State v. DeVoe
560 P.2d 12
Alaska
1977
Check Treatment

*1 Alaska, Appellant, STATE DEVOE, Appellee.

Leslie

No. 2788. of Alaska.

Supreme Court 16, 1977.

Feb. Kauvar, Harry Atty., F. Asst. Dist.

Jane Fairbanks, Davis, Atty., Dist. Avrum M. L. Gross, Gen., Juneau, Atty. appellant.- for Johnson, Christenson, Smith, Marlin D. Link, Inc., Fairbanks, Shamberg ap- & pellee. J., BOOCHEVER, C. and RABI-

Before CONNOR, BURKE, NOWITZ, ERWIN JJ.

OPINION BURKE, Justice. currently

Appellee Leslie DeVoe supervision under the of the De- probation, Services, Health Social partment following of at- conviction on robbery. tempted By judgment entered 20, 1974, DeVoe was sen- on December im- years one-half three and tenced to years two and one-half with prisonment, *2 13 placed probation during and on suspended, denial was the fact that there had been no suspension. the con- period such of One of indictment and conviction the additional was that he of DeVoe’s ditions receiving concealing crime of and stolen state, obey municipal, all and federal laws.1 appeal, by State, property. This fol- lowed. 12,1975, the of Alas- On November State proba- to revoke DeVoe’s petition

ka filed a alleged, among other petition

tion. The I. on had things, that while DeVoe question that must consider The first we by the laws of the of Alaska violated State right appeal the state has the to is whether committing receiving crime and in this case. conclude that it does. We concealing property.2 stolen to Generally, appeal an this court hearing petition A on the was held in the right. by This is so is a matter virtue 4,1975. court on December At the superior legis 22.05.010.3 The provisions AS hearing presented sup- the state evidence in however, statute, lature, enacting that port petition. of the At the conclusion of right appeal to limit the state’s saw fit hearing judge, the Honorable War- cases, apart In such from criminal cases.4 that he Taylor, ren W. announced would right appeal ground its a sentence on the matter, any decision on the withhold antici- lenient,5 appeal it is too the state can that pating jury that there be a on would only sufficiency to test the of the indict receiving concealing sto- right ment or information. The state’s property. len depends upon in this case therefore appeal 18, 1975, the On December State of Alas- given proceed the characterization to the requested Judge Taylor ka that rule on the the court ings in below. petition, informing merits of the after him State, Trumbly 515 P.2d that it had not to seek a decided (Alaska 1973), clearly we stated our Thereafter, 709 on the new indictment probation revocation 26,1975, that Judge Taylor December entered view on “[a] Although proceeding.”6 petition. order The record is not a criminal denying an nec- are recognizing makes it clear that the sole basis for that supreme ia) appeal provides: An to the ... 1. AS 12.55.080 right, except court is a matter of probation. Upon Suspension of sentence and appeal in criminal no state shall have crime, entering judgment of conviction of a cases, sufficiency except of the to test any days or 60 from the date time within (b) of information and under indictment or conviction, entry judgment of that this section. court, justice when satisfied that the ends supreme jurisdiction (b) court has public best interest of the as well as imprisonment appeals of sentences hear lawfully imposed by thereby, may the defendant will be served courts on suspend imposition or bal- or execution grounds or that the sentence is excessive thereof,' portion of the sentence or a ance too lenient. period place on for a the defendant as the and conditions the terms Id. best. court considers provides: 2. AS 11.20.350 12.55.120(b), provides which AS 5. See also prop- concealing Buying, receiving, stolen or part: receives, buys, erty. person or A who lawfully imprisonment im- A sentence notes, money, goods, or other conceals bank may appealed by superior- posed court subject larceny thing be the which supreme the state on the court to the taken, embezzled, or been and which has ground is too lenient sentence knowing person, it to stolen from taken, embezzled, stolen, have been Gagnon Scarpelli, Citing 411 U.S. $1,000 punishable by fine of not more than (1973). See also 36 L.Ed.2d 656 S.Ct. by imprisonment less than one for not (Opinion No. Paul v. 560 P.2d 754 year years. three nor more than Sears, 1977); Alaska State v. part: provides 3. AS 22.05.010 an un case,7 court found he had committed outgrowth essarily battery pro assault and while persuaded modify provoked have never been we There, petition proba revoke do so There- now. bation. view and will act, alleging the new criminal was filed right to the state has the fore, we hold that brought by separate charges were no but appeal- the order in this case. Since appeal Snyder appeal, asserted state. On case, was entered ed from discre of the trial court’s an abuse it was *3 statutory limitation the state’s the commis probation revoke for the to his tion applicable.9 is not appeal crime, in the absence anof additional sion Noting charges II. and conviction. formal authority overwhelming weight of that the re- reaching Judge Taylor decision his In rejected argu contrary, we the is to in suggestion contained heavily on the lied ment, adopt to saying: “We decline American Bar Association 5.3 the Section instead, chose, to We position.”10 unique Relating (Approved to Probation Standards terri first announced in the standard adopt Draft, 1970). provides part: in That section Feller, 156 in v. days United States torial solely proceeding based A' revocation where (1957), F.Supp. 17 Alaska crime ordi- commission of another upon court said: the prior to the narily should not be initiated ques- with further confronted areWe disposition of that grounds for the the herein. Where tion Judge Tay- In his memorandum decision upon sentence is based of the said: lor proba- of the of conditions violation the have or charges been dismissed Where amount, themselves, in to which tion trial, as in effectively withdrawn before hearing on crime, necessary is it before case, the court convinced suspended sentence the revocation of the charges of on the same proceed further must be the may be held that could minimize probation violation alleged? crime and convicted tried safeguards attendant usual constitutional Summary hearings the revocation of such jury in trials on merits up- been suspended sentence have aof result in relaxation of charges. may It hearings required in such held. What and the rules evidence a lesser judgment, exercise of conscientious is the ab- proof it would result in the and action; the discre- arbitrary and not peers. jury sence defendant’s abused; has been tion of Court The court concludes further consideration revealed facts that the charges pending which were or that the modification satisfy Court defendant would result sentence, part or a revocation of undue unfairness and would not serve thereof, justice. the ends of will serve Therefore, justice. ends of petition omitted) (Citations denied. imposed who the sen- judge views, having re certainly certainly discretionary These while broad has tence spectable support, contrary are the well probation, revoke powers complain established v. Snyder law of Alaska. if he has been bationer State, (Alaska ample before 1972), opportunity appear P.2d 62 we were given sentence, confronted he essentially imposing with issue the same the Court presented as permitted here. In that to combat the accusa- appellant’s case has been him probation charges against and there has was revoked after the denying Ross, is no the order 7. See Adams 9.There petition to revoke is a “final and, therefore, appealable judgment” otherwise Appellate Rule Alaska Rules Proce- under Martin See 1397-98 P.2d dure. (Alaska 1974). 10. 496 P.2d at 63. part requires judge on the the trial of discretion no abuse

been omitted).11 (Citations probationary find that continuation the Court. status would be at odds with need we reaffirm the views ex Today, society society’s protect interest Snyder v. State hold that pressed rehabilitation.15 ruling erred in that conviction Judge Taylor However, we further stated: before DeVoe’s required was Revocation should follow The law of violation of a be revoked. Alaska con could condition of when requirement. We are further that viola- no such tains Judge tion indicates the corrective Taylor’s to hold that deni aims compelled achieved, (footnote cannot solely because petition, the state al of the omitted)16 not to and convict De- had elected proceedings, was Voe and REMANDED for fur- REVERSED abuse of discretion. a clear conformity ther with this opinion. should not be taken as Our decision *4 any opinion part on our that

expression RABINOWITZ, Justice, concurring. probation revocation of DeVoe’s actual is simply It reflects our conclusion required. Although agreement I am in with the judge imposed trial improper probationer’s conclusion that a con- court’s on the state. It remains for the for criminal liberty may ditional be revoked court to decide whether the evi- superior necessity conduct without of formal DeVoe dence establishes that violated the conviction, charges and I think facet and, so, probation of his if conditions ruling in the case at bar court’s appropriate disposition.12 deserving of discussion. significant pur- has interests in

Conformity to reasonable and law The state is, course, suing revocation ei- ful conditions of separately separate to the or in addition to prerequisite proba continuation of ther Nevertheless, in cir- tionary proceedings.1 status.13 criminal Probation can be revoked Trumbly makes the only good for In in which the state cause.14 cumstances hearing prior (Alaska 1973) to hold a revocation 515 P.2d 707 we held that this decision overly hearings F.Supp. not become adver- do 11. 17 Alaska at at 110. cation sarial emphasized As the and formal: Court Trumbly State, 12. greater Gagnon, self-conscious- ‘[I]n adversary quasi-judicial in an role of its ness proceeding body may hearing be less tol- Id. 13. marginal behavior and feel deviant erant more pressure than to con- to reincarcerate provides: 14. AS 12.55.110 Moreover, nonpunitive rehabilitation.’ tinue suspen- grounds Notice and for revocation of proceeding relatively informal revocation suspended, has been it sion. When sentence expeditiously might and more be held earlier except good cause shall not be revoked defendant who has trial. The than a criminal proceedings for revocation shown. In all of a violation can thus return not committed quickly sentence, suspended the defendant more normal life situation that to the to reasonable notice and the entitled liberty system assumes aids the conditional by represented counsel. be Furthermore, the state’s fi- in rehabilitation. 15. 515 P.2d at 709. substantially reduced costs are nancial hearings. requiring formal adversarial not Id. enabling Finally, a state to revoke conditional liberty encourage has noted: with relative ease it to As one commentator cases, liberty grant in more since conditional hearings required are not Revocation quickly experi- to terminate the it will be able procedurally equivalent to criminal trials for proves First, unable to handle deprivation if an individual ment this limited condi- reasons. two tional not as severe liberty freedom. liberty from revocation is that results deprivation its interest in an informal In addition to absolute as the proceeding, the state also has an from conviction of a revocation interest results holding Second, criminal trial: both the state and the indi- crime. punishment ensuring in a revo- obtainable that revo- Because have an interest vidual adjudicated in a crimi- guilt remains to be proceedings, to initiation trial has an possibility future criminal there is the proceeding, nal possibility probationer’s impact privilege important dilution testify self-incrimination, or not whether at the crim- decision since a defense at the present use prosecutor may whether or be able to inal Consideration proceeding. revocation presented in probationer which the evidence the American Bar Associa- led Thus, factors proceeding. probation revocation (cid:127) that: to recommend . the defendant many situations “. . with the choice of either solely confronted proceeding based A revocation at the revocation ducing another crime ordi- evidence upon commission incrimi- the state with prior providing initiated thus not be narily should However, evidence, producing or not evidence disposition nating probable cause showing foregoing a valuable defense.”5 upon a thus by the committed signif- crime has been problem view this is a of some my court should probationer, calls for solution. icance which authority to detain the discretionary have required Admittedly, here we are pending a deter- without bail since the criminal question address charge.2 the new mination of against DeVoe were dismissed charges adopted by the position has been This go it would forward the state determined and, least ar- Law Institute3 American proceed- only with the legislatures.4 by several state guably, Nevertheless, I think the ings.6 *5 deserving study by proceed- revocation here is When discussed legislature Bar so that a solu- upon alleged criminal conduct Alaska’s ing is based innocence or reached to the can be self-incrimination as to which range Klein, (1967); Spevack must be within the cation v. 385 L.Ed.2d 562] punishments permissible committed, for the first offense 625, 17 L.Ed.2d 574] U.S. 511 S.Ct. [87 state, discharge in order to its (1967). protection, duty need a crimi- of societal problems minimized if the These can be punishment commensu- nal trial to obtain post- proceeding revocation offense, severity rate with the (footnotes of the second disposition poned of the new until after the omitted) charge. The record will then be criminal Note, Liberty for the Revocation of Conditional possibilities unfairness to the clear Jeopardy Double Commission of Crime: reduced, sharply probationer will have been Limitations, 74 Mich.L.Rev. Self-Incrimination they privilege particularly as involve the 525, (1976). ac- self-incrimination. This standard Relating 2.ABA Standards to Probation 5.3§ cordingly suggests postponement such as Commentary, (Approved Draft at policy. Compare operating Model Penal 63, page states: (Tent. 301.3, comment at 150-51 § Code informality The relative rev- 2, 1954). Draft No. proceeding, compared ocation as to the trial original charge, of an danger. criminal underlines the 3. Model Penal Code 301.3. § admissibility Relaxation of rules of evidence, jury, the absence of a a lesser Liberty, supra 4. note Revocation Conditional proof as these can 527-28, —factors n. 13. proceeding by basing an abuse of the lead to upon a new criminal offense when 5. Id. at 536-37. proved could not be in an the offense nary ordi- complexity trial. Additional criminal Stevens, Compare v. McGinnis position pro- in which the introduced (Alaska 1975), where in the context of 1232-35 put regards privilege as bationer against pris- prison disciplinary hearings in which the a revocation self-incrimination: charged major involv- with a infraction oner is ceeding before trial of the on which it felony, ing we dis- conduct which constitutes compromise well could the assertion is based applicable Division of cussed the Corrections’ right. fundamental constitutional of this Cf. privilege against regulations States, and the inmates’ 390 U.S. 39 Marchetti v. United [88 (1968); Garrity self-incrimination and to counsel. 19 L.Ed.2d 889] S.Ct. Jersey, S.Ct. [87 New 385 U.S. parole rev- for future which are based on al- ocation not as conduct which has

legedly adjudication subject of

yet been proceeding.7 GILLIGAN, Appellant,

William Alaska, Appellee.

STATE

No.

Supreme Court Alaska. 16, 1977.

Feb. *6 hearing. parolee See Rev- at the revocation to the American Bar Association In addition Standard, Liberty, supra proposed is to stat- ocation Conditional note solution immunity utorily grant use 553-54.