Christopher A. Cage
Jeffery A. Modisett
Carol A. Nemeth
Anderson, IndianaAttorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Christopher A. Cage
Jeffery A. Modisett
Carol A. Nemeth
JOHN EDWARD COX,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
Defendant John Cox's placement in the Madison County Work Release Center was revoked based on hearsay evidence from the work release center director concerning
marijuana use. The Court of Appeals found the hearsay evidence inadmissible. Because
strict evidentiary standards do not apply in community corrections placement revocation
hearings, this evidence was admissible. Accordingly, we affirm the trial court.
The Court of Appeals reversed, concluding that (1) Exhibit 1 was inadmissable
hearsay in a community corrections placement revocation hearing and (2) without Exhibit
1, the evidence was insufficient to support the revocation. Cox v. State, 686 N.E.2d 181,
185 (Ind. Ct. App. 1997).
We agree with the Court of Appeals that Exhibit 1, the urine test results, constituted
hearsay and that without Exhibit 1 there was insufficient evidence to support revocation.See footnote
However, we disagree that the admission of this evidence in a community corrections
placement revocation hearing constituted error.
For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections programSee footnote 5 the same as we do a hearing on a petition to revoke probation. Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998). The similarities between the two dictate this approach.See footnote 6 Both probation and community
corrections programs serve as alternatives to commitment to the Department of Correction
and both are made at the sole discretion of the trial court. Million v. State, 646 N.E.2d 998,
1001 (Ind. Ct. App. 1995). A defendant is not entitled to serve a sentence in either
probation or a community corrections program. Rather, placement in either is a matter of
grace and a conditional liberty that is a favor, not a right. Id. at 1002 (quoting Gilfillen
v. State, 582 N.E.2d 821, 824 (Ind. 1991)).
It is well settled that probationers are not entitled to the full array of constitutional
rights afforded defendants at trial. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973); Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972); Isaac v. State, 605 N.E.2d 144 (Ind. 1992). But [t]he Due Process Clause of the
Fourteenth Amendment [does] impose procedural and substantive limits on the revocation
of the conditional liberty created by probation. Braxton v. State, 651 N.E.2d 268, 269 (Ind.
1995) (citing Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636
(1985)); accord, Gagnon, 477 U.S. at 782; Isaac, 605 N.E.2d at 148. In the probation
revocation context, this court has described a defendant's due process rights as follows:
There are certain due process rights, of course, which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing
body. Indiana Code §35-38-2-3-(e)[See footnote
] also ensures the probationer the right to
confrontation, cross-examination, and representation by counsel.
Isaac, 605 N.E.2d at 148 (citations omitted).
We hold that the due process requirements expressed by this court for probation
revocations are also required when the trial court revokes a defendant's placement in a
community corrections program. Accord Million, 646 N.E.2d 998. Cf. Young v. Harper,
117 S.Ct. 1148, 1150 (1997) (state conditional prison release program sufficiently similar
to parole to invoke Due Process protections described in Morrissey). As a result, a
defendant in a community corrections program is entitled to representation by counsel,
written notice of the claimed violations, disclosure of the opposing evidence, an opportunity
to be heard and present evidence, and the right to confront and cross-examine witnesses in
a neutral hearing before the trial court.
After a careful review of the record, we find that the trial court accorded Defendant his rights under the Due Process Clause and the Indiana statute at each stage of the revocation proceedings.See footnote 8
At the same time, a probation or community corrections placement revocation
hearing is not to be equated with an adversarial criminal proceeding. Isaac, 605 N.E.2d at
149 (citing Gagnon, 411 U.S. at 789, 93 S.Ct. at 1763). Rather, it is a narrow inquiry, and
its procedures are to be more flexible. Id. (citing Morrissey, 408 U.S. at 489, 92 S.Ct. at
2604). This is necessary to permit the court to exercise its inherent power to enforce
obedience to its lawful orders. Id.
There are also sound policy justifications for such flexibility. Alternative sentences such as probation and community corrections serve the humane purposes of avoiding incarceration and of permitting the offender to meet the offender's financial obligations.
But for sentencing alternatives to be viable options for Indiana judges, judges must have the
ability to move with alacrity to protect public safety when adjudicated offenders violate the
conditions of their sentences. Put differently, obstacles to revoking an alternative sentence
may diminish the likelihood of community corrections placements being made in the first
We have previously held that, precisely because probation revocation procedures are to be flexible, strict rules of evidence do not apply. Isaac, 605 N.E.2d at 148-149. We have now codified this conclusion in our evidence rules which provide, in relevant part, that [t]he rules, other than those with respect to privileges, do not apply in . . . [p]roceedings relating to . . . sentencing, probation, or parole. Ind. Evidence Rule 101(c). In particular, we hold that the evidence rules implicated in this case _ the rule against hearsay and the definitions and exceptions with respect thereto _ do not apply in proceedings relating to sentencing, probation, or parole.See footnote 9 Applying our earlier conclusion that the procedural rules applicable in community corrections placement revocation hearings are the same as in
probation revocation hearings, we hold that the Indiana Rules of Evidence in general and the
rules against hearsay in particular do not apply in community corrections placement
revocation hearings.See footnote
Further, we hold that in probation and community corrections placement revocation hearings, judges may consider any relevant evidence bearing some substantial indicia of reliability.See footnote 11 This includes reliable hearsay. Judges are not, of course, bound to admit all evidence presented to the court. In fact, the absence of strict evidentiary rules places
particular importance on the fact-finding role of judges in assessing the weight, sufficiency
and reliability of proffered evidence. This assessment, then, carries with it a special level
of judicial responsibility and is subject to appellate review. Nevertheless, it is not subject
to the Rules of Evidence (nor to the common law rules of evidence in effect prior to the
Rules of Evidence).
probation. Id. (citing Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992).
As a condition of his placement in the work release center, Defendant was prohibited
from engaging in the use of any illegal drugs. The State presented evidence that Defendant
tested positive for marijuana use, admitting into evidence results of a urinalysis conducted
by an independent toxicology laboratory. As we have discussed supra, the hearsay
exclusion rule is not applicable in these proceedings, and the trial court may consider all
relevant evidence, including reliable hearsay. With the admission of this evidence, the State
has presented sufficient evidence to support the trial court's revocation of Defendant's
placement at the work release center.See footnote
Defendant's placement in the Madison County Work Release Center.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
probationer's confrontation rights. United States v. Bell, 785 F.2d 640, 643 (8th Cir. 1986). United
States v. Penn, 721 F.2d 762, 765-66 (11th Cir. 1983).
As to the general question of when hearsay evidence introduced at a probation revocation hearing violates the probationer's confrontation rights, courts addressing the matter have taken different approaches. Compare Harris v. United States, 612 A.2d 198, 201-02 (D.C.App. 1992) (concluding that [a]ll that is required before admitting evidence at probation revocation hearing is a determination that the proffered evidence is reliable) with State v. Austin, 685 A.2d 1076, 1081 (Vt. 1996) (adopting a balancing test in probation revocation hearings as a part of which a trial court must make an explicit finding, and must state its reasons on the record, whether there is good cause for dispensing with the probationer's confrontation right and admitting hearsay into evidence). See also Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984) (enunciating a balancing test similar to that adopted in Austin, but concluding that if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes). We need not adopt a particular approach here both because it is unnecessary to resolve this case and because the parties do not argue the question.
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