal proceeding and that a probationer is entitled to flexible due process protections depending upon the recommendations made to modify the conditions of probation. Therefore, we affirm the order of the trial court because Hays did have the benefit of minimal due process protections at the hearing.

On August 27, 1990, Hays was convicted of the fraudulent use of a credit card in violation of sec. 943.41(5)(a)1 and (8)(c), Stats. The trial court withheld sentence and placed Hays on probation for three years. Among the conditions of probation were that she was to pay restitution and cooperate with any and all programs arranged and approved by her probation agent.

Hays' adjustment to probation supervision was less than stellar; on July 10, 1991, Hays signed amended rules of probation that concerned her minimal compliance with the original rules of probation. In addition, Hays was verbally warned that any additional violations of the rules could result in revocation of her probationary status. Hays continued her noncompliance with the rules of probation and on November 1, 1991 her probation agent sent a memo to the circuit court listing several violations of the rules, requesting that the court review Hays' adjustment to supervision, and recommending that the court impose six months confinement in the county jail as a condition of probation. ¹

Prior to the hearing on the request of the probation agent, Hays' defense counsel filed a motion to dismiss the probation review and to strike the memo. In the motion Hays contended that the memo was not the correct method of invoking the jurisdiction of the court. She argued that sec. 971.30(1), Stats., labels a request for a court order as a motion, and that the memo did not meet the statutory formalities for preparation, filing and service. After hearing oral argument from Hays' counsel, the trial court adjourned the hearing to February 28, 1992 to permit the district attorney to file a responsive brief.

Before the adjourned hearing, Hays' probation agent filed an addendum to the original memo listing additional rule violations and requesting nine months confinement in the county jail as a condition of probation. Defense counsel objected to conducting the hearing on February 28 because he had just been given a copy of the addendum. Defense counsel and the district attorney then offered argument on the pending motion. The trial court denied the motion and granted a one-week continuance of the hearing.

The hearing on the request to modify the conditions of Hays' probation was finally held on March 11, 1992. At the hearing, the district attorney chose to rely upon the two memos to support the recommendation of the probation agent. Hays' counsel extensively cross-examined the probation agent and Hays testified in her own behalf. After a discussion with the probation agent's supervisor, the trial court made comprehensive findings that Hays had violated the rules of probation. The court modified Hays' probation to include nine months confinement in the county jail; the first six months were without work release or child care release.

In this appeal, Hays does not challenge the sufficiency of the findings made by the trial court, nor does she challenge the new condition of probation as being too harsh and severe. Rather, her attack centers on the procedure employed to obtain a court review and the lack of any formal procedures during the hearing. Hays contends that the department's memo was an improper method to secure court review. She argues that a request to modify the conditions of probation is a request for a court order that must be in the form of a motion signed by an attorney. She also argues that the rules of evidence should have applied to the hearing and that the burden of proof was improperly placed on her.

Hays' challenges are on constitutional grounds. She reasons that the request for jail time as a condition of probation permits a comparison of these proceedings with probation or parole revocation proceedings. She reasons that in such proceedings a party is entitled to minimal due process rights because the threat of incarceration represents a substantial loss of liberty; therefore, she should be entitled to the same protections in a probation modification hearing as a result of the request for county jail time. Finally, she asserts that the informality of the proceeding and the shifting of the burden of proof to her violated her minimum due process rights.

Hays' arguments raise constitutional fact questions concerning what, if any, due process rights attach to probation modification hearings. Her arguments also present statutory fact questions involving what rules of civil or criminal procedure and rules of evidence should apply to probation modification hearings. We decide these issues independently as questions of law. See State v. Woods, 144 Wis.2d 710, 714, 424 N.W.2d 730, 731 (Ct.App.1988).

We begin by noting that probation is not a sentence and that the imposition of incarceration as a condition of probation is likewise not a sentence. Prue v. State, 63 Wis.2d 109, 114, 216 N.W.2d 43, 45 (1974). A trial court's authority to impose conditions on a term of probation is derived from the statute. See State v. Sepulveda, 119 Wis.2d 546, 554, 350 N.W.2d 96, 101 (1984). Section 973.09(1)(a), Stats., is the source of the authority for the court to place an individual on probation and to impose reasonable and appropriate conditions of probation.

973.09 Probation. (1)(a) [I]f a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate.

And, sec. 973.09(3)(a), Stats., provides the authority for a court to modify the conditions of probation:

Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.

The theory of probation envisions that an individual convicted of a crime who is responsive to supervision and guidance may be rehabilitated without placing him or her in prison. State v. Evans, 77 Wis.2d 225, 231, 252 N.W.2d 664, 666 (1977). To achieve this theory a trial court is permitted to impose conditions of probation that are designed to rehabilitate the probationer and protect society. See sec. 973.09(1)(a), Stats. Inherent in the probation statute is a continuing power in the trial court to accomplish the theory of probation through the court's authority to modify the terms of probation. See Sepulveda, 119 Wis.2d at 554, 350 N.W.2d at 101.

This appeal presents the issue of what due process protections and statutory procedures apply when the trial court uses its continuing power to modify the terms and conditions of probation. We have previously discussed probation extension hearings. We concluded that extension hearings were neither criminal proceedings nor a "critical stage" of criminal proceedings. State v. Hardwick, 144 Wis.2d 54, 57, 422 N.W.2d 922, 923 (Ct.App.1988). This same reasoning leads to the conclusion that a hearing to modify conditions of probation is not a criminal proceeding.

Hearings to modify the conditions of probation are far from punitive. Such hearings recognize that there is a continuing need to strengthen the goals of probation through new or revised terms or conditions of probation. "Unlike revocation proceedings in which the benevolent attitude of the state and probation officer may change, both the state and the probationer have an interest in seeing that the rehabilitative goals of probation" are reinforced rather than terminated so that a term of probation can achieve the dual goals of rehabilitating the...