State v. Chavez , 94 N.M. 102 ( 1979 )

OPINION

SUTIN, Judge.

Defendant was found guilty of the offense of possession of heroin. On November 1, 1977, sentence of defendant was deferred for two years and defendant was placed on probation under certain terms and conditions.

On July 5, 1978, the State filed a Motion to Revoke Probation and Impose Sentence stating that defendant had violated his probation by spending the night of April 20, 1978 with Maria Dix, then, without permission, leaving with her son. On July 6, 1978, State filed an amended motion alleging that defendant had violated his probation agreement by failing to submit monthly reports to his probation officer for the months of April, May and June, 1978.

On July 22, 1978, defendant was arrested and taken into custody. Pursuant to a hearing held upon defendant’s Motion for Release, the district court, on August 2, 1978, released defendant upon certain terms and conditions pending the disposition of State’s Motion to Revoke Probation. On February 28, 1979, seven months after defendant’s arrest, a hearing was held resulting in the revocation of defendant’s probation for failure to submit monthly reports for April, May and June, 1978. Defendant appeals from an Amended Judgment, Sentence and Commitment. A transcript of the proceedings is absent. Only the record proper is before us. We reverse.

The question for decision is:

Was defendant denied procedural due process because of an unreasonable delay in holding the hearing at which probation was revoked?

This is a matter of first impression.

Section 31-21-15, N.M.S.A.1978, entitled “Return of probation violator” reads in pertinent part:

A. At any time during probation:

(1) the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of release. ******

B. The court shall then hold a hearing, which may be informal, on the violation charged. If the violation is established, the court may continue or revoke the probation and may require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence which might originally have been imposed, but credit shall be given for time served on probation. [Emphasis added.]

“Probation” is the release by the court without imprisonment of an adult defendant convicted of a crime. “Probation” is a form of conditional liberty intended to alleviate the aspects of punishment by incarceration. It offers rehabilitation and restoration to society. “The suspension of the execution of the sentence gives to the defendant a valuable right. It gives him the right of personal liberty which is one of the highest rights of citizenship. This right cannot be taken from him without notice and opportunity to be heard without invading his constitutional rights.” Ex Parte Lucero, 23 N.M. 433, 438, 168 P. 713, 715, L.R.A. 1918C 549 (1917). Personal liberty is also a valuable right because each day of liberty is a credit against the sentence imposed, if any, at the end of the probation period.

A probationer who has a “valuable right,” is entitled to every protection of that right under the law of the land. Society is also entitled to protection from an adult convicted of a crime whose sentence is deferred and who is granted personal liberty. Thus, we are faced with two contending principles — the right of a probationer to personal liberty and the right of the State to self-protection.

And striking the balance implies the exercise of judgment. This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court. It must not be an exercise of whim or will. It must be an overriding judgment founded on something much deeper and more justifiable than personal preference. Sweezy v. New Hampshire, 354 U.S. 234, 267, 77 S.Ct. 1203, 1220, 1 L.Ed.2d 1311 (1957), Frankfurter, J., concurring.

The opinion of this Court should be impersonal in judgment, but we cannot belie the encroachment of subjective views when we determine what is “fair,” “unjust,” “arbitrary” or “capricious.”

Article II, Section 18 of the New Mexico Constitution provides in pertinent part:

No person shall be deprived of life, liberty or property without due process of law .

“Due process of law,” although defined in various hues and shades by judges and scholars, is an elusive concept. Its exact boundaries are undefinable and its content varies in accordance with specific factual concepts. A century ago, it was said in Davidson v. New Orleans, 96 U.S. 97, 101-02, 24 L.Ed. 616 (1877):

It must be confessed, however, that the constitutional meaning or value of the phrase “due process of law,” remains today without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several States and of the United States.

“ ‘Due-' process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.’ Cooley, Const. Lim. 441.” Black’s Law Dictionary, 590 (Rev. 4th ed. 1968).

Under this broad definition, the right of a person to personal liberty may be taken by a state without due process of law in many ways. If procedures used to deprive a person of liberty are found to be suitable in one sense of fairness under the circumstances, the exercise of the powers of the courts will be adjudged to be “Due Process of Law”; but if the procedures used are found to be arbitrary, oppressive, and unjust, the powers exercised will lack “Due Process of Law.” It naturally follows that where procedures enacted by the legislature are violated, a judicial proceeding may deprive a person of liberty without “Due Process of Law.”

What is meant by the phrase in § 31-21-15(B): “The court shall then hold a hearing”?

“ ‘Then, as an adverb of time, means “at that time,” referring to the time stated . . . State v. Klasner, 19 N.M. 474, 477, 145 P. 679, 680, Ann.Cas. 1917D 824 (1914). It has also been said that “ ‘The primary and accepted meaning of “then,” according to Webster, is “at that time.” It also has a secondary meaning, “soon afterward, or immediately.” ’ ” State v. Hartley, 25 Wash.2d 211, 170 P.2d 333, 339 (1946).

“The court shall then hold a hearing” is a mandatory duty imposed upon the court to hold a revocation hearing immediately after (1) the probationer is taken into custody pursuant to § 31-21-15(A)(1), or (2) a notice to appear to answer a charge of violation is personally served upon a probationer pursuant to § 31-21-15(A)(2), or (3) the probationer is arrested pursuant to § 31-21-15(A)(3) and upon the arrest and detention “the director shall immediately notify the court, and submit in writing a report showing in what manner the probationer has violated the condition of release.” This is imperative in order to comply with the legislative intent. Discretion is not vested in the trial court to unreasonably delay the hearing. At its direction, the probationer is brought before the court forthwith to explain away the accusation, to have his say before the word of the pursuers is received to his undoing. State v. Brusenhan, 78 N.M. 764, 438 P.2d 174 (Ct.App.1968). Promptness is an essential factor. It protects the probationer, if detained in jail to await a hearing, against prolonged imprisonment. Defendant might have spent seven months in the Santa Fe County Jail or the New Mexico Penitentiary. Promptness also protects a probationer against revocation because information is fresh and sources are available. Memories can fade and witnesses be lost. The right of personal liberty is of priceless value and deserves the protection of the law. Undue delay may jeopardize the personal liberty of a probationer.

We are not concerned with due process of law as applied to an administrative revocation hearing under the minimum requirements stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Neither decision dealt with judicial probation nor with judicial revocation of probation. In administrative revocation, a preliminary hearing must be held. Even so, Morrissey said that “due process would seem to require that some minimal inquiry be conducted ... as promptly as convenient after arrest while information is fresh and sources are available.” [408 U.S. at 485, 92 S.Ct. at 2602.]

We hold that a hearing for revocation of probation by a court which granted probation will satisfy due process if the hearing is held immediately after a notice to appear to answer a charge of violation is personally served upon a probationer.

Authorities have been cited by defendant and the State which have held delays of days and months reasonable and unreasonable, but none have statutes or rules which state a time period such as “The hearing shall then take place.” The rule is prevalent that a revocation hearing will satisfy due process if the hearing is held promptly or within a reasonably short period of time after an alleged violation or after an arrest for a violation. We unhesitatingly hold that seven months delay after arrest is unreasonable. Procedural due process was denied defendant.

Defendant is restored to his status as a probationer with credit for the time served on probation from November, 1978.

Reversed.

IT IS SO ORDERED.

LOPEZ, J., concurs. HERNANDEZ, J., dissents.