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evaluating the harmlessness of improperly considering a particular ground as a basis for revoking probation
Summary of this case from Scholle v. EhrichsOpinion
No. 08SC451.
May 17, 2010.
Appeal from the District Court, Douglas County, Thomas J. Curry, J.,
John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.
Douglas K. Wilson, Public Defender, Kathleen A. Lord, Chief Appellate Deputy Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.
Justice RICE delivered the Opinion of the Court.
In this appeal, the People seek to reinstate the revocation of Jeffery Loveall's sex offender intensive supervision probation ("SOISP"). Loveall challenges this position and, on cross-petition, attacks the underlying convictions on which the SOISP and his subsequent incarceration are based. The court of appeals reversed the district court's revocation of Loveall's SOISP but rejected his collateral attacks. We affirm.
I. Facts and Proceedings Below
This appeal concerns two convictions entered against Loveall: one count of enticement of a child, § 18-3-305, C.R.S. (2001), and one count of unlawful sexual contact, § 18-3-404(1)(a), C.R.S. (2001). Both convictions stem from the same sequence of events. Via a series of online exchanges taking place between April 4, 2001 and April 14, 2001, Loveall contacted "Sarah," an undercover police officer who identified herself as a four-teen-year-old girl, and made plans to have sex with her. When Loveall approached "Sarah" at the appointed time and place, he was arrested.
Initially, the People charged Loveall with one count of enticement of a child, a class-four felony, and one count of criminal attempt to commit sexual assault on a child, a class-five felony. Loveall, proceeding pro se, negotiated a plea agreement. In exchange for Loveall's guilty plea to the original enticement charge and a third count of unlawful sexual contact, a class-one misdemeanor, the People agreed to drop the attempt charge and to seek a deferred judgment and sentence ("DJS") on the remaining felony. The prosecutor who negotiated the plea bargain informed Loveall that, were a conviction to enter on the enticement charge, he would be subject to a presumptive sentence of two years to life.
On January 14, 2002, Loveall executed a Rule 11 advisement, abandoning "all possible defenses to the charge[s]" and waiving his constitutional right to a jury trial and his right "to be represented by a lawyer in all stages of that trial." On April 1, 2002, the district court entered a four-year DJS for the enticement conviction and a four-year SOISP for the sexual contact conviction. Under the DJS, Loveall agreed to comply with all conditions established by the district court, including: (1) prohibition of contact with children under eighteen years of age, (2) enrollment in and completion of offense-specific treatment, and (3) continued employment and payment of court fees. Additionally, the district court required that Loveall spend sixty days in the Douglas County jail.
The terms of Loveall's DJS contained the following relevant provisions:
4. You shall have no contact with any child under the age of eighteen (18), including your own children, nor attempt contact except under circumstances approved in advance and in writing by the probation officer in consultation with the community supervision team. . . .
5. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. . . .
Loveall's then-existing employment with the National Guard ended when he began serving the sixty-day prison term. After initially finding short-term employment with a temp agency, the agency discharged Loveall on September 26, 2002 after learning of his felony conviction. Loveall enrolled in a treatment program in Colorado Springs on August 13, 2002 but was terminated on December 16, 2002 for non-compliance.
Jane Ryan, Loveall's primary probation officer, petitioned the district court for revocation of Loveall's DJS, citing violations of the treatment and employment conditions. On March 13, 2003, the district court revoked the DJS and resentenced Loveall to a ten-year SOISP for the enticement charge, subject to the same conditions as the revoked DJS, and a four-year SOISP for the unlawful sexual contact charge. In addition, the district court required Loveall to return to the treatment program and to secure employment within forty-five days.
On June 3, 2003, Ryan reported that Loveall failed to obtain employment or return to treatment as directed. The district court assigned defense counsel to Loveall. At the revocation hearing on August 3, 2003, the district court reinstated the SOISP subject to the same conditions as before. The district court further ordered that Loveall be confined to the Douglas County jail for ninety days less time served.
On October 8, 2003, Loveall enrolled in a treatment program in Canon City. At the time, Loveall's wife was pregnant. The treatment provider informed Loveall that any contact with children under the age of eighteen, including his own, children, was prohibited under the stated conditions of his SOISP and the program's treatment contract. To help him prepare for the birth of his child, Loveall and the treatment provider composed a safety plan. In it, Loveall stated that "I will take [my wife] to hospital but not be in [the] birth area."
On January 5, 2004, Loveall took his wife to St. Thomas Moore Hospital, where his wife gave birth to their child. Shortly afterward, an unnamed probation officer discovered Loveall in the same room as his wife and child and reported this violation to Ryan. The Canon City treatment provider learned of the violation and immediately terminated Loveall from its program.
A third revocation hearing took place on January 26, 2004. At the hearing, Ryan testified that an unnamed probation officer observed Loveall "in the hospital with his wife . . . having contact with the baby." Ryan also testified that Loveall's courtesy probation officer in Canon City, Suzanne Woodard, received a letter from Nurse Tiffany McCullough and a letter and a phone call from Nurse Nancy Mann, confirming Loveall's contact with the newborn. Loveall testified that he was only at the hospital so that he could make vital medical decisions regarding his child's health while his wife was under anesthesia following an emergency caesarian section. According to Loveall, he fell asleep in his wife's room, woke up to find both his wife and the baby present, and was discovered by the probation officer before he could remove himself from their presence.
In pertinent part:
On January 5, 2004, at approximately 10:00 am a man came to the OB Unit and pushed the intercom button for admission to the OB restricted unit. The man requested to come in and visit with patient Nancy Loveall in room 240. He was allowed in and proceeded to room 240 where he was asked to wait while the nurses were busy with the patient.
The man was walking back and forth and leaning against the wall for a period of time when I asked if I could help him with something. He. responded, "I'm here lo visit my wife and baby, but I have to wait", [sic] I replied okay and then contacted Michelle Chess with the Department of Human Services. (Emphasis added).
During her testimony, Ryan read from Woodard's written narrative dated January 5, 2004 regarding Mann's phone call:
I called the nursery at St. Thomas Moore Hospital and spoke to Nurse Nancy Mann, the nurse in charge of the nursery. The defendant was there at 3:20 p.m. holding the baby. The nurse also stated he was there last night when the baby was born. (Emphasis added).
At the revocation hearing, defense counsel objected to the prosecution's use of the letters as well as to Ryan's testimony regarding the phone conversation between Woodard and Mann. Defense counsel argued that, because the prosecutor did not give him a copy of the letters or otherwise provide the nurses' names until shortly before the revocation hearing, Loveall was denied a reasonable opportunity to cross-examine them. The court initially excluded both letters, holding that Loveall must be given "a reasonable opportunity to confront" even in the context of a probation revocation hearing, but admitted the testimony regarding Mann's telephone call. On cross-examination, defense counsel questioned Ryan about Mann's telephone allegations. Toward this end, defense counsel attempted to impeach Ryan's testimony — specifically, Mann's statement that she observed Loveall holding the baby — using Mann's letter. The district court informed defense counsel that he could only use the letter if it was admitted into evidence. Defense counsel agreed to admit the letter for this purpose.
The prosecutor answered that, although Ryan received the letters on January 14, 2004, he was not informed of the letters' existence until the day of the hearing.
The exchange included the following colloquy:
Q: [According to Woodard's narrative, w]ho saw [Loveall] holding the baby?
A: It appears to be Nurse Mann, Nancy Mann. . . .
Q: Okay. Now, the previous exhibit [the prosecutor] tried to have admitted is a letter from Ms. Mann, correct?
A: Correct.
Q: At no time in her letter did she indicate Mr. Loveall held the baby.
A: No.
Based on Ryan's testimony, the district court determined that Loveall had violated three conditions of his probation: (1) he had contact with his child at the hospital, (2) he was terminated from sex-offender treatment for breach of the treatment contract, and (3) he failed to find employment. The district court revoked the tenyear SOISP for enticement and resentenced Loveall to a correctional facility for two years to life with credit for time served.
The court discharged the fouryear SOISP for unlawful sexual contact for time served.
Loveall appealed the revocation of the ten-year SOISP. The court of appeals, having rejected Loveall's attacks on the underlying convictions, held that the district court's admission of hearsay statements without good cause or advance disclosure of the declarants' identities violated Loveall's right to due process. Because the district court improperly relied on hearsay evidence to conclude that Loveall violated the no contact and treatment conditions of his SOISP and because it was unclear whether the district court would have revoked Loveall's SOISP based on his unemployment alone, the court of appeals reversed the revocation and remanded the case to the district court for a new hearing.
II. Issues on Cross-Petition
On cross-petition, Loveall mounts two collateral attacks regarding the validity of his original guilty plea and resulting DJS. Because the issues raised in the People's petition presuppose that the guilty plea and DJS were valid, we consider the issues raised on cross-petition first.
A. Pro Se Defendant's Ability to Enter a DJS
Loveall argues that his plea of guilty to the enticement charge is void for lack of jurisdiction because a court may order a DJS only if the defendant is represented by legal counsel. § 18-1.3-102, C.R.S. (2009). To succeed, Loveall must circumvent the three-year statute of limitations for collateral attacks, § 16-5-402(1), C.R.S. (2009), by treading an alternate path, § 16-5-402(2)(a) (describing the subject matter jurisdiction exception). We deny him passage.
We have held that a district court has jurisdiction if "the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority." Paine, Webber, Jackson, Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986). The Colorado Constitution provides that district courts, as the trial courts of general jurisdiction, possess original, statewide jurisdiction in all criminal cases. Colo. Const., art. VI, § 9( 1). Of course, the courts' otherwise "unrestricted and sweeping jurisdictional powers" remain subject to legislative restraints and enactments. In re A.W., 637 P.2d 366, 373 (Colo. 1981). Accordingly, we have held that a district court exceeds its jurisdiction when it acts without general jurisdiction "but also when it acts with general jurisdiction but contrary to statute." People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008); People v. Simonds, 113 P.3d 762, 763 (Colo. 2005) (holding district court did not exceed its jurisdiction by revoking DJS where application seeking revocation was filed within time permitted by statute). In this respect, our longstanding practice has been to avoid interpreting statutory language as a limit on a court's power "unless the limitation is explicit." In re Estate of Ongaro, 998 P.2d 1097, 1103 (Colo. 2000) (quoting In re A.W., 637 P.2d at 374). Where the statute contains explicit limiting language, we consider "whether or to what extent the legislature could divest the district courts of jurisdiction." In re Estate of Ongaro, 998 P.2d at 1103.
We apply this analytic framework to section 18-1.3-102. Subsection (1) reads,
In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for a period not to exceed four years of the date of entry of a plea to a felony. . . .
(Emphasis added). Subsection (2) uses similar language,
Prior to entry of a plea of guilty to be followed by a[DJS], the district attorney . . . is authorized to enter into a written stipulation, to be signed by the defendant, the defendant's attorney of record and the district attorney, under which the defendant is obligated to adhere to such stipulation.
(Emphasis added). We conclude that neither subsection expressly limits the district court's power to entertain a category of cases. See Adams, 718 P.2d at 513; In re Estate of Ongaro, 998 P.2d at 1103. Rather, they merely underscore the fact that a DJS, in the first instance, requires the written consent of the parties and their counsel of record. § 18-1.3-102(2). While it is true that the district court cannot enter a DJS without a duly-signed stipulation, its inability to act is not due to a lack of jurisdiction but to the fact that, without a signed stipulation, there is literally nothing upon which the court may act.
In this respect, our holding is consistent with that we announced in Carbajal, 198 P.3d at 105-06. There, we examined seven "statutory limits" placed on the district court's jurisdiction by the DJS statute. Id. We did not count the written consent requirement among them. Id.
Because the written authorization requirement set forth in section 18-1.3-102 is not jurisdictional in nature, we hold that Loveall's collateral attack is untimely. See § 16-5-402.
B. Viability of DJS Under Section 18-1.3-1004
Loveall also argues that the DJS is void for lack of jurisdiction because a DJS is not available for sex offenses under the Lifetime Supervision of Sex Offenders Act. § 18-1.3-1001, et seq., C.R.S. (2009). We hold that this attack also runs afoul of section 16-5-402.
The Act requires district courts to "sentence a sex offender to the custody of the [department of corrections] for an indeterminate term of at least the minimum of the presumptive range . . . and a maximum of the sex offender's natural life." § 18-1.3 — 1004(1)(a); see also § 18-1.3-1003(5)(a)(VII) (applying the Act to the crime of enticement). We conclude that the statutory language expressly limits the district court's jurisdiction only in those cases where the district court actually enters a sentence. § 18-1.3-1004(1)(a); In re Estate of Ongaro, 998 P.2d at 1103. However, "[a] deferred judgment is technically not a sentence; it is a continuance with probation-like supervision conditions." Carbajal, 198 P.3d at 106 (citing § 18-1.3-102). In fact, the enticement statute allows for the possibility of a DJS. "When a person is convicted, pleads nolo contendere, or receives a deferred sentence for a violation of the provisions of this section and the court knows the person is a current or former employee of a school district . . . the court shall report such fact . . . ." § 18-3-305(3) (emphasis added). Moreover, we have upheld the use of a DJS in other sex offense cases subject to the Act. See, e.g., Carbajal, 198 P.3d at 104 (upholding DJS for sexual assault); Simonds, 113 P.3d at 763 (Colo. 2005) (upholding DJS for sexual assault on a child).
Given the clear instruction provided both by the statutory scheme and the prior decisions of this court, we hold that the district court did not exceed its jurisdiction by entering a DJS in this case. Accordingly, Loveall's collateral attack is barred under the three-year statute of limitations set forth in section 16-5-402.
III. Issues on Petition
Next, we turn to those issues presented for our review by the People. The People first argue that their use of hearsay evidence to prove alleged violations of Loveall's SOISP was proper under the circumstances. Second, the People argue that, were we to find their use of hearsay evidence was improper, the remaining, non-hearsay evidence was sufficient to support revocation.
A. Use of Hearsay Evidence
We begin by considering whether the People's use of hearsay evidence, undertaken by the People without timely providing Loveall with the names of the declarants, constitutes a denial of his constitutional right to due process. Under the facts here presented, we hold that it does.
In Morrissey v. Brewer, the U.S. Supreme Court determined that "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also Gagnon v. Scarpelli 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (extending Morrissey holding to probation revocation hearings). The lower standard for due process available in revocation hearings was justified, according to the Court, by the State's "overwhelming interest" in returning an individual to prison without the burden and associated costs of mounting a new criminal trial, provided there was sufficient evidence that the individual failed to abide by the conditions of his probation. Morrissey, 408 U.S. at 483, 92 S.Ct. 2593.
The Morrissey Court avoided creating a code of procedure for revocation hearings. Id. at 488, 92 S.Ct. 2593 ("We cannot write a code of procedure; that is the responsibility of each State."). Instead, the Court set forth the minimum requirements such proceedings must follow to comply with due process. Id. at 488-89, 92 S.Ct. 2593. Among the rights afforded probationers is that "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Id. at 489, 92 S.Ct. 2593. Soon after Morrissey was announced, the General Assembly answered the Court's call, establishing the procedure required for revocation hearings in Colorado. See § 16-11-206, C.R.S. (2009). In Colorado, the prosecution can admit hearsay evidence at a revocation hearing provided "the defendant is accorded a fair opportunity to rebut hearsay evidence." § 16-11-206(3). Since section 16-11-206(3) was enacted, the court of appeals has attempted to clarify what a "fair opportunity to rebut hearsay" entails.
Loveall cites two of these cases, People in Interest of T.M.H., 821 P.2d 895 (Colo.App. 1991), and People v. Thomas, 42 Colo.App. 441, 599 P.2d 957 (1979), to argue that he was entitled to greater due process. In T.M.H., the court of appeals held that, where the prosecutor is unable to produce any corroborating documentary evidence and "the only witness lacks personal knowledge of the essential incriminating facts," the probationer is not provided a fair opportunity to rebut hearsay testimony. 821 P.2d at 896-97. Similarly, in Thomas, the court of appeals held that hearsay evidence presented via a probation officer's testimony does not provide a fair opportunity to rebut even where the probationer stands ready to take the stand and deny the accusation. 599 P.2d at 958.
We find these cases distinguishable. The violations of probation alleged by the prosecution in T.M.H. and Thomas were additional criminal acts allegedly perpetrated by the probationers. T.M.H., 821 P.2d at 895-96; Thomas, 599 P.2d at 957-58. As such, they are not subject to the preponderance of evidence standard, which is applicable here, but to the more stringent, beyond a reasonable doubt standard. § 16-11-206(3); see also People v. Kelly, 919 P.2d 866, 868 (Colo.App. 1996) (applying similar analysis to distinguish Thomas and T.M.H.). Nor do we find it necessary to determine whether a probation officer's testimony, based solely on hearsay evidence, can ever establish a violation of probation beyond a reasonable doubt.
Rather, we find it sufficient to hold that hearsay evidence may be used to establish a probation violation other than an alleged crime provided minimum due process requirements are met. On multiple occasions, the court of appeals wrestled with the due process requirements set forth by the Morrissey Court and the General Assembly.From this line of cases, we discern a workable standard: where revocation is based on a violation other than an alleged crime, "the defendant's due process right is satisfied by subjecting the probation officer to cross-examination about proffered hearsay and affording the [probationer] an opportunity to present witnesses and testify in his or her own behalf." Manzanares, 85 P.3d at 610. However, the impact of these techniques is greatly diminished — if not eradicated entirely — where the defendant is given little or no opportunity to test the accuracy of the hearsay evidence or the credibility of the declarants from whom it was gleaned. See Singletary v. Reilly, 452 F.3d 868, 874-75 (D.C. Cir. 2006) (ordering new parole revocation hearing where declarants of hearsay evidence relied upon by prosecution were never cross-examined "nor were their identities even revealed for purposes of evaluating their credibility").
We recognize that other jurisdictions require that a finding of good cause be made before hearsay evidence is used at a revocation hearing. See, e.g., People v. Winson, 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, 58 (1981). We decline to adopt a similar rule. Rather, we find that the better approach is to determine the "requirements of due process [based] on the circumstances of each case and an analysis of the various interests at stake." Commonwealth v. Burling, 407 Mass. 108, 551 N.E.2d 1193, 1196 (1990).
See, e.g., People v. Turley, 109 P.3d 1025, 1026 (Colo.App 2005) (holding hearsay testimony proper where probationer had fair opportunity to rebut hearsay testimony and cross-examine the witness who introduced it); People v. Manzanares, 85 P.3d 604, 610 (Colo.App. 2003) (holding use of hearsay evidence did not offend due process where probationer could cross-examine testifying probation officer, present witnesses, or testify on his own behalf); People v. Moses, 64 P.3d 904, 908 (Colo.App. 2002) (holding hearsay testimony proper where offering witness was subject to cross-examination and the lab reports corroborating the hearsay testimony were readily available); People v. McCoy, 939 P.2d 537, 541 (Colo.App. 1997) (holding revocation based solely on hearsa) evidence met due process requirements where probationer had opportunity to cross-examine the witnesses and to rebut the evidence through her own testimony); and Kelly 919 P.2d at 868 (holding probationer had fair opportunity to rebut probation officer's hearsay testimony where probationer had opportunity to cross-examine officer, testify on his own behalf, and present witnesses and where probationer admitted at his resentencing hearing that he had violated a condition of his probation).
Here, the prosecution failed to provide Loveall's defense counsel the nurses' letters, Woodard's narrative describing her phone conversation with Mann, or any other document containing the nurses' names until shortly before the probation revocation hearing. The trial court sustained Loveall's initial objection as to the letters, holding that the prosecution denied Loveall a reasonable opportunity to cross-examine the nurses, but admitted Woodard's narrative regarding the phone conversation without regard for its late disclosure. The trial court then went on to hold that defense counsel could not use Mann's letter to impeach Woodard's narrative without first admitting the letter into evidence in its entirety. In so deciding, the trial court presented Loveall's defense counsel with a Hobson's choice: either to admit Mann's letter into evidence in order to impeach the narrative, which stated only that Loveall was present at the hospital, or to proceed without admitting the letter only to leave Woodard's narrative, which contained Mann's highly damaging accusation that Loveall actually held the baby, unchallenged. Under these circumstances, we do not find that defense counsel's decision to admit Mann's letter into evidence prevents him from later raising a due process claim.
The trial court could have chosen to allow defense counsel to impeach Woodard's narrative using Mann's letter without the letter being admitted into evidence. CRE 612.
Defense counsel's strategy in admitting Mann's letter is apparent in his argument to the court regarding the admissibility of McCullough's letter,
1 didn't want to bring in [Mann's] letter but . . . I have strong concerns because the letter doesn't indicate my client was in the same room let alone holding the baby. This is notarized versus what's a telephone conversation with a third party that this witness is testifying to.
The reason I brought in [Mann's letter] is to impeach the [telephone] statement that stands on [its] own that we don't have a chance to cross-examine so I have to impeach it through a piece of evidence not normally admissible.
And in his closing argument to the trial court,
With respect to contact with children, I would differ. [Loveall] indicated he did not have contact with his child. The complaint says he was seen holding the baby. Everyone indicated there was no time he ever held the baby including [Mann's letter], the letter also indicates he was just in the hall.
Thus, we hold that, under the facts of this case, the prosecutor's decision to withhold the names of the declarants until shortly before the hearing prevented Loveall from receiving the minimum due process rights owed him.
B. Existence of Sufficient, Independent Grounds for Revocation
Next, we consider whether the court of appeals erred by reversing the revocation despite the existence of additional, non-hearsay evidence demonstrating that Loveall violated a condition of his SOISP. We hold that reversal was proper under the circumstances.
Where one or more bases for revoking probation are set aside on appeal, the revocation remains valid provided at least one violation is sustained. See People v. Howell, 64 P.3d 894, 897 (Colo.App. 2002) (upholding revocation after finding that evidence independent of hearsay testimony given by probation officer supported revocation of SOISP); cf. People v. Broga, 750 P.2d 59, 62 (Colo. 1988) (upholding aggravated sentence, reasoning that "[w]here the sentencing court finds several factors justifying a sentence in the aggravated range, only one of those factors need be legitimate to support the sentencing court's decision"). Thus, it is undeniably true that any single probation violation could justify a district court's decision to revoke; however, it is substantially less clear whether the probation officer would exercise his or her discretion to seek revocation — or, for that matter, whether the district court would remain willing to revoke — based solely on the remaining violation. See State v. Ojeda, 159 Ariz. 560, 769 P.2d 1006, 1007 (1989).
The Arizona Supreme Court acknowledged the infirmities inherent in the rigid approach espoused by the People.
The [rigid rule], although supportable in a purely technical sense, ignores the realities of the probation process. If some of the alleged violations do not hold up on appeal and the revocation is affirmed without remand, a significant chance exists that the defendant's probation may be revoked for a violation that, by itself, would not have caused the probation officer to petition for revocation or the judge to revoke.
Id. The Ojeda court recognized that, when a probation officer petitions for revocation, he or she generally will include every alleged violation, whether "serious" or merely "technical." Id. Where a serious violation falls through, the probation officer is left only with technical violations that he or she may have decided against presenting separately. Id. Thus, the Ojeda court reasoned: "We should affirm without remand only where the record clearly shows the trial court would have reached the same result even without consideration of the improper factors." Id. at 1008. We adopt the Ojeda rule and apply it here.
Other appellate courts either explicitly adopted the Ojeda rule or applied substantially similar rules. See, e.g., State v. Street, 28 Kan. App.2d 291, 16 P.3d 333, 335 (2000) (adopting Ojeda rule); Mann v. State, 285 Ga.App. 39, 645 S.E.2d 573, 577 (2007) (applying substantially similar rule); Shepard v. State, 939 So.2d 311, 315 (Fla.App. 2006) (same); Brundridge v. Bd. of Parole and Post Prison Supervision, 192 Or.App. 648, 87 P.3d 703, 707 (2004) (same).
Loveall admitted that he was unemployed at the time of the revocation hearing. Thus, while it is clear that Loveall violated the conditions of his SOISP by failing to secure employment, it is substantially less clear whether Ryan would have petitioned for revocation based on the unemployment violation alone. Ryan petitioned for revocation three times. Each petition included allegations that Loveall violated the conditions of his SOISP by failing to secure employment, en-roll in an offense-specific treatment program, and, on the final occasion, avoid contact with children. The filing of all three petitions corresponded with his termination from treatment — not the deadline imposed for finding employment. On cross-examination, Ryan described a conversation she had with Loveall's courtesy probation officer regarding his probation.
Q: Did [the probation officer] ever say she was going to revoke his probation for not finding a job?
A: She expressed concern to me about it, yes, because it was part of the court order when he was reinstated to probation that he find employment.
Q: Right. But she also indicated he was seeking employment but found none in Canon City.
A: Correct.
Q: Based on that, she wanted him to expand his search.
A: Correct.
Q: Never did say to you though that he had not tried to find a job.
A: No.
Q: Even though he was unemployed, he was current in his fees, costs, and restitution; is that correct?
A: That's correct.
Based on the foregoing, we are unable to conclude that "the record clearly shows the trial court would have reached the same result even without consideration of the improper factors." Ojeda, 769 P.2d at 1008.
Accordingly, we hold that the prosecutor's decision to withhold the names of the declarants until shortly before trial failed to accord Loveall the minimum due process rights owed him under Morrissey. Therefore, we affirm the court of appeals' judgment below and remand to the court of appeals with instructions to remand to the district court for a new hearing to be conducted consistent with this opinion.
Our ordinary practice is to remand to the trial court for further findings. We deem a new hearing to be necessary here, as the district court judge who presided over the revocation proceedings below has retired. See People v. Harmon, 3 P.3d 480, 485 (Colo.App. 2000) ("Ordinarily, we would remand for further findings by the trial court. However, because the judge who revoked defendant's probation has resigned, we cannot remand for clarification of the trial court's reasons for revoking defendant's probation. Therefore, a new hearing is necessary.").
Justice (`OATS concurs in part and dissents in part.
Justice EID concurs in part and dissents in part.