Friday, February 6, 2015

No Constitutional Right to Morrissey Advisory During Revocation Hearing; Court Avoids Issue of Waiver of Those Rights

State v. Beaulieu, Minn.S.Ct., 2/4/2015.  This is a waiver case gone off the rails.  By the time it's over Justice Dietzen's 4-3 Opinion has got the whole thing so balled up and distorted it's become a house of mirrors.  It just shows that probation violations continue to be the Romanian orphanages from the '80's and '90's of the criminal justice system.  No hugs.
The trial court put Mr. Beaulieu on probation.  Time goes by and the probation officer hauls him into court on an alleged violation.  Not once during any of the appearances on the violation did the trial court comply with the requirements of Rule 27.04, Subd. 2(c): 
Subd. 2. First Appearance.
(1) When the probationer initially appears on the warrant or summons the court must:
(a) Appoint an interpreter if the probationer is disabled in communication.
(b) Give the probationer a copy of the violation report, if not already provided.
(c) Tell the probationer of the right to:
a. a lawyer, including an appointed lawyer if the probationer cannot afford a lawyer;
b. a revocation hearing to determine whether clear and convincing evidence of a probation violation exists and whether probation should be revoked;
c. disclosure of all evidence used to support revocation and of official records relevant to revocation;
d. present evidence, subpoena witnesses, and call and cross-examine witnesses, except the court may prohibit the probationer from confrontation if the court believes a substantial likelihood of serious harm to others exists;
e. present mitigating evidence or other reasons why the violation, if proved, should not result in revocation;
f. appeal any decision to revoke probation.
Not once during any of the appearances on the violation did the trial court inquire of counsel if he had informed Mr. Beaulieu of the procedural rights contained in this rule.  Not once did the trial court inquire of Mr. Beaulieu, himself, if he knew of, understood, and waived those procedural rights.  The trial court did accept Mr. Beaulieu's admission to the violation and the trial court did send him to prison.
Now, a long time ago the U.S. Supreme Court said that 14th Amendment due process required that certain procedures be adhered to before a court could revoke a probationer's probation and imprison him.  Gagnon v. Scarpelli, 411 U.S. 778 (1973).  Minnesota's Rule 27.04 enumerates those procedures, and goes one step beyond by imposing upon the trial court the obligation to inform a probationer of what those procedures are.  Neither Scarpelli nor its companion, Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation) imposes a constitutional obligation upon the trial court to inform the probationer/parolee of what these obligations are.  Mr. Beaulieu said on appeal that there was such a constitutional obligation.
Four of the justices believed that no such constitutional right to be given the advisory existed so Mr. Beaulieu lost on that issue.  All of them, however, believed that the trial court had made an error by failing to give the Rule 27.04 advisory.  The majority said that this error did not affect Mr. Beaulieu's substantial rights, part of the "plain error" test. 
But wait, there's more.  Mr. Beaulieu also complained that the record did not establish that he knowingly and voluntarily waived his Morrissey due process rights.  Justice Dietzen summarily disposes of this claim in a single footnote to the opinion.  It's impossible to parse this footnote for its meaning so the only thing to do is to set it out verbatim and go on to the dissent by Justice Lillehaug:
The dissent contends that Beaulieu’s brief raises an additional issue—whether Beaulieu waived his Morrissey rights. To support that contention, the dissent relies on the court of appeals’ opinion, the order granting review, the brief filed by Beaulieu in this court, and some of the questions asked during oral argument. With all due respect to the dissent, we conclude that the basis for Beaulieu’s waiver claim throughout these proceedings is that the district court failed to advise Beaulieu of his Morrissey rights on the record. For example, Beaulieu’s brief describes the issue presented as whether “the district court violated [his] due process rights by failing to inform him of his Morrissey rights prior to accepting his admission to the alleged probation violation.” He then argues that the district court erred by violating an alleged constitutional right “to be advised” of his Morrissey due process rights and by failing to comply with Minn. R. Crim. P. 27.04. Following these arguments, Beaulieu states, “The next question is whether despite this failure, was there a valid waiver of these rights.” Beaulieu contends the answer to this question is “no” because “he was never advised of his rights on the record.” Yet that is the precise claim we reject above. Because Beaulieu’s waiver claim is not independent of his “notice” argument, we need not separately address it.
Justice Lillehaug correctly reminds the majority that revocation of probation implicate a liberty interest.  That's why there are constitutionally required due process obligations that must be followed before that revocation occurs.  There is a presumption against waiver of constitutional rights.  State v. Finnegan, 784 N.W.2d 243 (Minn. 2010).  There must be something in the record from which to conclude that Mr. Beaulieu knew of and waived his rights voluntarily.  Justice Lillehaug sums up the long and the short of what the record here established (or failed to establish):
The record before us does not contain a single piece of direct or circumstantial evidence that Beaulieu knowingly and voluntarily waived his constitutional rights. We know that the district court did not tell Beaulieu of his rights, as it should have. We know that the prosecutor did nothing to secure a waiver. We know that defense counsel and Beaulieu said nothing on the record about his rights. The record fails to show anything that comes close to a waiver, much less one that was knowing and voluntary.
Joining Justice Lillehaug were Justices Page and Wright.  One more quote from Justice Lillehaug to round this out:
There is sidestepping going on here, but it’s not in Beaulieu’s brief. By imagining that the most important issue in the case is not before it, the majority fails to protect constitutional rights.

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