State v. Walter

• Decision Date: 28 May 1970
• Docket Number: No. 2,CA-CR,2
• Citation: 469 P.2d 848,12 Ariz.App. 282
• Parties: The STATE of Arizona, Appellee, v. Tad WALTER, Jr., Appellant. 209.
• Court: Arizona Court of Appeals

Page 848

469 P.2d 848

12 Ariz.App. 282

The STATE of Arizona, Appellee, v. Tad WALTER, Jr., Appellant.

No. 2 CA-CR 209.

Court of Appeals of Arizona, Division 2.

May 28, 1970.

Rehearing Denied June 24, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

S. Jeffrey Minker, Tucson, for appellant.

HATHAWAY, Judge.

This appeal concerns the rights of an individual at a revocation of probation hearing.

Appellant had previously plead guilt to the crime of 'drawing a check on no account,' and was brought before the court for sentencing on March 29, 1968. The court suspended imposition of the sentence and the appellant was placed on probation for five years.

On July 8, 1969, the Adult Probation Office filed a petition to revoke the appellant's probation, and a hearing was held on this petition on September 5, 1969. At this hearing the Probation Officer, not under oath, apparently testified in the court's chambers as to the reasons he filed the petition and for revoking the appellant's probation. The appellant's attorney sought to cross-examine the probation officer, but he was denied that right. The court then revoked the appellant's probation and sentenced him to prison for a period of not less than four nor more than five years.

A.R.S. § 13--1657, subsec. B, relating to the revocation of probation states in part:

'At any time during the probationary term of the person released on probation, * * * the court may, in its discretion, issue a warrant for the rearrest of any such person and may thereupon revoke and terminate the probation, if the interests of justice so require, and if the court, in its judgment, has reason to believe that the person so placed upon probation is violating the conditions of his probation, or engaging in the criminal practices, or has become abandoned to improper associates, or a vicious life.'

The right to suspend a sentence in a criminal case can only be exercised in accordance with A.R.S. § 13--1657, State v Bigelow, 76 Ariz. 13, 258 P.2d 409, 39 A.L.R.2d 979 (1953), since such power did not exist at common law, Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937). State v. Washington, 5 Ariz.App. 400, 427 P.2d 381 (1967); State v. Douglas, 87 Ariz. 182, 349 P.2d 622, certiorari denied 363 U.S. 815, 80 S.Ct. 1255, 4 L.Ed.2d 1157 (1960).

The U.S. Supreme Court has held that an accused at a hearing to revoke his probation has a right to counsel, and this right exists whether the procedure is '* * * labeled a revocation of probation or a deferred sentencing.' Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967). Arizona has likewise held that the accused is entitled to counsel at a hearing on revocation of probation and sentencing. Leonard v. State, 101 Ariz. 42, 415 P.2d 570 (1966).

However, a proceeding for revocation of probation is not subject to the limitations of a trial and is not governed by the same rules. State v. Benton, 5 Ariz.App. 314, 426 P.2d 414 (1967), State v. Maxwell, 97 Ariz. 162, 398 P.2d 548 (1965). To remain at liberty under a suspended sentence is not a matter of right in Arizona, but a matter of grace and is purely in the discretion of the trial court. State v. Maxwell, supra. The trial court here had read the probation officer's report, spoke with both the probation officer and appellant's counsel, and gave the appellant an opportunity to testify and present witnesses on his behalf. The appellant at that time admitted the various allegations in the probation officer's report. We believe that the appellant was afforded his full constitutional rights, and find no basis in the contention that the denial of his right to cross-examine the probation officer violated his due process.

Having admitted to the trial court that he wrote the checks in question, there was sufficient evidence upon which the trial court in its discretion could revoke his probation. State v. Maxwell, supra; State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968).

We affirm the decision below.

KRUCKER, J., concurs.

HOWARD, Chief Judge (specially concurring).

I concur in the foregoing opinion only for the reason that our Supreme Court had spoken on the matter and, therefore, has mandated my concurrence. I believe, however, that the matter involved merits closer examination. The judicial cliche that 'probation is a matter of grace and not of right' was spawned in the case of Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932) and perpetuated in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). The best that can be said about the principle enunciated by these cases is that it is easy to remember and easy to apply. But, the rule makes no sense when it is used to deprive a person of his liberty without any respect whatsoever for the fundamental principles of fair play. I agree that it is initially a matter of grace as to whether the court will or will not put a person on probation. But once the person is placed on probation it is my belief that he has a Right to be on probation as long as he complies with the conditions of his probation and does not commit those acts which give cause for revocation of probation as set forth in A.R.S. § 13--1657, subsec. B, supra.

It should be noted that A.R.S. § 13--1657, subsec. B, does not even require a hearing to be held before probation is revoked. In fact, the Arizona Supreme Court in Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937), held that no hearing was required before the revocation of probation. I submit that such a decision is not warranted even based on the Burns and Escoe cases. In the Escoe case, the court expended on what it said in Burns, explaining that the hearing while it need not be formal in nature, must be 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 the inquisitor to carry the probe deeper. The probationer must be given the opportunity to 'explain away' charges which '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.

After admirably setting forth the reasons for requiring a pre-revocation hearing, the court in Escoe, in dicta, rejected the probationer's contention that a hearing is mandated by the federal constitution. The lawmakers, the court observed, could, if they wish, 'dispense with notice or a hearing.'

The lower federal courts and state courts generally follow the lead of the United States Supreme Court in Escoe and Burns. These courts require a hearing but say that the hearing may be an 'informal hearing' sometimes adding that the test is whether or not the probationer was given 'fair treatment.' ¹

The courts in three states recognized the probationer's right to cross-examine adverse witnesses. Robinson v. State, 62 Ga.App. 539, 8 S.E.2d 698 (1940); Moye v. Futch, 207 Ga. 52, 60 S.E.2d 137 (1950); People v. Price, 24 Ill.App.2d 364, 376--377, 164 N.E.2d 528, 533 (1960); State v. Zachowski, 53 N.J.Super. 431, 147 A.2d 584 1959).

In the states of Utah, New Mexico and Arkansas, the courts decided that a hearing is mandatory even though there was no statute requiring such a hearing. In the case of State v. Zolantakis, 70 Utah 296, 259 P. 1044 (1927), the court recognized the fact that the purpose of a law permitting a person to be put on probation is clearly reformatory, reasoning that reformation can 'best be accomplished by fair, consistent, and straightforward treatment of the person sought to be reformed.' The court further stated:

'The right to personal liberty is one of the most sacred and valuable rights of a citizen, and should not be regarded lightly. The right to personal liberty may be as valuable to one convicted of crime as to one not so convicted, and so long as one complies with the conditions upon which such right is assured by judicial declaration, he may not be deprived of the same. Such right may not be alternatively granted and denied without just cause.'

The court then stated that the minimum procedures which are required in a revocation hearing are as follows: The defendant is entitled to have filed either an affidavit, motion, or other written pleading setting forth the facts relied upon for a revocation of probation; the defendant should be given an opportunity to answer or plead to the charge made; a hearing should be had upon the issues joined and; the defendant as well as the state, shall be given the right of cross-examination. ²

The reason for giving the right of cross-examination is ably set forth in the Zolantakis case:

'In a judicial investigation the right of cross-examination is an absolute right and not a mere privilege of the party against whom the witness is called. It is only after such right has been substantially and fairly exercised that the allowance of further cross-examination becomes discretionary. (Citation omitted.) The reason for the rule is doubtless that the fact that cross-examination of a witness may not only modify and explain, but it may destroy the evidence in chief. * * * Legal procedure requires that the court hears before it condemns, and in such hearing cross-examination is often as enlightening as is the examination in chief.'

The Zolantakis case was followed in Utah in Williams v. Harris, 106 Utah 387, 149 P.2d 640 (1944) and Thompson v. Harris, 106 Utah 32, 144 P.2d 761 (1943). ³

The idea that suspension of sentence gives to the defendant a valuable right, that of personal liberty, was followed by the New Mexico Supreme Court in Ex parte Lucero, 23 N.M. 433, 168 P. 713 (1917), followed in State v. Peoples, 69 N.M. 106, 364 P.2d 359 (1961) and by the Washington Supreme Court in State v. O'Neal, 147 Wash. 169, 265 P. 175 (1928), approved in State v. Shannon, supra.

The Supreme Court of Appeals of Virginia in Griffin v. Cunningham, 205 Va. 349, 136...