Doney v. State

59 P.3d 730

2002 WY 182

William Jeffery DONEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Vincent Leroy Brown, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).

Nos. 01-73, 01-89.

Supreme Court of Wyoming.

December 18, 2002.

Representing Appellants: Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director, Defender Aid Program; and Kirk Morgan, Intern.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior

Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Lloyd D. Rickenbach, Intern.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In 2001, Vincent Leroy Brown (Brown) and William Jeffery Doney (Doney) were arrested on probation revocation warrants. Brown first appeared before a judicial officer forty-eight days after the warrant was executed against him and Doney first appeared before a judicial officer eighteen days after the warrant was executed against him. In both appeals, we conclude that, based on the records before us, these delays were unnecessary and violated the W.R.Cr.P. 39(a)(2) requirement that a "probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay." To remedy this violation, we remand to the district court for modification of its sentencing orders to credit Brown and Doney for time served against their respective minimum and maximum sentences, beginning when each was arrested and ending the date each first appeared before a judicial officer.

ISSUES

[¶ 2] We rephrase the issues stated by Brown and Doney as follows:

1. Considering the circumstances of these particular appeals, was the W.R.Cr.P. 39(a)(2) requirement that "[a] probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay" violated?

2. If so, what constitutes an appropriate remedy?

FACTS

BROWN

[¶ 3] In 1998, Brown pled guilty to one count of burglary, a felony. The district court deferred acceptance of that plea pursuant to Wyo. Stat. Ann. § 7-13-301 (Lexis 1999), and conditionally placed him on probation for five years. In February 1999, Brown admitted to violating this probation. The district court revoked the probation, accepted Brown's guilty plea, and sentenced him to a three-to-five year prison term with a recommendation that he be placed at the Wyoming Conservation Camp. After Brown graduated from the Wyoming Conservation Camp, the district court suspended the balance of his sentence and conditionally placed him on supervised probation for three years.

[¶ 4] On September 26, 2000, the State petitioned the district court to revoke Brown's probation. That same day, the district court issued a warrant for Brown's arrest. The Fremont County sheriff's office arrested Brown on the warrant on January 26, 2001. In orders filed the same day, the district court appointed a public defender to represent Brown in the revocation proceeding and ordered Brown to appear on March 15, 2001, for a "hearing." Brown remained in jail.

[¶ 5] At the hearing on March 15, 2001, the district court advised Brown of the allegations contained in the revocation petition and of the items listed in W.R.Cr.P. 39(a)(3). The district court also informed Brown that since he was in custody, a revocation hearing "must be held within 15 days from today, unless for good cause these limits are extended by the Court." Brown then admitted to violating the terms of his probation. The district court revoked Brown's probation, imposed the three-to-five year prison term, suspended that sentence and ordered Brown to apply for placement at a community alternative center in Wyoming. Upon his successful completion of that program, the district court ordered that Brown again be conditionally placed on supervised probation for three years. The district court decided that Brown should not receive credit for the time he served between his January 26, 2001, arrest and the March 15, 2001, hearing.

DONEY

[¶ 6] In 1999, Doney pled guilty to one count of forgery, a felony. The district court sentenced Doney to a three-to-five year prison term, but suspended that sentence and conditionally placed him on supervised probation for three years. On February 2, 2001, the State petitioned the district court to revoke Doney's probation. The district court issued a warrant for Doney's arrest on February 2, 2001, and it appears that the Fremont County sheriff's office arrested Doney on the warrant that same day.² Doney filed a financial affidavit on February 5, 2001, and, in an order filed February 6, 2001, the district court appointed the public defender to represent him in the revocation proceeding.

[¶ 7] In an Order for Hearing also filed on February 6, 2001, the district court ordered Doney to appear for a "hearing" on February 20, 2001. At that hearing, the district court advised Doney of the allegations contained in the revocation petition and of the items listed in W.R.Cr.P. 39(a)(3). Doney then admitted to violating the terms of his probation. The district court revoked Doney's probation, again conditionally placed him on supervised probation for three years, and ordered that he successfully complete a community alternative center program. The district court decided that Doney would "not receive credit for the twenty-six (26) days pre-revocation incarceration."³

[¶ 8] Brown and Doney appeal from the orders imposing their respective probation revocation sentences, which appeals were consolidated for our review. The appellate issues raised by Brown and Doney involve questions of law, which we review de novo. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001).

DISCUSSION

[¶ 9] Brown and Doney first argue that W.R.Cr.P. 39(a)(2) was violated in their cases because neither of them was taken before a judicial officer "without unnecessary delay" following their arrests on probation revocation warrants. To remedy this violation, Brown and Doney seek credit against their sentences for the time they remained incarcerated pending their appearances before a judicial officer. We find the analysis of this issue to be dispositive in both appeals, rendering additional arguments presented by both parties moot.

[¶ 10] However, we will briefly address the State's contention that Brown and Doney waived our consideration of the claimed W.R.Cr.P. 39(a)(2) violation because both admitted to violating the terms of their respective probations. To support this argument, the State cites to a single case for the general proposition that a "plea of guilty waives all nonjurisdictional defenses."⁴ We decline to consider the merits of this argument, absent a more detailed analysis or citation to additional authority pertinent to the particular circumstances of the instant appeals.⁵

HISTORICAL CONTEXT OF W.R.CR.P. 39

[¶ 11] Prior to 1991, the criminal rule governing probation revocations provided:

The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing.

W.R.Cr.P. 33(f) (1968). The 1991 criminal rules revision (effective March 24, 1992) created Rule 39 to govern probation revocations, which rule provided, in pertinent part:

(a) Revocation of probation.—Proceedings for revocation of probation shall be initiated by a petition for revocation filed by the attorney for the state, setting forth the conditions of probation which are alleged to have been violated by the probationer and the facts establishing the violation.

(1) Process.—If it appears from a verified petition to revoke probation, or from an affidavit or affidavits filed with the petition, that there is probable cause to believe the probationer violated the terms of probation, the court shall order the probationer to appear before the court on a date and time stated to answer to the allegations in the petition. Upon the written request of the attorney for the state demonstrating good cause therefor, the court may issue a warrant for the probationer. A copy of the petition for revocation shall be served upon the probationer along with the order to appear or warrant.

(2) Appearance.—A probationer arrested on a warrant and taken into custody shall be taken before a judicial officer without unnecessary delay, but in any event within 48 hours of arrest.

(3) Advice to Probationer.—At the probationer's first appearance before the court, the court shall advise the probationer of the allegations of the petition for revocation and of the contents of any affidavits and shall further advise the probationer:

(A) Of the probationer's right to retain counsel and, where applicable, the right to appointed counsel;

(B) That the probationer is not required to make a statement and that any statement made could be used against the probationer;

(C) Of the right to a hearing before a judge without a jury;

(D) Of the state's burden of proof;

(E) Of the probationer's right to confront adverse witnesses, to call other witnesses and have court process to obtain the testimony of reluctant witnesses and to present other evidence at the hearing; and

(F) If the probationer is in custody, of the general circumstances under which release may be secured pending a hearing.

[(4)] Plea.—The probationer shall be given a copy of the petition for revocation of probation before being called upon to plead. The probationer shall be called upon to admit or deny the allegations of the petition for revocation. If the probationer admits the allegations of the petition, the court may proceed immediately to disposition, or may set a future date for disposition. If the petitioner denies the allegations of the petition, or declines to admit or deny,

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