State v. Hall

WALTERS, Chief Judge.

This is an appeal from a judgment of conviction upon a plea of guilty to lewd and lascivious conduct with a minor. The appeal was taken when the district court relinquished jurisdiction over the defendant-appellant Charles Hall after Hall was evaluated under the auspices of the State Board of Correction. Hall contends the court erred by relinquishing jurisdiction without first affording him a hearing. He also asserts that he was denied due process under the board’s procedures when the board recommended that jurisdiction be relinquished by the court. We affirm.

Hall was charged with sexually abusing his ten-year old stepdaughter. Pursuant to a plea bargain agreement, Hall pled guilty to one count of lewd and lascivious conduct with a minor under sixteen. The district court sentenced Hall to the custody of the board of correction for an indeterminate ten-year term, but retained jurisdiction for 180 days. The court recommended that Hall receive treatment at the North Idaho Correctional Institution (NICI) under the sexual offender program and the alcohol abuse program. While at NICI, Hall’s performance and adherence to the rules of the institution were evaluated by the staff. This evaluation included a psychological examination. At the end of Hall’s 180 day stay, the Jurisdictional Review Committee at NICI prepared a report recommending to the sentencing judge that jurisdiction over Hall be dropped. Based on the report, the district judge relinquished jurisdiction, thus requiring Hall to serve out the remainder of his ten-year sentence instead of being placed on probation. Although Hall has indicated that his appeal is from the judgment of conviction, the substance of Hall’s appeal is a challenge to the court’s relinquishment of jurisdiction. As noted, Hall asserts that he was denied due process because the district court did not hold a hearing at the time it relinquished jurisdiction. Incidental to this argument are assertions that Hall’s due process rights were violated because he was not able to call his own psychologist as a witness or to have an attorney to cross-examine the psychologist who prepared the report for NICI.

In State v. Ditmars, 98 Idaho 472, 567 P.2d 17 (1977), cert denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 793 (1978), the Idaho Supreme Court held that a defendant is not entitled to a court hearing when the district court relinquishes jurisdiction after a period of retained jurisdiction. As part of this appeal, Hall invites us to reverse Ditmars. However, the Supreme Court specifically declined to overrule Ditmars in State v. White, 107 Idaho 941, 694 P.2d 890 (1985). In accord with the Supreme Court’s decision in White, reaffirming Ditmars, we decline Hall’s invitation. Thus, Hall was not entitled to a court hearing before jurisdiction was relinquished. See also State v. Williams, 112 Idaho 459, 732 P.2d 697 (Ct.App.1987).

Subsequent to its decision in Ditmars, the Supreme Court did make significant changes with regard to the due process rights of a defendant who is subject to retained jurisdiction. In State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978), the Court held that a prisoner, as well as the state, has a substantial interest in the fairness of the process which determines the status of the prisoner. 99 Idaho at 387, 582 P.2d at 733. The Court acknowledged that due process included an administrative hearing before the committee which prepared the evaluation report and made recommendations to the sentencing judge. The Court pointed out that the report must be fair and recognized that it was prepared for the benefit of the sentencing judge, not for the NICI officials. The Court stated:

Before a report is sent back to the sentencing judge (pursuant to the retained jurisdiction of I.C. § 19-2601), certain procedures must be followed. The prisoner must be given adequate notice before the hearing, including notice of the substance of all matters that will be considered. The prisoner must be given an opportunity to explain or rebut any testimony or recommendations. In addition, the prisoner must be free to call witnesses in his behalf from among the employees and other prisoners at NICI. This information should be included in the report sent back to the sentencing judge.

99 Idaho at 389, 582 P.2d at 735. In White, supra, the Supreme Court held that these procedural safeguards adequately furnish a defendant, who is subject to retained jurisdiction, with due process.

From the record before us, we conclude that the procedures followed by NICI in this case met the standards required by Wolfe. Upon his arrival at NICI, Hall was informed that he would have a hearing (denominated a “recommendation hearing”) before the Jurisdictional Review Committee. Hall’s recommendation hearing, originally scheduled for November 18, 1985, was rescheduled for December 2, 1985. Hall was notified of the November 18th hearing in June, 1985 and was notified of the rescheduling at least twenty days prior to the new date.¹ At the December recommendation hearing, Hall signed a document entitled “Rights of Inmates at NICI Concerning Jurisdictional Review Hearings.” That instrument advised Hall the committee would recommend relinquishing jurisdiction. The document further indicated that the staff’s comments — regarding Hall’s performance at NICI — had been read to him. The document informed Hall that he would reappear before the committee the next day and it identified the substance of the matters to be considered at that hearing. The document also included the following statements:

I have been advised that I have the following rights:

1. I may explain or rebut any testimony or recommendations made by the committee.

2. I may call witness on my behalf from among the staff or the inmate population at NICI. I request the following witnesses be called:

Hall did not list any witnesses that he wished to call at the hearing.

The next day Hall reappeared before the Jurisdictional Review Committee. At that hearing, termed the rebuttal hearing, Hall signed a document entitled “Final Jurisdictional Review (Extension/Retention).” That document begins with a standardized statement saying “I have had adequate time to consider the intended recommendation of the Jurisdictional Review Committee to my judge of jurisdiction, I hereby request the following[.]”² Below this sentence on the form, the inmate is permitted three options: (1) that the committee consider the inmate’s “statement/rebuttal” before making its recommendation, and (2) that the committee consider statements from the inmate’s witnesses before making a recommendation. Option (3) states that the inmate “do[es] not wish to exercise my rights.” On Hall’s form, he indicated only that he wanted the committee to consider his “statement/rebuttal.” A summary of that statement was included as an attachment to the form. The summary indicates the committee did consider Hall’s statements and rebuttal, but still recommended relinquishment of jurisdiction. These documents, including the written comments of the NICI staff and the psychological evaluation, were submitted to the sentencing judge. The judge accepted the committee’s recommendation and relinquished jurisdiction. Based on the due process requirements as delineated by Wolfe, we conclude that Hall received all the due process to which he was entitled.

In regard to Hall’s assertion that he was not allowed to have an attorney to cross-examine the psychologist at the hearings, this Court addressed that same issue in Schmidt v. State, 103 Idaho 340, 647 P.2d 796 (Ct.App.1982). In Schmidt we were urged to extend the Wolfe requirements to include assistance of counsel at hearings during a period of retained jurisdiction. We stated:

We presume that the Idaho Supreme Court considered the possibility of such a requirement when it rendered the decision in Wolfe and settled on the limited safeguards espoused in that decision. In our view it would be inappropriate, and unjustified in the instant case, for us to impose an additional procedural requirement of assistance of counsel in such matters. We hold that the district court did not err in determining that, by the authority of Wolfe, Schmidt was not entitled to counsel at [the hearing for recommendation on relinquishing jurisdiction].

103 Idaho at 349, 647 P.2d 805. We continue to adhere to our ruling in Schmidt. Moreover, we reach the same conclusion with regard to Hall’s assertions that he should have been allowed to call his own psychologist. Not only did Hall fail to indicate that he wanted to do so (presumably at his own expense), but Wolfe makes clear that the prisoner is free to call witnesses “from among the employees and other prisoners at NICI.” If the psychologist was an “employee” of NICI, presumably Hall could call him as a witness on Hall’s behalf. We decline, however, to extend this right to witnesses other than the personnel and inmates under the supervision and control of the board of correction. Accordingly, we find no error in the procedure under which Hall was evaluated. We affirm the judgment of conviction, including the district court order relinquishing jurisdiction.

SWANSTROM, J., concurs.

1 . Hall does not assert that he failed to receive reasonable notice of the substance of his evaluation reports. See State v. Shofner, 103 Idaho 767, 653 P.2d 1179 (Ct.App.1982) (Burnett, J., specially concurring.)

2 . Although termed a "request," we note that the committee has no discretion whether to hear the inmate's rebuttal or statement if he chooses to make one. Wolfe mandates that the prisoner "must be given an opportunity to explain or rebut any testimony or recommendation." 99 Idaho at 389, 582 P.2d at 735.