Opinion
No. 26007
Decided July 1, 1974. Rehearing denied July 29, 1974.
From revocation of defendant's probation for violation of conditions of the terms of her probation, the defendant appealed.
Affirmed
1. PROBATION — Revocation — Review — Direct Appeal. There is no merit to the contention that probation revocation orders are reviewable only via Crim. P. 35(b) and not by direct appeal.
2. APPEAL AND ERROR — Final Judgments — Appellate Rules. C.A.R. 1 provides for the appealability of final judgments of the district court.
3. PROBATION — Revocation Order — Direct Appeal — Rules. Even assuming, arguendo, that a probation revocation order is not a "proceeding resulting in conviction" and thereby would not be appealable as a matter of right under section 39-12-101, nevertheless, there is nothing in the statute prohibiting a direct appeal of a probation revocation order under C.A.R. 1.
4. APPEAL AND ERROR — Constitutional Issue — Failure to Raise — District Court — Consideration — Negative. A constitutional issue which was not raised in the district court, would not be considered on appeal.
5. Violation — Pending Criminal Proceeding — Discretion — Continue — Revocation Hearing. Where an alleged violation of a condition of probation consists of an offense which is the subject of a pending criminal proceeding, the court has discretion to continue the probation revocation hearing until after the termination of the criminal proceeding.
6. Revocation Hearings — Refusal to Continue — Abuse — Negative — Better Practice to Continue. Although it would have been better practice to continue probation revocation hearings until after disposition of the criminal proceedings upon which the alleged violation of probation was based, nevertheless, trial court did not abuse its discretion, as a matter of law, in refusing to continue hearings where defendant did not show how the failure to continue the hearings prejudiced her.
7. PROBATION — Revocation — Hearing — Inform — Violations — Morrissey v. Brewer — United States Supreme Court. The principles of the United States Supreme Court decision of Morrissey v. Brewer — which established that prior to a parole revocation hearing, the parolee has a right to be informed of the specific parole violations with which he is charged — apply equally to the revocation of probation.
8. Revocation — Violation of Conditions — Notice — Due Process of Law. Where the revocation of defendant's probation was predicated upon violations of conditions of her probation of which she had been given notice, held, under such circumstances, defendant was not denied due process of law.
9. Violation — Prosecution — Burden — Beyond Reasonable Doubt. Where an alleged violation of a condition of probation is a criminal offense, the prosecution has the burden of establishing the violation beyond a reasonable doubt.
10. Revocation — Standard of Proof — Presumption — Beyond Reasonable Doubt. Although trial court did not articulate standard of proof it applied in revoking defendant's probation, nevertheless, it was entitled to presumption that it applied the proper standard of proof, namely, beyond a reasonable doubt.
11. Evidence — Use of Narcotics — Violation — Proof Beyond Reasonable Doubt. Where officer who searched defendant's residence testified that one plastic baggie of marijuana was found in boot in bedroom; that several pipes containing marijuana residue were found in bedroom; that seven balloons of heroin were found on person of defendant; that needles and syringes were found on headboard and night stand in bedroom; and that officer observed several five to seven day old needle marks on one of defendant's arms, held, this evidence, together with the reasonable inferences that may be drawn therefrom was sufficient to allow court to conclude beyond a reasonable doubt that defendant had used narcotics in violation of terms of her probation.
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, David A. Sorenson, Assistant, for plaintiff-appellee.
Kathy P. Bonham, for defendant-appellant.
In an earlier proceeding the defendant pleaded nolo contendere to a charge of obtaining narcotic drugs by fraud and deceit. The defendant's sentence was suspended and she was placed on probation for five years.
In this case, after receiving testimony at a probation revocation hearing, the district court found (1) that the defendant had failed to pay supervision costs, (2) that the defendant had used narcotics, and (3) that the defendant had violated the laws of the State of Colorado, all in violation of conditions of the terms of her probation. The court then revoked the defendant's probation and sentenced her to an indeterminate term of imprisonment not to exceed two years. The defendant appeals the district court's revocation order.
I.
[1] The Attorney General asks that we dismiss the appeal, contending that probation revocation orders are reviewable only via Crim. P. 35(b) and not by direct appeal. We disagree.
[2,3] C.A.R. 1 provides for the appealability of final judgments of the district court. In the past we have considered probation revocation orders appealable as final judgments, e.g., People v. Varner, 181 Colo. 146, 508 P.2d 390 (1973). The Attorney General argues that as of July 1, 1972, Colo. Sess. Laws 1972, ch. 44, § 39-12-101 at 253 prohibits any direct appeal of a probation revocation order. This statute provides that "every person convicted of an offense under the statutes of this state shall have the right of appeal to review the proceedings resulting in conviction." Assuming, arguendo, that a probation revocation order is not a "proceeding resulting in conviction," a revocation order would not be appealable as a matter of right under section 39-12-101. However, there is nothing in the statute prohibiting a direct appeal of a probation revocation order under C.A.R. 1.
II.
[4] The defendant first challenges the constitutionality of Colo. Sess. Laws 1972, ch. 44, 39-11-206(3) at 246. Because this issue was not raised in the district court, we will not consider it on appeal. Valley v. People, 165 Colo. 555, 441 P.2d 14 (1968), cert. denied, 393 U.S. 925, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968).
III.
[5] In the situation where an alleged violation of a condition of probation consists of an offense which is the subject of a pending criminal proceeding, the court has discretion to continue the probation revocation hearing until after the termination of the criminal proceeding. Colo. Sess. Laws 1972, ch. 44, 39-11-206(3) at 246. The defendant argues that the court abused its discretion in failing to continue the probation revocation hearing until after the termination of the criminal proceeding.
[6] We agree that it would have been a better practice to continue the revocation hearing until after disposition of the criminal proceeding. See ABA, Standards Relating to Probation § 5.3 at 62-64 (1970); Small v. United States Board of Parole, 421 F.2d 1388 (10th Cir. 1970). Such a continuance would serve two purposes: (1) it would eliminate the danger of abuses occurring as a result of the informality of the revocation hearing; and (2) it would eliminate any possibility of the defendant being forced to compromise defendant's privilege against self-incrimination.
In this case, however, the defendant has not shown how the failure to continue the hearing prejudiced her. Therefore, we cannot conclude as a matter of law that there was an abuse of discretion.
IV.
[7] Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), established that prior to a parole revocation hearing, the parolee has a right to be informed of the specific parole violations with which he is charged. In People v. Varner, 181 Colo. 146, 508 P.2d 390 (1973), we stated that the Morrissey principles apply equally to the revocation of probation. The defendant argues that she was denied due process because she was not informed of all the violations of the conditions of her probation that were considered at the hearing.
In this case the defendant was informed of three alleged violations of the conditions of her probation: (1) failure to pay supervision costs; (2) use and illegal possession of narcotics; and (3) an arrest for a new offense. She was not informed of any possible violation of the condition that she should not associate with any person having a criminal record. At the hearing the court sua sponte elicited testimony from both of the People's witnesses concerning the defendant's association with a person convicted of a crime. The record shows that the court referred to this possible violation on at least four other occasions.
[8] At the close of the hearing and immediately prior to its order revoking probation, the court found that the defendant had violated the three conditions of her probation of which she had been informed. It made no finding concerning the possible violation of the condition that the defendant should not associate with people having criminal records. The revocation of defendant's probation was predicated upon violations of conditions of her probation of which she had been given notice. Thus, the defendant was not denied due process of law.
V.
[9,10] Where an alleged violation of a condition of probation is a criminal offense, the prosecution has the burden of establishing the violation beyond a reasonable doubt. Colo. Sess. Laws 1972, ch. 44, § 39-11-206(3) at 246. In its findings the court stated that the evidence established that the defendant used narcotics to some degree in violation of a condition of her probation. Although the court did not articulate the standard of proof it applied, we think the court is entitled to a presumption that it applied the proper standard.
[11] The defendant also argues that there was not sufficient evidence to establish beyond a reasonable doubt that she violated the condition of her probation forbidding the use of narcotics.
An officer who searched the defendant's residence testified as follows: That the defendant, one Gail Curtis and Gail's mother lived together in a single family residence; that one plastic baggie of marijuana was found in a boot in the bedroom; that several pipes containing marijuana residue were found in the bedroom; that seven balloons of heroin were found on the person of Gail Curtis; that needles and syringes were found on a headboard and night stand in the bedroom; and that the officer observed several five to seven day old needle marks on one of the defendant's arms. This evidence, together with the reasonable inferences that may be drawn therefrom, was sufficient to allow the court to conclude beyond a reasonable doubt that the defendant has used narcotics, cf. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
Judgment affirmed.