10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN RESERVATION
KINGSTON, WASHINGTON
Port Gamble S’Klallam Tribe, Plaintiff/Appellee,
v.
Stacy Callihoo, Defendant/Appellant.
No. POR-Cr-06/95-044 and -098; 12/00-201; 1/01-006 and -007; 03/03-017, -072 and -073; 04/11-082 and -083 (August 14, 2012)
SYLLABUS*
Trial court revoked probation ordered in several criminal proceedings, and accepted prosecutor’s calculation of time remaining to be served in jail. Court of Appeals holds (1) probationer was deprived of due process because the probationer was not provided notice of all the probation violations he had allegedly committed and the trial court failed to enter findings of fact and conclusions of law identifying the evidence relied upon and the reasons for its decision; (2) the trial court erred by failing to establish the terms of probation in each case and which terms had been violated; and (3) the trial court failed to enter findings of fact and conclusions of law sufficient to justify its acceptance of the prosecutor’s calculation of time remaining to be served. Trial court order reversed with instruction that probationer be released from jail within twenty days unless prosecutor files new motion for probation revocation that satisfies due process requirements.
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Eric Nielsen, Chief Judge; Lisa M. Vanderford-Anderson, Judge; Douglas Nash, Judge. |
OPINION
Nielsen, C. J.:
FACTS AND PROCEDURAL HISTORY
Appellant, Stacy Callihoo, appeals from the Port Gamble S’Klallam Community Court’s commitment order revoking his probation and suspended sentences in the above cause numbers
10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012) p. 125
and imposing 813 days of confinement in jail. Appellant was unrepresented by counsel at the December 21, 2011 revocation hearing and is unrepresented on appeal.
In his notice of appeal, appellant seeks review of the sentence, including whether he was entitled to any good time credits he may have earned while serving the unsuspended time imposed in each cause numbers. In addition, he asserts the Judge the acted maliciously, and based on that assertion he requests a change in venue. He further requests his release pending the appeal.
We found the notice of appeal timely, and on April 6, 2012 we entered an order directing the parties to file briefs and scheduling oral argument. We warned the parties that failure to comply with the order could result in restricting their right to “participate further in the review process.” Scheduling Order, April 6, 2012, at 2.
We then reviewed the record in order to rule on appellant’s change of venue and request for release. Our review showed appellant’s assertion about the judge was baseless and his release pending appeal inappropriate.
Our review, however, also revealed the Community Court did not enter any written findings of fact or conclusions of law identifying the factual basis for its order, the terms of probation in each cause number where the suspended sentences were revoked, the actual sentences imposed in those cause numbers, how the court reached the conclusion that 813 days was the total aggregate time suspended, and whether appellant was entitled to any earned good time credits for the unsuspended jail time he previously served under each cause number. We ruled that under the Indian Civil Rights Act (ICRA), 25 U.S.C.A. 1302(8),1 and the United States Supreme Court’s decisions in Morrissey v. Brewer, 408 U.S. 471, 489 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), written findings and conclusion as to the evidence the Community Court relied on and the reasons for revoking probation were necessary to satisfy due process under the ICRA, as well as necessary to enable meaningful appellate review. See, Order, February 27, 2012, at 3-4.
On February 27, 2012, this Court entered an order denying appellant’s request for a change of venue and release pending the appeal. The Court’s February 27 order also remanded the case for entry of a written order correcting the Community Court’s failure to state “precisely which of the prior decisions of the Community Court actually included suspended sentences and probation being revoked, which decisions and records would need to be produced for review by the Court of Appeals, the terms of probation in each of those cases, or how the Community Court calculated the amount of time remaining to be served.” Order, February 27, 2012, at 3-4.
10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012) p. 126
On February 28, 2012, the Community Court entered a written Order On Probation Revocation with findings and conclusions.2 The court concluded appellant violated the terms of probation in all the above cause numbers. The court specifically found he violated the terms of probation because he committed violations of law, failed to comply with ordered drug and alcohol treatment, failed to meet with his probation officer, failed to report to the court, failed to comply with court ordered drug testing, tested positive for drugs, and escaped from electronic home monitoring (EHM). Order on Probation Revocation, February 28, 2012, at 1. The court’s written order revoked appellant’s probation and suspended sentences in the above cause numbers and ordered he serve the suspended jail time: a total of 813 days. The court also ruled appellant was not “entitled to ‘good time’, an administrative practice non-judicial procedure wherein a jail facility may subtract jails [sic] days imposed, if the inmate has an amount of good behavior days while incarcerated within its facility.”3 Id.
On May 8, 2012, we revised our scheduling order so the parties could address the Community Court’s February 28, 2012 written order. We directed appellant to file his brief by June 1, 2012 and the Tribe to file its reply by June 15, 2012. The parties did not file any briefs so we cancelled the scheduled oral argument and now decide this case based solely on the record.
DISCUSSION
The record shows on November 16, 2011, appellant entered a guilty plea in cause numbers POR-CR-04/11-082 and 04/1-083 (assault and indecent liberties). Appellant was sentenced to serve 365 days in jail for each offense. On the assault conviction 125 days were
10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012) p. 127
suspended, and on the indecent liberties conviction all 365 days were suspended. The sentences were suspended on the condition appellant serve 120 days in jail, 75 days on EHM and 45 days in a treatment facility, in addition to other conditions. In paragraph H of the judgment and sentence it states the total sentence is 670 days with 430 days suspended.4
On November 19, 2011, the Community Court signed an order in cause numbers POR-Cr-04/11-082 and –083 releasing appellant to EHM on November 20, 2011. On November 29, 2011 the probation officer filed a motion and unsigned affidavit requesting appellant be placed back into custody. The officer alleged appellant violated the terms of his probation by leaving the EHM inclusion zone on November 24 and November 26, 2012. In a November 30, 2012 order, the Community Court denied the motion, but provided that it could be resubmitted with additional information identifying the specific probation terms that were allegedly violated and facts supporting the allegations. On November 30, 2012, the probation officer filed a new motion supported by a signed affidavit, terms of the Tribe’s EHM program signed by appellant, maps identifying the boundaries of the EHM inclusion zone and appellant’s alleged transgressions. On December 1, 2011, the Community Court Judge issued a warrant for appellant’s arrest. Later that day, informed of the warrant by the probation officer, appellant cut the strap on the EHM GPS unit.
Appellant was arrested. On December 20, 2011 appellant was served notice of the above described alleged violations of probation. Appellant was also charged with escape for cutting off the GPS unit and leaving the proscribed area.
On December 21, 2011 an arraignment was held on the escape charge. The Community Court also held a probation revocation hearing that same day. Appellant requested a court appointed attorney to represent him at the revocation hearing. The Judge explained the Tribe does not provide counsel for probation revocation hearings, but that appellant could retain counsel at his own expense. Following that explanation, appellant then admitted he violated the terms of his probation by leaving the exclusion zone and cutting off the GPS unit. Based on the admission, the judge revoked appellant’s probation in cause numbers POR-CR-04/11-082 and 04/1-083 as well as probation in cause numbers POR-Cr-06/95-044, 098, POR-Cr-12/00-201, POR-Cr-1/01-006, 007, and POR-Cr-03/03-017-072, 073. The Tribe informed the court based on the suspended sentences in all the cause numbers appellant should be ordered to serve the remaining 813 days in jail. The court ordered appellant to serve 813 days.
The Port Gamble S’Klallam Tribal Code provides that “[a]ll accused persons shall be guaranteed all civil rights secured by the ‘Indian Civil Rights Act’, United States Code Title 25 Sections 1301 - 1303 as it may be amended from time to time and as interpreted by the Community Court.” PGSTC 2.06.04. Section 2.06.05 provides that Section 3.06.05 of the
10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012) p. 128
Tribal Rules of Civil Procedure shall also apply to criminal proceedings. Section 3.06.05 provides that in deciding actions, “the Community Court shall first look at the written laws, codes, ordinances and resolutions of the Port Gamble S’Klallam Tribe,” but may also “be guided by the law developed by other jurisdictions.” See In re the Welfare of D.D., 3 NICS App. 269, 270, (Port Gamble S’Klallam Tribal Ct. App. 1994) (tribal, state and federal law can be used as guidance).
We have previously held that under the ICRA, at a minimum procedural due process requires notice, the ability to present witnesses and evidence, the right to cross examination, and the opportunity to be heard in a fair hearing before a neutral fact finder. In re the Welfare of D.D., 3 NICS App. at 270. We also held in our prior order that in the context of a probation revocation hearing there must be written findings of fact and conclusions of law “by the factfinder as to the evidence relied on and the reasons for revoking” probation. See infra at 126 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). We find neither the Community Court’s written commitment order nor its findings and conclusions entered on February 28, 2012 meet the minimal procedural due process requirements under the ICRA.
The Community Court Judge does not identify in his February 28th order the evidence relied on to find appellant violated the terms and conditions of probation by committing a violation of law (escape). Presumably the Community Court relied on appellant’s admission he left the EHM inclusion zone and removed the GPS unit. If this were the only problem we would likely find any procedural error harmless. It is not.
The Community Court also found appellant failed to comply with ordered drug and alcohol treatment, failed to meet with his probation officer, failed to report to the court, failed to comply with court ordered drug testing, and tested positive for drugs. There is nothing in the record to show appellant was given notice of those allegations. For purposes of minimal due process, proper notice must set forth all alleged violations so that a probationer has the opportunity to marshal the facts in his defense. Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. Likewise, there is no evidence in the record that shows in what cause numbers these were conditions of his probation (if they were), and the Tribe presented no evidence to support the Community Court’s findings those conditions were violated. See PGSTC 7.03.04 (appellate court reviews Community Court’s findings under the clearly erroneous standard); see also Holland v. Boeing Co., 90 Wn.2d 384, 390, 583 P.2d 621 (1978) (substantial evidence must support a court’s findings).
In addition, the record and the Community Court’s written findings and conclusions are woefully inadequate to allow for meaningful appellate review. The Community Court makes no findings regarding how much jail time was suspended in cause numbers POR-Cr-06/95-044, 098, POR-Cr-12/00-201, POR-Cr-1/01-006, 007, and POR-Cr-03/03-017-072, 073. And, in cause numbers POR-Cr-04/11-082, 083, it appears from the face of the judgment and sentence the
10 NICS App. 124, PORT GAMBLE S’KLALLAM TRIBE v. CALLIHOO (August 2012) p. 129
calculation of the suspended jail time is inconsistent when paragraphs D, E and H are compared. The inadequate record and findings and conclusions make it impossible to determine if the 813 days imposed is the actual aggregate suspended jail in the above cause numbers.
In sum, the Tribe failed to provide appellant with proper notice, there is insufficient evidence to support the Community Court’s factual findings, and the Community Court’s Order on Probation Revocation lacks any findings indentifying the amount of jail time suspended in each cause number and whether appellant earned any good time credits for the time he served under each cause number. We hold for these reasons appellant’s due process rights under 25 U.S.C.A. 1302(8) were violated.
ORDER
We reverse the Community Court’s Order On Probation Revocation. The Tribe can file another motion to revoke appellant’s suspended sentences. It must serve appellant with a proper notice alleging what terms and conditions of probation he violated under each cause number. If the Tribe does not file a motion to revoke appellant’s probation within 20 days from the date of this decision, the Community Court shall order appellant’s release from any jail time he is currently serving as a result of the revocation of his probation.
If, however, the Tribe chooses to file another motion and another hearing is held, the Tribe must present evidence to prove each allegation unless appellant admits to the allegation. And, following any hearing, if the Community Court revokes appellant’s suspended sentences, it must enter sufficient written findings of fact and conclusions of law identifying the evidence relied on, the reasons for revoking appellant’s probation in each cause number, the amount of jail time suspended in each cause number, whether appellant receives credit for time served on EHM prior to his trial in cause numbers POR-Cr-04/11-082 and -083 (and if so, how much), and whether appellant earned any good time credits on the time he previously served in each cause number. See PGSTC 7.08.01 (the appellate court may “reverse, affirm, or modify the Community Court decision being reviewed and take any other action as the merits of the case and the interest of justice may require).
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
“No Indian tribe in exercising powers of self-government shall … deprive any person of liberty or property without due process of law.”
The Community Court’s February 28, 2012 Order On Probation Revocation included the subcaption “Reiteration of 12-21-2011 Review Hearing Order.” The Community Court’s December 21, 2011 Order On Review Hearing was provided to the Court of Appeals for the first time as an attachment to the February 28, 2012 Order. The two orders are substantially the same, except in that the 2011 order finds appellant “compliant” with requirements that he report to court, whereas the 2012 “reiteration” states he failed to report to court, and the 2011 order finds appellant in contempt of court, while the 2012 “reiteration” makes no mention of contempt.
It is unclear if the Community Court’s ruling concerning “good time” was prospective, retrospective, or both. The text of the Court’s December 21, 2011 and February 28, 2012 orders both suggest it was prospective only. However, a motion filed by the Tribe on November 18, 2011 to clarify the sentencing order in cause numbers POR-Cr-04/11-082 and -083, which does not appear to have been ruled on by the Court, raises a question as to whether appellant received “credit for time served” when appellant was on EHM prior to trial in those matters. The Tribe’s motion to clarify also argues that appellant should only receive “credit for actual jail time already served,” raising a question as to whether appellant earned administrative good time credit not factored into the calculation that that 813 days remained to be served. The motion states “The Tribe concedes that though discussed during plea negotiations, at no time did the Tribe consider allowing the Defendant any ‘good time off’ of his one hundred and twenty days to serve in jail.” Thus, while the Judge’s intent may have been to only deny “good time” credit prospectively, in adopting the Prosecutor’s recommendation of time remaining to be served, the Judge may have also effectively denied appellant “good time” that he already earned. Because the Court’s probation revocation order lacks any findings or conclusions concerning the time owed in each case, it is impossible to tell how any of these issues were resolved.
It is unclear how the sentence was calculated, given that there is a sixty (60) day discrepancy between paragraphs D and E, on the one hand, and paragraph H on the other, concerning both the total sentence and the time suspended.