State v. SmithState v. Smith
- Reporters:
- ,
- Before:
- Clifford
Timothy Scott Smith appeals 2 from the order of the Superior Court (Waldo County, Chandler, J.) revoking his probation and imposing upon Smith that part of the sentence of incarсeration that was suspended at the time of the original sentencing. Because the finding that Smith violated a condition of probation is not clearly erroneous, and because we discern no procedural infirmities, we affirm.
In September 1987, Smith pleaded guilty and was convicted оf two counts of gross sexual misconduct. 17-A M.R.S.A. § 253 (1983 & Supp.1989). He was sentenced to a term of five years’ imprisonment, with all but two years suspended, and six yeаrs’ probation. The probation commenced at the time of sentencing. Special conditions of probation were imposed including the requirement that Smith undergo counseling for sex offenders “to the satisfaction of the probation officer” and that Smith authorize a Dеpartment of Corrections’ permission form allowing the release of information.
When presented with the permission form that authorized сorrections officials
to obtain or release ... employment, social, medical, dental, psychiatric, psychological, and educational data ... from or to any legally constituted social agency, medical facility, correctional agency, mental health agency, employer, or educational facility,
Smith altered it before signing to limit the release of information to only two of these entities and to delete all reference to the authority to obtain information. Because his probation commenced аt sentencing, Smith began participating in the first of a two-phase sex offender treatment program, the educational phase, at thе Maine State Prison, where he was serving his sentence. *386 Smith, however, was prevented from participating in the second phase of the рrogram, the treatment phase, because of his refusal to sign the release that would enable program directors to obtain the historical information that was a prerequisite to participation, and because of his attempt to limit the information that the peоple who would be treating him could divulge to corrections officials.
Following Smith’s release from prison, a motion to revoke probаtion was filed by Smith’s probation officer. Probable cause of violation of the conditions of probation was found at a preliminary hearing based upon the testimony of that officer. Smith’s probation was revoked after a hearing before the Superior Court and he was ordered to serve the sentence that was suspended at the time that probation was granted, a term of three years’ incarcerаtion.
Probation, a device designed to assist individuals in reintegrating into society, may be premised upon reasonable conditions that arе tailored to a particular probationer’s needs. State v. Maier, 423 A.2d 235, 239 & n. 3 (Me.1980); 17-A M.R.S.A. § 1204(1) (1983 & Supp.1989). A convicted person may be required “[t]o undergo ... psychiatric treаtment,” 17-A M.R.S.A. § 1204(2-A)(D), or “[t]o satisfy any other conditions reasonably related to the rehabilitation of the convicted person or the public safety or security.” Id. (2-A)(M). Smith maintains that insufficient evidence was presented to allow the court to make the finding that he had violated the conditions оf probation. 3 He contends that the directors of the sex offender treatment project precluded him from complying with the requirement of probation that he undergo counseling by imposing upon him an unreasonable condition, the authorization of the release of information, as a prerequisite to participation in the program. We disagree.
The evidence presented at the revocаtion hearing supported the finding that Smith had inexcusably violated the terms of probation requiring him to undergo counseling and to authorize the relеase of information. State v. Brydon, 454 A.2d 1385, 1387 (Me.1983). It is clear that Smith knew that his acts amounted to violations of probation conditions. United States v. Dane, 570 F.2d 840, 843-44 (9th Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3075, 57 L.Ed.2d 1124 (1978) (requiring fair warning of conditions of probation); see also State v. Cote, 539 A.2d 628, 628-29 (Me.1988). Dr. Richard Kauffman, a director of the program, testified that the historical information to be secured by the release that Smith refused to sign was necessary for the еfficacy of treatment and, thus, a prerequisite to participation in the treatment phase of the sex offender program. Although Smith nеver directly stated his intention to refuse sex offender treatment, he refused to answer questions concerning his need for such treatment and presented Jo-Ann Cook, Kauffman’s successor as director of the program, with a notification of confidentiality that purported to limit thе information that the people who would be treating Smith could disclose to corrections officials. That action was reasonаbly understood by Cook to amount to Smith’s unilateral imposition of an unreasonable condition of his participation in the treatment prоgram. The findings that Smith had inexcusably violated the conditions that he undergo counseling and sign the release were supported by credible evidеnce and do not comprise clear error. 4 State v. LaCasce, 512 A.2d 312, 316 (Me.1986); State *387 v. Sommer, 388 A.2d 110, 112-13 (Me.1978).
Smith also contends that the preliminary hearing officer’s consideration of facts сoncerning his refusal to abide by the conditions of probation, offered by Smith’s probation officer in the form of hearsay, violated the rights guаranteed him as a probationer. While a preliminary hearing must comport with statutory requirements, see 17-A M.R.S.A. § 1205-A, a hearing officer may consider that evidence which would be deemed inadmissable at trial. M.R.Evid. 1101(b)(3); Maier, 423 A.2d at 239 n. 5; see also United States v. Register, 360 F.2d 689, 689 (4th Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 37, 17 L.Ed.2d 55 (1966). Moreover, the later revocation hearing in Superior Court afforded Smith the oрportunity to confront and cross-examine those witnesses, namely the two directors of the program, that had been unavailable at the time of the preliminary hearing. 17-A M.R.S.A. § 1206(4). Smith’s contention that his rights were infringed by the manner in which the preliminary hearing was conducted is without merit. Id. § 1205-A; see State v. Hudson, 470 A.2d 786, 789 (Me.1984).
The entry is:
As to Wal-89-314: Order of thе Superior Court revoking probation affirmed.
As to Wal-89-184: Order of the Superior Court dismissing the petition for writ of habeas corpus affirmed.
All concurring.
Notes
. This is Smith‘s third apрeal in this case. His first appeal, of his convictions, was unsuccessful. State v. Smith, 544 A.2d 301 (Me.1988) (Smith I). In a second appeal, we rejected Smith’s challenge tо the conditions of his probation. State v. Smith, 560 A.2d 1093, 1094 (Me.1989) (Smith II).
. The court found that Smith had refused treatment and noted that “there is just no question ... but that Mr. Smith has attempted to impоse his own conditions on the requirement that he receive counseling for ... sex offenders].’’
On appeal, Smith also complains that the сondition of probation requiring that he undergo counseling for sex offenders “to the satisfaction of the probation officer” is impermissibly vаgue, a contention that he did not raise in his first appeal to this Gourt. See Smith I, 544 A.2d at 302; cf. State v. Cote, 539 A.2d 628, 628-29 (Me.1988). “Principles of res judicata ... preclude [Smith] from taking a [third] appeal to the Law Court ... on an issue thаt was or could have been raised in the [earlier] appeal.” Smith II, 560 A.2d at 1094.
. We likewise reject Smith’s related contention that the probation officer acted arbitrarily in bringing the motion to revoke probation.