probation revocation hearing in Alaska

2020This is not to suggest that a probation revocation proceeding is the same as a criminal trial.57 Since probationers have already been convicted, they do not stand in the same position as ordinary citizens.58 Therefore, the full protections of criminal law and procedure often do not apply to probationers.59 We merely note that the “principle 55 Jordan v. State, 420 P.3d 1143, 1149 (Alaska 2018) (citing Hazelwood, 946 P.2d at 883 ). 56 Id. at 1149 (emphasis in original) (footnotes omitted) (quoting Hazelwood, 946 P.2d at 883-84 ). 57 Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (“A probatio

2006See Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977) (“A probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial[,] and proof beyond a reasonable doubt are required[.]”); Adams v. Ross, 551 P.2d 948, 950 (Alaska 1976); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); Snyder v. State, 496 P.2d 62, 63 (Alaska 1972); Hernandez v. State, 691 P.2d 287, 290 (Alaska App.1984).) Surrells’s case does not involve any potential increase in his maximum sentence.

2020Written notice of appeal from a sentence . . . shall be filed with the clerk of the superior court which imposed the sentence not later than 30 days after sentence was imposed.” Id. at 18 n.1. 69 Id. at 18 . 70 Id. -23- 7482 therefore construed the meaning of “sentence” in the context of Rule 21(b) more broadly to include re-sentencing at a probation revocation hearing.71 As a preliminary matter, we note the Appellate Rules have been significantly restyled since Gilligan, and the rules now couch appellate review in terms of final “judgment,” not based on when a “sentence” is imposed.72 The iss

2020Written notice of appeal from a sentence . . . shall be filed with the clerk of the superior court which imposed the sentence not later than 30 days after sentence was imposed.” Id. at 18 n.1. 69 Id. at 18 . 70 Id. -23- 7482 therefore construed the meaning of “sentence” in the context of Rule 21(b) more broadly to include re-sentencing at a probation revocation hearing.71 As a preliminary matter, we note the Appellate Rules have been significantly restyled since Gilligan, and the rules now couch appellate review in terms of final “judgment,” not based on when a “sentence” is imposed.72 The iss

1978See also, Paul v. State, 560 P.2d 754, 756-57 (Alaska 1977), where a delay of six months from an alleged probation violation until a probation revocation hearing was allowed due to a failure to show sufficient prejudice. .

1978See also, Paul v. State, 560 P.2d 754, 756-57 (Alaska 1977), where a delay of six months from an alleged probation violation until a probation revocation hearing was allowed due to a failure to show sufficient prejudice. [19] That the ultimate burden is on the defendant, however, does not mean that the state is relieved of the burden of coming forward with reasons for the delay, matters normally within the exclusive knowledge of the state.

2006See Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977) (“A probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial[,] and proof beyond a reasonable doubt are required[.]”); Adams v. Ross, 551 P.2d 948, 950 (Alaska 1976); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); Snyder v. State, 496 P.2d 62, 63 (Alaska 1972); Hernandez v. State, 691 P.2d 287, 290 (Alaska App.1984).) Surrells’s case does not involve any potential increase in his maximum sentence.

1976In re Spracher, 17 Alaska 144, 145 , 150 F.Supp. 555 (D.Alaska 1957). 4 Further, even for adults, 5 a probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial, or proof beyond a reasonable doubt are required, Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973), Snyder v. State, 496 P.2d 62, 63 (Alaska 1973), although the revocation proceeding is necessarily an outgrowth of the initial criminal case.

1977In Martin v. State, 517 P.2d 1389, 1398 (Alaska 1974), we stated: However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence. .

1976In Martin v. State, 517 P.2d 1389, 1398 (Alaska 1974), we said: However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence... .

2020The first facet of such a hearing involves “a wholly retrospective factual question: whether the 20 See State v. Ranstead, 421 P.3d 15, 19-20 (Alaska 2018). 21 Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (second alteration in original) (footnote omitted) (citation omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972)). -11- 7463 [probationer] has in fact acted in violation of one or more conditions of his [probation].” . . .

1987The core requirement in satisfying due process is a hearing “based on verified facts and informed by an accurate knowledge of defendant’s behavior.” Paul v. State, 560 P.2d 754, 756 (Alaska 1977), quoting Morrissey v. Brewer, 408 U.S. 471, 484 , 92 S.Ct. 2593, 2602 , 33 L.Ed.2d 484 (1972).

2018When a judge is deciding what portion of a previously suspended term of imprisonment, if any, to impose, the judge must consider all available sentencing information, including “the seriousness of the original offense.”13 And when a judge determines that a probationer can no longer benefit from supervision, the judge “must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the new information at the initial sentencing.”14 10 State v. Sears, 553 P.2d 907, 910 (Alaska 1976); Demientief

1996Id.

2023The defendant subsequently moved to withdraw his pleas, arguing that, 18 See, e.g., United States v. Colacurcio, 84 F.3d 326, 328-29 (9th Cir. 1996) (recognizing that, by statute, a magistrate judge only has authority to conduct a probation revocation hearing in a misdemeanor case if, inter alia, the defendant consents and vacating order revoking probation in the absence of consent); N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415-16 (9th Cir. 1994) (recognizing that “federal magistrates are creatures of statute, and so is their jurisdiction.

2023The defendant subsequently moved to withdraw his pleas, arguing that, 18 See, e.g., United States v. Colacurcio, 84 F.3d 326, 328-29 (9th Cir. 1996) (recognizing that, by statute, a magistrate judge only has authority to conduct a probation revocation hearing in a misdemeanor case if, inter alia, the defendant consents and vacating order revoking probation in the absence of consent); N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415-16 (9th Cir. 1994) (recognizing that “federal magistrates are creatures of statute, and so is their jurisdiction.

2023We cannot augment it; we cannot ask them to do something Congress has not authorized them to do,” and reversing criminal trial proceedings before a magistrate based on the absence of consent); Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 , 907-08 (3d Cir. 1992) (stating that 18 U.S.C. § 3401 (b) “explicitly provides that ‘the magistrate’s criminal trial jurisdiction depends on the defendant’s specific, written consent,’” and reversing defendant’s contempt convictions because the defendant did not consent to be tried by the magistrate judge (citations omitted)); see also United States

2023We cannot augment it; we cannot ask them to do something Congress has not authorized them to do,” and reversing criminal trial proceedings before a magistrate based on the absence of consent); Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 , 907-08 (3d Cir. 1992) (stating that 18 U.S.C. § 3401 (b) “explicitly provides that ‘the magistrate’s criminal trial jurisdiction depends on the defendant’s specific, written consent,’” and reversing defendant’s contempt convictions because the defendant did not consent to be tried by the magistrate judge (citations omitted)); see also United States

2020The first facet of such a hearing involves “a wholly retrospective factual question: whether the 20 See State v. Ranstead, 421 P.3d 15, 19-20 (Alaska 2018). 21 Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (second alteration in original) (footnote omitted) (citation omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972)). -11- 7463 [probationer] has in fact acted in violation of one or more conditions of his [probation].” . . .

2020This is not to suggest that a probation revocation proceeding is the same as a criminal trial.57 Since probationers have already been convicted, they do not stand in the same position as ordinary citizens.58 Therefore, the full protections of criminal law and procedure often do not apply to probationers.59 We merely note that the “principle 55 Jordan v. State, 420 P.3d 1143, 1149 (Alaska 2018) (citing Hazelwood, 946 P.2d at 883 ). 56 Id. at 1149 (emphasis in original) (footnotes omitted) (quoting Hazelwood, 946 P.2d at 883-84 ). 57 Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (“A probatio

2020This is not to suggest that a probation revocation proceeding is the same as a criminal trial.57 Since probationers have already been convicted, they do not stand in the same position as ordinary citizens.58 Therefore, the full protections of criminal law and procedure often do not apply to probationers.59 We merely note that the “principle 55 Jordan v. State, 420 P.3d 1143, 1149 (Alaska 2018) (citing Hazelwood, 946 P.2d at 883 ). 56 Id. at 1149 (emphasis in original) (footnotes omitted) (quoting Hazelwood, 946 P.2d at 883-84 ). 57 Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (“A probatio

2018When a judge is deciding what portion of a previously suspended term of imprisonment, if any, to impose, the judge must consider all available sentencing information, including “the seriousness of the original offense.”13 And when a judge determines that a probationer can no longer benefit from supervision, the judge “must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the new information at the initial sentencing.”14 10 State v. Sears, 553 P.2d 907, 910 (Alaska 1976); Demientief

2018When a judge is deciding what portion of a previously suspended term of imprisonment, if any, to impose, the judge must consider all available sentencing information, including “the seriousness of the original offense.”13 And when a judge determines that a probationer can no longer benefit from supervision, the judge “must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the new information at the initial sentencing.”14 10 State v. Sears, 553 P.2d 907, 910 (Alaska 1976); Demientief

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013See James v. State, 75 P.3d 1065, 1072 (Alaska App.2003). .

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2013Compare Hoeppner v. State, 918 N.E.2d 695, 700 (Ind.App.2009), and State v. Lumley, 267 Kan. 4 , 977 P.2d 914, 919-21 (1999) (both holding that the results of a polygraph examination are admissible in a probation revocation proceeding because a probation revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with more flexible procedures), and State v. Hammond, 218 Or.App. 574 , 180 P.3d 137, 141-42 (2008) (holding that polygraph results are admissible in probation revocation proceedings because those proceedings are not governed by the rules of evidence), with

2006See also Bland v. State, 846 P.2d 815, 817-18 (Alaska App.1993), where this Court applied the same rule to a case where, at the probation revocation hearing, the defendant rejected continued probation and demanded that his remaining suspended term of imprisonment be imposed in its entirety.

2006See Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977) (“A probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial[,] and proof beyond a reasonable doubt are required[.]”); Adams v. Ross, 551 P.2d 948, 950 (Alaska 1976); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); Snyder v. State, 496 P.2d 62, 63 (Alaska 1972); Hernandez v. State, 691 P.2d 287, 290 (Alaska App.1984).) Surrells’s case does not involve any potential increase in his maximum sentence.

2006See Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977) (“A probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial[,] and proof beyond a reasonable doubt are required[.]”); Adams v. Ross, 551 P.2d 948, 950 (Alaska 1976); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); Snyder v. State, 496 P.2d 62, 63 (Alaska 1972); Hernandez v. State, 691 P.2d 287, 290 (Alaska App.1984).) Surrells’s case does not involve any potential increase in his maximum sentence.