State v. Lawrence, 4578-II
| Decision Date | 19 February 1981 |
| Docket Number | No. 4578-II,4578-II |
| Citation | 624 P.2d 201,28 Wn.App. 435 |
| Parties | The STATE of Washington, Respondent, v. Terrence A. LAWRENCE, Appellant. |
| Court | Washington Court of Appeals |
Lewis Nomura, Seattle King County, Public Defender Ass'n, Seattle, for appellant.
William H. Redkey, Deputy Pros. Atty., Seattle, for respondent.
Terrence A. Lawrence appeals an order revoking his probation and sentencing him to a term of imprisonment. The issue on appeal is whether his probation revocation hearing comported with the due process requirements articulated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). We hold it did not and accordingly reversed.
In 1977, defendant pled guilty to second degree theft. The court deferred his sentence and placed defendant on probation for 3 years. A condition of probation was that defendant report regularly to his probation officer. In 1978, defendant pled guilty to the second degree assault of his wife with a deadly weapon (RCW 9.95.040). See RCW 9.95.015. The court sentenced defendant to 10 years, with a mandatory minimum of 71/2 years under RCW 9.95.040(2), suspended on the condition () that he remain on probation for 5 years.
In January 1979, defendant was arrested and jailed for failing to report to his probation officer. At a preliminary hearing held on January 30, the trial court ordered defendant released from custody and scheduled a probation revocation hearing for March 30, 1979. Defendant was timely served with a notice of the hearing, which alleged two probation violations: absconding from probation supervision from October 1978 until his arrest, and assaulting his wife after being placed on probation.
At the hearing, defense counsel admitted to the prosecutor's allegations that defendant had failed to report to his probation officer, but denied the allegations that defendant had assaulted his wife. When asked for his comment, defendant told the court that the alleged assault in November 1978 related to a minor domestic dispute between himself and his wife that prompted his sister to call the police. No further evidence was presented at the hearing. The court stated:
I would make a finding that Mr. Lawrence has in fact violated his probation (under both convictions) in failing to report. I will not make a finding on the assault.
I should make the record clear that at the time I released Mr. Lawrence (in January 1979), I was unaware of the November assault, and possibly what one might be able to assume was some connection between the assault, the wife eight months pregnant and the premature death of the (couple's) baby.
The court refused defendant's offer to have his wife testify and answer any questions about the alleged assault. When defense counsel questioned the court about the basis of its decisions to revoke defendant's probation, the judge stated:
I'm revoking Mr. Lawrence for failing to report, which is an admitted violation of probation, and I am taking into consideration, in the disposition of that violation, everything I know and did not know at the time I released him from jail and what has been going on since.
The court recommended a minimum prison term of 18 months for each offense, to run concurrently. Under RCW 9.95.040(2), however, the mandatory minimum sentence for defendant is 71/2 years. From the order of revocation, defendant appeals.
A probation revocation hearing is not a criminal proceeding within the Bill of Rights and the Fourteenth Amendment to the United States Constitution, or art. 1, § 22 of the Washington State Constitution. State ex rel. Woodhouse v. Dore, 69 Wash.2d 64, 416 P.2d 670 (1966). Accordingly, a probationer's due process rights are not the same as those of a person accused of a crime. Gagnon v. Scarpelli, supra; Morrissey v. Brewer, supra; State v. Riddell, 75 Wash.2d 85, 449 P.2d 97 (1968). The United States Supreme Court in Morrissey v. Brewer, supra, articulated the minimum requirements of due process for a parole revocation hearing, and made these same criteria applicable to probation revocation hearings in Gagnon v. Scarpelli, supra. These requirements include, among others: an opportunity to be heard in person and to present witnesses and documentary evidence; and a statement by the fact finder as to the evidence relied on and reasons for revoking probation. Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604. These due process requirements apply to both conceptual stages of the probation revocation hearing: the fact-finding portion during which the court determines whether a probation violation occurred, and the disposition...
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