State v. Young, 19106
| Decision Date | 24 June 1992 |
| Docket Number | No. 19106,19106 |
| Citation | 122 Idaho 278,833 P.2d 911 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Michael E. YOUNG, Defendant-Appellant. Boise, March 1992 Term |
Larry J. EchoHawk, Atty. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.
We are called upon to determine whether the district court erred in not providing Michael E. Young with appointed counsel at a probation revocation hearing. Concluding that the failure to do so was error, we reverse and remand for further proceedings.
Young pleaded guilty to one count of drawing a check without sufficient funds. The court imposed a twenty-four month sentence with a nine month minimum term, but suspended the execution of the sentence and placed Young on probation. Among the conditions of probation were that Young not violate any laws, that he not drink alcoholic beverages, and that he submit to urinalysis.
A report of probation violation was filed by Young's probation officer. The officer alleged that Young's urine had tested positive for cocaine, that Young had been seen drinking alcohol and that he had been arrested in Coeur d'Alene for possession of cocaine. The probation officer recommended to the court that it revoke appellant's probation and commit him to the Department of Corrections.
The district court issued a bench warrant and set a hearing for Young to show cause why his probation should not be revoked. On November 13, 1990, Young was transported from the Kootenai County jail to the Boundary County jail so he could attend the revocation hearing.
At the hearing, the following exchange occurred:
The purpose of this hearing is to follow up the issuance and service of a Bench Warrant on you, Mr. Young.
Have you received a copy of the reported violation dated October 23, 1990?
First, you have the right to have notice of the violations and that is accomplished by providing you with a copy of the reported violation. Have you been able to review it?
If you desire to deny these allegations, then a hearing will be held and at that time the State will have to prove the allegations.
And at that hearing you will have the right to confront any witnesses the State calls to prove the violations.
You also have the right to have a lawyer at your expense at that hearing, if you wish.
You have the right to have a lawyer at public expense only under certain limited circumstances. And before I make a determination of whether you would have the right to have a lawyer at public expense, you have to tell me why you want a lawyer. Why you believe you need a lawyer. Then I have to make a determination of whether your concerns justify the appointment of a lawyer.
You do not have the right to a Court appointed lawyer, that is, a lawyer at public expense in a probation violation to the degree that you have it when you are charged with a felony crime.
And so it's only under very limited circumstances. Now, do you know whether you want to make a request to have a lawyer present at your own expense before we proceed any further?
The fact your Public Defender down in Kootenai County asked you to apply for one here isn't a good enough reason. You need to tell me the reason why you believe you need a lawyer.
[122 Idaho 281] you believe you need a lawyer help you gather favorable information?
THE COURT: Based on your answers you haven't shown entitlement to an attorney at public expense.
I will remind you you do have the right to have a hearing on these questions, on these allegations that have been made. And you do have the right to require the State to prove them.
If you do that, then we will do that on November 26, we will have such a hearing. And at that time you have the right to have a lawyer at your own expense.
Now; do you wish to have an opportunity to hire a lawyer at your expense and have the hearing on the 26th of November?
MR. YOUNG: No, sir.
Young then admitted the allegation that his urine sample had tested positive for cocaine. The State presented a witness who testified that he arrested Young and that Young was in possession of cocaine. Young did not cross-examine the witness. After the State made its recommendation to the court, Young stated:
The Court revoked Young's probation and again imposed the original term of nine to twenty-four months of incarceration. On the filing of Young's pro se notice of appeal, counsel was appointed and is now representing him.
Young now argues that he was entitled to appointed counsel to represent him at the probation revocation hearing by reason of the provisions of I.C. § 19-852, the sixth amendment to the federal constitution, and art. 1, § 13 of the state constitution.
Idaho Code § 19-852 provides that:
(a) A needy person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings pursuant to sections 18-212, 18-214, 66-322, 66-326, 66-329 or 66-409, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled:
(1) to be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(2) to be provided with the necessary services and facilities of representation (including investigation and other preparation). The attorney, services, and facilities and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines need, unable to provide for their payment.
(b) A needy person who is entitled to be represented by an attorney under subsection (a) is entitled:
(1) to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation;
(2) to be represented in any appeal;
(3) to be represented in any other post-conviction or post-commitment proceeding that the attorney or the needy person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
(c) A needy person's right to a benefit under subsection (a) or (b) is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.
(Emphasis added.)
In general, the statute provides the right to appointed counsel to a needy person at a probation revocation hearing to the same extent as a person providing his/her own counsel would be entitled to such representation. As there is no dispute that Young is a "needy person" within the meaning of the statute, we will not belabor that point. The crucial question to be answered The State argues that Young did not have the right to appointed counsel and cites to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in support of its contention. That case, however, does not resolve the question before us. Gagnon stands for the proposition that there is no sixth amendment right to appointed counsel at all probation revocation hearings. Rather, the decision to appoint counsel is to be made on a case-by-case basis. Under the sixth amendment, the court should appoint counsel in a probation...
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