Respondents Brief — Black v. Romano
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Supreme Court, U.S.
FOR ARGUMENT FILED
TFB It 1985
No. 84-465
IN THE Le
Supreme Court of the Cited States
OCTOBER TERM, 1984
Dr. LEE Roy BLAcK,
Director of the Missouri Department of
Corrections and Human Resources,
Dick D. Moore,
Chairman, Missouri Board of Probation
and Parole.
Petitioners,
Vv.
NICHOLAS JAMES ROMANO,
Respondent.
On Writ Of Certiorari To The United States
Court Of Appeals For The Eighth Circuit
RESPONDENT'S BRIEF
OF COUNSEL: JORDAN B. CHERRICK
ARMSTRONG, TEASDALE, 611 Olive Street
KRAMER & VAUGHAN Suite 1900
St. Louis, Missouri 63101
Telephone: (314) 621-5070
Counsel of Record for Respondent
(Appointed by this Court)
PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662
i |
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i
Asis Shad eB hed mt 2s. we Ade eed FS eas "oped
QUESTIONS PRESENTED
1. Whether the due process clause of the fourteenth
amendment required the Missouri trial court to consider
on the record alternatives to incarceration, or state the
reasons for its decision, as a prerequisite to revoking
respondent’s probation and imposing a twenty year pris-
on term based upon conduct for which respondent was
ultimately charged and convicted of careless driving and
fined $100, which conduct was totally unrelated to the
offense for which respondent was incarcerated, namely,
the sale of marijuana?
2. Whether the district court and the Eighth Circuit
were correct in ordering respondent released from all
custody and in not allowing petitioners to hold a new,
retrospective probation revocation hearing, after respon-
dent’s probation term has already expired under Missouri
law, to cure a constitutional defect that occurred in re-
spondent’s probation revocation hearing almost eight
years ago?
i
TABLE OF CONTENTS
re
TABLE OF CONTENTS ......... eoreeceerccseccveccees
Dee ic ecceseucesees
Tee cence eencecones
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
ce oe eae eeeesedeceoeees
ee
II. Facts Relating To Romano’s Guilty Plea And
Ne cece ccdtweseeeoseeecee
III. Facts Relating To Romano’s Probation Revocation
Te TEE sccccvcccccecesesccecce
SUMMARY OF THE ARGUMENT .............ccccccccees
EE EE
I. The District Court And Eighth Circuit Correctly
Held That The Missouri Trial Court Violated Re-
sp _ Fourteenth Amendment Due Process
ESET OTT TTT eT TT TrTTT LTTE TE TTT eee
A. In Gagnon v. Scarpelli and Morrissey v. Brew-
er, This Court Held That The Fourteenth
Amendment Due Process Clause Requires A
Trial Court To Consider On The Record
Alternatives To Incarceration, Or State The
Reasons For Its Decision, As A Prerequisite To
ED ccoscscoescescecevcces
B. Federal And State Courts Have Uniformly
Held That The Fourteenth Amendment Due
Process Clause Requires A Trial Court To Con-
sider On The Record Alternatives To In-
carceration, Or State The Reasons For Its De-
cision, As A Prerequisite To Revoking Proba-
es eed ecccceccceeces
C. Numerous Experts Have Endorsed The Mod-
ern Penological View That Fundamental Fair-
ness Requires A Trial Court To Consider
Alternatives To Incarceration Before Revoking
EE Ee
14
14
18
Table of Contents Continued
Page
D. Bearden v. Georgia Follows Morrissey And
Gagnon In Holding That Due Process Requires
ial Court To Consider Alternatives To In-
carceration Before Revoking Probation ..... 22
E. Due Process Must Protect The Mutual In-
terests Of The Probationer, State, And Society
In Allowing Probationers To Successfully Com-
plete Their Probation Terms .............. 24
1. Romano, The State And Society Have
Mutual Interests In Establishing Proce-
dures To Ensure That Probation is Not
AsUlrarEy ROVGNGG .....cccccveccsess 26
2. A Probationer’s Liberty Interest Corre-
wy To The High Statistical Probability
t He Or She Will Successfully Com-
plete The Probation Term ............ 27
3. Trial Courts Which Order Incarceration
By Precipitously Revoking Probation Will
Increase The Likelihood That The Prob-
ationer Will Become A Recidivist ...... 28
4. The High Costs Of Incarceration And
Overcrowded Prisons Reflect The State
And Society’s Interest In Requiring
Judges To arefully Consider Alterna-
tives To Incarceration Before Revoking
PEE bunéccdauvacesé dazaenedeses 28
5. Petitioners Cannot Substantiate Their
Claims That The Requirement To Con-
sider Alternatives To Incarceration Be-
fore Revoking Probation Will Overburden
The State Courts, Cause An Increase In
Habeas Petitions, Or Create A Conflict
Between The State And Federal Govern-
ak a ik ih eel he eka he ae 4 30
6. If This Court Does Not Affirm Romano,
Trial Courts May Begin To Revoke Proba-
tions ty ietien, Jeopardizing The
Future Of The Probation System ...... 31
iv
Table of Contents Continued
F. Trial Courts Should Consider Alternatives To
Incarceration Before Revoking Probation Un-
less The Conduct Which Constitutes The
Probation Violation Compels The Court To
Conclude That The Probationer Can No Longer
Be Rehabilitated Or Supervised In The Com-
I 8b 6ni dan 66646666 KaREosen ene cseeees
G. Alternatives To Incarceration Should Be Con-
sidered In Administrative And Judicial Proba-
tion Revocation Proceedings ...............
H. Sentencing And Probation Revocation
Proceedings Are Constitutionally Dis-
— And Involve Different Factual
PE GbGSi RK cchdekecendee eeeeeashesesi
I. The Requirement That A Judge Consider
Alternatives To Incarceration Should Be Dis-
tinguished From The Probationer’s Duty To
Present Mitigating Evidence ..............
J. Notwithstanding The Requirement To Con-
sider Alternatives To Incarceration, Judge
Whipple Abused His Discretion In Revoking
Romano’s Probation And Executing A Twenty
Wey Pe IED eb. hbcxceccdesecccecss
K. The District Court And The Eighth Circuit Ap-
lied The Correct Standard Of Review And
— Decided Not To Order An Evidentia-
ry Hearing To Give The Missouri Trial Judge
An yay ow To Supplement The Record
And Cure The Constitutional Errors In His
Decision To Revoke Probation .............
Il. The District Court And The Eighth Circuit Were
Correct In Ordering Respondent Released From All
Custody And In Not Allowing Petitioners To Hold A
New, Retrospective Probation Revocation Hearing,
After Respondent’s Probation Term Has Already
Expired Under Missouri Law, To Cure A Con-
stitutional Defect That Occurred In Respondent’s
— Revocation Hearing Almost Eight Years
deddutautnnsenkesceusoresendetnnndeseses
Page
32
36
37
39
Table of Contents Continued
Page
A. Missouri Law Supports The Lower Courts’
Orders Releasing Romano From All Further
GED vanced ccdccdenwsessatvedsanddeces 41
B. Due Process Prevents The Missouri Courts
From Holding A Retrospective Probation
Revocation Hearing To Consider Events Which
Occurred Almost Eight Years Ago ......... 42
I ne eile Mie eee aula 46
Pe rr ere er Pre rrr la
vi
TABLE OF AUTHORITIES
CASES: Page
Abel v. Wyrick, 574 S.W.2d 411 (Mo. 1978)
CO SD oan sencdeesenwecadekseahencdsaceses 20, 32
Alexander v. Town & Country Estates, Inc., 535 F.2d
ee GME SED 66:5 6k ed ccccccdeecntencéeses 18
Arciniega v. Freeman, 404 U.S. 4 (1971) (per curiam) 38
Atkins v. Marshall, 533 F. Supp. 1324 (S.D. Ohio 1982) 19
Barker v. Wingo, 407 U.S. 514 (1972) ............. 43, 44
Bearden v. Georgia, 461 U.S. 660
DD idetacdcccciuhaueune nibe 12, 22, 23, 32, 36, 37
Eoard of Regents v. Roth, 408 U.S. 564 (1972) ....... 30
Bordenkircher v. Hayes, 434 U.S. 357 (1978) ........ 0)
Burns v. United States, 287 U.S. 216 (1932) ....... 38, 45
Butner v. United States, 440 U.S. 48 (1979) ......... 42
Carradine v. United States, 420 A.2d 1385 (D.C. 49.
450-66 bkdbed WEINER EEESEEEENEESCSS4S +0088 19
Caton v. Smith, 486 F.2d 733 (7th Cir. 1973) ........ 44
Chapman v. California, 386 U.S. 18 (1967) .......... 33
Commonwealth v. Vasquez, 389 A.2d 111 (Pa. Super.
SD dduvwssgdsawhwasinesdeaedebhnaesddbesenes 20
Cook v. Commonwealth, 176 S.E. 2d 815 (Va. 1970) .. 42
Douglas v. Buder, 412 U.S. 430 (1973) (per curiam) .. 38
Drope v. Missouri, 420 U.S. 162 (1975) ............-. 44
Gagnon v. Scarpelli, 411 U.S. 778 (1973) ......... passim
Goldberg v. Kelly, 397 U.S. 254 (1970) .............. 16
Haney v. Eyman, 399 P.2d 905 (Ariz. 1965) (en banc) 42
Hawaii v. Nakamura, 581 P.2d 759 (Hawaii 1978) ... 20
lasigi v. Van De Carr, 166 U.S. 391 (1897) .......... 45
Bes Ce Gee, GF TEs DGD 6c ccwccsncccccccscsess 26
Jones v. Cunningham, 371 U.S. 236 (1963) .......... 1
Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976) .... 33
Kent v. United States, 383 U.S. 541 (1966) ..... 16, 17, 35
Lawrence v. Smith, 451 F. Supp. 179 (W.D.N.Y.
SEE wisndecaunsudcnnannsstecesedkenaessseens 19, 26
Vii
Table of Authorities Continued
Page
Marchand v. Director, U.S. Probation Office, 421 F.2d
ee a ees
Mason v. State, 631 P.2d 1051 (Wyo. 1981) .......... 20
Mathews v. Eldridge, 424 U.S. 319 (1976) ........... 25
Meachum v. Fano, 427 U.S. 215 (1976) ............. 36
Moore v. Stamps, 507 S.W.2d 939 (Mo. Ct. App. 1974) (en
BED nddedconedddesudbesoesscelswaseencnescees 35
Morishita v. Morris, 702 F.2d 207 (10th Cir. 1983) .. 17, 20
Morrissey v. Brewer, 408 U.S. 471 (1972) ......... passim
Paul v. Davis, 424 U.S. 693 (1976) ................. 30
People v. Amsbary, 51 Cal. App. 3d 75 (1975) ....... 42
Romano v. Black, 567 F. Supp. 882 (E.D. Mo. 1983), _
affd, 735 F.2d 319 (8th Cir. 1984) ............ passim
Romano v. Black, 735 F.2d 319 (8th Cir. 1984) .... passim
Romano v. Wyrick, 681 F.2d 555 (8th Cir. 1982) ..... 39
Sincup v. Blackwell, 608 S.W.2d 389 (Mo. 1980)
DUET budckdadee eatibubekanwuende 64ereees 17, 20
Smith v. Carnes, 481 S.W.2d 242 (Mo. 1972) (en banc) 2
Solem v. Helm, 463 U.S. 277 (1983) ................. 6
State v. Austin, 295 N.W.2d 246 (Minn. 1980) ....... 20
State v. O’Meal, 569 P.2d 249 (Ariz. App. 1977) ...... i9
State v. Rideau, 376 So.2d 1251 (La. 1979) .......... 20
State v. Ruby, 650 P.2d 412 (Alaska App. 1982) ...... 19
State ex rel. Strickland v. Melton, 165 S.E.2d 90 (W. Va.
DD - situctddnviucheésdseveasebeensendcunses 42
State ex rel. Wagner v. Ruddy, 582 S.W.2 692 (Mo. 1979)
kg RR oe bee hE nn oe re 3
Sumner v. Mata, 455 U.S. 591 (1982) ...... iweeuueun 40
Tate v. Short, 401 U.S. 396 (1971) ...........ceeeees 23
United States v. Bazzano, 712 F.2d 826 (3d Cir. 1983) (en
banc) cert. denied, sub nom. Mollica v. United States
eee Wl cmes EE > PCED cccccce ,- 20, 21
United States v. Burkhalter, 588 F.2d 604 (8th Cir. 1978) 20
Vili
Table of Authorities Continued
Page
United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th
I i ee eet heehee edd 25
United States v. Diaz-Burgos, 601 F.2d 983 (9th Cir.
RRS em Pe ce ee ep ele i 19
United States v. Martinez, 650 F.2d 744 (5th Cir.
ced ON cua a Riad a i ae a 5 17, 19
United States v. Murray, 275 U.S. 347 (1928) ........ 28
United States v. Reed, 573 F.2d 1020 (8th Cir.
el SIR i cal Bs 7 15, 19, 29
United States ex rel. Sims v. Sielaff, 563 F.2d 821 (7th
ac ie nae 43
United States v. Stine, 675 F.2d 69 (3d Cir.), cert. denied,
ee Ee i duweseaneeeee 20, 21
Vitek v. Jones, 445 U.S. 480 (1980) ................. 16
Williams v. Illinois, 399 U.S. 235 (1970) ............ 23
Wolff v. McDonnell, 418 U.S. 589 (1974) ....... 16, 26, 38
CONSTITUTIONAL AND STATUTORY AUTHORITIES
U.S. CONST., Amendment XIV, §1; ............ passim
I i cint 1, 40
EE er a a a 1, 45
Mo. Rev. Stat. § 559.012 (1978) ................ 1, 24, la
Mo. Rev. Stat. § 549.071.1 (1963, as amended 1967), re-
pealed by L. 1982, at 438, § A .............. 1, 2, la
Mo. Rev. Stat. § 549.101.1 (1963, as amended 1965), re-
pealed by L. 1977, at 658, § 1, eff. sey %
a ntbatckcdewereudectssigeoliusthawens 2, 17, 2a
Mo. Rev. Stat. § 549.111.1 (1963, as iba bie 1967), re-
pealed by L. 1977, at 658, § 1, eff. January 1,
DTC cade daedece¢seuduaieks oeeeee eine éuns 2, 41, 3a
SECONDARY AUTHORITIES
A. Campbell, Law of Sentencing (1978) .............. 2g
ABA STANDARDS FOR CRIMINAL JUSTICE (2nd
FF ee 6, 15, 21-22, 24, 25, 28, 29
ix
Table of Authorities Continued
Page
ANNUAL REPORT OF THE DIRECTOR OF THE
ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS (1981), (1982), and (1983) .... 5, 27
Arenella, Rethinking The Functions of Criminal Proce-
dure: The Warren and Burger Courts’ Competing
Ideologies, 72 GEO. L.. REV. 185 (1983) ........ 26
BUREAU OF JUSTICE STATISTICS BULLETIN,
PUB. NO. NCJ-92949, PRISONERS IN 1983
=< Th peietinaehenatpaer ste erie 29
BUREAU OF JUSTICE STATISTICS BULLETIN,
PUB. NO. NCJ-94776, PROBATION AND
PAROLE 1983 (September, 1984) .............. 31
BUREAU OF JUSTICE STATISTICS, PUB. NO.
NCJ-87068, REPORT TO THE NATION ON
CRIME AND JUSTICE: THE DATA (1983) ... 29, 31
Clarke, What is the Yet nem of Probation and Why Do We
Revoke It?, 25 CRIME & DELINQ. 409
ete ude Eas Aeeeeeec dunes 22, 34
D. Gottfredson, L. Wilkins, P. Hofisnan, Guidelines for
Parole and Sentencing (1978) ..... sibanenne neha 22
DiCerbo, Why Should Probation Be Revoked?, 30
FEDERAL PROBATION 11 (1966) ............ 22
F. Remington, D. Newman, E. Kimball, M. Melli and H.
Goldstein, Criminal Justice Administration, Mate-
Se DD nv os connseetéceivéceess 15, 22
J. Barbour, A. Sapp, R. Holden, Offender Performance
and Characteristics: Missouri Adult Probation, 1972-
74 (Executive Summary) (August 1983) (Romano’s
Eighth Circuit Br., Addendum I) (lodged with this
SE ibitccthisermedenubnesduhysenedieees +s 27
M. Gottfredson, D. Gottfredson, Decisionmaking in
Criminal Justice: Toward the Rational Exercise of
ce os ee nceet 22, 24
M. Munson, Probation Performance on Assignments to
the Missouri Board of Probation and Parole, 1970-
1972 (1977) (Romano’s Eighth Circuit Br., Adden-
dum H) (lodged with this Court) ................ 27
X
Table of Authorities Continued
Page
N. Cohen and J. Gobert, The Law of Probation and
PU I 6 64.565 thee 0ccbseebeceecescees 24, 29, 36
NATIONAL ADVISORY COMMISSION ON CRIMI-
NAL JUSTICE STANDARDS AND GOALS,
CORRECTIONS (1973) Standard 5.4 ........... 22
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS, MODEL
SENTENCING AND CORRECTIONS ACT §3-
SOD BD UM. CITB 2 nc ccccccsvcccccccccsccees 22
President’s Commission on Law Enforcement and Ad-
ministration of Justice, Task Force Report: Correc-
ED 66-0n bonded g Od446Ceaereeisndedees 26, 28
JURISDICTION
Petitioners’ jurisdictional statement requires
supplementation. During the pendency of Romano’s
second habeas petition in the federal courts, the State of
Missouri placed Romano on a parole term which expires
in 2002. Eighth Circuit Designated Record at 89
[hereinafter cited as R.}. As a parolee, Romano was in
“custody” under 28 U.S.C. Section 2254. Jones v. Cun-
ningham, 371 U.S. 236, 243 (1963). In granting respon-
dent a writ of habeas corpus, the district court and Eighth
Circuit ordered Romano released from the custody of the
Missouri Department of Probation and Parole and the
Missouri Department of Corrections and Human Re-
sources. Petitioners have never attempted to stay the
execution of the mandates of the lower federal courts.
RELEVANT CONSTITUTIONAL AND STATUTORY
PROVISIONS
Respondent has included quotations from the pertinent
constitutional and statutory provisions in Appendix A to
Respondent’s Brief In Opposition To The Petition For A
Writ of Certiorari. These provisions include the follow-
ing:
1. U.S. CONST., amendment XIV, § 1;
2. 28 U.S.C. § 2254(a)-(d); and
3. 28 U.S.C. § 2243.
Respondent has included pertinent quotations in the
Appendix to this brief from the following Missouri stat-
utes:
1. Mo. Rev. Stat. § 559.012 (1978);
2. Mo. Rev. Stat. § 549.071.1 (1963, as amended
1967), repealed by L. 1982, at 438, § A;
2
3. Mo. Rev. Stat. § 549.101.1 (1963, as amended
1965), repealed by L. 1977, at 658, § 1, eff. Janu-
ary 1, 1979;
4. Mo. Rev. Stat. § 549.111.1 (1963, as amended
1967) repealed by L. 1977, at 658, § 1, eff. Janu-
ary 1, 1979.
STATEMENT OF THE CASE
Petitioners have presented a misleading statement of
the case by mischaracterizing and omitting critical facts.
Rather than restating the undisputed facts, respondent’s
statement of the case will only correct the inaccuracies in
petitioners’ presentation.
I. Procedural History
On December 10, 1974, respondent, Nicholas James
Romano, was arrested for transferring and selling mari-
juana. Joint Appendix at 13, 31 [hereinafter cited as
J.A.], Tr. at 6, 32. On November 15, 1977, Romano en-
tered guilty pleas before Judge Whipple to two counts of
an indictment alleging that Romano transferred (Count I)
and sold (Count II) marijuana. J.A. at 11-12, Tr. at 2, 3, 4.
On April 13, 1977, Judge Whipple sentenced Romano to
two concurrent twenty year terms of imprisonment, but
suspended execution of the sentence and placed Romano
on probation for five years, the maximum term allowed
under Missouri law. J.A. at 41-42, 46-47, Tr. at 46, 53, 54. '
| Contrary to petitioners’ assertion, Br. at 37, Romano’s probation
term was five, not ten years. J.A. at 41, 43, Tr. at 44, 48. Indeed,
Judge Whipple acknowledged that Missouri law precluded him from
ordering a probation term in excess of the five year maximum term
for felonies. J.A. at 43, Tr. at 48. See Mo. Rev. Stat. 549.071.1, (1963,
as amended 1967), repealed by L. 1982, at 438, § A; Smith v. Carnes,
481 S.W.2d 242 (Mo. 1972) (en banc) (statutory maximum probation
term includes extensions).
3
On July 18, 1977, Judge Whipple revoked Romano’s
probation based upon conduct for which Romano, after
pleading not guilty, was ultimately charged and convicted
of careless driving and fined $100 and costs. After revok-
ing Romano’s probation, Judge Whipple executed the
twenty year sentence which he had originally imposed
and suspended.’
The district court described the “extraordinary story”
of Romano’s futile efforts to seek post-conviction relief in
the state courts. Appendix to Petition For A Writ of
Certiorari [hereinafter cited as P.A.] at 38-41, Romanov.
Black, 567 F. Supp. 882, 884-85 (E.D. Mo. 1983). The
record reflects that not a single Missouri trial or appellate
court ever considered the merits of Romano’s numerous
pro se petitions. Moreover, petitioners concede that a
Missouri trial judge denied Romano’s post-conviction re-
lief petition on improper procedural grounds and also
formally advised Romano to pursue further improper
procedural remedies. Petition For A Writ Of Certiorari
at 3 [hereinaf‘er cited as Pet.]. Romano’s reliance on this
trial judge’s mistaken directions delayed the adjudication
of his claims for two to three years.’
* After ruling that Romano’s probation should be revoked, Judge
Whipple was required, under Missouri law, to execute the twenty
year sentence which he had originally imposed and suspended. Judge
Whipple had no authority to reduce this sentence. See State ex rel.
Wagner v. Ruddy, 582 S.W.2d 692, 693-95 (Mo. 1979) (en banc); Mo.
Rev. Stat. § 549.101.1 (1963, as amended 1965) (repealed by L. 1977,
at 658, §1, eff. January 1, 1979) (applicable law at the time of
Romano’s revocation hearing).
3 Petitioners mislead this Court when they state that, in his initial
federal court appeal in 1982, Romano raised “for the first time” the
claim that his probation revocation hearing was unconstitutional. Br.
at 4-5. To the contrary, in 1980 Romano had challenged the con-
stitutionality of his probation revocation hearing in his state habeas
corpus petition. R. at 58-62.
dq
Il. Facts Relating To Romano’s Guilty Plea And Sentencing
Hearings
The following facts emerge from Romano’s guilty plea
and sentence hearings, J.A. at 10-47, Tr. at 1-54:
1. Romano pleaded guilty to the charge of transferr-
ing and selling marijuana in excess of 35 grams. J.A. at
10-12, Tr. at 2-4. The marijuana had a value of approxi-
mately $3,000 to $3,200. J.A. 2* 36, Tr. at 39.
2. Contrary to petitioners’ assertion, Br. at 5, the
“heroin” involved in Romano’s sale of marijuana actually
consisted of 2 baking soda and pancake mix. Romano’s
Eighth Circuit Br., Addendum A, Supplemental Pre-
Sentence Investigation Report at 1 (lodged with this
Court). The State of Missouri only sought an indictment
for Romano’s transfer and sale of marijuana. J.A. at
11-12, Tr. at 2-3.
3. Romano pleaded guilty even though he may have
had a meritorious entrapment defense as the State of
Missouri had used informers to introduce Romano to
various drugs and also used informers to arrange for the
actual marijuana sale for which Romano was convicted.
J.A. at 15-16, Tr. at 9-10.
4. Romanohad no prior felony convictions, J.A. at 31,
Tr. at 31-32, and had only a very insignificant misde-
meanor conviction for which he received a $50 fine with no
term of imprisonment. Romano’s Eighth Circuit Br.,
Addendum B-1, Supplemental Pre-Sentence Investiga-
tion Report at 2 (lodged with this Court). Indeed, his
prior record was so clean that the Adult Face Sheet,
prepared by the Missouri Department of Social Services,
states that Romano had no prior “prison” or “non-prison”
sentences. R. at 78.
5. During the twenty eight month period between
Romano’s arrest and his sentencing hearing (December,
5
1974 to April, 1977), Romano did not commit any criminal
offenses with the exception of a minor traffic ticket he
received in February, 1977. J.A. at 31, Tr. at 32.
6. Judge Whipple sentenced Romano to an excessive
prison term of twenty years even though the pre-
sentence investigation report had recommended only five
years, Romano’s Eighth Circuit Br., Addendum B-2,
Pre-Sentence Investigation Report at 5 (lodged with this
Court), and the prosecutor had recommended ten years,
J.A. at 36, Tr. at 39.‘ Judge Whipple’s bizarre sentence
indicates an abuse of discretion for two reasons:
(a) The prison term is excessive on its face based on
the nature of Romano’s offense.°
‘Romano also presented substantial evidence at his sentencing
hearing that his conviction did not require imprisonment. Romano’s
employer, Mike Atkinson, testified that Romano “does a good job
. . . he’s conscientious about his work and he’s never been any prob-
lems [sic].” J.A. at 30, Tr. at 30. In addition, Romano tendered to
Judge Whipple Dr. Sheldon Silk’s favorable psychological evalua-
tion. J.A. at 34, Tr. at 36.
° A 1983 study of the average prison sentence for specific offense
categories for defendants sentenced in the United States district
courts reveals that the average sentence for a felony marijuana
conviction was 55.1 months as compared to the 240-month sentence
Romano received from Judge Whipple. Annual Report of the Direc-
tor of the Administrative Office of the United States Courts, 343-45
(1983). Romano’s sentence exceeded the average sentence for every
federal offense category, including, for example, first degree mur-
der, rape and kidnapping. /d. These statistics do not differentiate
between first and subsequent offenses, which makes Romano's 240-
month sentence for a first felony offense even more shocking. In light
of the record and these statistics, one wonders how petitioners can
describe Judge Whipple’s sentence as “lenient.” Br. at 33.
Members of this Court have expressed dismay at the injustice
inherent in sentences which are grossly disproportionate to the
6
(b) Suspending execution of an extraordinarily se-
vere prison sentence and granting probation,
which ostensibly indicates that Judge Whipple
believed Romano could be rehabilitated within
the community and did not require incarcera-
tien, reflects Judge Whipple’s misunderstand-
ing of the purposes of probation.*
7. Judge Whipple’s statements on the record indicate
that he “harbored a disposition to send Romano to jail for
any probation violation, regardless of the nature of the
violatici and without regard to any other possible op-
tions.” P.A. at 23, Romano v. Black, 735 F.2d at 319, 323
(8th Cir. 1984) (quoting frum Romano, 567 F. Supp. at
886). See also Romano, P.A. at 16-18, 735 F.2d at 322.
Ill. Facts Relating To Romano’s Probation Revocation
Hearing Of July 18, 1977
Judge Whipple revoked Romano’s probation because
he believed sufficient evidence existed to support the
crime. Cf. Solem v. Helm, 463 U.S. 277 (1983) (eighth amendment
bars sentences which are significantly disproportionate to the crime);
Bordenkircher v. Hayes, 434 U.S. 357, 368-73 (1978) (Powell, J.,
dissenting). (Justice Powell opined that the prosecutor’s plea
bargaining conduct violated due process, causing defendant to re-
ceive an excessive and unjust sentence.)
‘The ABA has commented on the unfairness of Judge Whipple’s
sentence:
[A] Draconian tendency to impose severe sentences may exist
where the court is imposing a suspended sentence that it never
expects will be served, since in such instances the court may
understandably tend to focus primarily on the value of the sus-
pended sentence as a deterrent threat by which to caution the
offender. But the paradoxical result can be that those offenders
initially judged more suited for probation thus wind up serving
longer periods of confinement.
ABA STANDARDS FOR CRIMINAL JUSTICE, Standard 18-2.3,
Commentary at 18-82 to 83 (2d ed. 1980) [hereinafter cited as ABA
STANDARDS].
7
State of Missouri’s allegation that Romano had commit-
ted the crime of leaving the scene of an accident. J.A. at
102-03, 107-10, Tr. at 134, R. at 47-49. Judge Whipple
based his findings on the disputed facts relating to an
automobile accident on June 15, 1977, in which Romano’s
car allegedly struck his close friend, Timothy Bradley,
outside of the Stein Club in Columbia, Missouri. The
probation revocation transcript, hewever, casts sub-
stantial doubt on Judge Whipple’s factual finding that
Romano, and not his girlfriend, was the driver of the car
which struck Bradley as well as on his legal finding that
Romano committed the crime of leaving the scene of an
accident.
Timothy Bradley, the victim of the accident who suf-
fered only minor injuries, testified that he could not iden-
tify the driver of the car which struck him. J.A. at 54, Tr.
at 63. Gerald Saunders, an eyewitness to the accident,
testified that Jody Seificas, Romano’s girlfriend, left the
car from the driver’s side. J.A. at 59, Tr. at 72-73. Saun-
ders thought that Seificas was the driver of the car. J.A.
at 61, Tr. at 74. Saunders also stated that Terry De-
Haven, a passenger in the car, told him later that Romano
was driving the car. J.A. At 64, Tr. at 79.
DeHaven’s recollection, however, was not credible be-
cause DeHaven testified that he was drunk (“totally
smashed”) prior to leaving the Stein Club with Romano
J.A. at 57, Tr. at 69. DeHaven stated that he had “passea
out” in Romano’s car and only awoke after the impact of
the accident. J.A. at 55-56, Tr. at 65-66. Finally, De-
Haven testified that he did not know the identity of the
car’s driver. J.A. at 58, Tr. at 69. In light of DeHaven’s
testimony, it is difficult to understand how Judge Whip-
ple could have relied on his statement to Saunders that
Romano was driving the car. J.A. At 108; R. at 47-49.
8
Judge Whipple also based his decision upon the “testi-
mony” of Jody Seificas. J.A. at 109; R. at 47-49. Seificas’
testimony related to the critical fact issue of the identity
of the driver of the car which struck Bradley. Seificas
repeatedly exercised her fifth amendment right against
self-incrimination and refused to answer numerous ques-
tions about the accident at the revocation hearing. J.A. at
66-67, Tr. at 82-84. Upon being called to testify a second
time during the hearing, Seificas replied, “I admit that,”
to an extremely confusing compound question concering
whether she had spoken with a police officer about the
accident and whether she had told him that she was a
passenger in the car. J.A. at 90-91, Tr. at 116-17.’ She
later testified that she did not understand the compound
question and, after the question was asked a second time,
Seificas refused to answer, invoking her fifth amendment
privilege. J.A. at 90-91, Tr. at 117-18. Judge Whipple,
however, ruled that Seificas had waived her fifth amend-
ment privilege and also stated that he considered her
testimony “material” in his finding that Romano was the
driver of the car which struck Bradley. J.A. at 109, R. at
47-49.*
Judge Whipple also relied on the testimony of members
of Timothy Bradley’s family who all offered almost identi-
cal testimony. Bradley’s mother, father, and sister were
7 Judge Whipple never explained how Seificas’ response, “I admit
that,” implied that she was a passenger in the car. Assuming, contra-
ry to Seificas’ statement, that she understood Prosecutor Seitz’ com-
pound question, she may have only been admitting that she had
spoken with a police officer on the night of the accident. Judge
Whipple unfairly interpreted Seificas’ ambiguous response as an
admission that Seificas also told the police officer that she was a
passenger in the car.
’Charles Franklin, an attorney present in the courtroom at the
revocation hearing, supported Romano’s position that Seificas did
not waive her privilege against self-incrimination. J.A. at 92-93, Tr.
9
visiting Timothy in his hospital room on Sunday morning,
June 15, 1977, approximately ten hours after the accident
occurred. Romano arrived to visit Timothy. According to
Bradley’s mother, Romano told Timothy, “It’s too bad
you jumped in front of me.” J.A. at 79, Tr. at 101.°
The family’s testimony was not credible. Both of Brad-
ley’s parents acknowledged that they had retained a local
law firm to represent Timothy in a personal injury action
arising from the car accident. J.A. at 80, 88, Tr. at 102-03,
113. Timothy Bradley offered no testimony concerning
his alleged conversation with Romano about the accident.
J.A. at 49-54, 80, Tr. at 57-64, 102. Moreover, Greg
Fallon testified that he was also in Bradley’s hospital
room during Romano’s visit. J.A. at 96, Tr. at 124. While
Fallon recalled the conversation between Bradley and
Romano and was present for the entire conversation, he
did not recall hearing Romano make any statements to
Bradley concerning the car accident. J.A. at 96, Tr. at
125.
Judge Whipple evaluated the evidence for only three
minutes, J.A. at 102, Tr. at 134, before ruling that:
1. Romano was the driver of the ear which struck
Bradley;
at 119-20. Franklin’s unusual appearance and statements bolster
Romano’s contention that Judge Whipple abused his discretion in
revoking Romano’s probation. In a colloquy with the court, Franklin
strenuously objected: “Sir, I have no basis. I have no standing at all to
object. I wish I could but I can’t. The only thing I can do is inform the
Court that ah. . . my decision is that she has not waived her. . . Fifth
Amendment privileges.” J.A. at 92-94, Tr. at 121.
*Mary Ann Bradley offered this testimony verbatim. Bradley’s
sister and father offered almost identical testimony. J.A. at 79, 80,
83, Tr. at 107, 113.
10
2. Romano committed the crime of leaving the
scene of an accident and, therefore, violated the
general condition of his probation agreement in
which he had agreed to obey all of the laws of the
State of Missouri;”° and
3. Romano’s probation should be revoked and his
underlying twenty year prison term should be
executed. J.A. at 103-04, Tr. at 135-36, J.A. at
107-10, R. at 47-49.
Judge Whipple found that Romano committed the
crime of leaving the scene of an accident despite the
evidence which indicated that Romano lacked the re-
quisite intent. Judge Whipple never explained the reason
Romano allowed all of his passengers to leave the car to
attend to Bradley. The record also reflects that numerous
bystanders were present at the parking lot of the Stein
Club who attended to Bradley. J.A. at 49, 68, 73, Tr. at
57, 85, 92. Judge Whipple also does not explain the reason
Romano visited his close friend, Bradley, at his hospital
room only ten hours after the accident. Romano was
ultimately arrested in Bradley’s hospital room. J.A. at 89,
Tr. at 115.
Romano’s conduct proved that he did not intend to
escape responsibility for his actions.'' Judge Whipple did
The State of Missouri required Romano to obey three special
conditions of probation which were related to his underlying mari-
juana conviction and required him to: (1) submit to a drug screening
test on demand; (2) restrict his travel; and (3) allow a law enforcement
officer to search his personal property at any time. J.A. at 43-44, Tr.
at 49, 50. The state never alleged that Romano violated one of these
special probation conditions.
\ The state’s failure to prosecute Romano for leaving the scene of
an accident confirms that Judge Whipple lacked evidentiary support
for his ruling. The state reduced the hit and run charge to careless
driving, R. at 52, of which Romano was ultimately convicted. R. at
11
not even acknowledge this substantial mitigating evi-
dence when he revoked Romano’s probation. See Roma-
no, P.A. at 20, 735 F.2d at 323.
The probation revocation transcript and the court’s
“Memorandum of Findings,” J.A. at 107-10, reflect that
Judge Whipple revoked Romano’s probation without con-
sidering alternatives to incarceration or explaining the
reasons for his ruling. Judge Whipple never explained
why the obvious alternatives to incarceration (for ex-
ample, fine, restitution, drivers’ training classes, or pub-
lic service work) would not be more appropriate than
sending Romano to jail for twenty years. Judge Whipple
also never discussed the rationale for his decision that
Romano’s driving offense, which had no relationship to
Romano’s marijuana conviction, compelled the conclusion
53. Romano did not receive this reduced charge as a result of a plea
bargain because Romano pleaded “not guilty” and vigorously de-
fended himself against the careless driving charge. R. at 53.
Petitioners unfairly seek to malign Romano by consistently draw-
ing inferences from the record that have no factual basis. For ex-
ample, petitioners “infer” from Saunders’ general description of the
movement of Romano’s car that Romano “might have been in-
toxicated with some drug—alcohol, marijuana, or something else,”
Br. at 33, when Romano’s car allegedly struck Bradley. Nothing in
the record even remotely supports this incredible allegation. Peti-
tioners also fail to state that Saunders’ recollection of the accident is
tainted by his admission of having “had a few beers” prior to his
leaving the Stein Club. J.A. at 61, Tr. at 74.
Police officer Wright testified that Romano’s car was found parked
in the driveway of the Stein Club owner’s house, only six blocks from
the accident scene. J.A. at 71, 77, Tr. at 89-98. Petitioner’s “infer”
from this testimony that Romano drove away from the accident scene
to conceal his mental condition. Br. at 33. A more reasonable in-
ference is that Romano drove to his employer’s house because he felt
frightened in light of his status as a probationer.
iz
that Romano could no longer be rehabilitated or super-
vised in the community and must, therefore, be incarcer-
ated. See Romano, P.A. at 20-21, 47-51, 735 F.2d at 323,
567 F. Supp. at 886-87.
SUMMARY OF THE ARGUMENT
The Missouri trial court arbitrarily revoked respon-
dent’s probation without complying with Gagnon v. Scar-
pelli’s due process requirement that a trial court consider
on the record alternatives to incarceration, or state the
reasons for its decision, as a prerequisite to revoking
probation. Numerous federal and state courts, as well as
expert observers of the criminal justice system, have
endorsed the modern penological view that courts should
consider alternatives to incarceration before revoking
probation.
In Bearden v. Georgia, this Court followed Gagnon in
holding that due process requires a trial court to consider
alternatives to incarceration before revoking the proba-
tion of an indigent who fails to make restitution. The case
at bar offers this Court the opportunity to reexamine the
application of the due process clause to all probation
revocation proceedings.
The probationer has a substantial liberty interest, pro-
tected by due process, which should prevent a court from
unfairly and arbitrarily revoking probation. Prcbation
also satisfies the state’s penological interests in rehabili-
tating and supervising criminal offenders within the com-
munity. Empirical evidence indicates that if probationers
are unnecessarily incarcerated, the state and society will
be burdened with serious social and fiscal problems.
These problems include the greater likelihood that incar-
cerated persons will become criminogenic and recidivists
as well as the high cost of prison overcrowding. Due
13
process procedures must, therefore, provide safeguards
so that judges or hearing officers do not arbitrarily re-
voke probation.
Respondent respectfully proposes a due process test
which will ensure that trial judges adhere to the proper
criteria in their probation revocation decisions. Trial
courts should consider alternatives to incarceration be-
fore revoking probation unless tae conduct which con-
stitutes the probation violation compels the court to con-
clude that the probationer can no longer be rehabilitated
or supervised within the community.
Applying this test to the facts at bar, this Court should
conclude that the Missouri trial judge erred in failing to
consider alternatives to incarceration before revoking
respondent’s probation. Romano’s alleged conduct which
constituted his probation violation, careless driving, had
no rational relationship to his underiying marijuana con-
viction. The careless driving offense did not compel the
conclusion that Romano could no longer be rehabilitated
or supervised in the community, and that he must, there-
fore, be incarcerated for twenty years.
As a result of his unconstitutional probation revocation
hearing, Romano spent five and one-half years in jail.
Romano’s five year probation term expired in 1982.
Under Missouri law, the state no longer has the jurisdic-
tion or custody over Romano’s person necessary to con-
duct a retrospective probation revocation hearing which
conforms with due process.
Due process considerations also dictate that this Court
should affirm the district court and Eighth Circuit’s order
releasing Roman» from ali further custody by the State of
Missouri. Romano’s efforts to gain post-conviction relief
were hampered by the Missouri courts which delayed the
timely adjudication of his constitutional claims. Due proc-
14
ess requires the courts to conduct a probation revocation
hearing shortly after a violation occurs. It would be im-
practical and unfair to allow the state an opportunity to
conduct a retrospective hearing concerning events which
occurred almost eight years earlier. Justice requires that
this Court affirm the lower courts’ issuance of a writ of
habeas corpus to Romano.
ARGUMENT
I. THE DISTRICT COURT AND EIGETH CIRCUIT
CORRECTLY HELD THAT THE MISSOURI TRIAL
COURT VIOLATED RESPONDENT’S FOURTEENTH
AMENDMENT DUE PROCESS RIGHTS.
A. In Gagnon v. Scarpelli And Morrissey v. Brewer, This
Court Held That The Fourteenth Amendment Due
Process Clause Requires A Trial Court To Consider On
The Record Alternatives To Incarceration, Ov State
The Reasons For Its Decision, As A Prerequisite To
Revoking Probation.
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), this Court
enunciated tne minimum due process standards which a
state must meet if it wishes to revoke an individual’s
probation. These standards comprise the “process” due to
all probationers and guarantees that the state does not
arbitrarily revoke a probationer’s significant liberty in-
terest. Gagnon recognized that a court must make two
determinations in deciding whether to revoke an in-
dividual’s probation: (1) whether the probation terms
were actually violated; and (2) if the terms of the proba-
tion were violated, “[(s]hould the parolee [probationer] be
recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation?”
Gagnon, 411 U.S. at 784 (citing Morrissey v. Brewer, 408
U.S. 471, 479-80 (1972)).”
2 Morrissey established the due process requirements for parole
revocation proceedings, and Gagnon applied these requirements to
\
15
In exploring the rationale for requiring a trial judge to
consider alternatives to incarceration, Gagnon identified
various competing interests:
Both the probationer or parolee and the State have
interests in the accurate finding of fact and the in-
formed use of discretion—the probationer or parolee
to insure that his liberty is not unjustifiably taken
away and the State to make certain that it is neither
unnecessarily interrupting a successful! effort at re-
habilitation nor imprudently prejudicing the safety
of the community.
411 U.S. at 785.
This Court emphasized that rehabilitation, not punish-
ment, is the focus of the probation/parole system. “(T]he
whole thrust of the probation/parole movement is to keep
men in the community, working with adjustment prob-
lems there, and using revocation only as a last resort
when treatment has failed or is about to fail.” Jd. (citing
F. Remington, D. Newman, E. Kimball, M. Melli & H.
Goldstein, Criminal Justice Administration, Materials
and Cases 910-911 (1969)) (emphasis added). Probation
should be revoked only when the trial court is convinced
that the probation violator’s conduct is so serious that he
or she “cannot be counted on to avoid antisocial activity.”
Morrissey, 408 U.S. at 479.
probation revocation proceedings. Gagnon, 411 U.S. at 782 n.3. A
probationer’s due process rights are arguably stronger than a
parolee’s because a probationer has a higher statistical success rate
than a parolee. See United States v. Reed, 573 F.2d 1020, 1024 (8th
Cir. 1978). Also, many probationers have never been incarcerated.
These probationers will not be exposed to the ill effects of prison life
and are less likely to become recidivists. Se ABA STANDARDS,
supra Standard 18-2.2, Commentary at 18-76.
16
Gagnon and Morrissey also require the trial judge to
consider alternatives to incarceration on the record sc
that an appellate court can meaningfu ly review the trial
court’s ruling." Thus, the trial judge must provide “a
written statement .. . as to the evidence relied on and
reasons for revoking [probation or] parole.” Gagnon, 411
U.S. at 786 (citing Morrissey, 408 U.S. at 489) (emphasis
added. )"
Gagnon translates the question of whether a probation
violation occurred into the trial court’s procedural duty to
explain the evidence on which it relies in its ruling. 411
U.S. at 784, 786. The case translates the second question
of whether alternatives to incarceration are appropriate
into the trial court’s procedural duty to explain its reasons
for revoking probation. Jd. “Alternatives” and “reasons”
are logically related. One may define probation as an
alternative to incarceration. An explanation of the
13 Petitioners concede that Morrissey and Gagnon require the triai
court to file a written statement explaining the evidence relied on
and reasons for revoking probation. Br. at 13-14. Petitioners contend
that Judge Whipple satisfied this due process requirement, id., even
though the record reflects the contrary conclusion. J.A. at 107-10.
'4 This Court has held in other contexts that due process requires
an administrative body or court to make a written statement of the
reasons for its decision. See, e.g., Vitek v. Jones, 445 U.S 480, 495
(1980) (factfinder must make a written statement of reasons for
transferring inmate to mental hospital); Wolff v. McDonnell, 418
U.S. 539, 564 (1974) (factfinder must make written statement of
reasons for prison disciplinary proceeding which results in loss of
good-time credits); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (de-
cisionmaker should state reasons for terminating welfare benefits);
Kent v. United States, 383 U.S. 541, 561 (1966) (juvenile court must
state reasons underlying its order waiving jurisdiction).
17
reasons for revoking probation necessarily entails an ex-
planation of why alternatives to incarceration are no lon-
ger viable.”
The Eighth Circuit correctly interpreted Gagnon when
it held that Romano’s probation revocation hearing
violated his due process rights. P.A. at 11-24, 735 F.2d at
321-24. The record supports the Eighth Circuit’s ruling.
The transcript reveals that Judge Whipple never con-
sidered alternatives to incarceration. P.A. at 20-22, 49-
51, 735 F.2d at 323, 567 F. Supp. at 884, 886. Judge
Whipple’s written “Memorandum of Findings” only con-
tains a discussion of the evidence relating to the issue of
whether Romano was the driver of the car which struck
Bradley. J.A. at 107-10. Judge Whipple, however, never
explained his reasons for revoking Romano’s probation as
is required under Gagnon. Id."
'® Missouri law recognizes the “last resort” nature of probation
revocation by allowing a judge, after finding a violation, to continue
the probation term with or without additional conditions. Mo. Rev.
Stat. § 549.101.1 (1963, as amended 1967), repealed by L. 1977, at
658, § 1, eff. January 1, 1979 (the applicable law at the time of
Romano’s revocation hearing).
'® A record is critical to protect the probationer’s due process rights
and to allow meaningful appellate review. See, e.g., Kent v. United
States, 383 U.S. 541, 561 (1966) (“Meaningful review requires that
the reviewing court should review. It should not be remitted to
assumptions. It must have before it a statement of the reasons . . .
[I]t may not “assume” that there are adequate reasons. . . .”)
Some courts have held that Gagnon’s requirement of a written
statement of reasons or alternatives to incarceration is satisfied if the
judge or hearing officer dictates his or her findings into the record
which can be transcribed for an appellate court’s review. See, e.g.,
United States v. Martinez, 650 F.2d 744, 745 n.1 (5th Cir. 1981);
Morishita v. Morris, 702 F.2d 207, 209 (10th Cir. 1983); Sincup v.
Blackwell, 608 S.W. 2d 389, 393 (Mo. 1980) (en banc). If this Court
adopts this interpretation of Gagnon, Romano should still be
18
B. Federal and State Courts Have Uniformly Held That
The Fourteenth Amendment Due Process Clause Re-
quires A Trial Court To Consider On The Record
Alternatives To Incarceration, Or State The Reasons
For Its Decision, As A Prerequisite To Revoking
Probation.
Numerous federal and state courts which have con-
sidered the constitutional standards for probation revoca-
tion proceedings have followed the Morrissey/Gagnon
requirement that a trial court must consider alternatives
to incarceration, or state the reasons for its decision, as a
prerequisite to revoking probation or parole." We briefly
affirmed. The revocation transcript and the court’s written memor-
andum of findings reflect that Judge Whipple did not consider
alternatives to incarceration or offer a reasoned explanation to sup-
port his decision to revoke Romano’s probation. Romano, P.A. at
20-22, 48-51, 735 F.2d at 323, 567 F. Supp. at 886-87.
17 Petitioners now contend, for the first time in this litigation, that
Morrissey and Gagnon do not require the trial judge to consider
alternatives to incarceration before revoking probation. Br. at 8, 12,
21. In the lower courts, petitioners acknowledged that
[i]t is clear that under the case law [,] probation revocation is a
two-step process. The first step is a factual determination of
whether one or more terms of the probation have been violated.
If a probation violation is found, the second question to be
considered is whether the probationer should be incarcerated or
whether other steps should be taken to protect society and
improve chances of rehabilitation. (citing Gagnon and Mor-
rissey).
Petitioners’ Eighth Circuit Br. at 1 (lodged with this Court). Peti-
tioners primarily litigated below the issue of whether the trial judge
must consider alternatives to incarceration “on the record.”
This Court should refuse to allow petitioners to change their legal
position. See, e.g., Alexander v. Town & Country Estates, Inc., 535
F.2d 1081, 1082 n.1 (8th Cir. 1976) (appellate court will not decide a
case on a legal theory on which counsel advanced a contrary position
in the court below).
19
summarize the holdings of selected federal cases: United
States v. Martinez, 650 F.2d 744, 745 (5th Cir. 1981)
(district court erred in failing to make written statement
of reasons for revoking probation; “pro forma language
and routine phrases” will not satisfy due process); United
States v. Diaz-Burgos, 601 F.2d 983, 985 (9th Cir. 1979)
(due process requires court to consider whether proba-
tion violation “warrants revocation and, if so, what sent-
ence shall be imposed”); United States v. Reed, 573 F.2d
1020, 1024-25 (8th Cir. 1978) (before revoking probation,
the court must consider whether violations are sufficient-
ly serious to justify revocation and whether alternatives
to incarceration would be more appropriate); Atkins v.
Marshall, 533 F. Supp. 1324, 1329 (S.D. Ohio 1982) (in
expressing its reasons for revoking probation, the trial
court must consider whether reincarceration would best
improve the probationer’s hopes of rehabilitation); Lawr-
ence v. Smith, 451 F. Supp. 179, 189 (W.D.N.Y. 1978)
(parole board must explain its reasons for revoking parole
rather than taking alternative action).
We briefly summarize the holding of selected state
cases: State v. Ruby, 650 P.2d 412, 414 (Alaska App.
1982) (proof of probation violation is insufficient to revoke
probation as the court must also determine whether reha-
bilitation of petitioner would be furthered by alternatives
to imprisonment such as continuation of petitioner’s prob-
ation); State v. O’Meal, 569 P.2d 249, 251 (Ariz. App.
1977) (second facet of probation revocation hearing re-
quires trial court to decide whether “continuation of
appellant’s probationary status [would] be at odds with
the need to protect society and society’s interest in appel-
lant’s rehabilitation.”); Carradine v. United States, 420
A.2d 1385, 1388 (D.C. App. 1980) (Gagnon requires
probation revocation proceeding to include a considera-
tion of whether alternatives to incarceration are viable);
20
Hawaii v. Nakamura, 581 P.2d 759, 763 (Hawaii 1978)
(Abuse of discretion for court not to consider alternatives
to incarceration, especially where punishment for revoca-
tion is grossly disproportionate to the violation); State v.
Rideau, 376 So.2d 1251, 1258 (La. 1979) (trial court “abdi-
cate[ed] its responsibility” and violated probationer’s due
process rights when it failed “to determine whether the
drastic remedy of revocation was appropriate”); State v.
Austin, 295 N.W. 2d 246, 250 (Minn. 1980) (court must
“find that the need for confinement outweighs the policies
favoring probation” before revoking probation); Abel v.
Wyrick, 574 S.W.2d 411 (Mo. 1978) (en banc) (abuse of
discretion as a matter of law for a court to revoke proba-
tion without considering alternatives to incarceration,
especially when probation violation is unrelated to
underlying conviction); Commonwealth v. Vasquez, 389
A.2d 111, 113-14 (Pa. Super. 1978) (trial court erred in
revoking probation and parole as it made no specific find-
ing that probation-parole violation deserved imprison-
ment rather than rehabilitation alternative); Mason v.
State, 631 P.2d 1051, 1055 (Wyo. 1981) (after probation
violation is found, due process requires court to make a
second inquiry to determine whether probation should be
revoked).
'8 Petitioners erroneously cite United States v. Burkhalter, 588
F.2d 604 (8th Cir. 1978); Sincup v. Blackwell, 608 S.W.2d 389 (Mo.
1980) (en banc); Morishita v. Morris, 702 F.2d 207 (10th Cir. 1983);
United States v. Bazzano, 712 F.2d 826 (3d Cir. 1983) (en banc) cert.
denied, sub nom. Mollica v. United States, __ U.S. ___, 104S. Ct.
1439 (1984); and United States v. Stine, 675 F.2d 69 (3d Cir.) cert.
denied 458 U.S. 1110 (1982), for the proposition that lower courts
have interpreted Morrissey and Gagnon not to require sentencing
judges to consider alternatives to incarceration before revoking
probation. Br. at 16-20.
In Burkhalter, the Eighth Circuit agreed that Gagnon requires
the court to consider alternatives to incarceration and to order
21
C. Numerous Experts Have Endorsed The Modern Peno-
logical View That Fundamental Fairness Requires A
Trial Court To Consider Alternatives To Incarceration
Before Revoking Probation.
Numerous experts have endorsed the Morrissey/
(ragnon due process requirement that a trial court con-
sider alternatives to incarceration before revoking proba-
tion. The American Bar Association has opined that “in-
termediate steps should be considered in every [probation
revocation] case as possible alternatives to the imposition
of total confinement.” ABA STANDARDS FOR CRIMI-
revocation “only as a last resort.” 588 F.2d at 606. The court held that
the revocation was proper because the trial court found that the
probationer intentionally and consistently violated the special condi-
tions of his probation which indicated that he could no longer be
rehabilitated in the community. Jd. at 607.
Morishita held that “written findings are constitutionally required
only if the transcript and the record before the judge do not enable a
reviewing court to determine the basis of the judge’s decision to
revoke probation.” 702 F.2d at 210. In the case at bar, however, the
transcript and Judge Whipple’s written findings reflect that he did
not state the reasons for his decision or consider alternatives before
revoking Romano’s probation.
Bazzano did not even address the issue of alternatives to in-
carceration. The Third Circuit held that after revoking probation,
the trial court need not state its reasons for executing the original
suspended sentence which it had given to the probationer after his
initial conviction. 712 F.2d at 838-39. This holding applies the general
rule that trial judges have no duty to explain the reasons underlying
their sentencing decisions.
Stine affirmed the constitutionality of probation conditions which
require psychological counseling. 675 F.2d at 72. The court also held
that the probation revocation was proper because the record re-
flected that it was the “only alternative.” /d.
22
NAL JUSTICE, Standard 18-7.3(d), (2d ed. 1980) (em-
phasis added) [hereinafter cited as ABA
STANDARDS].”
D. Bearden v. Georgia Follows Morrissey And Gagnon In
Holding That Due Process Requires A Trial Court To
Consider Alternatives To Incarceration Before Revok-
ing Probation.
Bearden v. Georgia, 461 U.S. 660 (1983), held that due
process requires sentencing judges to consider alterna-
tives to incarceration before automatically revoking
probation for an indigent’s failure to pay a fine or make
restitution. 461 U.S. at 672. This Court carefully placed
its limited holding in the context of the well-entrenched
Morrissey/Gagnon due process guidelines. “Under our
holding the sentencing court must focus on criteria
18 See also NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS, MODEL SENTENCING AND
CORRECTIONS ACT, § 3-310, 10 U.L.A. (1984); NATIONAL
ADVISORY COMMISSION ON CRIMINAL JUSTICE STAND-
ARDS AND GOALS, CORRECTIONS, Standard 5.4 (1973);
Clarke, What Is The Purpose of Probation and Why Do We Revoke
It?, 25 CRIME & DELINQ. 409 (1979); F. Remington, D. Newman,
E. Kimball, M. Melli and H. Goldstein, Criminal Justice Adminis-
tration, Materials and Cases 910 (1969) (cited in Gagnon, 411 U.S. at
784 n.7); DiCerbo, Why Should Probation Be Revoked? , 30 FEDER-
AL PROBATION 11-17 (1966); see generally M. Gottfredson and D.
Gottfredson, Decisionmaking In Criminal Justice: Toward The
Rational Exercise of Discretion 212, 214, 335 et seg. (1980); D.
Gottfredson, L. Wilkins, P. Hoffman, Guidelines For Parole and
Sentencing 1, 119 et seq. (1978).
Petitioners cite numerous academic authorities to support, pre-
sumably by negative inference, their argument that Morrissey and
Gagnon do not require trial courts to consider alternatives to in-
carceration. Br. at 20 n.1. These authorities are irrelevant because
while they discuss Morrissey and Gagnon generally, they do not even
purport to address the issue of alternatives to incarceration.
23
typically considered daily by sentencing courts through-
out the land in probation revocation hearings: whether
the defendant has demonstrated sufficient efforts to
comply with the terms of probation and whether non-
imprisonment alternatives are adequate. .. .” Jd., 461
U.S. at 673 n.12.
Petitioner Bearden occupied the position of both an
indigent and a probationer which gave him two due proc-
ess interests. As Bearden’s indigency status was the
central factual issue, this Court relied on Justice Harlan’s
analyses of an indigent’s due process rights in Williams v.
Illinois, 399 U.S. 235, 259 (1970) and Tate v. Short, 401
U.S. 395, 401 (1971). Bearden, U.S. at 665, 674 (majority
opinion); 461 U.S. at 676 (concurring opinion). The Bear-
den majority also cited Morrissey and Gagnon to estab-
lish the due proces foundation for this Court’s opinion. 461
U.S. at 666 n.7, 669, 671.
Petitioners contend that Bearden limits the require-
ment to consider alternatives to incarceration to cases in
which the probationer unintentionally violates his proba-
tion. Br. at 24. Justice O’Connor noted, however, that
“fault” was a relevant consideration only in cases which
presented facts which resembled Bearden’s peculiar
predicament. 461 U.S. at 668 n.9. Even if one assumes
that petitioners’ contention is correct, Romano was still
properly decided because nothing in the record suggests
that Romano’s alleged probation violation of negligently
striking his friend with his car in a dark parking lot was an
intentional act. Automobile accidents are unfortunate ev-
eryday occurrences. Individuals who are involved in iso-
lated car accidents should not be condemned as possess-
' ing antisocial personalities which threaten the welfare of
society.
The Bearden Court purposesly chose not to establish a
rule of law which would alter its Morrissey/Gagnon
24
requirement that judges consider alternatives to in-
carceration before revoking probation. Jd. Romano pre-
sents the Court with this opportunity. Before a test can
be constructed, however, this Court must examine the
policies underlying probation and the competing due
process interests involved in the trial court’s decision to
revoke probation.
E. Due Process Must Protect The Mutual Interests Of The
Probationer, State, And Society In Allowing Prob-
ationers To Successfully Complete Their Probation
Terms.
Judge Whipple’s initial decision to place Romano on
prohation triggered his due process rights. “The decision
to place the defendant on probation ... reflects a
determination by the sentencing court that the State’s
penological interests do not require imprisonment.”
Bearden, 461 U.S. at 670. Probation primarily satisfies
the state’s interests in rehabilitating and supervising a
criminal offender in the community. See Gagnon, 411
U.S. at 784-85.
The experts also emphasize the “rehabilitative-
reintegrative” goal of probation. M. Gottfredson, D.
Gottfredson, Decisionmaking in Criminal Justice: To-
ward the Rational Exercise of Discretion 212-14 (1980).
See also N. Cohen and J. Gobert, The Law of Probation
and Parole 8-12 (1983) [hereinafter cited as Probation
and Parole]; ABA STANDARDS, Standard 18-2.3,
Commentary at 18-74 to 76. The state’s penological objec-
tives of deterrence and punishment have minimal import-
ance in the decision to grant probation. Id.; see also
Gagnon, 411 U.S. at 785 (focus of probation is to achieve
rehabilitation, not punitive goals). Cf. Mo. Rev. Stat.
Section 559.012 (1978) (court may grant probation if in-
stitutional confinement is unnecessary for the protection
of the public and rehabilitation can be achieved in the
25
community); United States v. Consuelo-Gonzalez, 521
F.2d 259, 263 (9th Cir. 1975) (en banc) (rehabilitation and
supervision in the community are policies underlying the
Federal Probation Act).
Due process procedures must capture the competing
interests of the individual and the state. Gagnon recog-
nized that the probationer and state have mutual in-
terests in the “informed use of discretion.” 411 U.S. at
785. See also Romano, P.A. at 14, 735 F.2d at 322; see
generally Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
(due process requires this Court to balance the value of
additional procedures with the governmental and private
interests).
The ABA has identified the mutual objectives which
the individual and the state achieve through probation.
[P]robation is a desirable disposition in appropriate
cases for a variety of independent reasons:
(1) it maximizes the liberty of the individual while
vindicating the authority of the court;
(2) it eases the reintegration of the offender into
the community;
(3) it minimizes the hidden costs that imprisonment
places on the family of the offender, in the form
of both reduced income and enforced separ-
ation; and
(4) it is the most economic form of correctional su-
pervision.
ABA STANDARDS, supra Standard 18-2.3, Commenta-
ry at 18-75 to 76. This Court must evaluate the strength of
Romano’s liberty interest and the state and society’s
interests in ensuring that probation is not unnecessarily
or arbitrarily revoked.
26
1. Romano, The State and Society Have Mutual In-
terests In Establishing Procedures To Ensure That
Probation Is Not Arbitrarily Revoked.
Romano, the state, and society have mutual interests
in fair probation revocation procedures which “will en-
hance the chance of rehabilitation by avoiding reactions to
arbitrariness.” Morrissey, 408 U.S. at 484 (citing Presi-
dent’s Commission on Law Enforcement and Adminis-
tration of Justice, Task Force Report: Corrections 83, 88
(1967) (hereinafter cited as Corrections]. See also Wolff
v. McDonnell, 418 U.S. 539, 558 (1974) (“touchstone of
due process is protection of the individual against arbitra-
ry action of government.”)”
This Court has allowed trial judges to exercise a large
amount of discretion in conducting probation revocation
hearings. Due process must ensure that judges do not
abuse their discretion in the decisionmaking process
which is so important to the probationer. See Lawrence v.
Smith, 451 F. Supp. 179, 189 (W.D.N.Y. 1978). As Jus-
tice Fortas observed, “unbridled discretion, however
benevolently motivated, is frequently a poor substitute
for principle and procedure.” In re Gault, 387 U.S. 1, 18
(1967). Requiring sentencing judges to consider alterna-
tives to incarceration protects the probationer, the state
and society against arbitrary revocations.
2° Constitutional law zcholars have highlighted the importance of
the “legitimation” or fairness function-of the due process clause. “Tc
perform its dispute-resolution function effectively, American crimi-
nal procedure must provide a mechanism that settles the conflict in a
manner that induces community respect for the fairness of its proc-
esses as well as the reliability of its outcomes.” Arenella, Rethinking
the Functions of Criminal Procedure: the Warren and Burger
Courts’ Competing Ideologies, 72 GEO. L. REV. 185, 202 (1983).
27
2. A Probationer’s Liberty Interest Corresponds To The
High Statistical Probability That He Or She Will
Successfully Complete The Probation Term.
The strength of a probationer’s liberty interest should
be measured by the statistical probability that he or she
will successfully complete the probation term. Because
Romano’s success probabilities were very high, the risk
of an unnecessary revocation was also very high. Judge
Whipple was, therefore, constitutionally required to con-
sider alternatives to incarceration before deciding to re-
voke Romano’s probation.”
*! Probationers have a very high statistical success rate for all
offense groups within the federal system: 82.4% in 1980; 81.3% in
1981; 82.3% in 1982; and 81.4% in 1983. ANNUAL REPORT OF
THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS at 545 (1986), at 539 (1981), at
416-17 (1982), at 416-17 (1983) [hereinafter cited as ANNUAL RE-
PORTS]. é
A 1977 Missouri study of individuals placed on probation between
1970 and i972 indicates a 78% success rate. M. Munson, Probation
Performance on Assignments to the Missouri Board of Probation and
Parole, 1970-1972 (1977). Romano’s Eighth Circuit Br., Addendum H
(lodged with this Court). A 1983 Missouri study of individuals placed
on probation between 1972 and 1974 indicates a 79-80% success rate.
J. Barbour, A. Sapp, R. Holden, Offender Performance and Charac-
teristics: Missouri Adult Probation, 1972-74 (Executive Summary)
(August 1983). Romano’s Eighth Circuit Br. at Addendum I (lodged
with this Court) (hereinafter cited as Missouri Adult Probation].
The empirical data also reflect that courts generally continue
probation desp*te the probationer’s commission of a minor offense. A
“minor offense” is defined as “drunk[eness], disorderly [conduct],
petty theft, traffic violation, etc. when sentence is 90 days or less
imprisonment, or 1 year or less probation, or a fine.” ANNUAL
REPORTS, supra. Romano’s careless driving conviction would fall
into the “minor offense” classification. According to the federal sta-
tistics, the percentage of probations revoked for “minor” offenses
was 2.0% in 1980; 1.8% in 1981; 1.4% in 1982; and 1.5% in 1983.
28
3. Trial Courts Which Order Incarceration By
Precipitously Revoking Probation Will Increase
The Likelihood That The Probationer Will Become a
Recidivist.
Sociological studies support the view that incarcerated
individuals have a higher recidivism rate than probation-
ers who have iever been incarcerated. ABA STAND-
ARDS, supra Standard 18-2.3, Commentary at 18-76
(citing sociological studies). See also Corrections, supre:
at 28. Moreover, some experts maintain that prison is
criminogenic, increasing an inmate’s probability of re-
cidivism. Jd. at n.8.% This Court should consider this
empirical data in balancing the due process interests at
stake in the case at bar.
4. The High Costs of Incarceration And Overcrowded
Prisons Reflect The State And Society’s Interest In
Requiring Judges To Carefully Consider Alternatives
To Incarceration Before Revoking Probation.
The average annual cost in 1983 of incarcerating one
adult prisoner was $13,000 in a federal prison and $5,000
to $23,000 in a state prison. These costs should be com-
ANNUAL REPORTS, supra. A 1983 Missouri study found that
19.3% of the probationers who successfully completed their proba-
tion terms had been continued on probation despite a violation or
minor conviction. Missouri Adult Probation, supra.
This empirical evidence signifies the strength of Romano’s liberty
interest. It also reflects the need for this Court to require the neces-
sary due process procedures to protect Romano’s liberty.
2 In United States v. Murray, 275 U.S. 347, 357 (1928), this Court
observed that a salutary aspect of probation is to give “young and
new violators of law a chance to reform and to escape the contaminat-
ing influence of association with hardened or veteran criminals in the
beginning of the imprisonment.”
29
pared with the average annual cost in 1983 to supervise
one adult prisoner on federal probation or parole ($1,300)
or state probation and parole ($220 to $1,700). BUREAU
OF JUSTICE STATISTICS, PUB. NO. NCJ-87068,
REPORT TO THE NATION ON CRIME AND JUS-
TICE: THE DATA 92 (1983) [hereinafter cited as RE-
PORT ON CRIME AND JUSTICE]. Some authorities
have estimated that incarceration is ten times more ex-
pensive per inmate to administer than probation. A.
Campbell, Law of Sentencing 74 (1978) (cited in Proba-
tion and Parole, supra at 11); see also United States v.
Reed’, 573 F.2d 1020, 1024 (8th Cir. 1978) (court must
evaluate the costs of imprisonment vs. costs of proba-
tion).
The cost of imprisonment is exacerbated in light of
prison overcrowding. The ABA has observed that “[p]ris-
ons operate in excess of their capabilities and in many
cases close to the limits tolerated by the Eighth Amend-
ment.” ABA STANDARDS, supra Standard 18-2.3,
Commentary at 18-77 to 78. Recent empirical data sup-
port the ABA’s conclusion. BUREAU OF JUSTICE
STATISTICS BULLETIN, PUB. NO. NCJ-92949,
PRISONERS IN 1983, (April, 1984)* [hereinafter PRIS-
ONERS].
The state and society have a great incentive to limit the
staggering fiscal and social costs of unnecessary
imprisonment. Due process procedures must ensure that
judges do not arbitrarily revoke probation.
* The Bureau of Justice Statistics evidenced the problem of prison
overcrowding with the following statistics for 1983: “T]he entire
prison system in seven States (and all male penal facilities in one
additional State) were operating under court order; and . . . State
and Federal prison systems reported that, on the average, they were
operating at about 110% of capacity.”
PRISONERS, supra at 8.
30
5. Petitioners Cannot Substantiate Their Claims That
The Requirement To Consider Alternatives To In-
carceration Before Revoking Probation Will Over-
burden The State Courts, Cause An Increase In
Habeas Petitions, Or Create A Conflict Between The
State And Federal Governments.
Petitioners, and the amici curiae, complain that
requiring trial judges to consider alternatives to in-
carceration before revoking probation would impose an
unfair burden on the state courts. Br. at 10, 25-28; amici
curiae Br. at 2-5. Petitioners and the amici curiae, how-
ever, cannot justify their vague and unsubstantiated
objections as they overlook the prevailing norm. See su-
pra Section I(B). |
Justice Marshall has observed that “it is not burden-
some to give reasons when reasons exist.” Board of Re-
gents v. Roth, 408 U.S. 564, 591 (1972) (Marshall, J.,
dissenting). The sentencing court’s explanation of
alternatives to incarceration will safeguard the prob-
ationer’s strong liberty interest and also protect the state
and society’s interest that probation should not be re-
voked “because of an erroneous evaluation of the need to
revoke.” Morrissey, 408 U.S. at 484.
Petitioners and the amici curiae also criticize the
alternatives requirement by raising the spectre of feder-
alism. Br. at 10, 25-28, amici curiae, Br. at 2-6. But the
issues here are fairness and justice, not federalism. The
federal and state courts share equal obligations to comply
with due process. See Paul v. Davis, 424 U.S. 693, 702 n.3
(1976) (“[sJurely the Fourteenth Amendment imposes no
more stringent requirements upon state officials than
does the Fifth upon their federal counterparts.”)
Petitioners express unwarranted fears that the federal
courts will begin “second guessing” the state court’s con-
31
sideration of alternatives to incarceration. Br. at 27. On
the contrary, the Eighth Circuit’s decision in Romano
merely held that trial judges must consider alternatives
to incarceration. P.A. at 20, 51, 753 F.2d at 323, 567 F.
Supp. at 887. Ifa trial court makes a reasoned explanation
of its rejection of alternatives, its decision should be
upheld.
Petitioners also erroneously claim that if this Court
affirms Romano, the state and federal courts will receive
an avalanche of habeas petitions. Br. at 27-28. This Court
decided Gagnon almost twelve years ago. The courts
have experienced little difficulty in handling the relative-
ly few petitions raising due process objections to proba-
tion revocation hearings.
6. If This Court Does Not Affirm Romano, Trial Courts
May Begin To Revoke Probations For Any Violation,
Jeopardizing The Future Of The Probation System.
Probation is the most frequently ordered correctional
disposition in the United States. REPORT ON CRIME
AND JUSTICE, supra at 73. At the conclusion of 1983,
1,502,247 adults in this country were probationers. BU-
REAU OF JUSTICE STATISTICS BULLETIN, PUB.
NO. NCJ-94776, PROBATION AND PAROLE 1983 at 1
(September, 1984).
If judges automatically revoked probation for any
violation, the probation system would not survive.
Countless individuals would be unnecessarily incarcer-
ated, creating a serious social and fiscal crisis. This Court
must, therefore, continue to require due process protec-
tions for revocation proceedings to safeguard the in-
tegrity of the probation system.
32
F. Trial Courts Should Consider Alternatives To In-
carceration Before Revoking Probation Unless The
Conduct Which Constitutes The Probation Violation
Compels The Court To Conclude That The Probation-
er Can No Longer Be Rehabilitated Or Supervised In
The Community.
After balancing the interests of the probationer, state,
and society, this Court may construct a due process test
to safeguard against unfairness in the trial judge’s proba-
tion revocation decision. Bearden suggests that a court
need not consider alternatives to incarceration for all
probation violations. Thus, if an indigent probationer
willfully refuses to make the required restitution, a court
may revoke probation without considering alternatives to
incarceration. 461 U.S. at 672. Bearden’s holding, how-
ever, is limited to its facts. Jd.
The Eighth Circuit in Romano similarly opined that it
“did not intend any rigid formula for determining what
constitutes adequate consideration of alternatives to in-
carceration, but instead anticipated case-by-case analy-
ses.” P.A. at 15-16, 735 F.2d at 322. The Missouri Su-
preme Court followed the same logic when it implied that
the trial court’s failure to consider alternatives to in-
carceration may be harmless if the “alleged violation was
[a] commission of a major crime or a crime similar to that
for which the probationer was originally convicted. . . .”
Abel, 574 S.W.2d at 417.
Romano gives this Court the opportunity to define the
limits of its holdings in Morrissey and Gagnon by offering
guidance to trial courts as to their duty to consider
alternatives to incarceration. Respondent respectfully
proposes the following rule of law, based on the policies
underlying probation, which will prevent trial courts
from arbitrarily revoking probation.
A judge or hearing officer must make a reasoned
explanation on the record of the viability of alterna-
ee
33
tives to incarceration before revoking probation” for
all probation violations unless the conduct which con-
stitutes the probation violation, viewed in the con-
text of the ars underlying crime and the
conditions of probation, compels the cou t or hearing
officer to conclude that the probationer can no longer
be rehabilitated or supervised in the community and
that the state’s interests in punishment aad deterr-
ence require the probationer to be incarcerated.”
* Alternatives to incarceration may only require continuation of
the probation term without additional conditions but may also include
additional conditions to the probation agreement which relate to the
conduct involved in the probation violation. See supra n.15.
* If this Court wishes to emphasize the requirement that the trial
judge state “reasons” rather than “alternatives,” it is respectfully
submitted that this Court may adopt an alternative rule of law:
Before revoking probation, a judge or hearing officer must make
a reasoned explanation on the record as to whether the conduct
which constitutes the probation violation indicates that the prob-
ationer can no longer be rehabilitated or ——— in the com-
munity and must, therefore, be incarcerated. The judge or hear-
ing officer, however, need not explain on the record his or her
reasons for revoking probation if the conduct which constitutes
the probation violation, viewed in the context of the probation-
er’s underlying crime and conditions of probation, compels the
judge or ae to conclude that the probationer can no
onger be rehabilitated or supervised in the community and that
the state’s interest in punishment and deterrence requires the
probationer to be incarcerated.
This Court may offer clearer guidance to trial courts by requiring
that alternatives to incarceration be considered for all probation
violations. Adopting the harmless/prejudicial error standard of re-
view will protect the state when a court does not consider alterna-
tives in a case where incarceration is the only viable alternative. See
Chapman v. California, 386 U.S. 18 (1967) (adopting the harmless/
prejudicial error standard of review for constitutional errors); Kart-
man v. Parratt, 535 F.2d 450, 457-58 (8th Cir. 1976) (harmless/
prejudicial error rule applied to cure constitutional error probation
revocation proceeding). Respondent respectfully proposes the
following rule of law which incorporates the harmless/prejudicial
standard:
A judge or hearing officer must co.sider on the record alterna-
tives to incarceration before rev <‘ing probation for all probation
34
Cf. Romano, P.A. at 21, 735 F.2d at 323 (“the facts do not
compel a conclusion that Romano’s effort at rehabilitation
had failed or that he represented a danger to himself or to
society.”) (emphasis added).
Applying this rule to the case at bar, this Court should
conclude that Judge Whipple had a duty to consider
alternatives to incarceration before revoking Romano’s
probation. The conduct which constituted Romano’s
probation violation did not reflect that Romano repre-
sented a danger to the community or that he had acquired
an antisocial personality and must, therefore, be incar-
cerated for twenty years. Romano’s conduct did not com-
pel the conclusion that he could no longer be rehabilitated
or supervised in the community.
The trial court should focus on the conduct constituting
the probation violation and disregard the state’s decision
to convert the violation into a “crime.”” Probation viola-
violations. If the judge or hearing officer fails to consider
alternatives, the decision may be reviewed under the harmless/
prejudicial error standard of review. The failure to consider
alternatives to incarceration is harmless if the state can prove
that the conduct which constituted the probation violation,
viewed in the context of the probationer’s underlying crime and
the conditions of probation, compelled the court or hearing offic-
er to conclude that the probationer could no longer be rehabili-
tated or supervised in the community and that the state’s in-
terests in punishment and deterrence required the probationer
to be incarcerated.
Under Bearden, prejudicial error only exists if the court revokes
probation without considering alternatives to incarceration for a
probationer who is too indigent to make the required restitution.
* The state ultimately punished Romano for his “criminal” conduct
by convicting him of careless driving and fining him $100. Judge
Whipple’s revocation decision should not represent additional
punishment for Romano’s driving offense. As one expert has ob-
served, “{i]f the probationer’s violation is a new crime, it is illogical
. . . to impose additional punishment (imprisonment) for the original
crime, which is not made any more reprehensible by the later crime.”
Clarke, supra at 413.
35
tions include criminal and non-criminal (or technical)
offenses. Technical offenses may, in some instances, cre-
ate a stronger basis for revocation and incarceration than
minor criminal offenses. For example, a probationer who
absconds from supervision reflects a greater inability to
rehabilitate in the community than a probationer, like
Romano, who carelessly drives an automobile. Judge
Whipple’s characterization of Romano’s conduct as con-
stituting the crime of leaving the scene of an accident was,
therefore, irrelevant to his revocation decision.
G. Alternatives To Incarceration Should Be Considered In
Administrative And Judicial Probation Revocation
Proceedings.
Due process requires that alternatives to incarceration
be considered in both administrative and judicial proba-
tion revocation proceedings. Morrissey and Gagnon re-
quire the consideration of alternatives in administrative
revocation hearings. Bearden requires the consideration
of alternatives in a judicial revocation proceeding. Cf.
Kent v. United States, 383 U.S. 541 (1966) (due process
requires juvenile court judges to make a written state-
ment of reasons before waiving jurisdiction); Moore v.
Stamps, 507 S.W.2d 939, 950 (Mo. Ct. App. 1974) (en
banc) (in applying Gagnon’s due process requirements to
Missouri’s judicial probation revocation procedures, the
court held that the judge must make a “written statement
. . . lof] the reasons for revoking probation.”) A court is
better able than an administrative body to comply witha
procedural rule requiring written findings. An anomalous
result would occur, therefore, if this Court accepted peti-
tioners’ suggestion, Br. at 22-23, that due process does
36
not require a court to consider alternatives in a probation
revocation proceeding.”
H. Sentencing And Probation Revocation Proceedings
Are Constitutionally Distinguishable And Involve Dif-
ferent Factual Issues.
Petitioners erroneously equate sentencing and proba-
tion revocation proceedings. Br. at 21-25. The proceed-
ings are constitutionally distinguishable and involve dif-
ferent factual issues.
A criminal conviction constitutionally deprives an indi-
vidual of his liberty. Meachum v. Fano, 427 U.S. 215, 224
(1976). A judge, therefore, need not follow a prescribed
set of procedural due process rules in a sentencing hear-
ing. By granting probation to a convicted defendant,
however, the court restores to the defendant conditional
liberty which is protected by due process. Bearden, 660
U.S. at 670-71; Gagnon, 411 U.S. at 662. A trial court
must, therefore, comply with due process, which includes
the duty to consider alternatives to incarceration, before
revoking a probationer’s “significant” liberty interest. /d.
Sentencing and probation revocation proceedings also
involve different factual inquiries. A judge considers nu-
merous factors before deciding on the appropriate sent-
ence. See, e.g., Br. at 25, n.4 (list of eleven factors) (citing
Probation and Parole at Sections 2.06-2.27). A judge who
27 Petitioners argue that judges, as distinguished from administra-
tive hearing officers, need not consider alternatives in a revocation
proceeding because they have already considered alternatives at the
sentencing hearing. Even if one assumes that the sentencing judge
will always preside over the revocation proceeding, petitioners’ logic
is faulty. Petitioners erroneously equate the sentencing and revoca-
tion decisions which have significantly different legal and factual
characteristics. See infra § H.
37
presides at a revocation hearing, however, only decides
the issue of whether the probation violation indicates that
the probationer can no longer be rehabilitated or super-
vised in the community and must, therefore, be incarcer-
ated. Contrary to petitioners’ suggestion, Br. at 24-25,
the revocation judge does not consider the myriad factors
involved in the initial sentencing decision.
Reasons are a bulwark against arbitrariness. The due
process requirement that a judge consider the princi, les
underlying probation and the viability of alternatives to
incarceration guarantee that the decisionmaking process
is not based on purely subjective considerations.
I. The Requirement That A Judge Consider Alternatives
To Incarceration Should Be Distinguished From The
Probationer’s Duty To Present Mitigating Evidence.
Contrary to petitioners’ assertions, Br. at 19-20, the
trial court has the duty to consider alternatives to in-
carceration, while the probationer (or his attorney) has
the duty to present mitigating evidence at a revocation
hearing. Gagnon discussed alternatives to incarceration
in the context of what a court must consider in its
decisionmaking process. 411 U.S. at 784-86. See also
Bearden, 461 U.S. at 673 n.12. (“(T]he sentencing court
must focus. . . in probation revocation hearings . . . [on]
whether non-imprisonment alternatives are ade-
quate. . . .”) (emphasis added). On the other hand, Gag-
non discussed the probationer’s right to present mitigat-
ing evidence in the context of whether the probationer
had a right to appointed counsel. 411 U.S. at 787, 790.
In the case at bar, Romano’s attorneys presented the
substantial mitigating evidence surrounding his proba-
tion violation. Judge Whipple had a duty to evaluate his
evidence in determining whether alternatives to in-
carceration were appropriate. In Romano, as in most
38
revocation hearings, the alternatives were obvious and
counsel would not have assisted the court by presenting
evidence of their existence.
J. Notwithstanding The Requirement To Consider
Alternatives To Incarceration, Judge Whipple Abused
His Discretion In Revoking Romano’s Probation And
Executing A Twenty Year Prison Sentence.
Even if one assumes that a trial covrt has no con-
stitutional duty to consider alternatives tv incarceration,
Romano should still be affirmed. In Burns v. United
States, 287 U.S. 216, 222-23 (1932),* this Court applied
the “abuse of discretion” standard of review to probation
revocation proceedings. Judge Whipple abused his dis-
cretion by arbitrarily revoking Romano’s probation and
imposing a twenty year prison sentence because:
(1) the conduct which constituted the probatior.
violation had no rational relationship to Roma-
no’s marijuana conviction and special conditions
of probation; and
The Burns Court stated that judicial discretion “implies con-
scientious judgment, not arbitrary action. . . [and] takes account of
the law and the particular circumstances of the case and ‘is directed
by the reason and conscience of the judge to a just result,’ ” 287 U.S.
at 222-23. The “abuse of discretion” standard of review is based on
the fourteenth amendment’s guarantee of fundamental fairness
under the due process clause. See Wolff v. McDonnell, 418 U.S. at
558.
This Court has overturned probation and parole revocation deci-
sions based on the kind of tenuous evidentiary support which exists in
the case at bar. See, e.g., Douglas v. Buder, 412 U.S. 430 (1973) (per
curiam) (probation revocation based on traffic offense was “totally
devoid of evidentiary support as to be invalid under the Due Process
Clause of the Fourteenth Amendment”); Arciniega v. Freeman, 404
U.S. 4 (1971) (per curiam) (reversal of parole revocation for not
constituting “satisfactory evidence” of a parole violation based on
parolee’s association with other ex-convicts at place of employment).
39
(2) Judge Whipple failed to consider the substantial
mitigating evidence involved in Romano’s
probation violation.
Judge Whipple ignored substantial mitigating evidence
which indicated that he should not have revoked Roma-
no’s probation. Romano had not committed any serious
criminal violation for the twenty eight month period be-
tween his arrest and his sentencing hearing. More
importantly, Romano’s post-accident behavior indicated
that he did not intend to avoid responsibility for his con-
duct relating to the traffic accident.
K. The District Court And The Eighth Circuit Applied The
Correct Standard Of Review And Properly Decided Not
To Order An Evidentiary Hearing To Give The Missouri
Trial Judge An Opportunity To Supplement The Record
And Cure The Constitutional Errors In His Decision To
Revoke Probation.
To support their federalism bogeyman, petitioners con-
tend the lower courts improperly “shifted the burden of
proof” to petitioners. Br. at 28-34. The record and opin-
ions below do not support petitioners’ illusory argument.
Neither the district court nor the Eighth Circuit in-
truded upon Judge Whipple’s factual findings.” Indeed,
both lower courts accepted as true Judge Whipple’s ques-
tionable finding that Romano was the driver of the auto-
mobile which struck Bradley. P.A. at 6, 48, 735 F.2d at
320, 567 F. Supp. at 885. The lower courts held, however,
*% The Eighth Circuit exhibited great deference to the Missouri
courts by dismissing without prejudice Romano’s first federal habeas
claim because Romano failed to exhaust his state remedies. Romano
v. Wyrick, 681 F.2d 555, 556 (8th Cir. 1982). Despite the Eighth
Circuit’s opinion, the Missouri Supreme Court refused to hear Roma-
no’s meritorious claims. R. at 79-80.
40
that Judge Whipple’s failure to consider alternatives to
incarceration violated due process. P.A. at 20-23, 47-48,
735 F.2d at 323, 567 F. Supp at 886.
Petitioners misunderstand the plain language of 28
U.S.C. Section 2254(d). The federal courts have no
statutory obligation to defer to Judge Whipple’s decision
for two reasons:
(1) Judge Whipple made no factual findings as to
the viability of alternatives to incarceration be-
fore revoking Romano’s probation. 28 U.S.C.
Section 2254(d)(1), (2), (3), (6), and (8); and
(2) The question of whether Judge Whipple should
have given Romano an alternative to incarcera-
tion is a question involving Romano’s due proc-
ess rights, concerning which no deference need
be given to the state court’s finding. 28 U.S.C.
Section 2254(d)(7).
Even if one were to consider that the question of alterna-
tives to incarce~ation is a mixed question of law and fact,
this Court has held that such questions may be reviewed
independently under 28 U.S.C. Section 2254. Swmmner v.
Mata, 455 U.S. 591, 597 (1982).
Petitioners further az rue that the district court should
have held an evidentiary hearing to determine if Judge
Whipple mentally considered alternatives to incarcera-
tion before revoking Romano’s probation. Br. at 28-30.
Petitioners cannot support this argument with any au-
thority. Petitioners have cunceded that the probation
revocation transcript reflects that Judge Whipple failed
to give even the slightest attention to alternatives to
incarceration on the record. Petitioners’ Eighth Circuit
Br. at 1-2 (lodged with this Court). A fundamental and
axiomatic principle of appellate jurisdiction is that a trial
judge may not supplement an extensive record to cure
errors after he has relinquished jurisdiction over the
case.
41
II. THE DISTRICT COURT AND THE EIGHTH CIRCUIT
WERE CORRECT IN ORDERING RESPONDENT RE-
LEASED FROM ALL CUSTODY AND IN NOT ALLOW-
ING PETITIONERS TO HOLD A NEW, RETROSPEC-
TIVE PROBATION REVOCATION HEARING, AFTER
RESPONDENT’S PROBATION TERM HAS ALREADY
EXPIRED UNDER MISSOURI LAW, TO CURE A CON-
STITUTIONAL DEFECT THAT OCCURRED IN RE-
S?ONDENT’S PROBATION REVOCATION HEARING
4LMOST EIGHT YEARS AGO.
A. Missouri Law Supports Tie Lower Courts’ Orders
Releasing Romano From All Further Custody.
After finding that Romano’s probation revocation hear-
ing was unconstitutional, the district court and Eighth
Circuit were correct in ordering Romano’s unconditional
release from all further custody. Inasmuch as Jvdge
Whipple’s probation revocation order was unconstitu-
tional, and, therefore, a nullity. Romano’s five vear
probation term,” which cornmenced on April 13, 1977,
expired on April 13, 1982. The State of Missouri no longer
has the jurisdiction or custody over Romano’s person
necessary to conduct a new revocation hearing. The lower
courts, therefore, were required to order his release.
The applicable Missouri statute requires Romano’s re-
lease from custody upon the expiration of his probation
term. Mo. Rev. Stat. Section 549.111. 1 (1963, as amended
1967) (repealed by L. 1977, at 658, eff. Jan. 1, 1979) (the
applicable law at the time of Romano’s revocation hear-
ing), states that when a probationer has successfully com-
pleted his probation term, “{h]e shall automatically be
%® Petitioners erroneously contend, contrary to the record and Mis-
souri law, that Judge Whipple placed Romano on a ten year proba-
tion. See supra note 1.
42
absolutely discharged from the probation and from the
supervision of the Board of Probation and Parole. . . .”
Romano successfully completed his probation term in jail.
He must, therefore, be released as provided by Missouri
law.*!
Several state courts, addressing the precise remedial
issue which the court below decided, have held that a
state may not hold a new probation revocation hearing to
cure a procedural defect in a former hearing after an
individual’s probation term has already expired. People
v. Amsbary, 51 Cal. App.3d 75, 78-79 (1975); Cook v.
Commonwealth, 176 S.E.2d 815, 818 (Va. 1970); State ex
rel. Strickland v. Melton, 165 S.E.2d 90, 97 (W.Va.
1968); Haney v. Eyman, 399 P.2d 905, 907 (Ariz. 1965)
(en banc).
B. Due Process Prevents The Missouri Courts From Hold-
ing A Retrospective Probation Revocation Hearing To
Consider Events Which Occurred Almost Eight Years
Ago.
Morrissey held that due process requires that “(t]he
revocation hearing must be tendered within a reasonable
time after the parolee is taken into custody.” 408 U.S. at
488. In holding that a two month delay was acceptable,
id., this Court implied that a delay of multiple years
would be unacceptable. Lower courts have also evaluated
the permissible length of the delay in holding a revocation
* Respondent presented to the lower courts the arguments relat-
ing to his remedial rights under Missouri law. This Court has defer-
red to the lower courts’ interpretation of state law questions. Butner
v. United States, 440 U.S. 48, 57-58 (1979) (“The federal judges who
deal regularly with questions of state law in their respective districts
and circuits are in a better position than we to determine how local
counsel would dispose of comparable issues.”).
45
hearing in terms of months. See, e.g., Marchand v. Direc-
tor, U.S. Probation Office, 421 F.2d 331, 235 n.5 (1st Cir.
197) (courts will not tolerate a delay which exceeds three
months).
In discussing the sixth amendment right to a speedy
trial, this Court held that judges must balance four fac-
tors: “{l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the
defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). If
the Barker test is applied to the case at bar, Romano
should be released. See United States ex rel. Sims v.
Sieloff, 563 F.2d 821, 828 (7th Cir. 1977) (Barker’s test for
sixth amendment prejudicial delay should be applied to
evaluate delay in parole revocation proceedings).
First, Romano aggressively asserted his post-
conviction rights. Romano filed his first pro se motion for
relief with the Missouri courts on March 28, 1980. The
Missouri courts had more than two years in which to cure
the errors in Romano’s original probation revocation
hearing. But the record reflects that Romano was
bounced around for years in the Missouri courts which
denied all of Romano’s petitions. None of the Missouri
courts—at the trial, appellate, or Supreme Court levels—
even once considered the merits of Romano’s case.
Second, the state caused the delay in the adjudication
of Romano’s claims. On July 14, 1980, Romano filed a
state habeas petition which alleged that Judge Whipple
failed to consider alternatives to incarceration before
revoking Romano’s probation. R. at 58-62. Petitioners
concede that a Missouri trial judge not only denied Roma-
no’s petition on improper procedural grounds, but also
directed Romano to file a procedurally inappropriate
post-conviction relief motion. Pet. at 3. This single mis-
take cost Romano almost three years of his life in the
Missouri penitentiaries.
44
Finally, the eight year delay has significantly pre-
judiced Romano. The Barker Court identified three fac-
tors which constitute “prejudice” to the defendant: (1)
“oppressive incarceration”; (2) “anxiety and concern”;
and (3) “the possibility that the defense will be impaired.”
407 U.S. at 532.
One cannot possibly express the oppression, anxiety,
and sheer horror which Romano experienced during his
five and one-half years of unconstitutional confinement in
Missouri’s most dangerous penitentiaries. The Eighth
Circuit and the district court properly refused “to blind
[themselves] to the time Romano had served in the cus-
tody of the State of Missouri.” P.A. at 25, 735 F.2d at 324.
Romano’s defense will also be impaired if he is required
to undergo a retrospective probation revocation hearing.
Romano’s alleged probation violation occurred almost
eight years ago. It would be impractical and unfair to
allow the State of Missouri an opportunity to conduct a
retrospective hearing. The trial court can only fairly con-
sider the question of alternatives to incarceration in the
context of the fresh facts and mitigating circumstances
surrounding the probation violation. A gross injustice
would result if this Court allows the Missouri trial court to
consider alternatives to incarceration for Romano in a
historical vacuum. Cf. Drope v. Missouri, 420 U.S. 162,
183 (1975) (due process precludes retrospective hearing
to evaluate defendant’s mental competency for trial
which occurred six years eariier).™
“If a court finds that the probation or parole board made an
arbitrary revocation decision, it may also refuse to allow the state to
conduct a new hearing. See, e.g., Caton v. Smith, 486 F.2d 733, 736
(7th Cir. 1973).
45
Petitioners argue that Romano’s time of incarceration
should not satisfy Romano’s probation obligation. Br. at
37. District Judge Cahill observed that “the rigors and
stress associated with imprisonment are far greater than
those on probation.” P.A. at 53, 567 F. Supp. at 887. This
Court has also observed that an individual may serve his
probation term in jail. Burns v. United States, 287 U.S.
216, 223 (1932).
In Jasigi v. Van De Carr, 166 U.S. 391 (1897) (cited by
Romano, P.A. at 26, 735 F.2d at 324), this Court noted
that the federal courts may exercise “discretion” “as law
and justice require” in deciding upon a proper habeas
remedy. 166 U.S. at 393, 395. The current habeas statute
embodies the same policies expressing in Jasigi. The
federal habeas statute allows a federal court broad discre-
tion in fashioning a remedy under a writ of habeas corpus.
“(T]he Court shall . . . dispose of the matter as law and
justice require.” 28 U.S.C. Section 2243. Justice requires
the State of Missouri to release Romano from all further
custody.
46
CONCLUSION
This Court should affirm the decisions of the district
court and the Eighth Circuit Court of Appeals.
Respectfully submitted,
Of Counsel: /S/JORDAN B. CHERRICK
ARMSTRONG, TEASDALE, 611 Olive Street
KRAMER & VAUGHAN Suite 1900
St. Louis, Missouri 63101
Telephone: (314) 621-5070
Counsel of Record for Respondent
(Appointed by this Court)
APPENDIX
la
APPENDIX
Relevant Missouri Statutory Authorities
Mo. Rev. Stat. § 559.012 (1978)
Eligible for probation, when.
The court may place a person on probation for a specific
period upon conviction of any offense or upon suspending
imposition of sentence if, having regard to the nature and
circumstances of the offense and to the history and character of
the defendant, the court is of the opinion that
(1) Institutional confinement of the defendant is not neces-
sary for the protection of the public; and
(2) The defendant is in need of guidance, training or other
assistance which, in his case, can be effectively administered
through probation supervision.
Mo. Rev. Stat. § 549.071.1 (1963, as amended 1967) repealed
by L. 1982, at 438, § A.
Parole and probation may be granted, when—terms, length
of—extensions.
1. When any person of previous good character is convicted
of any crime and commitment to the state department of
corrections or other confinement or fine is assessed as the
punishment therefor, the court before whom the conviction
was had, if satisfied that the defendant, if permitted to go at
large, would not again violate the law, may in its discretion, by
order of record, suspend the imposition of sentence or may
pronounce sentence and suspend the execution thereof and
may also place the defendant on probation upon such conditions
as the court sees fit to impose. The probation shall be for a
specific term which shall be stipulated in the order of record. In
the case of a felony offense no probation under this chapter
shall be granted for a term of less than one year, and no
probation shall be granted for a term of longer than five years.
In the case of a misdemeanor offense no probation shall be
2a
granted for a term of longer than two years. The court may
extend the term of probation, but no more than one extension
of any probation may be ordered.
Mo. Rev. Stat. § 549.101.1 (1963, as amended 1965) repealed
by L. 1977, at 658, § 1, eff. Jan. 1, 1979
Arrest of person on probation or parole—revocation of
probation or parole—costs—second probation or parole.
1. The court granting probation or parole may at any time
before order of discharge without notice to the defendant order
his apprehension by the issuance of a warrant for his arrest and
his appearance in court forthwith. Any probation or parole
officer assigned to or serving the court or judge having
jurisdiction may arrest such defendant without a warrant, or
may deputize any other officer with power of arrest to do so by
giving him a written statement setting forth that the defend-
ant has, in the judgment of the probation officer, violated the
conditions of his probation. The written statement delivered
with the defendant by the arresting officer to the official in
charge of a county jail or other place of detention shall be
sufficient warrant for the detention of the defendant. After
making an arrest the probation officer shall present to the
detaining authorities a similar statement of the circumstances
of violation. The court may in its discretion, with or without
hearing, order the probation or parole revoked and direct that
the sentence theretofore imposed be commenced and order
execution thereof or in the event imposition of sentence was
suspended the court may pronounce sentence and order execu-
tion thereof. The court may in its discretion order the con-
tinuance of the probation or parole upon such conditions as the
court may prescribe. The court in its discretion may order the
allowance in mitigation of the sentence credit for all or for part
of the time defendant was upon probation or parole.
2. After the probation or parole has been revoked, as pro-
vided in subsection 1, the court may in its discretion require the
payment of all costs in the case and may grant a second proba-
3a
tion or parole, but no more than two probations or paroles shall
be granted the same person under the same judgment or
conviction.
Mo. Rev. Stat. § 549.111.1 (1963, as amended 1967) repealed
by L. 1977, p. 658, § 1, eff. Jan. 1, 1979.
Absolute discharge of person on probation or parole—
citizenship restored—order of discharge to indicate restora-
tion of rights.
1. When a defendant who has been placed upon probation or
parole for the term prescribed by the court, and the court
granting the probation or parole is satisfied that the reforma-
tion of the defendant is complete and that he will not again
violate the law, the court shall, by order of record, grant his
absolute discharge. When a defendant has completed the term
of probation prescribed by the court, if the original order of
probation has not been amended, modified, extended or re-
voked by the court, he shall automatically be absolutely dis-
charged from the probation and from the supervision of the
board of probation and parole and the court shall so note by
order of record. The order operates as a complete satisfaction
of the original judgment by which the fine or jail sentence or
commitment to the state department of corrections was im-
posed or suspended.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.