State v. Wahlert

• Decision Date: 18 December 1985
• Docket Number: No. 85-498,85-498
• Citation: 379 N.W.2d 10
• Parties: STATE of Iowa, Appellee, v. Joel Dean WAHLERT, Jr., Appellant.
• Court: Iowa Supreme Court

Page 10

379 N.W.2d 10

STATE of Iowa, Appellee, v. Joel Dean WAHLERT, Jr., Appellant.

No. 85-498.

Supreme Court of Iowa.

Dec. 18, 1985.

Terry Wright, Amy Christensen Couch and Margaret LaMarche, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Ann DiDonato Asst. Atty. Gen., and David Welu, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

REYNOLDSON, Chief Justice.

Defendant Joel Dean Wahlert, Jr., has appealed from a district court order revoking probation and judgment sentencing him to a term not to exceed twenty-five years for a prior conviction of robbery and a term not to exceed five years for a prior conviction of terrorism. The controlling issue is whether constitutional due process or public policy concerns required the district court to continue the revocation hearing until the new criminal charge that triggered the revocation process had been tried. The district court overruled the continuance motions and we affirm.

Defendant was charged with the crimes of first-degree robbery and terrorism in Dallas County. July 8, 1982, he pleaded guilty to both charges and was sentenced to a term not to exceed twenty-five years. After defendant appealed, the State moved for a remand for resentencing because defendant's counsel had not advised the court that defendant was a minor when the crimes were committed, hence imprisonment was not mandatory. Iowa Code § 232.8(3) (1981); see State v. Vavrik, 336 N.W.2d 193, 194-95 (Iowa 1983). We granted the motion to remand and dismissed the appeal.

Upon remand the district court, in light of Iowa Code subsection 232.8(3) and recommendations of prison counselors, deferred judgment on June 8, 1984, and placed defendant on probation for five years.

January 11, 1985, defendant was arrested and charged with the January 7, 1985, second-degree burglary of a rural home near Redfield, Iowa. His probation officer filed in court a report of this activity, as well as defendant's two citations for traffic violations. After a hearing was set to consider revoking defendant's probation, he filed a motion to continue the hearing until final disposition of the expected criminal trial on the burglary charge.

The district court denied defendant's motion and the revocation hearing was held on February 15, 1985. At that time defendant again renewed his motion for continuance, which was denied for the second time. The State presented several witnesses, including a person who participated in the burglary. Defendant did not take the stand. The court revoked defendant's probation, based on the evidence presented "and the lack of evidence that was presented by the defendant."

March 8, 1985, defendant was sentenced as we have indicated above, the court having refused to grant defendant another deferred sentence. The burglary charge against the defendant then was dismissed.

I. On appeal defendant contends trial court reached its decision on an inadequate record, and abused its discretion in not continuing his deferred judgment and in sentencing him to the maximum sentences of twenty-five and five years. We have examined the record carefully, and find the district court's determination that defendant participated in the burglary is supported by a preponderance of credible testimony the court well could have believed. We further find the district court, in the circumstances presented, did not abuse its discretion in not continuing defendant's deferred judgment and in sentencing him to the prison terms. It would add nothing to our jurisprudence to detail the facts that support these holdings.

II. We shall examine, however, defendant's assertion it was a violation of fundamental fairness and due process, apparently under the fourteenth amendment to the United States Constitution, and against public policy, for the court to deny his motion for a continuance of the revocation hearing until after the disposition of the criminal charge. An examination of our decisions discloses that we have never been required to reach the issue now before us.

The defendant concedes that on review we disturb the district court's disposition of a motion for continuance "only where there has been a clear abuse of judicial discretion and injustice thereby done to the defendant." State v. Kyle, 271 N.W.2d 689, 691 (Iowa 1978); see State v. McGinnis, 243 N.W.2d 583, 586 (Iowa 1976). See also Iowa R.Civ.P. 183(a). Defendant, however, argues an injustice occurred here because he was forced to face a revocation hearing followed by a pending criminal trial, which created "an unnecessary and unreasonable tension" between his fifth amendment right to remain silent and the danger that his testimony in the first proceeding might be used to convict him in the criminal proceeding.

Defendant's contention must be considered against the framework in which a probation revocation hearing takes place. Because loss of probation deprives an individual of a conditional liberty, the United States Supreme Court has held limited due process rights exist, including notice and hearing. Gagnon v. Scarpelli, 411 U.S. 778, 782, 786, 93 S.Ct. 1756, 1759-62, 36 L.Ed.2d 656, 661-62, 664 (1973). Revocation hearings, however, are not part of a criminal prosecution. Id. at 782, 93 S.Ct. at 1759-60, 36 L.Ed.2d at 661-62. It follows that the "full panoply of rights" accorded a defendant in a criminal prosecution is not required. See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972).

Revocation proceedings are informal, Calvert v. State, 310 N.W.2d 185, 187 (Iowa 1981), and the rules of evidence are not strictly applied. State v. Hughes, 200 N.W.2d 559, 563 (Iowa 1972). The State must demonstrate by a preponderance of the evidence that defendant violated the conditions of his probation. Calvert, 310 N.W.2d at 187. Moreover, defendant's silence at such hearings can be considered by the court, along with other factors, in making a determination whether defendant violated the terms of probation. Id. at 188-89 (Court considered silence after State made prima facie showing of a violation.). Cf. Baxter v. Palmigiano, 425 U.S. 308, 316-20, 96 S.Ct. 1551, 1557-59, 47 L.Ed.2d 810, 820-22 (1976) (Adverse inferences may be drawn from defendant's silence at prison disciplinary proceedings and considered as one factor in the determination of the issues.). It is against this backdrop that we further explore defendant's constitutional argument.

Defendant asserted in district court, and argues here, that by testifying at the revocation hearing he risks making incriminating statements that may be used against him in the trial of the underlying substantive offense. He must, therefore, "elect" whether he will testify and risk incriminating himself for the purpose of the latter, or remain silent and risk revocation of his probation because he is unable to describe mitigating circumstances to the revocation court. Because the goal of probation is rehabilitation, State v. Darrin, 325 N.W.2d 110, 112 (Iowa 1982); Iowa Code § 907.7 (1983), defendant contends the court should hear explanations for his acts even though such conduct constitutes violations. See People v. Coleman, 13 Cal.3d 867, 873-74, 533 P.2d 1024, 1031, 120 Cal.Rptr. 384, 391 (1975). To remedy the alleged infringement of his rights, defendant asserts we should adopt a rule requiring the State either hold the revocation hearing after the criminal trial or provide him "use immunity," thus barring use of his revocation hearing testimony at any subsequent criminal prosecution on the underlying crime.

We alluded to this constitutional issue in Calvert, 310 N.W.2d at 188-89, although we were not required to resolve it. Our research has disclosed only one case, Melson v. Sard, 402 F.2d 653, 655 (D.C.Cir.1968), that supports defendant's constitutional violation argument. Melson was filed before three United States Supreme Court decisions: Baxter, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810; Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), all of which further staked out the parameters of "compulsive" elections. Melson has not been followed in any other jurisdictions, and defendant's thesis has been rejected by other courts. See, e.g., Ryan v. Montana, 580 F.2d 988, 991-94 (9th Cir.1978), cert. denied, 440 U.S. 977, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Commonwealth v. Kates, 452 Pa. 102, 111-14, 305 A.2d 701, 707-08 (1973).

The Ryan court concluded that comparable tension often causes a defendant to make strategic choices between alternatives throughout the criminal process. On similar facts, that court held the choice did not force the defendant to make an impermissible election between two constitutional rights. 580 F.2d at 990-92. Because the State did not compel Ryan to testify, the Ninth Circuit court distinguished the probation revocation situation from the one in Lefkowitz, where the refusal of a political party officer to testify before a grand jury and waive his or her fifth amendment privilege meant the immediate loss of the individual's political position. 431 U.S. at 802-03, 97 S.Ct. at 2134, 53 L.Ed.2d at 5.

In McGautha it was argued an "intolerable tension between constitutional rights" was created by an Ohio statute that permitted guilt and punishment to be determined in a single-trial procedure. 402 U.S. at 211, 91 S.Ct. at 1469, 28 L.Ed.2d at 728. In this situation the defendant, seeking to testify with respect to punishment, might become a witness against himself or herself on the issue of guilt. The Supreme Court, however, rejected defendant's argument, finding defendant was faced with a difficult, but not unconstitutional, choice.

The criminal process, like the rest of the legal system, is replete with...