Wlodarczyk v. State, 91-20

Citation836 P.2d 279
Decision Date24 June 1992
Docket NumberNo. 91-20,91-20
PartiesRaymond WLODARCZYK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Donald J. Rissler of Brown, Raymond & Rissler, P.C., Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and Larry M. Donovan, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

URBIGKIT, Chief Justice.

After pleading guilty to a charge of aggravated assault on his elderly father while drunk, appellant Raymond Wlodarczyk was sentenced in 1988 to serve nine months in county jail followed by three years of supervised probation. Having successfully completed the jail term and approximately two years and four months of the three year probationary period, Wlodarczyk started drinking again in violation of the express terms of his probation. With the resulting probation revocation, Wlodarczyk was sentenced to a five to six year prison term. From this sentence he now appeals.

We reverse and remand.

I. ISSUES

Wlodarczyk states the issues as:

I.

Whether defendant's due process right was violated because defendant was not properly apprised of the grounds on which his revocation was based, as provided in W.S. § 7-13-408 and as required in Rule 33, W.R.Cr.P.

II.

Whether defendant's due process right to cross-examine pursuant to § 7-13-408, W.S. 1977 and Rule 33, W.R.Cr.P. were violated by the court's refusal to allow the cross-examination of Officer Lien?

III.

Was defendant's right to a speedy sentencing violated?

The State rephrases the issues:

I. Did the district court commit reversible err[or] in the course of the proceedings which resulted in the revocation of the appellant's probation.

II. Was the appellant's right to speedy sentencing violated.

Following oral argument and this court's review of the appellate briefs, the parties were ordered to submit supplemental briefing considering the following questions:

1. Was entry of the order o[f] revocation proper when signed by a judge other than the judge who conducted the hearing and, if so, should the order and record in some fashion document under what rule or statute authority existed and the circumstances which occurred so that a different judge from the one who conducted the hearing then signed the decisional document?

2. Is the sentence rendered herein as the result of probation revocation statutorily justified and, if so, by what statute? This topic should include evaluation of the statute under which it is contended the original sentence was rendered and consequent consideration in brief as to what provisions of law provide what rights for resentencing after a possible violation of probation may have occurred during its term.

3. Under what statute, what rule or controlling case do the litigants contend that the probation revocation proceeding was conducted by the district court?

4. Is there a difference in revocation process for violation of probation dependent on whether the revocation proceeding is initiated by representatives of the Department of Probation and Parole or initiated and conducted by the office of the county or district attorney?

Both sides submitted supplemental briefs which addressed this court's questions. 1

II. FACTS

Pursuant to a negotiated disposition, Wlodarczyk entered a guilty plea to one count of aggravated assault and battery on Janeice Lynch, the probation officer in this case, stated that until Wlodarczyk's father passed away in September, 1990, Wlodarczyk "followed [the probation officer's] instructions and made an attempt to adhere to his Court-ordered conditions." Further, Lynch stated that Wlodarczyk "had made progress and that he truly was trying to live a law-abiding life." However, within twenty-three days of his father's death on September 3, 1990, Wlodarczyk was arrested on two separate occasions for public intoxication. Wlodarczyk admitted to Lynch he had resumed drinking. In citing the two arrests for public intoxication, Lynch filed a petition for probation revocation. 3

                March 22, 1988.  He had been charged with threatening his father with a butcher knife.  On May 17, 1988, Wlodarczyk was sentenced by District Judge Spangler to serve nine months in the Natrona County, Wyoming jail, credited with time previously served, and ordered placed on three years of supervised probation following the jail sentence. 2  The district court's judgment and sentencing order stated that Wlodarczyk was guilty of violating the Wyoming aggravated assault statute, but did not identify the probationary sentencing statute applied in the sentence rendered.  Probation was conditioned in part on his successful completion of an alcohol rehabilitation program at the Wyoming State Hospital in Evanston, Wyoming, and prohibited possession or consumption of alcoholic beverages.  Wlodarczyk did his time in county jail, completed the alcohol rehabilitation program and successfully served the first two-plus-years of his probationary period without significant incident
                

Wlodarczyk appeared before the other resident district judge, Judge Leimback, on November 9, 1990 for a probation revocation hearing. The Assistant District Attorney began the hearing by describing Wlodarczyk's recent problems with alcohol and public intoxication. In addition, however, the prosecutor also discussed his concern that Wlodarczyk was "out of control." The prosecutor premised his stated opinion on several allegations including claims that several weeks earlier Wlodarczyk had unilaterally discontinued his alcohol counseling program and that he had approached a 12-year-old female at the local mall the previous evening with offers of candy if she would return with him to his residence and view a number of photographs. The presiding judge overruled defense counsel's objection to the prosecutor's recitation of the additional factors supporting revocation. 4 Following further discussion by the Upon recommencement of the hearing on November 16, 1990, the prosecutor informed the district court that Wlodarczyk had fallen into an additional drinking episode, that he had threatened his probation officer and members of her family, and that, on the previous day, he had been issued citations for shoplifting and eluding law enforcement authorities. In light of the recent events and present circumstances, the prosecutor stated that he felt the four-to-six year sentence the State had recommended at the November 9 hearing might be too lenient. After the testimony of Probation Officer Lynch, probation was revoked and Wlodarczyk was sentenced to five-to-six years in the state penitentiary. In the revocation discussion and decision, the district court did not identify the statutory or legal basis applied for revocation, nor did the district court define the particular facts and circumstances found to justify the decision made. 5

prosecutor and defense counsel and a statement by Wlodarczyk, the district court continued the hearing for time to obtain a copy of a psychiatric report.

Judge Leimback was unavailable in Casper, Wyoming for a time after orally announcing the revocation sentence at the November 16, 1990 revocation hearing. As a matter of course in sequential activities, on November 26, 1990, Judge Spangler, as the other resident district judge, signed the revocation sentence order and judgment in accord with the prior oral pronouncement. The order provided, in part:

THIS MATTER having come before the Court on this 16th day of November, 1990, and the Defendant appearing in person and with his attorney, * * *, and the State being represented by * * *, Assistant District Attorney, and the Defendant having admitted to the allegations in the Petition of Revocation filed herein, and the Court finding that the probation of the Defendant, as previously established herein and reflected in the Judgment and Sentence filed herein on May 25, 1988, should be revoked;

* * * * * *

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant be remanded to the custody of the Sheriff of Natrona County, Wyoming, to await transfer to the Wyoming State Penitentiary in Rawlins, Wyoming, to serve a term of not less than five (5) years nor more than six (6) years with credit of two hundred seventy one (271) days off the minimum and maximum for time previously served.

(Emphasis added.)

This is the sentence that is now appealed.

III. THE GENERAL LAW OF PROBATION REVOCATION

In Mason v. State, 631 P.2d 1051, 1055 (Wyo.1981), this court examined the controlling principles governing probation revocation:

The law governing probation revocation is controlled by the Fourteenth Amendment right to due process under the law, as well as by Wyoming statute and case law. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court held that the Fourteenth Amendment requires that a probationer be given a hearing before his probation may be revoked. Gagnon adopted the reasoning of an earlier case, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which extended the right of a prerevocation hearing to parolees. In both the parole and probation settings, the Court held that parole and probation revocation were not criminal prosecutions and, therefore, did not give rise to the full panoply of rights available under the Sixth Amendment. Nevertheless, parole- and probation revocation proceedings may result in a loss of liberty, thereby triggering the fundamental protections of the due-process clause of the Fourteenth Amendment. Gagnon, supra, and Morrissey, supra.

In addition, the Mason opinion set forth a two-stage process for conducting a probation revocation hearing:

Due process requires that the defendant in revocation cases be given a two-part hearing to determine if (1) there are verified facts proving a violation of the release agreement; and (2) whether in light of a proven...

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