State v. Shambley
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Nebraska Advance Sheets
state v. shambley
Cite as 281 Neb. 317
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victim. The district court did not abuse its discretion in the
sentence imposed. The Court of Appeals did not err when it
rejected this assignment of error.
CONCLUSION
In this case on further review, raising various sentencing
issues, we conclude that the record is insufficient to rule on
Sidzyik’s claim of ineffective assistance of counsel. The record
shows that the sentencing court did not commit plain error
when it proceeded to sentence Sidzyik after the State failed to
remain silent at the sentencing hearing, in breach of the plea
agreement, and that the sentence imposed was not an abuse of
discretion. The Court of Appeals did not err when it affirmed
Sidzyik’s conviction and sentence.
Affirmed.
Wright, J., not participating.
State of Nebraska, appellee, v.
Samantha A. Shambley, appellant.
___ N.W.2d ___
Filed April 8, 2011.
No. S-10-556.
1. Due Process. The determination of whether the procedures afforded an individual
comport with the constitutional requirements for procedural due process presents
a question of law.
2. ____. Applying the Due Process Clause to the facts of any given case is an
uncertain enterprise which must discover what fundamental fairness consists of
in a particular situation by first considering any relevant precedents and then by
assessing the several interests that are at stake.
3. ____. Consideration of what procedures due process may require under any given
set of circumstances must begin with a determination of the precise nature of
the government function involved as well as of the private interest that has been
affected by governmental action.
4. Constitutional Law: Probation and Parole. The conditional liberty of a parolee
or probationer includes many of the core values of unqualified liberty and is,
therefore, an interest within the contemplation of the liberty or property language
of the 14th Amendment.
5. Probation and Parole: Due Process. At a hearing to determine revocation of
parole or probation, the following minimum due process protections apply: (1)
written notice of the time and place of the hearing; (2) disclosure of evidence;
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6.
7.
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(3) a neutral factfinding body or person, who should not be the officer directly
involved in making recommendations; (4) opportunity to be heard in person and
to present witnesses and documentary evidence; (5) the right to cross-examine
adverse witnesses, unless the hearing officer determines that an informant would
be subjected to risk of harm if his or her identity were disclosed or unless the
officer otherwise specifically finds good cause for not allowing confrontation;
and (6) a written statement by the fact finder as to the evidence relied on and the
reasons for revoking the conditional liberty.
Probation and Parole: Due Process: Evidence. A parole or probation revocation
hearing is not a criminal prosecution, and the process should be flexible enough
to consider evidence including letters, affidavits, and other material that would
not be admissible in an adversary criminal trial.
Courts: Probation and Parole: Due Process. Drug court program participants
are entitled to the same due process protections as persons facing termination of
parole or probation.
Courts: Probation and Parole: Evidence: Witnesses. Despite the flexible
standard for drug court program termination and parole or probation revocation
hearings which allows the consideration of hearsay evidence inadmissible under
the rules of evidence, absent a showing of good cause, the drug court participant,
parolee, or probationer has the right to confront adverse witnesses with personal
knowledge of the evidence upon which the termination or revocation is based.
Courts: Proof. In drug court termination proceedings, the State bears the burden of proving, by a preponderance of the evidence, the alleged grounds for
t
ermination.
Appeal from the District Court for Madison County: Robert
B. Ensz, Judge. Vacated in part, and in part reversed and
remanded with directions.
Melissa A. Wentling, Madison County Public Defender, and
Christopher Bellmore for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Connolly, Gerrard, Stephan, McCormack, and MillerLerman, JJ., and Irwin, Judge.
McCormack, J.
NATURE OF CASE
This case presents an appeal from a participant’s discharge
from the drug court program. The participant argues she was
See, Neb. Rev. Stat. §§ 24-1301 and 24-1302 (Reissue 2008); Neb. Ct. R.
§§ 6-1201 to 6-1209.
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denied her rights to due process and confrontation when no
adverse witnesses were available for cross-examination and the
only evidence considered in support of the alleged violations
of her drug court contract was a letter, written to the judge by
the drug court coordinator, and its attachments. This is the first
time we consider what process is due in drug court termination proceedings.
BACKGROUND
On December 23, 2008, Samantha A. Shambley pled guilty
to possession of a controlled substance, a Class IV felony, in
violation of Neb. Rev. Stat. § 28-416(3) (Reissue 2008). The
district court accepted the plea and adjudged her guilty of the
offense. In lieu of sentencing at that time, the court transferred
the case to the drug court program.
The drug court program is a postplea or postadjudicatory
intensive supervision drug and alcohol treatment program for
eligible offenders. The purpose of the program is to reduce
offender recidivism by fostering a comprehensive and coordinated court response composed of early intervention, appropriate treatment, intensive supervision, and consistent judicial
oversight. A drug court program participant pleads guilty and
agrees to the terms and conditions of the program in exchange
for the possibility of avoiding sentencing and, oftentimes,
being allowed to withdraw the plea upon successful completion of the program. If the participant is terminated from the
program or withdraws before successful completion, then the
conviction stands and the case is transferred back to the district
court for sentencing. Throughout this opinion, we have, for
convenience, used the term “drug court.” In this case, when
the term is used, it refers to the district court. There is not a
separate drug court under the Nebraska Constitution, and when
the term “drug court” is used, it simply refers to a program of
the district court, county court, or juvenile court, rather than to
a separate court.
§ 6-1206.
Id.
See § 24-1302.
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The parties agree that Shambley signed a drug court contract which, among other things, required that she stay drug
free. On August 28, 2009, Shambley appeared before a judge
of the drug court after reports that she had used marijuana.
Shambley admitted that she had used. Shambley promised
to try harder to comply with the terms and conditions of the
program. She was not represented by counsel, and no evidence
was adduced or specific findings made. In a written order, the
judge revoked Shambley’s bond for 72 hours, during which
time she was ordered incarcerated “for violations of [her] Drug
Court program.”
Similar proceedings occurred on November 13 and December
4, 2009. At the November 13 proceeding, the judge told
Shambley that she could not smoke marijuana and referred to
the fact that she had missed drug tests. Shambley neither specifically admitted nor denied having done so. Shambley again
told the judge that she wanted to stay in the program. The
judge revoked her bond for 72 hours and sent Shambley to jail
“for violations of [her] Drug Court program.” Shambley was
told that thereafter, she was to report to the drug court weekly.
These meetings are not in the record.
During her appearance on December 4, 2009, Shambley
admitted to having had another “setback.” She was sent to
spend the weekend in jail “for violations of [her] Drug Court
program.” She was ordered to report back on December 18, but
there is no record of any meeting on that date.
On February 5, 2010, Shambley appeared to discuss yet
another report of drug usage, which she neither admitted nor
denied. The judge warned Shambley that she was at risk for
termination from the drug court program.
On March 12, 2010, the judge again told Shambley that she
had tested positive for drugs. Shambley, however, denied that
she had used on the occasion in question. The judge informed
Shambley that this time, the drug court team had recommended
that she be terminated from the program. The judge scheduled an informal hearing to determine the issue of the recommended termination.
The hearing on termination was held on March 25, 2010.
For the first time, Shambley appeared with counsel. The court
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explained that it was Shambley’s burden to go forward with
showing why she should not be terminated from the program,
stating:
We have a termination hearing from the drug court. And
this is a non — I guess the term is informal hearing to
address that under our policy. And under the policy I
believe that [Shambley] has the responsibility of going
forward with that. Any evidence to remain as the recommendation of the drug court team has been to terminate
her from the drug court, and I’ve received a report. Have
you folks seen that . . . ?
The State did not argue any position as to the termination and
did not present any evidence or call witnesses. The judge noted
that he had received the letter from the drug court coordinator recommending Shambley’s termination. The letter and its
attachments were the only evidence in support of termination.
In the letter, the drug court coordinator alleged three instances
of drug usage for the court to consider at the termination hearing: (1) February 5, 2010, (2) March 11, 2010, and (3) March
19, 2010. The coordinator made a brief synopsis of Shambley’s
recent difficulties in following the drug court contract and
included five attachments as proof of those difficulties.
The first attachment was a discharge summary report from
the rehabilitation center where Shambley stayed from December
2009 to January 2010. The report summarized that Shambley
had relapsed three times while at a previous center and that that
was the reason for her transfer. The report stated that Shambley
made good progress at the center. She was discharged, with a
favorable prognosis, to a halfway house.
According to the drug court coordinator’s letter, the placement at the halfway house was unsuccessful. The second
attachment was a letter written by a therapist of a therapeutic
community where Shambley was admitted on February 9,
2010, apparently after her discharge from the halfway house.
The therapist stated that Shambley was admitted “due to her
continued substance use.” The therapist also stated that while
at the community, Shambley violated the conditions of a pass
when she skipped an appointment to go shopping and she
tested positive for marijuana on March 8, 2010.
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The third and fourth attachments were printouts from a
toxicology laboratory. Under the “result” column, one printout
showed “25.5 mg/dL” of creatinine from a sample collected
from Shambley on February 24, 2010. The other printout
showed “209.6 mg/dL” of creatinine and an indication in the
“positives” column adjacent to a result of “404 ng/mL” of
“THC” from a sample collected on March 8.
The final attachment, a printout of an e-mail from an unidentified author to an unidentified recipient, discussed the fact that
a February 24, 2010, drug test of Shambley was negative with
a weak concentration, but should nevertheless be considered a
positive result.
Shambley’s counsel objected to the court’s consideration
of the letter and its attachments on the grounds of hearsay
and lack of foundation. Counsel also argued that the manner
in which the report was received and in which the proceedings were being conducted violated Shambley’s rights to due
process and confrontation. Counsel argued that he was neither
able to adequately question the veracity of the unsworn hearsay allegations contained in the letter and its attachments nor
able to effectively examine the meaning and reliability of the
unauthenticated laboratory printouts.
The court overruled all objections. Shambley testified at the
hearing that she did not use illegal drugs on March 11, 2010.
She was not asked and did not discuss whether she had used
drugs on the other two occasions alleged by the drug court
coordinator as grounds for termination from the program.
The judge concluded that he agreed with the letter and its
attachments outlining Shambley’s “difficulties.” Apparently in
reference to prior meetings with Shambley and ex parte meetings with the drug court team, the judge said he was “certainly
. . . familiar with” these difficulties. He also observed that the
letter now “indicate[d] a positive test, which [he had] no reason
to dispute.”
Based on this evidence, the judge agreed with the drug court
team’s recommendation to discharge Shambley from the program. The judge found that keeping Shambley in the drug court
would not be in her best interests and would erode the integrity
of the drug court program. In light of Shambley’s discharge
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from the drug court program, the court scheduled a hearing in
the district court to determine Shambley’s sentence on the possession of a controlled substance conviction.
At the sentencing hearing, the same judge, now acting as
a judge of the district court, sentenced Shambley to 90 days’
incarceration with credit for 9 days served while awaiting
sentence. Shambley appeals her termination from the drug
court program.
ASSIGNMENTS OF ERROR
Shambley assigns that the lower court erred in (1) terminating Shambley from the drug court program without affording
her due process of law, in violation of the 14th Amendment to
the U.S. Constitution and corresponding sections of Nebraska
law; (2) placing the burden of proof on Shambley to go forward and show why she should not be terminated from the
drug court program, thereby violating her rights to due process
as guaranteed to her under the 14th Amendment to the U.S.
Constitution and corresponding sections of Nebraska law; (3)
receiving into evidence the probation report over Shambley’s
objections, thereby denying her the right to confront and
cross-examine witnesses against her; and (4) finding sufficient
evidence to terminate Shambley from the drug court program, insofar as the inadmissible report was the only evidence
against her.
STANDARD OF REVIEW
[1] The determination of whether the procedures afforded
an individual comport with the constitutional requirements for
procedural due process presents a question of law.
ANALYSIS
[2,3] In considering claims under the Due Process Clause
of the 14th Amendment, we first consider whether the nature
of the interest is one within the contemplation of the liberty or
Billups v. Nebraska Dept. of Corr. Servs. Appeals Bd., 238 Neb. 39, 469
N.W.2d 120 (1991); State v. Clark, 8 Neb. App. 525, 598 N.W.2d 765
(1999).
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property language of the 14th Amendment. If it is, we must
then determine what procedural protections the particular situa
tion demands, for “not all situations calling for procedural safeguards call for the same kind of procedure.” Applying the Due
Process Clause to the facts of any given case is an “uncertain
enterprise which must discover what ‘fundamental fairness’
consists of in a particular situation by first considering any rele
vant precedents and then by assessing the several interests that
are at stake.” Consideration of what procedures due process
may require under any given set of circumstances must begin
with a determination of the precise nature of the government
function involved as well as of the private interest that has been
affected by governmental action.
Conditional Liberty Interest
The U.S. Supreme Court has not had occasion to address
due process in the context of termination from problem-solving
diversion programs such as the drug court program. The Court
has, however, examined what procedures due process requires
in the revocation of parole or probation.10 In Morrissey v.
Brewer11 and Gagnon v. Scarpelli,12 the Court explained that
revocations of parole or probation deprive an individual of the
10
11
12
See, Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct.
2153, 68 L. Ed. 2d 640 (1981); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct.
1983, 32 L. Ed. 2d 556 (1972); Doe v. Board of Regents, 280 Neb. 492,
788 N.W.2d 264 (2010).
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484
(1972).
Lassiter v. Department of Social Services, supra note 6, 452 U.S. at 2425.
Id.; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed.
2d 1230 (1961).
Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985);
Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221
(1983).
Morrissey v. Brewer, supra note 7.
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656
(1973).
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“conditional liberty properly dependent on observance of special . . . restrictions.”13
[4] The Court said that such liberty, although indeterminate
and perhaps a “‘privilege,’” includes many of the core values
of unqualified liberty and is, therefore, an interest within the
contemplation of the liberty or property language of the 14th
Amendment.14 It is a condition very different from confinement in a prison; the parolee or probationer is still able to do
“a wide range of things.”15 For instance, subject to conditions,
the parolee or probationer may be “gainfully employed and is
free to be with family and friends and to form the other enduring attachments of normal life.”16 Termination of this conditional liberty inflicts a “‘grievous loss’”17 and “calls for some
orderly process.”18
To determine exactly what process is due, the Court balanced
the individual’s interest in his or her conditional liberty with
the interests of the State. Because the termination of parole or
probation does not deprive an individual of the absolute liberty
to which every citizen is entitled, that having already been
taken away upon conviction, the Court held that the process a
parolee or probationer is due does not include “the full panoply
of rights due a defendant in [a criminal prosecution].”19 The
Court described that the State has “an overwhelming interest in
being able to return the individual to imprisonment without the
burden of a new adversary criminal trial if in fact he has failed
to abide by the conditions of his parole.”20 A full-blown adversary process, moreover, may be “less attuned to the rehabilitative needs of the individual probationer or parolee.”21
13
Morrissey v. Brewer, supra note 7, 408 U.S. at 480.
See id., 408 U.S. at 482.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id., 408 U.S. at 480.
20
Id., 408 U.S. at 483.
21
Gagnon v. Scarpelli, supra note 12, 411 U.S. at 787-88.
14
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On the other hand, the Court concluded that there is no
necessity for summary treatment of the parolee or probationer
and that revocation is not such a discretionary matter that
some form of hearing would be “administratively intolerable.”22
Furthermore, “[s]ociety has a stake in whatever may be the
chance of restoring [the parolee or probationer] to normal and
useful life within the law.”23 To this extent, the State shares
the parolee’s or probationer’s “interest in not having parole
[or probation] revoked because of erroneous information or
because of an erroneous evaluation of the need to revoke parole
[or probation], given the breach of . . . conditions.”24
Having considered the weight of the relative interests at
stake, the Court concluded that before a parolee or probationer
is deprived of his or her conditional liberty, there must be “an
informal hearing structured to assure that the finding of a . . .
violation will be based on verified facts and that the exercise
of discretion will be informed by an accurate knowledge” of
the parolee’s or probationer’s behavior.25 At such a hearing, the
parolee or probationer is entitled to an opportunity to show that
he or she did not violate the conditions and, where discretion
exists, that there was a justifiable excuse for any violation or
that revocation is not the appropriate disposition.26
[5] More specifically, the Court held that due process
requires, at a minimum, both a preliminary hearing at or near
the time of arrest, to determine whether there is probable
cause or reasonable ground to believe that the parolee or probationer has committed acts that would constitute a violation
of his or her conditions, and another opportunity for a hearing
before the final finding of a violation and decision of revocation.27 In both hearings, the following minimum due process
22
Morrissey v. Brewer, supra note 7, 408 U.S. at 483.
Id., 408 U.S. at 484.
24
Id.
25
Id.
26
See Black v. Romano, supra note 10.
27
Morrissey v. Brewer, supra note 7.
23
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protections apply: (1) written notice of the time and place of
the hearing; (2) disclosure of evidence; (3) a neutral factfinding body or person, who should not be the officer directly
involved in making recommendations; (4) opportunity to be
heard in person and to present witnesses and documentary evidence; (5) the right to cross-examine adverse witnesses, unless
the hearing officer determines that an informant would be
subjected to risk of harm if his or her identity were disclosed28
or unless the officer otherwise “‘specifically finds good cause
for not allowing confrontation’”29; and (6) a written statement by the fact finder as to the evidence relied on and the
reasons for revoking the conditional liberty.30 In addition, the
parolee or probationer has a right to the assistance of counsel
in some circumstances where the parolee’s or probationer’s
version of a disputed issue can fairly be represented only by a
trained advocate.31
[6] Beyond this, the Court described the required procedure
as “flexible” and subject to further refinement by the states.32
The Court reiterated that a parole or probation revocation
hearing is not “a criminal prosecution” and that the process
should be “flexible enough to consider evidence including
letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”33 In Morrissey, the Court
also noted that if it turned out that the parolee had admitted
parole violations to the parole board, and if those violations
were found to be reasonable grounds for revoking parole under
28
Id.
Gagnon v. Scarpelli, supra note 12, 411 U.S. at 786.
30
Id. See, also, Black v. Romano, supra note 10; United States v. Smith, 767
F.2d 521 (8th Cir. 1985); United States v. Rilliet, 595 F.2d 1138 (9th Cir.
1979); State v. Moreno, 21 Ariz. App. 462, 520 P.2d 1139 (1974); State v.
Fortier, 20 Or. App. 613, 533 P.2d 187 (1975); State v. Myers, 86 Wash. 2d
419, 545 P.2d 538 (1976).
31
See Gagnon v. Scarpelli, supra note 12.
32
Morrissey v. Brewer, supra note 7, 408 U.S. at 489.
33
Id.
29
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state standards, then that “would end the matter.”34 In Young
v. Harper,35 the U.S. Supreme Court held that preparole, early
release programs were sufficiently similar to parole and probation to require the same due process protections.
Application of Morrissey and Gagnon to Drug Courts
Shambley argues that a participant in the drug court program
has a conditional liberty interest in continuing in the program
similar to the conditional liberty interests of participants in
preparole, early release programs; parolees; and probationers.
She asserts that she should thus be afforded the same due proc
ess protections and that those protections were not afforded in
this case.
We have never directly addressed this question. In In re
Interest of Tyler T.,36 we were asked to consider whether the
State complied with due process in revoking the probation of
a juvenile adjudicated delinquent and sent to a drug treatment
court program as a condition of his probation. The revocation
was based on an alleged positive drug test. We vacated the
detention order because of the absence of either a verbatim
record of the hearing or a written order. We held that due
process requires a written record when a judge of a problems
olving court conducts a hearing and enters an order affecting the terms of the juvenile’s probation. “[W]here a liberty
interest is implicated in problem-solving-court proceedings, an
individual’s due process rights must be respected.”37
[7] The majority of other courts considering the issue have
determined that participants facing termination from postplea diversion programs, such as the drug court program,
are entitled to the same due process protections as persons
34
Id., 408 U.S. at 490.
Young v. Harper, 520 U.S. 143, 117 S. Ct. 1148, 137 L. Ed. 2d 270
(1997).
36
In re Interest of Tyler T., 279 Neb. 806, 781 N.W.2d 922 (2010).
37
Id. at 811, 781 N.W.2d at 925.
35
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facing termination of parole or probation.38 We agree. While
restrictions upon the liberty of drug court participants may
depend on their individual program plans, participants are
not imprisoned, and, like parolees or probationers, they may
still do a wide range of things.39 Participants are generally
allowed to live at home and maintain gainful employment.
They are allowed to be with family and friends and form the
other enduring attachments of normal life, so long as these
relationships are not a detriment to their rehabilitation.40 The
termination of the conditional liberty granted drug court participants inflicts a “‘grievous loss’”41 similar to the loss of
parole or probation.
The State’s interests, as in parole or probation, include an
interest in being able to terminate participation in the program
without the burden of a full adversary criminal trial.42 But perhaps even more so than in parole or probation, the State has little necessity for summary treatment.43 Drug court participants
must generally plead guilty in order to qualify for the program,
and the State thereby avoids the burden of a full adversary
trial in the first instance. Furthermore, in order to qualify for
the program, the crime cannot be a crime of violence and the
offender must not have a significant criminal history of crimes
of violence. Thus, the risk inherent to any delay caused by conducting a termination hearing is minimal.
38
State v. Rogers, 144 Idaho 738, 170 P.3d 881 (2007); Gosha v. State, 931
N.E.2d 432 (Ind. App. 2010); Hagar v. State, 990 P.2d 894 (Okla. Crim.
App. 1999); State v. Varnell, 137 Wash. App. 925, 155 P.3d 971 (2007).
See, also, Torres v. Berbary, 340 F.3d 63 (2d Cir. 2003); People v. Bishop,
7 P.3d 184 (Colo. App. 1999); People v. Anderson, 358 Ill. App. 3d 1108,
833 N.E.2d 390, 295 Ill. Dec. 557 (2005); State v. Devatt, 173 N.J. Super.
188, 413 A.2d 973 (1980); Harris v. Com., 279 Va. 541, 689 S.E.2d 713
(2010); State v. Cassill-Skilton, 122 Wash. App. 652, 94 P.3d 407 (2004).
39
Morrissey v. Brewer, supra note 7.
40
Id.
41
Id., 408 U.S. at 482.
42
Id.
43
Id.
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As with parole and probation, it is in the State’s interests
that drug court participants are restored to a normal and useful
life. This is, after all, the point of the program. Accordingly,
the State, like the participant, has an interest in seeing that
there is a termination process which ensures participants are
not terminated from the program because of erroneous information or because of an erroneous evaluation of the need
to terminate.44
Considering the relative interests in the drug court program
together with those of parole or probation, their balance is
essentially the same. Therefore, the minimal due process to
which a parolee or probationer is entitled under Morrissey and
Gagnon also applies to participants in the drug court program.
Case law decided in Nebraska setting forth minimum due
process for parolees and probationers is equally applicable to
our drug courts. We expect drug court termination proceedings to be conducted similarly to hearings terminating parole
or probation.
Termination Hearing Violated Due Process
Applying these standards, we conclude that Shambley’s termination hearing did not comport with the minimal due process
to which a drug court participant is entitled. The drug court
coordinator’s letter and its attachments, considered without
establishing foundation or reliability and containing statements
made without personal knowledge, were insufficient to sustain
the State’s burden of proof. In addition, the failure to proffer
any witness for Shambley to cross-examine as to the veracity
of those statements, and the soundness of the recommendation
to terminate, violated Shambley’s right to cross-examination as
set forth in Morrissey and Gagnon.45
In State v. Mosley46 and State v. Clark,47 our courts addressed
the Morrissey/Gagnon right to cross-examine. In Mosley, we
44
Id.
See, Gagnon v. Scarpelli, supra note 12; Morrissey v. Brewer, supra
note 7.
46
State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975), overruled on other
grounds, State v. Kramer, 231 Neb. 437, 436 N.W.2d 524 (1989).
47
State v. Clark, supra note 5.
45
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reversed an order revoking probation, because the probationer
was denied his right to confront and cross-examine the inform
ant regarding his alleged probation violation. The probationer
was alleged to have robbed a store. The evidence of the robbery consisted of the testimony of the investigating officer at
the hearing, who related the hearsay statements of a store clerk
describing the robbers and suggesting that one of them might
have left a fingerprint on a freezer door. The State also presented a technician’s testimony that a fingerprint in the store
matched the probationer’s fingerprints. We observed that there
was no finding, as required by Morrissey, of good cause for
denying the probationer his right to confront the store clerk.
Therefore, the court could not deny the defendant his right to
cross-examination:
The Morrissey requirement [of the right to confront and
cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation] reserves to the defendant the right to confront
and cross-examine adverse witnesses unless the hearing
officer specifically finds good cause for not allowing
confrontation. In State v. Kartman, [192 Neb. 803, 224
N.W.2d 753 (1975)], this court stated: “Persons who
have given adverse information should be available for
questioning unless the hearing officer determines that
they would be subjected to risk of harm if their identity
were disclosed.”48
The probationer’s objection at the hearing claiming hearsay and the right to confrontation was sufficient to preserve
these rights.49
Subsequently, in Clark,50 the Nebraska Court of Appeals
reversed an order revoking probation, when the State failed to
present the laboratory technician to establish foundation for the
urine screening test upon which the revocation was based. At
the hearing, the probation officer testified that he had conducted
48
State v. Mosley, supra note 46, 194 Neb. at 744, 235 N.W.2d at 404.
Id.
50
State v. Clark, supra note 5.
49
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the test on the probationer and sent the specimen to a laboratory
for analysis, and the State offered a copy of the laboratory test
result showing positive for marijuana. The district court overruled the probationer’s objection that there was no evidence as
to the specific procedures followed or the specific tests done
and no opportunity to cross-examine the person who conducted
the test. The Court of Appeals held that by denying the probationer his right to confront the technician who conducted the
test, the district court denied the probationer’s rights to due
process as stated in Gagnon. While the court acknowledged
that the Nebraska Evidence Rules do not apply to proceedings
for revocation of probation,51 minimum due process, the court
explained, includes the right to confront and cross-examine
adverse witnesses unless the hearing officer specifically finds
good cause for not allowing confrontation.
[8] Despite the flexible standard which allows the consideration of hearsay evidence inadmissible under the rules of evidence, absent a showing of good cause, the drug court participant, parolee, or probationer has the right to confront adverse
witnesses with personal knowledge of the evidence upon which
the termination or revocation is based.52 Not a single adverse
witness was available for Shambley to cross-examine, despite
her protests that she was thus unable to adequately challenge
the evidence against her. The drug court denied Shambley her
right to cross-examination without making any findings that
there was good cause to disallow it. In this manner, she was
deprived of her right to procedural due process.
[9] In addition, we agree with Shambley that the State failed
to sustain its burden of proof when the sole evidence against
her was the drug court coordinator’s letter and its accompanying attachments, consisting of hearsay and hearsay within
hearsay and considered without specific findings of reliability.
While the burden of proof is not a point specifically discussed
in Morrissey or Gagnon, it is understood that the State carried
51
52
See Neb. Rev. Stat. § 27-1101(4)(b) (Reissue 2008).
See, State v. Mingua, 42 Ohio App. 2d 35, 327 N.E.2d 791 (1974); Jones
v. Com. Pennsylvania Bd. of Probation and Parole, 47 Pa. Commw. 438,
408 A.2d 156 (1979); State v. Styles, 166 Vt. 615, 693 A.2d 734 (1997).
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a greater burden of proof at the final revocation hearing than at
the preliminary “probable cause” hearing. Other jurisdictions
specifically hold that minimal due process demands that the
State bear the burden of showing the grounds for revocation of
parole or probation by a preponderance of the evidence.53 While
the Nebraska Legislature, through Neb. Rev. Stat. § 29-2267
(Reissue 2008), has set forth a higher standard of proof in
the case of violations of probation, we agree that the minimal
standard under the Due Process Clause is a preponderance of
the evidence. Having found no significant variance between the
respective interests in parole and probation and those involved
in postplea diversion, we conclude that the minimal preponderance of the evidence standard should also apply to demonstrating the alleged grounds for terminating a participant from the
drug court program. The State and Shambley agree that this is
the proper standard.
53
Rich v. State, 640 P.2d 159 (Alaska App. 1982); State v. Gerlaugh, 134
Ariz. 164, 654 P.2d 800 (1982), modified on other grounds 135 Ariz. 89,
659 P.2d 642 (1983); Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d
735 (1990); People v. Rodriguez, 51 Cal. 3d 437, 795 P.2d 783, 272 Cal.
Rptr. 613 (1990); State v. Davis, 229 Conn. 285, 641 A.2d 370 (1994);
Harris v. U.S., 612 A.2d 198 (D.C. 1992); Rita v. State, 470 So. 2d 80
(Fla. App. 1985); People v. Wadelton, 82 Ill. App. 3d 684, 402 N.E.2d 932,
37 Ill. Dec. 930 (1980); Jaynes v. State, 437 N.E.2d 137 (Ind. App. 1982);
Calvert v. State, 310 N.W.2d 185 (Iowa 1981); State v. Carter, 5 Kan.
App. 2d 201, 614 P.2d 1007 (1980); Rasdon v. Com., 701 S.W.2d 716 (Ky.
App. 1986); State v. La Casce, 512 A.2d 312 (Me. 1986); Wink v. State,
317 Md. 330, 563 A.2d 414 (1989); Commonwealth v. Holmgren, 421
Mass. 224, 656 N.E.2d 577 (1995); People v Ison, 132 Mich. App. 61, 346
N.W.2d 894 (1984); Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304
(1982); State v. Reyes, 207 N.J. Super. 126, 504 A.2d 43 (1986) (superseded by statute on other grounds as stated in State in Interest of S.T., 273
N.J. Super. 436, 642 A.2d 422 (1994)); People v. Hemphill, 120 A.D.2d
767, 501 N.Y.S.2d 503 (1986); State v. Saavedra, 406 N.W.2d 667 (N.D.
1987); McCaskey v. State, 781 P.2d 836 (Okla. Crim. App. 1989); State v.
Donovan, 305 Or. 332, 751 P.2d 1109 (1988); Com. v. Brown, 503 Pa. 514,
469 A.2d 1371 (1983); Lloyd v. State, 574 S.W.2d 159 (Tex. Crim. App.
1978); State v. Hodges, 798 P.2d 270 (Utah App. 1990); State v. Begins,
147 Vt. 295, 514 A.2d 719 (1986); State ex rel. Thompson v. Riveland, 109
Wis. 2d 580, 326 N.W.2d 768 (1982); Krow v. State, 840 P.2d 261 (Wyo.
1992).
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The U.S. Supreme Court has said that the required procedure
is flexible enough to allow consideration of evidence, including letters, affidavits, and other material that would not be
admissible in an adversary criminal trial. Nevertheless, the sole
reliance on hearsay evidence in parole and probation hearings,
especially when no findings of substantial reliability are made,
is generally considered a failure of proof.54 No lesser standard
should be applied to drug court termination proceedings. As
one court said, “Although evidentiary rules may be relaxed
somewhat at a revocation hearing, . . . they cannot be relaxed
to the point where a parole violation may be proved entirely by
unsubstantiated hearsay testimony.”55
Few instances can be found, such as the one with which we
are now presented, where the only evidence against the participant is letters and printouts with not even a single witness testifying in support of these documents. Needless to say, courts
confronted with such a record find the evidence insufficient.56
The State here, in fact, did not present a case. It did not proffer
evidence, call any witnesses, or make any argument as to its
position at the discharge hearing. Yet the drug court imposed
upon Shambley the burden to show that the statements against
her were untrue and that she had not violated the conditions of
her liberty.
We disagree with the State’s argument that it made a prima
facie case and that the drug court was merely shifting the burden to Shambley to rebut it. A prima facie case is made by an
amount of evidence sufficient to counterbalance the general
presumptions of innocence if not overthrown by evidence
54
See, State v. Portis, 187 Ariz. 336, 929 P.2d 687 (Ariz. App. 1996); Collins
v. State, 897 A.2d 159 (Del. 2006); Glenn v. State, 558 So. 2d 513 (Fla.
App. 1990); Goodson v. State, 213 Ga. App. 283, 444 S.E.2d 603 (1994);
State v. Rochelle, 877 So. 2d 250 (La. App. 2004); Com. v. Foster, 77
Mass. App. 444, 932 N.E.2d 287 (2010); Com. v. Ortiz, 58 Mass. App.
904, 788 N.E.2d 599 (2003); State ex rel. Henschel v. H&SS Department,
91 Wis. 2d 268, 282 N.W.2d 618 (Wis. App. 1979).
55
State ex rel. Henschel v. H&SS Department, supra note 54, 91 Wis. 2d at
271, 282 N.W.2d at 619 (citation omitted).
56
Torres v. Berbary, supra note 38; Ex parte Belcher, 556 So. 2d 366 (Ala.
1989); State v. Mingua, supra note 52.
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c
ontradicting it.57 There was very little in the way of “evidence”
at Shambley’s hearing—certainly not enough to make a prima
facie case. While we understand that the judge was familiar
with Shambley’s history, this does not diminish Shambley’s
right to have a hearing “structured to assure that the finding of
a . . . violation will be . . . informed by an accurate knowledge”
of her behavior.58 In this case, the court conducted something
more akin to a summary procedure than a hearing commensurate with the interests at stake in depriving a person of conditional liberty.
While we acknowledge, as the State points out, that on some
prior occasions before the drug court, Shambley appeared to
admit certain acts of drug usage, we note that she was less
clear on other occasions. Most importantly, she adamantly
denied having used drugs on the occasion for which the drug
court team finally recommended her termination. Therefore,
Shambley did not waive her due process right to have the State
prove by a preponderance of the evidence the alleged drug
court contract violations for which her participation was to be
terminated, at a hearing conducted in accordance with the principles set forth in Morrissey and Gagnon. The drug court failed
to conduct such a hearing, and we must reverse.
CONCLUSION
We reverse the order of termination and vacate Shambley’s
sentence, which was imposed after her termination from the
program. We remand the cause for a new hearing before the
drug court, conducted in accordance with the principles set
forth above, to determine the extent to which Shambley violated the terms of the drug court contract and the appropriate
action to be taken.
Vacated in part, and in part reversed
and remanded with directions.
Heavican, C.J., and Wright, J., not participating.
57
58
See Mantell v. Jones, 150 Neb. 785, 36 N.W.2d 115 (1949).
See Morrissey v. Brewer, supra note 7, 408 U.S. at 484.
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