
    STATE of Louisiana, Respondent, v. Clara RIDEAU, Relator.
    No. 64630.
    Supreme Court of Louisiana.
    Nov. 1, 1979.
    Wilford D. Carter, Lake Charles, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Terry J. Johnson, Abbott J. Reeves, Asst. Dist. Attys., for respondent.
   TATE, Justice.

The defendant’s probation was revoked. We granted certiorari, 371 So.2d 270 (1979), on the defendant’s contention that her probation was revoked without affording her an opportunity to explain mitigating circumstances relating to her probation violations.

I.

Clara R. Rideau, an indigent, pleaded guilty to nineteen counts of issuing worthless checks, La.R.S. 14:71, in the total amount of $914.20. She was sentenced to one year in the parish jail on one count (a check in the amount of $114.75), and to 30 days each on the remaining counts (checks under one hundred dollars), all sentences to run concurrently. The sentences were suspended, and the defendant placed on two years’ supervised probation, with restitution as a special condition.

The defendant had pleaded guilty on February 9, 1978. On March 1, 1979, a year later, the defendant’s probation officer alleged violations of four of the ten statutory conditions of probation, including that she had failed to pay $713.70 of the restitution payments, which she had agreed to pay in full by February 1, 1979. The probation officer recommended that the defendant’s probation be revoked.

The defendant was called before the court to answer to the charge of probation violations on March 12, 1979. When asked by the judge if she had violated the conditions of her probation, she replied, “in a way I violated it and in a way I didn’t.” Asked if she needed witnesses to testify she said she thought she could explain her position to the judge. She then accepted the trial judge’s offer to fix a hearing at a later date and a hearing was then fixed for March 28, 1979.

At the March 28, 1979, hearing another judge presided. The defendant was not represented by counsel. The judge read each of the charges and asked defendant if the facts were correctly stated. To each question she replied in the affirmative.

After these affirmative responses, the trial court asked the defendant if there was any reason why her probation should not be revoked. When she attempted to explain, the judge variously replied, “I’m not interested in that,” “I don’t care about any explanations,” “You were told to explain these things to your probation officer, not to me.”

II.

Inadvertently or otherwise, the judge expressed an attitude that any probation violation requires revocation if the probation officer so recommends it. This approach, however, discards both the duties and discretion vested in the revoking court by the legislature.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court emphasized that parole and probation revocation hearings are comprised of two analytically distinct components. The first is a determination of whether there was indeed a violation of the probation conditions. If it is determined that there was such a violation, the court must then consider whether reconfinement or some less drastic alternative is the best solution to both protect society and improve the defendant’s chances of rehabilitation. This second step is “not purely factual, but predictive and discretionary.” Morrissey, 408 U.S. at 480, 92 S.Ct. at 2599-2600.

In Louisiana, once a violation has been established, the range of the court’s discretion is delimited by La.C.Cr.P. art. 900. By this, the court is allowed to reprimand and warn the defendant, order that supervision be intensified, add additional conditions to the probation, or, in the most drastic case, order that the probation be revoked. While the trial court is entrusted with much discretion, an abuse thereof is reviewable by this court. State v. Lassai, 366 So.2d 1389 (La.1978); State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).

Both to prevent such an abuse of discretion and to guarantee a defendant minimal due process, the Supreme Court formulated certain basic guidelines for parole and probation revocation hearings. They include: “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey, at 408 U.S. at 489, 92 S.Ct. at 2604.

Accord, Baggert v. State, 350 So.2d 652 (La.1977); State v. Harris, 368 So.2d 1066 (La.1979).

By allowing the probation officer to make the determination of which sanction should be authorized for the violations, the judge effectively denied the defendant a hearing before a “neutral and detached” body.

As was recognized in Gagnon v. Scarpelli, 411 U.S. at 785, 93 S.Ct. at 1761, “an exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation. Even though the officer is not by this recommendation converted into a prosecutor committed to convict, his role as a counsellor to the probationer or parolee is then surely compromised.”

III.

The trial court therefore was in error in refusing to listen to the defendant’s explanations for her violations and in abdicating its responsibility (not the probation officer’s) to determine whether the drastic remedy of revocation was appropriate under the circumstances.

The revocation of probation should therefore be set aside, and the case remanded for further hearing.

Additionally, although the defendant did not request appointment of counsel prior to the request in her application to this court, counsel should be appointed to represent her. Even though the violations are not contested, “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present” by an uneducated defendant. Gagnon, 411 U.S. at 790, 93 S.Ct. at 1764. See also Baggert v. State, 350 So.2d 652 (La.1977).

Decree

Accordingly, the revocation of probation is set aside, and this case is remanded to the district court for further proceedings consistent with the views expressed by us.

PROBATION REVOCATION SET ASIDE; CASE REMANDED.

SUMMERS, C. J., dissents and assigns reasons.

MARCUS, J., dissents.

SUMMERS, Chief Justice

(dissenting).

Clara R. Rideau was charged with nineteen counts of issuing worthless checks amounting to $914.21, a violation of Article 71 of the Criminal Code. At arraignment she stated that she had employed counsel but waived counsel’s presence at that time. When the case was fixed for trial on September 6, 1977 defendant failed to appear. On motion of the prosecutor her bond was forfeited and a warrant was issued for her arrest. Later the bond forfeiture was recalled and set aside.

On February 9, 1978, while represented by counsel, she pled guilty to one count involving a check worth $141.75 and was sentenced to one year in the parish jail. For issuing each of the remaining worthless checks, all involving less than $100, she received sentences to run concurrently with the one-year sentence. The terms of imprisonment were suspended, and defendant was placed on two years’ probation, with restitution as scheduled a special condition.

In a March 1, 1979 letter to the district court, defendant’s probation officer alleged violations óf four of the ten statutory conditions of probation, and failure to make restitution payments on schedule. The letter set forth that defendant had failed to report to the probation officer on at least four separate occasions; refused to permit visits to her home; failed to make the majority of the restitution payments; and that monthly reports for the last ten months of 1978 were either late or not completed at all. The probation agent’s description of the violations is replete with narrations of efforts made by her to help defendant comply with the conditions of probation. The report also makes clear defendant’s disregard for the orders of the sentencing court.

Defendant was called before the court to answer to the charge of probation violations on March 12, 1979. When asked by the judge if she had violated the conditions of her probation, she replied, “in a way I violated it and in a way I didn’t.” Asked if she needed witnesses to testify she said she thought she could explain her position to the judge. She then accepted the trial judge’s offer to fix a hearing at a later date and a hearing was then fixed for March 28, 1979.

At the March 28, 1979, hearing another judge presided, and defendant was not represented by counsel. The judge read each of the charges and asked defendant if the facts were correctly stated. To each question she replied in the affirmative. When asked if there was any reason why her probation should not be revoked she explained that she had saved money to complete the restitution but her son had gotten into trouble in Houston. She also said that she could explain some of the reason for the late reporting, but the judge did not want to hear her. It was his opinion that she should have made those explanations to the probation agent. Thereupon the trial judge revoked defendant’s probation and ordered her to serve the deferred sentence. Later that same day the sentencing judge stayed execution of the sentence until defendant could arrange for the care of her children.

Certiorari was granted by this Court to consider the defense contention that defendant’s probation could not be revoked unless she was advised of her right to counsel at the hearing and granted the opportunity to explain the violations.

At her arraignment defendant advised that she had retained counsel and he was present later on the day set for trial. The inference is that he was then her retained counsel. Upon her counsel’s advice she pled guilty-. He witnessed her signature to the Waiver of Constitutional Rights and Plea of Guilty form on that occasion. She was then fully advised of her right “To be represented at all times in the proceedings, including appeal, by counsel of . [her] choice or by a court-appointed attorney at no cost if she lacked funds to employ one.”

As pointed out heretofore, although she was represented by counsel at her guilty plea, she was not represented at either of the two appearances connected with the probation revocation hearing. Nor was she advised again of her right to counsel. She is, however, represented by retained counsel at this time.

While the defense recognizes the lack of any statutory right to counsel at probation and parole revocation hearings, she argues the right to counsel based on the Sixth Amendment to the United States Constitution, and Section 13 of Article I of the Louisiana Constitution. The courts have declined to adopt such an absolute rule based on the right to counsel provisions, in general holding that an absolute right to counsel applies only to the criminal proceedings or prosecution itself. Probation or parole revocation hearings are different, the courts hold, in that they are designed to be steps in rehabilitation rather than punishment.

Here the defendant was fully aware of her rights and made no request for counsel. I see no substantial reason for requiring counsel in' this case where defendant frankly admitted all four violations, explaining the gravest violation, failure to make restitution. Apparently the explanation was not considered acceptable, either because not credible or because the trial judge found that it was not a proper justification for the violation under the circumstances. Defendant’s offer to explain her failure to report as required by the order granting probation was also considered irrelevant in light of the probation agent’s report of those and other violations.

It will serve little purpose to set aside the order revoking defendant’s probation and remand this case for another revocation hearing in which defendant would again make the same explanation for failing to comply with the order to make restitution. Whatever explanation she might make with regard to the other violations, it would not change the trial judge’s opinion, for he held further explanation irrelevant.

On this record, the detailed report of the probation agent, attached to this opinion as an appendix, amply supports the ruling of the trial judge. This is not a question of guilt or innocence. It is a question of defendant’s failing to cooperate in the trial court’s effort to rehabilitate her. Furthermore, this case is not a question of substituting the opinion of the majority for that of the trier of fact; it is a question whether the trial judge has abused his discretion.

I would uphold the ruling of the trial judge.

APPENDIX

March 1, 1979

Honorable District Judge

14th Judicial District Court

P. 0. Box 3209

Lake Charles, LA 70602

RE: RIDEAU, Clara J.

CSU# 2839-77

Dear Judge:

On February 9, 1978 the above-named individual appeared before His Honor Judge L. E. Hawsey, Jr. and entered a plea of guilty to a charge of worthless check in the amount of $141.75. She was sentenced to serve one year in the Calcasieu Parish Jail, however, this sentence was suspended and she was placed on two years probation with a special condition that she make restitution in this matter and in all other cases listed on the court minutes. On all these charges she entered a plea of guilty and was sentenced to serve thirty days in the Calcasieu Parish Jail on each charge, with sentences to run concurrently. These are suspended with the condition that she make restitution in one year.

Since being placed on probation supervision, Clara Rideau has violated the following conditions of her probation.

Condition No. 3 — Report to your Probation Officer as directed. Letters were written to Clara advising her to report to my office on 8/1/78 and again on 8/17/78. However, she failed to appear on either of these dates. She was instructed by telephone on 8/24/78 to report to my office on 9/5/78. She failed to do so. She was issued a travel permit on 9/18/78. On this permit she was instructed to report to me upon her return. Her travel permit expired on 9/25/78. She failed to report upon her return. I learned that she had come back to Lake Charles when I went by her home on 11/15/78. While she was in Houston for medical reasons, I wrote a letter to her mother at the address given on her travel permit instructing her to get in touch with me by November 2, 1978. She did not report until November 16, 1978 after my visit to her home the previous day. On January 3, 1979, I visited her at a neighbor’s home and told her she needed to come to the office and complete some reports. She did not report until January 25, 1979 after I had been to her home the previous date with the intention of arresting her.

Condition No. 4 — Permit the Probation Officer to visit you at home or elsewhere. In effect subject denied this officer permission to visit at her home due to the fact that she failed to report her return to Lake Charles after being issued a travel permit on 9/18/78.

Condition No. 7 — Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by your offense in an amount determined by court, if any, as follows: Subject has made partial restitution but failed to comply with the court order signed by Judge Hawsey on June 23, 1978.

Condition No. 10 — Make a full and truthful report at the end of each month to your Probation Officer. All reports for March, April, May, June, July, August, September, October, November and December of 1978 were either late or not completed at all. On January 25, 1979, she completed four monthly supervision reports but failed to put the months for which she was reporting. She has been so inconsistent in reporting that subject does not even know which months she. is reporting for. She has been counseled on several occasions regarding these conditions that she has been violating but thus far it seems to have little effect.

Special Condition No. 11 — That she make restitution within one year. Subject has failed to complete all her restitution payments remaining to be paid, which is $713.70.

Because of the above violations, we are recommending that she be returned to court on Monday, March 5, 1979 and that her probation be revoked.

Sincerely,

/s/ Bonnie Landry Probation & Parole Agent II

BL:am

cc: HQO

District Attorney — Leonard Knapp, Jr.

CGM

Subject 
      
      . The violations alleged are:
      (a) She had failed to report to the probation officer on three occasions during 1978, and had failed to report back after receiving a travel permit for medical attention in Houston expiring 9/25/78 until 11/16/78; (b) that she was delinquent in her monthly reports during 1978, and that her report of January 25, 1979, which attempted to complete delinquent reports was incomplete — that “she has been so inconsistent in reporting that subject does not even know what months she is reporting for;” (c) that she failed to make restitution according to the schedule and within the year agreed upon. The fourth (d) violation complained of is ultra-technical: “In effect subject denied this officer permission to visit at her home due to the fact that she failed to report her return to Lake Charles after being issued a travel permit on 9/18/78” — it is actually a duplication of the (a) violation.
     
      
      . The full colloquy is as follows:
      “THE COURT: Any reason why your probation should not be revoked?
      “MRS. RIDEAU:' Well, Your Honor, I had saved by money to make my restitution, but my son got in some trouble in Houston, and 1 can explain some of my reasons for being late reporting.
      “THE COURT: Well, I’m not interested in that. You did not do the things that you promised to do when you were on probation. Your probation is revoked and the original sentences are carried out. Remand you to the Sheriff. All right; thank you. Who is next?
      “MRS. RIDEAU: Your Honor could I explain something, please?
      “THE COURT: I asked you if these were correct and you told me yes. Now, what . I don’t care about any explanations.
      “MRS. RIDEAU: I’m not . . .
      “THE COURT: You were told to explain these things to your probation officer, not to me. Now, you can’t tell me that you didn’t get to Court . .1 mean to the probation officer for seven months. You were either late or you didn’t report at all. Now, you don’t have to explain that to me. You have to explain that to her.”
     
      
      . The defendant was an indigent widow with four children, aged 6 to 14. One reason for her delinquencies was that her little boy had been hit by a car, as she stated, Tr. 37, in attempting to explain why she had not paid the full nine hundred dollars within a year. There may have been more than the marginally deviant behavior to be tolerated from a probationer, but see footnote 1; however, there is no way that the revoking court could make that determination without listening to the mitigating explanation attempted by the probationer.
     