State v. Nelson, 44451

• Decision Date: 09 April 1966
• Docket Number: No. 44451,44451
• Citation: 412 P.2d 1018,196 Kan. 592
• Parties: The STATE of Kansas, Appellee, v. Harold Glen NELSON, Appellant.
• Court: Kansas Supreme Court

Page 1018

412 P.2d 1018

196 Kan. 592

The STATE of Kansas, Appellee, v. Harold Glen NELSON, Appellant.

No. 44451.

Supreme Court of Kansas.

April 9, 1966.

Syllabus by the Court

1. Under the provisions of K.S.A. 62-2244, a defendant who is charged with having violated the conditions of his probation is entitled to a hearing before his probation may be revoked.

2. The hearing required by K.S.A. 62-2244 may be 'informal or summary,' but must afford the probationer an opportunity to face and, if possible, refute the charges made against him.

3. Where a probationer is present and represented by counsel at a revocation hearing, and where he neither requests a continuance bacause of insufficient notice nor objects to proceeding with the hearing, he is deemed to have waived any question as to the sufficiency of notice and is in no position to complain of deficiencies therein.

4. Where impropr evidence has been admitted in a trial to the court, there is no presumption, in the absence of a motion to strike, that such evidence was considered or entered into the court's ultimate decision.

5. A judgment which is supported by substantial competent evidence is not subject to reversal merely because some incompetent evidence may have been admitted.

6. The record is examined in an action to revoke an order of probation, and it is held: (1) The bench warrant issued on the court's own motion complied with the requirements of K.S.A. 62-2244; (2) the order revoking the defendant's probation is supported by substantial competent evidence; (3) the trial court did not abuse its discretion in revoking probation and ordering the defendant committed; and (4) no error has been shown to the prejudice of the substantial rights of the defendant.

Arthur B. Dillingham, Salina, argued the cause and was on the brief for appellant.

Bill Crews, County Atty., argued the cause and was on the brief for appellee.

FONTRON, Justice.

This is an appeal by the defendant, Harold Glen Nelson, from an order of the District Court of Saline County revoking an order of probation and ordering the defendant committed to serve sentences parviously imposed against him.

The following facts are not in dispute: On November 21, 1961, the defendant, who was then represented by counsel, pleaded guilty to charges of burglary in the second degree and burglarious larceny. Sentence was deferred, pending a pre-sentence investigation, and eventually, on March 14, 1962, the defendant was sentenced to a term of five to ten years on the burglary charge and not to exceed five years for larceny, the sentences to run consecutively.

Upon motion of his counsel, the defendant was granted probation for a period of five years on certain designated conditions, among which was the following:

'The defendant shall not associate with any individuals he has known in the penitentiary, nor in any other prison, or jail. Further he shall not accociate with any other individuals who have been, to his knowledge, guilty of violation of the law or who have been in prison or in any penitentiary or jail. A further condition is that he is not to associate at any time or place for any purpose under any condition with anyone who is a user of narcotics or drugs or engaged in the sale or use of narcotics or drugs. Further it is a condition of this parole that the Defendant is not to associate with any individuals who themselves have been associated for any substantial period of time with individuals who have been law violators or inmates of prisons or jails.'

Time passed, and on January 5, 1965, the court, on its own motion, found there were reasonable grounds to believe that the defendant had violated the terms of his probation and directed that a bench warrant be issued for his arrest. The warrant recited the court's findings and ordered that the defendant be returned for hearing '* * * upon the Court's own motion for consideration of revocation of said defendant's probation * * *.'

Mr. Nelson was duly apprehended the following day and placed in the Saline County jail for safekeeping. On January 8, 1965, the court appointed Mr. January Lewis, of the Saline County bar, to represent Nelson and continued the matter subject to call.

On January 20, 1965, the matter came on for hearing, both defendant and his appointed counsel being present. Evidence was introduced by both the state and the defendant. At the conclusion of the hearing, the trial court found that the probation should be revoked and ordered the defendant committed to serve the sentences which had previously been imposed. The defendant was given credit for two hundred thirty-eight days spent in jail awaiting parole revocation hearing. Appeal from this order was perfected and Mr. Arthur B. Dillingham, a practicing attorney of Salina, was appointed to represent the defendant in this court.

The following points are raised on appeal:

'1. The Bench Warrant served on appellant on January 6, 1965 did not comply with 62-2244 K.S.A. in that it failed to apprise appellant of which of the terms of his parole he allegedly had violated.

'2. The appellant was denied due process of alw as he could not properly prepare his defenses to such charges as he was not apprised of the manner in which he allegedly violated the conditions of his release.

'3. The hearing failed to establish by competent evidence that there had been violation of the terms of appellant's parole.

'4. The trial court erred in admitting hearsay evidence and using same as a basis for revocation of parole.

'5. The evidence presented at the hearing did not show that the appellant had committed acts of sufficient gravity to justify the revocation of parole.

'6. The revocation of parole was an abuse of discretion by the trial court.'

These points will be considered in the order listed.

In our opinion, the bench warrant issued on the court's own motion fully complied with the requirements of K.S.A. 62-2244, the pertinent portion of which reads:

'At any time during probation or suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. Such notice shall be personally served upon the defendant. The warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. * * *'

The statute does not direct that the particulars of an alleged violation be included in the warrant, and we are not at liberty to read such a provision into the act. However, we suggest it would be better practice to set out the nature of the alleged violation.

We think the defendant may have confused the statutory provision relating to the issuance of a bench warrant with the requirements which must be met when a probationer is arrested by a probation officer, or under that officer's authority. In the latter case, it is provided that '* * * the probation officer shall immediately notify the court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release. * * * ' (62-2244, supra.) (our italics.) The provisions last quoted are not applicable where an arrest has been made under a bench warrant duly issued by the court.

Since the enactment of K.S.A. 62-2244 in 1957, a defendant who has been charged with violating the conditions of his probation must be given a hearing before his probation may be revoked. (Northcott v. Hand, 186 Kan. 662, 352 P.2d 450.) The requirement that a hearing be held, even though it may be 'informal or summary,' contemplates that the defendant be afforded an opportunity to face, and refute if possible, the charges directed against him. In discussing the purpose of a mandatory statute similar to ours, Mr. Justice Cardozo, speaking for the court in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, said:

'* * * Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. The charge against him may have been inspired by rumor or mistake or even downright malice. He shall have a chance to say his say before the word of his pursuers is received to his undoing. This does not mean that he may insist upon a trial in any strict or formal sense. Burns v. United States, supra, 287 U.S. 216, at pages 222, 223, 53 S.Ct. 154, 77 L.Ed. 266. It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of inquisitor to carry the probe deeper. Burns v. United States, supra. * * *' (295 U.S. p. 493, 55 S.Ct. p. 820.)

We believe the record in the case before us clearly establishes that the defendant was afforded opportunity to meet the accusation against him. He was provided with counsel twelve days before the matter was heard. Appointed counsel thus...