Summary 2008 WY 93

Summary of Decision issued August 14, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: DeMillard v. State

Citation: 2008 WY 93

Docket Number: S-07-0290

Appeal from the District Court of Carbon County, the Honorable Norman E. Young, Judge.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Director, PAP; Brian Hunter, Student Director, PAP; Jonah Buckley, Student Intern.

Facts/Discussion: The district court denied DeMillard’s requests to modify the terms of his probation or to discharge him from probation. He claimed his constitutional rights were violated because he was not present during the hearing on his motions.
A criminal defendant has the right to be present during every critical stage of his criminal proceeding. The State argued that a post-sentencing probation modification hearing is not a critical stage in a criminal prosecution because it is not part of the criminal prosecution at all. The Court reviewed the Supreme Court’s decisions in Morrissey v. Brewer and Gagnon v. Scarpelli. Because post-sentencing revocation proceedings are not part of the criminal prosecution, they are not governed by the specific constitutional provisions requiring a defendant’s attendance. Due process principles do apply to probation revocation hearings because there is a potential for loss of liberty. Wyoming statutes and regulations recognize that a defendant is entitled to a hearing on a petition to revoke his probation. Wyo. Stat. Ann § 7-13-304(a) indicates the court can modify the conditions of probation at any time. The Court has ruled that even in the context of criminal prosecution, when a hearing is not necessary, attendance by the defendant is not constitutionally required. Since DeMillard was not entitled to a hearing on his motions, the court was not required to assure his attendance at the hearing.
DeMillard argued that the proceedings pertained to his fundamental right to associate with his children, thereby implicating constitutional protections including the right to attend the hearing on his motions. The argument failed to acknowledge that his right to associate with his children had already been limited in his sentence which included the condition in his probation that he have no contact with them.

Holding: DeMillard’s motions to modify the conditions of his probation or release him from probation were not part of his criminal prosecution and the specific constitutional, statutory and procedural rules requiring a defendant’s attendance during the criminal prosecution did not apply.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/6e6azw .

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