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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