STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL FELIX FINLEY, Defendant and Appellant.
No. 02-188
SUPREME COURT OF MONTANA
Decided September 11, 2003
2003 MT 239 | 317 Mont. 268 | 77 P.3d 193
Submitted on Briefs October 31, 2002.
For Respondent: Hon. Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General, Helena; Robert J. Long, Lake County Attorney, Polson
JUSTICE NELSON delivered the Opinion of the Court.
¶1 Daniel Felix Finley (Finley) appeals the re-revocation of his suspended sentence by the Twentieth Judicial District Court, Lake County, which occurred three months after Finley‘s initial revocation proceedings were declared void under the authority of State v. Goebel, 2001 MT 73, 305 Mont. 53, 31 P.3d 335, and State v. Giddings, 2001 MT 76, 305 Mont. 74, 29 P.3d 475. We affirm in part and reverse in part.
¶2 We frame the issues for appeal as follows:
¶3 1. Does this Court have jurisdiction to hear Finley‘s claim that the District Court lacked jurisdiction to conduct re-revocation proceedings?
¶4 2. Did the District Court lack jurisdiction to conduct re-revocation proceedings after the State held Finley for more than 72 hours without setting bail or holding an intervention hearing?
¶5 3. Did the District Court violate Finley‘s due process rights by re-revoking his suspended sentence when Finley did not admit violating the conditions of probation before the court?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The District Court sentenced Finley to a ten-year term at Montana State Prison, with all but 90 days suspended, for entering the bar at the KwaTaqNuk Lodge in Polson, Montana after hours and
¶7 In May 2001, Finley filed a pro se petition for Writ of Habeas Corpus with this Court, requesting that the District Court‘s revocation action be voided because Finley had not been provided a probable cause hearing within 36 hours of his arrest for probationary violations as required by
¶8 On October 11, 2001, this Court granted habeas relief and ordered the State to release Finley from custody. State v. Finley, Order No. 01-367 (October 11, 2001). Finley was returned to the Lake County Jail on the warrant and appeared before the District Court on December 5, 2001. Denying all allegations that he had violated the terms of his probation, Finley received court-appointed counsel.
¶9 After several continuances, Finley‘s re-revocation hearing was held on January 30, 2002. At the outset, defense counsel informed the District Court that Finley had changed his mind and had decided to admit to the alleged probation violations. The court accepted the admission and resentenced Finley to a ten-year prison term with five years suspended and credit for prior incarceration time. Finley immediately asked to withdraw his admission. The court denied the request. Finley filed a timely appeal pro se and now is represented before this Court by the Appellate Defender.
¶10 Whether a court has subject matter jurisdiction raises a question of law. State v. Boucher, 2002 MT 114, ¶ 10, 309 Mont. 514, ¶ 10, 48 P.3d 21, ¶ 10. Whether a court violated a probationer‘s constitutional right of due process also involves a question of law and our review is plenary. In re Mental Health of K.G.F., 2001 MT 140, ¶ 17, 306 Mont. 1, ¶ 17, 29 P.3d 485, ¶ 17 (citing Pickens v. Shelton-Thompson, 2000 MT 131, ¶¶ 7-8, 300 Mont. 16, ¶¶ 7-8, 3 P.3d 603, ¶¶ 7-8). We review a district court‘s decision to revoke a suspended sentence to determine whether the court abused its discretion. State v. Lee, 2001 MT 176, ¶ 8, 306 Mont. 173, ¶ 8, 31 P.3d 998, ¶ 8 (citing State v. Lindeman (1997), 285 Mont. 292, 302, 948 P.2d 221, 228).
Issue 1.
¶11 Does this Court have jurisdiction to hear Finley‘s claim that the District Court lacked jurisdiction to conduct re-revocation proceedings?
¶12 The State contends that Finley failed to preserve an appellate claim that the District Court lacked the authority to re-revoke Finley‘s suspended sentence by neglecting to raise a jurisdictional claim or objection before the trial court. The State implores this Court to reconsider our holding in Giddings and argues that the only proper remedy for a court‘s revocation of probation without authority is dismissal of the petition and not the voiding of prior proceedings. However, the State fails to support its quarrel with the Giddings remedy by any authority whatsoever.
¶13 Jurisdiction is the power of a court to hear and determine an action and to make orders and render judgment as the law authorizes. Rehearing of State v. Goebel and State v. Giddings, 2001 MT 155, ¶ 30, 306 Mont. 83, ¶ 30, 31 P.3d 340, ¶ 30 (citing State v. Moorman (1996), 279 Mont. 330, 336, 928 P.2d 145, 148). The issue of subject matter jurisdiction cannot be waived and may be raised by a party, or by the court itself, at any stage of a judicial proceeding. Giddings, ¶ 15 (citations omitted). For example, the Giddings probationer, successfully challenged the jurisdiction of the district court on appeal, even though he raised no objection in the court below. We later observed that the State‘s failure to comply with the procedural requirements of
Issue 2.
¶15 Did the District Court lack jurisdiction to conduct re-revocation proceedings after the State held Finley for more than 72 hours without setting bail or holding an intervention hearing?
¶16 The District Court issued a hold order on August 29, 2001, directing prison officials to detain Finley without bail on the basis of findings made at the September 13, 2000 sentence revocation hearing at which Finley admitted violating the conditions of his probation. Subsequently, this Court voided that September 2000 hearing ab initio due to the State‘s failure to comply with
¶17 The State acknowledges that the findings of the voided prior revocation hearing served as the basis for the District Court‘s hold order. However, the State argues that the hold order bears no relevance to subsequent revocation proceedings. According to the State, Finley remained lawfully in custody until this Court granted habeas relief on October 11, 2001. Prior to Finley‘s release from prison, the District Court issued and served a bench warrant for Finley‘s arrest on the original, alleged probation violations. The State
¶18 Section
(1) At any time during probation, if a probation and parole officer reasonably believes that the probationer has violated a condition of probation, a court may issue a warrant for the arrest of the probationer or a county attorney may issue a notice to appear to answer to a charge of probation violation. The notice must be personally served upon the probationer. The warrant must authorize law enforcement officers to return the probationer to any suitable detention center.
....
(3) A probation and parole officer may authorize a detention center to hold a probationer arrested under this section without bail for 72 hours. Within 72 hours following the probationer‘s detention, the probation and parole officer shall:
(a) authorize the detention center to release the probationer;
(b) hold an intervention hearing pursuant to
46-23-1015 ; or(c) arrange for the probationer to appear before a magistrate to set bail ...
....
(4) If the probationer is detained and bond is set, the probation and parole officer shall file a report of violation within 10 days of the arrest of the probationer.
(5) After the probation and parole officer files a report of violation, the court may proceed with revocation of probation in the manner provided in
46-18-203 .
¶19 The State explains on appeal that the August 2001 hold order was issued in anticipation of this Court granting habeas corpus relief in accord with our holding in Giddings. All parties now agree that the District Court was incorrect as a matter of law to take judicial notice of the findings of Finley‘s September 13, 2000 sentence revocation proceeding that was later determined to be void ab initio. All parties also concur that the hold order was not a legal means for continuing Finley‘s incarceration. In any event, Finley remained in custody under his September 13, 2000 resentencing until this Court granted habeas relief on October 11, 2001, and voided the prior revocation proceeding
¶20 Whether the procedures of
¶21 Finley distinguishes the circumstances of his re-revocation proceedings from those in Gonzales by arguing that the August 29, 2001 hold order launched the re-revocation action against him and the State was required to hold an intervention hearing or set bail within 72 hours. The State counters that the warrant for Finley‘s arrest was the proper and actual trigger for re-revocation proceedings. The State recounts that the court issued the warrant on September 7, 2001, in response to the conclusion reached by this Court that a hold order grounded upon the findings of an invalid proceeding was unlawful. See Waterman v. State, Order No. 01-368 (September 6, 2001). Since the court issued the warrant and set bail, no intervention hearing was needed, according to the State. We also note that the Lake County Attorney re-filed the petition to revoke on September 19, 2001, and that neither party mentions this filing on appeal.
¶22 Lawful re-revocation proceedings cannot be initiated by an unlawful hold order that took notice of admissions made during an invalidated revocation proceeding. Although the record does not show that the District Court acted to void the hold order, the order was given no force or effect in subsequent proceedings. Although the court could only issue a warrant on the basis of a finding of probable cause and without considering evidence of probation violations presented during prior revocation proceedings, the record is silent regarding the court‘s probable cause finding. However, Finley does not contest the warrant‘s validity on appeal. Therefore, we hold that lawful re-revocation proceedings were initiated by warrant in this case, which required the State to comply with
¶23 After this Court ordered Finley‘s release on October 11, 2001, Finley was immediately arrested and detained at the prison on the warrant until his removal to Lake County. Following a number of
Issue 3.
¶24 Did the District Court violate Finley‘s due process rights by re-revoking his suspended sentence when Finley did not admit violating the conditions of probation before the court?
¶25 Finley claims that the District Court denied him due process by finding him guilty of probationary violations on the sole basis of his attorney‘s representations. Finley asserts that he never admitted any alleged violations before the court and never waived his right to a revocation hearing. The State counters that Finley failed to refute his counsel‘s statement that Finley admitted violating the conditions of his probation. Therefore, the court was correct to accept defense counsel‘s statements as true and revoke Finley‘s suspended sentence.
¶26 The following exchange occurred between defense counsel and the District Court at the opening of the re-revocation hearing on January 30, 2002:
MR. VERNAY: Your Honor, if it please the Court, prior counsel entered denials of the allegations in the probation violation. After my visit with Mr. Finley over this past weekend, he has agreed in essence to change his plea and withdraw his denials and admit to the allegations as set forth in the probation violation report dated August 16th of 2000.
THE COURT: The change is accepted by the Court. And the entry of the admissions to the allegations of the report of violation dated August 16, 2000 are sufficient now to satisfy the State‘s burden under its petition and the defendant‘s suspended sentence is revoked.
¶27 The District Court then asked whether the parties were prepared to proceed to sentencing and received no objection. Finley testified briefly about his medical condition and the difficulty he had experienced in obtaining treatment in prison for his injured eye. Without engaging in a colloquy with Finley, the court then resentenced him to a ten-year term with five years suspended. Finley then
¶28 Whether a court violates a probationer‘s constitutional rights by revoking a suspended or deferred sentence based only on the statements of counsel is an issue of first impression in Montana. Finley draws our attention to authority from other jurisdictions that addresses the meaning of due process in the context of revocation proceedings. The State argues that no constitutional provision requires a court to obtain record admissions from a probationer at a revocation hearing. However, the State cites no support for this proposition and summarily fails to offer countervailing authority regarding Finley‘s due process concerns.
¶29 The Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution protect the substantive and procedural rights of persons faced with deprivation of life, liberty or property by the government. Revocation of a suspended or deferred sentence can adversely implicate a probationer‘s liberty interests as seriously as the original determination of guilt. However, sentence revocation is a civil proceeding, thus, a probationer does not enjoy the same constitutional guarantees as a defendant facing criminal prosecution. Morrissey v. Brewer (1972), 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484; State v. Oppelt (1979), 184 Mont. 48, 53, 601 P.2d 394, 397 (citation omitted). The foundation of the guarantee of due process is fairness, which calls for safeguards tailored to the demands of the particular legal context of probation revocation. Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 93 S. Ct. 1756, 1760, 36 L. Ed. 2d 656.
¶30 Montana law guarantees a hearing before the sentencing court for each probationer subject to a revocation petition. Section
Without unnecessary delay, the offender must be brought before the judge, and the offender must be advised of:
(a) the allegations of the petition;
(b) the opportunity to appear and to present evidence in the offender‘s own behalf;
(c) the opportunity to question adverse witnesses; and
(d) the right to be represented by counsel at the revocation hearing pursuant to
Title 46, chapter 8, part 1 .
¶31 The United States Supreme Court elaborated the following minimum due process requirements for a probation revocation hearing: (1) written notice of the claimed probation violation; (2) disclosure of the evidence against the defendant; (3) the opportunity to be heard in person and present testimonial and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral arbiter; and (6) a written statement of the evidence relied upon by the arbiter and the reason for revoking probation. Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761-62, 36 L. Ed. 2d 656 (citing Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604, 33 L. Ed. 2d 484).
¶32 Alternatively, a probationer may waive his or her right to a full revocation hearing and admit the alleged probationary violations or accept favorable relief granted by the court.
¶33 In the context of a criminal prosecution, this Court has stated that a defendant‘s attorney cannot waive a defendant‘s fundamental rights as a matter of convenience. State v. Tapson, 2001 MT 292, ¶ 38, 307 Mont. 428, ¶ 38, 41 P.3d 305, ¶ 38. Before accepting a waiver of rights, a court must ascertain on the record that the criminal defendant has been apprised of his rights, understands what rights he is waiving and waives those rights voluntarily. Tapson, ¶ 27. Given the liberty interests at stake during revocation proceedings, we hold that the constitutional guarantee of due process demands that waiver of a probationer‘s right to a revocation hearing must also be knowing, intelligent and voluntary. Moreover, courts must not presume waiver by a probationer based on the representations of counsel. Rather, the court must obtain a reviewable, on-record waiver from the probationer.
¶35 We conclude that the District Court committed reversible error by accepting the representation of defense counsel that Finley admitted to all allegations without engaging in a colloquy with Finley. In so doing, the court overlooked admonishing Finley regarding his constitutional rights; neglected to ascertain that Finley knew the consequences he faced by admitting to the alleged probation violations; failed to determine that Finley voluntarily waived his right to a revocation hearing as an intelligent choice among the alternatives available; committed the constitutional error of accepting a waiver of Finley‘s right to a hearing based on presumption only; and failed to establish a factual basis for the probationary violations alleged.
¶36 The State does not concede that District Court error in this case requires reversal and argues that Finley admitted violating the terms and conditions of his probation at his initial revocation hearing and that this earlier admission provides the legal basis for re-revocation. The State contends that Finley‘s earlier admission satisfies any constitutional requirement that there be an on-record admission
¶37 We agree with Finley that testimony presented at a voided proceeding may not be invoked as evidence during a later proceeding. However, the record in this case does not clearly show that the District Court actually took notice of Finley‘s prior testimony from the voided initial revocation hearing. The court stated at re-revocation that “the entry of the admissions to the allegations of the report of violation dated August 16, 2000, are sufficient now to satisfy the State‘s burden under its petition ...” This statement signifies that the court either accepted as sufficient the representations by defense counsel that Finley admitted to probationary violations or took notice of the entry of Finley‘s admissions at the prior voided hearing. In either event, Finley‘s constitutional due process rights were abrogated by the court‘s failure to insure that Finley knowingly, intelligently and voluntarily waived his right to a re-revocation hearing. We reverse and remand.
CONCLUSION
¶38 Although Finley‘s challenge to the District Court‘s subject matter jurisdiction may be raised on appeal, we conclude that the challenge lacks merit because the State established court jurisdiction by complying with the procedural requirements of
¶39 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, COTTER, WARNER, LEAPHART and RICE concur.
JUSTICE NELSON specially concurs.
¶40 The Illinois Supreme Court recently addressed an issue similar to that raised by Finley and outlined sensible procedural safeguards to ensure that a probationer‘s constitutional rights are respected in sentence revocation hearings. In People v. Hall (Ill. 2001), 760 N.E.2d 971, the Illinois Court reviewed a case in which the sentencing court failed to admonish a probationer regarding the consequences of his admission before the court. In that case, neither the probationer nor the prosecution knew the sentencing parameters available to the court at the time the probationer admitted violating a condition of his probation. To clarify the meaning of due process in the context of a revocation hearing, the Illinois Supreme Court held that a trial court must admonish a probationer before accepting an admission to a probation violation, in order to determine whether:
(1) the probationer understands the specific allegations in the State‘s petition to revoke probation;
(2) the probationer understands that he has the right to a hearing with defense counsel present at which the State must prove the alleged violation, and that he has the rights of confrontation and cross-examination at such a hearing;
(3) the probationer‘s admission is voluntarily made and not made on the basis of any coercion or promises, other than any agreement as to the disposition of his case;
(4) the probationer understands the consequences of his admission or the sentencing range for the underlying offense; and
(5) a factual basis exists for the admission.
¶41 The admonishments outlined by the Illinois Supreme Court comport with the procedural safeguards of
¶42 I suggest that district courts adopt the Hall approach. The extra two minutes spent in obtaining the five assurances will obviate appeals such as the one at bar.