Opinion
Court of Appeals No. 06CA1301.
January 10, 2008.
Otero County District Court No. 02CR307, Honorable Michael Schiferl, Judge.
The People appeal the district court's order dismissing the probation revocation complaint brought against defendant, Bert Lewis. We reverse and remand the case to the district court to reinstate the complaint.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Rodney R. Fouracre, District Attorney, Pamela F. Mucklow, Deputy District Attorney, La Junta, Colorado, for Plaintiff-Appellant.
Douglas K. Wilson, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.
I. Background
On April 16, 2003, defendant pleaded guilty to one count of possession of a schedule II controlled substance, in violation of section 18-18-405(1)(a), (2)(a)(I), C.R.S. 2007, and the district court sentenced defendant to three years of supervised probation.
On April 6, 2004, defendant's probation officer filed a complaint and report of probation officer, alleging that defendant violated the terms of his probation by driving under restraint and by failing to notify his probation officer of his new address, maintain reporting requirements, obtain employment, pay for his substance abuse evaluation, and pay restitution.
The People moved the court to amend the complaint on June 15, 2004, to allege that defendant had also violated condition number 13 of his probation, use of a controlled substance, by "unlawfully possessing methamphetamine" when stopped by police officers on October 15, 2003, in Garden City, Kansas (the Kansas stop). The amended complaint also alleged two other probation violations in connection with the Kansas stop, including traveling out of the state without permission and failing to report the stop to his probation officer. On July 13, 2004, the court granted the People's motion to amend the complaint.
On July 15, 2004, at the probation revocation hearing, defendant's counsel objected to the amendment of the complaint, arguing that he did not have adequate time to prepare to defend against the new allegations because the court did not grant the motion until two days before the hearing. The district court allowed the amendment. However, the court further ruled that because the prosecutor had not complied with C.R.C.P. 121, and had not set an earlier hearing, the court would hear only the original allegations on that date and the amended allegations at a later date. In response to the court's invitation to set the amended allegations for a second hearing date, the prosecutor refused, saying, "[N]o, I'm not gonna ask [the detective witness who had been subpoenaed to the July 15, 2004 hearing] to come back." The prosecutor did not ask to continue the subpoena or to strike the amendment to the complaint.
After the hearing, the court concluded that defendant violated the terms of his probation by committing the traffic offense of driving while under restraint beyond a reasonable doubt. The court also determined that defendant violated the terms of his probation by failing to report his new address to his probation officer, failing to report to his probation officer, and being willfully unemployed.
At the sentencing hearing on September 16, 2004, over defendant's counsel's objection, the court allowed the prosecutor to argue the facts of the Kansas stop, even though no evidence regarding that stop had been received at the revocation hearing. The district court then modified defendant's probation to four years of intensive supervised probation.
On March 8, 2005, defendant pleaded guilty in Kansas to possession of methamphetamine and possession of anhydrous ammonia and was sentenced on April 8, 2005, to probation to run concurrently with his probation in Colorado.
On October 24, 2005, defendant's probation officer filed another complaint and report of probation officer, alleging that defendant violated condition number 1 of his probation, breaking a local, state, or federal law, when he pleaded guilty in Kansas to possession of methamphetamine and possession of anhydrous ammonia.
Defendant filed a motion to dismiss the complaint, arguing that the allegations in the complaint were barred by the compulsory joinder rule, the doctrines of issue preclusion and claim preclusion, and double jeopardy, or, alternatively, that the allegations in the complaint could not be grounds for revocation because they occurred before he was resentenced.
In addition to responding to defendant's motion to dismiss, the People amended the complaint to allege that defendant committed the offenses of possession of methamphetamine and possession of anhydrous ammonia.
After a hearing, the district court granted defendant's motion, concluding that the allegations in the complaint were barred by the doctrines of issue preclusion and claim preclusion. The court found that "the issues arising out of the arrest of [defendant] in Kansas were before the Court and the People chose not to continue the hearing and did not prove them at the hearing." The court further found that the "issues are the same because they arise out of the same act of [defendant]."
II. Issue Preclusion and Claim Preclusion The People contend that the district court erred in granting defendant's motion to dismiss because the doctrines of issue preclusion and claim preclusion do not apply to probation revocation proceedings and that, even if they did, they are not applicable here. We conclude that the doctrines of issue preclusion and claim preclusion apply in probation revocation proceedings, but that the court erred in applying those doctrines to bar the People's complaint in the second probation revocation proceeding under the facts and circumstances present here.
A. Applicability to Probation Revocation Proceedings
The People urge us to conclude that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) do not apply to probation revocation proceedings because a defendant in a probation revocation proceeding is not entitled to the full panoply of due process rights that a defendant is entitled to in a criminal prosecution. We disagree.
While we agree that probation revocation proceedings are informal and that a defendant's due process rights are limited, we see no reason to conclude that the fundamental principles contained in the doctrines of issue preclusion and claim preclusion should not apply in a probation revocation proceeding. The People cite no case, and we have found none, supporting this proposition and barring the application of these doctrines in a probation revocation proceeding.
Even though a defendant is not entitled to the full panoply of due process rights in a probation revocation proceeding, the proceeding is nevertheless criminal in nature. See Byrd v. People, 58 P.3d 50, 55 (Colo. 2002) ("The purpose of a probation revocation hearing is to consider the conduct of the defendant after an adjudication of guilt and to assess the correctness of the original sentence."). The doctrines of issue preclusion and claim preclusion are applicable in criminal proceedings. See id. at 53 (issue preclusion is applicable in criminal cases when it benefits the defendant); People v. Allee, 740 P.2d 1, 4 (Colo. 1987) (same); see also People ex rel. Farina v. District Court, 191 Colo. 225, 227, 553 P.2d 394, 396 (1976) (claim preclusion is applicable in criminal proceedings); Trujillo v. People, 178 Colo. 136, 140, 496 P.2d 1026, 1028 (1972) (same); People v. Fennell, 32 P.3d 1092, 1096 (Colo.App. 2000) (same).
Although a probation revocation proceeding might be described as quasi-administrative due to its informality as compared to a criminal trial, even if we were to conclude that a probation revocation proceeding is entirely administrative in nature, the doctrines of issue preclusion and claim preclusion are applicable in administrative proceedings. See Red Junction, LLC v. Mesa County Board of County Commissioners, ___ P.3d ___, ___ (Colo.App. No. 06CA0864, Sept. 20, 2007).
Further, the public policies underlying the doctrine of issue preclusion — namely, preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment due to vexatious litigation, see Byrd, 58 P.3d at 54 — are promoted by applying the doctrine to probation revocation proceedings.
We therefore perceive no reasonable basis for barring the application of these doctrines in probation revocation proceedings.
The People's reliance on Thompson v. Reivitz, 746 F.2d 397 (7th Cir. 1984), for the proposition that the doctrine of issue preclusion is not applicable in probation revocation proceedings is misplaced. In Thompson, the defendant sought to preclude, on double jeopardy grounds, a second probation revocation complaint when the order revoking his probation in the first proceeding was vacated. The Seventh Circuit ruled that the protections against double jeopardy did not apply. That court did not decide whether issue preclusion may be applicable to bar a second probation revocation proceeding. Instead, the court summarily dismissed the notion that the defendant had raised an issue preclusion claim when it characterized it as a restatement of his double jeopardy claim.
B. Issue Preclusion
The doctrine of issue preclusion bars relitigation of an issue when (1) the issue sought to be precluded is identical to an issue that was actually and necessarily decided in a prior proceeding; (2) there was a final judgment on the merits in the prior proceeding; (3) there is an identity of parties or privity between the parties against whom the doctrine is asserted; and (4) the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. See Byrd, 58 P.3d at 54; Allee, 740 P.2d at 4.
Although courts have viewed the doctrine of issue preclusion as "being embodied in the Fifth Amendment's guarantee against double jeopardy," Byrd, 58 P.3d at 54; Allee, 740 P.2d at 4, the doctrine is not so narrow as to require that double jeopardy be involved before it may be applied, see Allee, 740 P.2d at 4-5; Farina, 191 Colo. at 228, 553 P.2d at 396.
Here, the amended first complaint alleged that defendant violated condition number 13 of his probation when he unlawfully possessed methamphetamine. Condition number 13 is violated by use of a controlled substance. The second complaint alleged that defendant violated condition number 1 of his probation when he pleaded guilty to possession of methamphetamine and possession of anhydrous ammonia. A violation of condition number 1 is predicated on a violation of a local, state, or federal law. These alleged violations each arose out of the same set of facts and circumstances — the Kansas stop. Nonetheless, we conclude that the relitigation of an issue is not precluded where the burden of persuasion as to that issue is lighter in a second proceeding.
The elements of issue preclusion are met with regard to the issue of whether defendant unlawfully possessed methamphetamine, because the issue is identical in both proceedings and was actually and necessarily decided in the first proceeding. The court granted the People's motion to amend the complaint to add that allegation, the court offered to set a hearing at which the People could present evidence to prove that allegation, the People refused to do so, and the People thereafter failed to present any evidence to support that allegation.
Next, the court's order disposing of the People's first probation revocation complaint was a final judgment on the merits, see People v. Hallman, 44 Colo. App. 530, 532, 624 P.2d 347, 348 (1980), aff'd, 652 P.2d 173 (Colo. 1982), and the parties in the first and second probation revocation proceedings were identical.
Finally, the People had a full and fair opportunity to litigate the issue in the first probation revocation proceeding, because the court offered to set a hearing to receive evidence concerning the alleged violation but the prosecutor refused.
But even when the elements of issue preclusion are satisfied, a court should allow relitigation of an issue when one of the exceptions set forth in section 28 of the Restatement (Second) of Judgments (1980) applies. See Byrd, 58 P.3d at 54; see also Williamsen v. People, 735 P.2d 176, 182 (Colo. 1987). Section 28(4) states that relitigation of an issue is not precluded when "[t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action."
Here, in the first probation revocation proceeding, the People were required to prove that defendant unlawfully possessed methamphetamine beyond a reasonable doubt. See § 16-11-206(3), C.R.S. 2007 ("the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding"). In the second probation revocation proceeding, however, the People were required only to prove defendant's conviction of possession of methamphetamine by a preponderance of the evidence. See id.
Accordingly, the People had a significantly heavier burden of proof in the first proceeding with respect to the issue of whether defendant unlawfully possessed methamphetamine than in the second proceeding. We therefore conclude that the doctrine of issue preclusion does not bar the People's second probation revocation complaint.
C. Claim Preclusion
The doctrine of claim preclusion "bars a subsequent action when parties or parties in privity have previously litigated the claim to a valid, final judgment." Byrd, 58 P.3d at 53 n. 4.
Claim preclusion applies in a second judicial proceeding when (1) the first judgment is final; (2) the subject matter is identical; (3) the claims for relief are identical; and (4) the parties are identical or a party in the second judicial proceeding was in privity with a party in the first one.
Meyer v. State, 143 P.3d 1181, 1185 (Colo.App. 2006); see also Cruz v. Benine, 984 P.2d 1173, 1176 (Colo. 1999). "In addition, the party against whom claim preclusion is sought must have had a full and fair opportunity to litigate the issue in the first proceeding." Meyer, 143 P.3d at 1185. The doctrine of claim preclusion bars litigation of issues actually decided, as well as those that could have been, but were not, raised in the first proceeding. See Cruz, 984 P.2d at 1176; see also Meyer, 143 P.3d at 1185.
Although the court's order in the first proceeding was final, the claims for relief were identical, and the parties were identical, the subject matter in the second proceeding was different. The claim in the first proceeding was that defendant violated the conditions of his probation by use of a controlled substance, whereas, the claim in the second proceeding was that he violated the conditions of his probation when he was convicted of two felonies. The People could not have claimed that defendant had been convicted of the felony of possession of methamphetamine and the felony of possession of anhydrous ammonia in the first proceeding, because defendant had not yet been convicted of those crimes. Because the nature of the claim changed, we conclude that the doctrine of claim preclusion did not bar the People's second probation revocation complaint.
III. Remaining Issues
Although it is not clear from the record whether the district court addressed the remaining issues raised by the People on appeal, we address them here because it is likely that those issues will arise again on remand.
A. Double Jeopardy
The People argue that the concept of double jeopardy is not applicable to probation revocation proceedings. We agree.
The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also Colo. Const. art. II, § 18. "The doctrine serves three purposes: (1) to protect against a second prosecution for the same offense after acquittal; (2) to protect against a second prosecution for the same offense after conviction; and (3) to protect against multiple punishments for the same offense." People v. Preuss, 920 P.2d 859, 860 (Colo.App. 1995); see also United States v. Dinitz, 424 U.S. 600, 606 (1976) (the Double Jeopardy Clause "protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense").
The constitutional guarantee against double jeopardy is not applicable in probation revocation proceedings because "the function of those proceedings is not to punish a defendant for a new crime." Preuss, 920 P.2d at 861; see Breed v. Jones, 421 U.S. 519, 528 (1975) (the risk related to the constitutional guarantee against double jeopardy is that "traditionally associated with a criminal prosecution"). Rather, the function of a probation revocation proceeding is limited to ascertaining the correctness of a defendant's sentence in light of conduct that occurs after he has already been convicted and sentenced to probation. See Preuss, 920 P.2d at 861; see also Byrd, 58 P.3d at 55.
We therefore conclude that double jeopardy is not applicable to defendant's probation revocation proceedings.
B. Mandatory Joinder
The People next contend that the compulsory joinder provisions are not applicable to probation revocation proceedings. Again, we agree.
Defendant argued below that the People were required to bring all the offenses that arose out the Kansas stop in the first probation revocation proceeding under the compulsory joinder rule. Defendant's reliance on section 18-1-408(2), C.R.S. 2007, is misplaced.
Under section 18-1-408(2), all offenses must be prosecuted in a single prosecution when they are based on the same act or series of acts arising from the same criminal episode. See also Crim. P. 8(a).
We "afford statutory language its ordinary and common meaning to effectuate legislative intent, giving effect to every term and provision while harmonizing potentially conflicting provisions, if possible." People v. Moses, 64 P.3d 904, 906-07 (Colo.App. 2002). The plain language of section 18-1-408(2) limits its application to a criminal "prosecution." A criminal prosecution is a criminal proceeding in which an accused is tried for the crimes with which he is charged and may result in a conviction.
A probation revocation hearing is not a criminal prosecution because the hearing cannot result in a conviction. See Byrd, 58 P.3d at 55 (a probation revocation proceeding considers the conduct of a defendant after an adjudication of guilt to assess the correctness of the original sentence). We therefore conclude that the compulsory joinder rule is not applicable to probation revocation proceedings.
C. Timing of Defendant's Conduct
The People argue that the complaint may allege a violation of defendant's probation that preceded the modification of his probation. We need not address this argument, because we conclude that the violations alleged in the second probation revocation complaint occurred after defendant's probation was modified, at the time his convictions of possession of methamphetamine and possession of anhydrous ammonia were entered in Kansas.
IV. Conclusion
The order is reversed, and the case is remanded to the district court to reinstate the complaint.
JUDGE LOEB and JUDGE ROMÁN concur.