State v. Shambley
| Decision Date | 08 April 2011 |
| Docket Number | No. S–10–556.,S–10–556. |
| Citation | 795 N.W.2d 884,281 Neb. 317 |
| Parties | STATE of Nebraska, appellee,v.Samantha A. SHAMBLEY, appellant. |
| Court | Nebraska Supreme Court |
1. Due Process. The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.
2. Due Process. Applying the Due Process Clause to the facts of any given case is an uncertain enterprise which must discover what fundamental fairness consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.
3. Due Process. Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.
4. Constitutional Law: Probation and Parole. The conditional liberty of a parolee or probationer includes many of the core values of unqualified liberty and is, therefore, an interest within the contemplation of the liberty or property language of the 14th Amendment.
5. Probation and Parole: Due Process. At a hearing to determine revocation of parole or probation, the following minimum due process protections apply: (1) written notice of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body or person, who should not be the officer directly involved in making recommendations; (4) opportunity to be heard in person and to present witnesses and documentary evidence; (5) the right to cross-examine adverse witnesses, unless the hearing officer determines that an informant would be subjected to risk of harm if his or her identity were disclosed or unless the officer otherwise specifically finds good cause for not allowing confrontation; and (6) a written statement by the fact finder as to the evidence relied on and the reasons for revoking the conditional liberty.
6. Probation and Parole: Due Process: Evidence. A parole or probation revocation hearing is not a criminal prosecution, and the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
7. Courts: Probation and Parole: Due Process. Drug court program participants are entitled to the same due process protections as persons facing termination of parole or probation.
8. Courts: Probation and Parole: Evidence: Witnesses. Despite the flexible standard for drug court program termination and parole or probation revocation hearings which allows the consideration of hearsay evidence inadmissible under the rules of evidence, absent a showing of good cause, the drug court participant, parolee, or probationer has the right to confront adverse witnesses with personal knowledge of the evidence upon which the termination or revocation is based.
9. Courts: Proof. In drug court termination proceedings, the State bears the burden of proving, by a preponderance of the evidence, the alleged grounds for termination.
Melissa A. Wentling, Madison County Public Defender, and Christopher Bellmore, Libertyville, IL, for appellant.Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and IRWIN, Judge.
This case presents an appeal from a participant's discharge from the drug court program.1 The participant argues she was denied her rights to due process and confrontation when no adverse witnesses were available for cross-examination and the only evidence considered in support of the alleged violations of her drug court contract was a letter, written to the judge by the drug court coordinator, and its attachments. This is the first time we consider what process is due in drug court termination proceedings.
On December 23, 2008, Samantha A. Shambley pled guilty to possession of a controlled substance, a Class IV felony, in violation of Neb.Rev.Stat. § 28–416(3) (Reissue 2008). The district court accepted the plea and adjudged her guilty of the offense. In lieu of sentencing at that time, the court transferred the case to the drug court program.
The drug court program is a postplea or postadjudicatory intensive supervision drug and alcohol treatment program for eligible offenders.2 The purpose of the program is to reduce offender recidivism by fostering a comprehensive and coordinated court response composed of early intervention, appropriate treatment, intensive supervision, and consistent judicial oversight.3 A drug court program participant pleads guilty and agrees to the terms and conditions of the program in exchange for the possibility of avoiding sentencing and, oftentimes, being allowed to withdraw the plea upon successful completion of the program. If the participant is terminated from the program or withdraws before successful completion, then the conviction stands and the case is transferred back to the district court for sentencing. Throughout this opinion, we have, for convenience, used the term “drug court.” In this case, when the term is used, it refers to the district court. There is not a separate drug court under the Nebraska Constitution, and when the term “drug court” is used, it simply refers to a program of the district court, county court, or juvenile court, rather than to a separate court.4
The parties agree that Shambley signed a drug court contract which, among other things, required that she stay drug free. On August 28, 2009, Shambley appeared before a judge of the drug court after reports that she had used marijuana. Shambley admitted that she had used. Shambley promised to try harder to comply with the terms and conditions of the program. She was not represented by counsel, and no evidence was adduced or specific findings made. In a written order, the judge revoked Shambley's bond for 72 hours, during which time she was ordered incarcerated “for violations of [her] Drug Court program.”
Similar proceedings occurred on November 13 and December 4, 2009. At the November 13 proceeding, the judge told Shambley that she could not smoke marijuana and referred to the fact that she had missed drug tests. Shambley neither specifically admitted nor denied having done so. Shambley again told the judge that she wanted to stay in the program. The judge revoked her bond for 72 hours and sent Shambley to jail “for violations of [her] Drug Court program.” Shambley was told that thereafter, she was to report to the drug court weekly. These meetings are not in the record.
During her appearance on December 4, 2009, Shambley admitted to having had another “setback.” She was sent to spend the weekend in jail “for violations of [her] Drug Court program.” She was ordered to report back on December 18, but there is no record of any meeting on that date.
On February 5, 2010, Shambley appeared to discuss yet another report of drug usage, which she neither admitted nor denied. The judge warned Shambley that she was at risk for termination from the drug court program.
On March 12, 2010, the judge again told Shambley that she had tested positive for drugs. Shambley, however, denied that she had used on the occasion in question. The judge informed Shambley that this time, the drug court team had recommended that she be terminated from the program. The judge scheduled an informal hearing to determine the issue of the recommended termination.
The hearing on termination was held on March 25, 2010. For the first time, Shambley appeared with counsel. The court explained that it was Shambley's burden to go forward with showing why she should not be terminated from the program, stating:
We have a termination hearing from the drug court. And this is a non—I guess the term is informal hearing to address that under our policy. And under the policy I believe that [Shambley] has the responsibility of going forward with that. Any evidence to remain as the recommendation of the drug court team has been to terminate her from the drug court, and I've received a report. Have you folks seen that ... ?
The State did not argue any position as to the termination and did not present any evidence or call witnesses. The judge noted that he had received the letter from the drug court coordinator recommending Shambley's termination. The letter and its attachments were the only evidence in support of termination.
In the letter, the drug court coordinator alleged three instances of drug usage for the court to consider at the termination hearing: (1) February 5, 2010, (2) March 11, 2010, and (3) March 19, 2010. The coordinator made a brief synopsis of Shambley's recent difficulties in following the drug court contract and included five attachments as proof of those difficulties.
The first attachment was a discharge summary report from the rehabilitation center where Shambley stayed from December 2009 to January 2010. The report summarized that Shambley had relapsed three times while at a previous center and that that was the reason for her transfer. The report stated that Shambley made good progress at the center. She was discharged, with a favorable prognosis, to a halfway house.
According to the drug court coordinator's letter, the placement at the halfway house was unsuccessful. The second attachment was a letter written by a therapist of a therapeutic community where Shambley was admitted on February 9, 2010, apparently after her discharge from the halfway house. The therapist stated that Shambley was admitted “due to her continued substance use.” The therapist also stated that while at the community, Shambley violated the conditions of a pass when she skipped an appointment to go shopping and she tested positive for marijuana on March 8, 2010.
The third and fourth attachments were printouts from a...
To continue reading
Request your trial
-
Parsons v. McCann, 8:14CV207.
...in a post-plea diversion program, or a first-time offender, he or she is entitled to procedural due process. See State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011) (in post-plea diversion programs, such as drug court, participants are entitled to same due process protections as persons ......
-
Gaige M. v. Winterer
...v. O'Bannon, 536 F.Supp. 350 (E.D.Pa.1982) ; In re Interest of Brian B., 268 Neb. 870, 689 N.W.2d 184 (2004).10 See, State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011) ; In re Interest of Brian B., supra note 9.11 Mathews v. Eldridge, supra note 1.12 See Hass v. Neth, supra note 6.13 Go......
-
Tornavacca v. State
...due-process protection prior to termination from participation in their respective drug-court programs. See, e.g., State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011); Gosha v. State, 931 N.E.2d 432 (Ind.Ct.App.2010); State v. Rogers, 144 Idaho 738, 170 P.3d 881 (2007). In doing so, thes......
-
Kellum v. Bernalillo Cnty., the Bernalillo Cnty. Comm'n, Corr. Healthcare Cos.
...regarding automatic sanctions for violations of her probation.Finally, Defendants cite in their reply brief to State v. Shambley , 281 Neb. 317, 795 N.W.2d 884 (2011). (Doc. 251 at 7.) The defendant in Shambley pleaded guilty to possession of a controlled substance and, in lieu of sentencin......