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JUSTICE PROGRAMS OFFICE SCHOOL OF PUBLIC AFFAIRS BUREAU OF JUSTICE ASSISTANCE (BJA) DRUG COURT CLEARINGHOUSE FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated Subject: Sentencing Judges For Drug Court Participants Who Are Terminated From: Caroline S. Cooper, Director, BJA Drug Court Clearinghouse Date: July 31, 2006 Patricia Lancaster, public defender in Rutland, Vermont, firstname.lastname@example.org, has raised the following issue relating to the sentencing of drug court participants who are terminated from the drug court: 1. In your drug court program, does the drug court judge also sentence participants who are terminated for failure to comply with program requirements? or does a different judge perform the sentencing function? 2. If the drug court judge also performs the sentencing function, have any ethical concerns been raised regarding the judge’s potential use of confidential information for sentencing purposes which was made available to the judge while the participant was enrolled in the drug court program? Note: After reviewing initial responses to this inquiry, Patti Lancaster supplemented her initial inquiry regarding ethical issues to also address conflicts of interest – e.g., “how can a terminated participant and his or her attorney feel comfortable that there is not even the appearance of impropriety, that is, that the state and the judge are not even “subconsciously” using confidential information learned from Team meetings that would not even be known but for the Drug Court, in sentencing a former participant. As an example: Defendant has a number of minor driving under suspension cases, or a shoplifting charge. Because his real issue is the addiction, he keeps violating court conditions on his pre-trial release, and winds up incarcerated pre-trial. He hears about drug court and asks to be screened for eligibility. His eligibility means he has a drug problem which would not have been known by the state or the judge but for drug court. Now he gets terminated [or decides not to accept the drug court referral]. If terminated, the Court public record will show a referral to drug court and termination, so this is public and an issue we should be sure our clients are aware of when they decide to go to the Drug Court. But what about information that came out in team meetings [or just by virtue of the drug court screening] about his instability, etc.? Where he might have gotten a fine or diversion or, at worst, probation in the past, the State will not offer these because they know of his instability and are concerned that without a “higher level of supervision” he will be a risk of harm to himself or others because he is an untreated addict? How can a defendant be assured that the Drug Court system will not allow confidential information to infect subsequent proceedings, or even give the appearance that it has?” If any respondents – or others – which to supplement the responses to this “FAQ” provided below to address the conflict of issues Patti has raised, we will be happy to distribute them in a supplementary “FAQ”. This “FAQ” is organized in two parts: • Part One provides a summary of the responses received from drug court programs (which reflect a range of approaches, the rationale for which is more specifically discussed by many of the respondents; and • Part Two provides a summary of three state supreme court cases (Iowa, Kentucky, and Oklahoma) that address issues relevant to this inquiry. PART ONE: RESPONSES ALASKA Judge Keith B. Levy Therapeutic Court Juneau, Alaska KLevy@courts.state.ak.us I preside over the Juneau Therapeutic Court (a drunk driving court) and when a defendant is terminated, I also do the sentencing. Our policies provide: The defendant’s statements made in or out of court in conjunction with participation in the therapeutic court program may not be used at sentencing. However, the court will consider the record of the defendant’s treatment, including sanctions imposed, during participation in the therapeutic court. The court may also consider the fact that the defendant failed to satisfactorily complete the Therapeutic Court Program. CALIFORNIA Commissioner Ron Albers San Francisco Drug Court San Francisco, California email@example.com In San Francisco, we have both motions to revoke probation (MTR) and some Deferred Entry of Judgment (DEJ). For the DEJ matters, the sentence is articulated and the sentence will usually be imposed in my court. Like Portland, I do not see an ethical issue since the terms were agreed in full at the time of plea. For the probation matters, there is always a supplemental report from probation and their recommendation. When the individual is terminated from Drug Court, the MTR is on the table. The earlier recommendation is of great importance. Since I do a normal MTR calendar one day per week, these matters usually get transferred from my drug court calendar to the MTR calendar. These matters would go to hearing on the violation and then to revocation and state prison, or modification of probation ___________________________ 2 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. with additional jail time --- the outcome of the MTR if the person fails Drug Court, is not usually predetermined. If I saw a conflict, or opposing counsel expressed concern, I would transfer the MTR to another department. This has not arisen to date. I think in reality, if there was a concern here, the District Attorney would identify the issue and I’d step out of the MTR. For many of our Drug Court clients, the criminal charges are unresolved. These matters would be returned to the trial departments for further proceedings. To Patricia Lancaster: If you think there is an ethical problem and raise it as such, California’s “conflict” rules of ethics would lead to my recusal for the purpose of imposing sentence. But your question implies that your jurisdiction does not have negotiated dispositions at the time of guilty plea (prior to referral to Drug Court), --- as I do. Under our Ethics Code, and Penal Code, if the “negotiation” is for me to impose the appropriate sentence (whatever that maybe), I think I have the full authority to max the person if that conforms to our sentencing rules. If another judge took the guilty plea, our rules require the matter to be returned to that judge for the purpose of sentencing. COLORADO Judge Karen Ashby Denver Juvenile/Family Drug Court- JUVENILE/FAMILY DRUG COURT Denver, Colorado firstname.lastname@example.org I have done the sentencing on all revocations that have been filed in drug court even though I have presided over the Drug Court docket. I have never had any ethical issues raised with regard to the practice. When we set up the court 3 years ago the Public Defender participated in the discussion as to how revocations would be handled and everyone (District Attorney, Public Defender included) was in agreement at that time that I, as the Drug Court judge, should be the one to hear any revocations filed on the Drug Court clients. FLORIDA Judy Patterson Juvenile Drug Court Coordinator- JUVENILE DRUG COURT 18th Judicial Circuit Court Brevard County, Florida email@example.com Our judge doesn’t do the Violation of Probation (VOP) hearings. She does the weekly drug court proceedings. When a youth is violated and a VOP petition is filed, the Juvenile Court Judge presides over the VOP hearing. The Juvenile Drug Court Judge may make a recommendation to the Juvenile Court Judge on behalf of the drug Court team. Cassie Judy Adult Criminal Drug Court Manager Third Judicial Circuit Lake City, Florida firstname.lastname@example.org In the Third Judicial Circuit of Florida (composed of seven rural counties), we have adult drug court in three of the counties. In two of those counties, the drug court judge has always sentenced participants ___________________________ 3 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. who were terminated. In the third county, the drug court Judge will now be sentencing terminated participants rather than being returning these cases to the criminal court docket judge. This sentencing by the drug court judge has only occurred about five times and no issue as yet has been raised as to ethical concerns regarding the judge’s potential use of confidential information. The prosecutor lays out the foundation and request for a particular sentence which usually is based upon failure to attend court or treatment or the participant is an absconder, or has had repeated positive drug tests. Ray Lannen, Drug Court Manager 20th Judicial Circuit of Florida Lee, Collier and Charlotte Counties Rlannen@ca.cjis20.org The Drug Court Judge does the sentencing. No ethical issues have been raised Alfred E. James Drug Court Coordinator Manatee County, Florida email@example.com The only time our Drug Court Judges sentence someone for failing to successfully complete the program is when a plea has been entered in order for the person to participate in Drug Court. Otherwise, the person is sent back through the regular system for disposition. Diana Diaz Drug Court Coordinator Eleventh Judicial Circuit Court Miami-Dade County, Florida firstname.lastname@example.org] In our drug court, a client will have to serve their sanction prior to being terminated, usually a 2 week jail sentence, after which the case is transferred to another division for disposition. Pat Soentgen Drug Court Coordinator Osceola County Drug Court email@example.com Our Drug Court Judge does the sentencing on our Post Plea clients. Our Diversion Clients go back on the regular docket of the original Judge for Trial. No ethical concerns have been raised at this point. Linda Burd Drug Court Manager 14th Judicial Circuit Panama City, FL 32402 ___________________________ 4 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. BurdL@jud14.flcourts.org Our drug court judge does sentence non-completers to prison. The following is the waiver new participants sign (copied from the Escambia County, Florida, waiver) IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR BAY COUNTY STATE OF FLORIDA CASE NO.________ VS WAIVER OF RIGHT TO ASSERT SPECIFIED GROUNDS AS A BASIS FOR MOTION OF RECUSAL COMES NOW the defendant by and through undersigned counsel and acknowledges that as consideration for acceptance and/or continued participation in the Bay County Drug Court that 1. The above styled case will be assigned to Division “X” in front of the Honorable Don T. Sirmons, Circuit Judge. 2. That should defendant fail to successfully complete the Bay County Drug Court Program and be ejected from said program that the above styled case will be assigned to Division “C” before the Honorable Don T. Sirmons, Circuit Judge. If defendant’s failure to comply with the requirements of the Bay County Drug Court Program leads to such assignment defendant hereby waives his right to assert as a basis for a motion to recuse the sitting circuit judge on the basis of: 1. That judge’s personal involvement with the defendant during the course of his treatment in the Bay County Drug Court. 2. That judge’s knowledge, both personal and otherwise, of defendant’s compliance or non- compliance with the requirements of the Bay County Drug Court. 2. That judge’s decision to eject the defendant from the Bay County Drug Court Program on the basis of his or her failure to comply with such requirements. Defendant hereby freely, voluntarily and knowingly waives the right to assert the foregoing as grounds for a motion to recuse and acknowledges that he does so after having consulted with counsel. Dated this __________ day of _______________, in open court, Bay County, Florida. ---------------------------------- --------------------------------------------- DEFENDANT DEFENSE COUNSEL ___________________________ 5 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. David Morgan Drug Court Coordinator Sarasota County Adult Drug Court. firstname.lastname@example.org] If the client pleads guilty to get into the drug court program, the Judge would go ahead and sentence the client. If there was no plea, the client would be sent back for sentencing through the regular criminal case assignment system. Zaundra Horne Drug Court Coordinator Seminole County, Florida Zhorne@seminolecountyfl.gov In Seminole, Our judge doesn’t sentence terminated participants. They are returned to the original judge who once presided over the case prior to entry and he or she does the sentencing. Cathy Buzzoloni Drug Court Coordinator 19th Judicial Circuit St. Lucie Co, Florida CATHYB@stlucieco.gov Our drug court Judges in the 19th Circuit in Florida take a plea before anyone enters drug court. If a participant fails the program, the judge sentences him/her. The sentence is determined at the time of sentencing. Our program usually takes first time offenders only so the sentence is usually to probation. Gail Holly Drug Court Programs Coordinator Thirteenth Judicial Circuit Tampa, FL 33602 email@example.com Judge Vivian C. Maye Circuit Judge Thirteenth Judicial Circuit Tampa, Florida MAYEVC@fljud13.org> First: in regard to sentencing: We have two distinct drug divisions in Hillsborough County. One Judge presides over both. The first division is our Drug Court Pre-Trial Intervention. This is our diversionary division for first time offenders charged with a third degree felony. The defendant waives his/her right to a speedy trial, but does not enter a plea. If the defendant is discharged from this program he/she is arraigned in the second division which is Adult Dug Court. At arraignment the defendant can opt out of Drug Court by denying he/she has a drug problem or by asking to be removed to a regular felony division in order to litigate the charges. If they choose to remain in Drug Court then they must enter a guilty plea ___________________________ 6 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. and will be sentenced after they have been evaluated (in court). The same Judge will sentence the defendant. Second: in regard to ethical concerns. No ethical concerns have been raised thus far in our drug divisions. Richard Zachry Drug Court Coordinator 7th Judicial Circuit Volusia County (Daytona), Florida firstname.lastname@example.org In Volusia County Florida, our Drug Court Judge completes the sentencing for participants who are terminated due to non-compliance. They are afforded a Hearing if one is requested. There has never been an ethical issue raised concerning the practice. Walescca Garcia Drug Court Coordinator _____________________ Ctdcwg1@ocnjcc.org Yes our Judge does sentence the clients that were discharged from the program unsuccessfully. GEORGIA Carol Scherer Coordinator Juvenile Drug Court- JUVENILE DRUG COURT Columbus, Georgia Cscherer@columbusga.org Our Juvenile Drug Court Judge sends the juvenile back to the senior Judge for disposition of the case. KENTUCKY Connie Payne State Drug Court Coordinator Kentucky Administrative Office of the Courts ConniePayne@kycourts.net In Kentucky we do it a couple of different ways: ___________________________ 7 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. - If the Drug Court judge is the judge who initially had jurisdiction, then yes, after someone is terminated from Drug Court, that judge will place the defendant on the regular court docket and will proceed with sentencing, if from diversion, or probation revocation, if from probation. - If the case was referred from another judge in the same jurisdiction, the referring judge may refer for either “Drug Court proceedings only” or “All further proceedings”. If the case is referred for Drug Court proceedings only, upon termination from Drug Court, the case is returned to the referring judge for either sentencing or probation revocation. If the case is referred for all further proceedings, the Drug Court judge then has jurisdiction over the entire case and may proceed with sentencing or probation revocation after termination. - If the case was referred from another jurisdiction, the Drug Court judge only has jurisdiction over the Drug Court aspect of the case and upon termination from Drug Court, the case returns to the referring judge in the referring jurisdiction for further proceedings. As of now, I am unaware of any ethical concerns that have been raised due to the Drug Court judge’s knowledge of confidential information. The sentencing or probation revocation is normally due to reasons stated on the affidavit of termination, i.e., failure to abide by Drug Court conditions by having 10 dirty drug tests, failure to attend schedule sessions X number of times. LOUISIANA Gwenn N. Byars, Program Assistant Scott Griffith, State Drug Court Coordinator Supreme Court New Orleans, Louisiana email@example.com firstname.lastname@example.org We surveyed our drug courts for the answers to your questions regarding sentencing. Among the responses received, our courts reported the following: Sentencing - 50% of the courts reported that the drug court judge sentences only the clients who were originally assigned to his/her section and all other clients are returned for sentencing to the judge to whom their case was originally assigned. 30% reported that the drug court judge sentences all terminated clients and the remainder reported that another judge sentences all terminated clients. MICHIGAN Timothy J. McMahon Deputy Court Administrator/Deputy Friend of the Court Barry County Trial Court Family – JUVENILE DRUG COURT Barry County, Michigan TmcMahon@barryco.org Our same judge oversees disposition for an individual terminated from drug court. I don’t perceive any conflict because any judge would have access to the same information. Our confidential drug court information is not kept separate from our non drug court confidential information. ___________________________ 8 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. Catherine Mullins Domestic Violence and Program Coordinator 36th District Court Detroit, Michigan Catherine.email@example.com Question One: Yes, at 36th District Court in Detroit, Michigan the drug court judge sentences terminated participants. Question Two: A very interesting point which has not been raised by this drug court until now. We will definitely raise this question to the team. We would be interested in hearing what other courts are doing. Mary Bombich Drug Court Coordinator Kalamazoo County, Michigan MSBOMB@kalcounty.com Question One: This does not presently work for us since our two Drug Treatment Court judges do not preside in the Trial Division of the Circuit Court. The participant needs to enter a plea before the Circuit Court Trial Division judge and if he/she is unsuccessfully discharged, he/she goes before the same judge. When we had a DTC judge from the CC Trial Division, he dealt with the unsuccessful discharges. Question Two. I am not aware of any ethical issues having been raised. Judge J. Schwedler Iron County, Michigan firstname.lastname@example.org [Carol Knudsen] KnudsenC@courts.mi.gov I, as the Drug Court Judge, perform the sentencing. I sentence them when they go to drug court and hold it in abeyance to be served if they fail. Charles Nelson Jackson County, Michigan CNELSON@co.jackson.mi.us The Drug Court judge performs the sentencing. A new presentence report is prepared by the probation department. They may or may not know of any confidential information available to the judge. However, if there were such information it would not be put into the presentence report. The judge has to resentence within the confines of the original and supplemental report. Jan Willis Drug Court Coordinator 61st District Court Kent County (Grand Rapids) Michigan ___________________________ 9 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. Jan.Willis@grcourt.org Our drug judge has the option of sentencing a Drug/Sobriety Court participant upon termination if they are a misdemeanor offender or referred as part of felony sentencing. If referred as a felony probation violation, the original assigned judge would do the sentencing. Ethical concerns have never been raised and no sentence has yet been challenged Michelle Ziel Warner Drug Court Coordinator Livingston County, Michigan Adult Drug Court MZielWarner@co.livingston.mi.us In regard to Question No. 1: Our drug court is post- adjudicatory, so the drug court judge sentences the participants as a matter of course during the program participation. Drug Court is, in essence, a probationary term. Participants who are violated and are terminated from the program will also be sentenced (if applicable) on a probation violation by the same judge. In regard to Question No. 2. No ethical concerns have been raised. A public defender is appointed to handle the violation hearing/sentencing and neither the prosecutor nor probation officers use protected information which is understood to violate HIPPA. Gloria Mice Drug Court Coordinator Macomb County, Michigan Gloria.Kmiec@macombcountymi.gov [Carol Knudson KnudsenC@courts.mi.gov] Yes our Drug Court judges will sentence those participants who are terminated. Usually a formal Probation Violation is filed and the participant is represented by defense counsel. They are simply sentenced due to non compliance just as if they were ordered to do any component of probation and were not successful. It has never been an ethical problem; they are given numerous chances and it typically comes as no surprise to the defendant when they are terminated. Marcia Travis Drug Court Coordinator Oakland County (Oakland), Michigan email@example.com The drug court judge also sentences participants who are terminated for failure to comply with the program requirements. No ethical concerns have been raised. Mark Mathur Sobriety Court Officer 52-2 District Court Oakland County, Michigan firstname.lastname@example.org 1. The same judge handles their respective drug court cases from start to finish. ___________________________ 10 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. 2. Our drug court is set up as a “post-plea” system. The defendants plea guilty to their drug court eligible charge prior to being considered for drug court and are then sentenced to drug court supervision. If a defendant is terminated from drug court due to non-compliance, they are given the maximum jail time allowed for their drug court eligible charge. By handling our drug court using the “post-plea” system, we have not had any issues regarding judges using confidential information at program termination. The decision to terminate an individual from the program is discussed and agreed upon by all members of the drug court team, not just the judge assigned to the case. Everyone on the drug court team agrees to and acknowledges 42CFR part II confidentiality, in which we limit disclosure of participant information to only other members of the drug court team. MISSOURI Judge Roger Prokes Fourth Circuit Court Atchison (Rock Port),Gentry County (Albany), Hold (Oregon), Nodaway (Maryville), and Worth (Grant City), Counties, Mo. Roger.Prokes@courts.mo.gov In the 4th Circuit the Drug Court Judge sentences as well. No ethical questions have been voiced. As I recall our consent form for participants to sign in order to be admitted to the drug court, addresses this, but I am going to double check. Judge Christine Carpenter Associate Circuit Judge Boone County (Columbia), Mo. Christine.Carpenter@courts.mo.gov The Drug Court Judge is not the sentencing Judge. Judge Daniel F. Kellogg Fifth Judicial Circuit Buchanan Co. (St, Joseph), Mo. Daniel.Kellogg@courts.mo.gov I sentence participants who are being terminated. No ethical issues have been raised. Judge John Moon Circuit Court, Division 2 Clark County (Kahoka), Missouri John.Moon@courts.mo.gov In our court the drug court judge does not sentence the terminated defendant. Judge Craig Carter 44th Judicial Circuit Douglas (Ava) and Ozark (Gainsville), Counties, Mo. Robert.Carter@courts.mo.gov ___________________________ 11 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. In our drug court, drug court information is sealed from circuit court. I hear the drug court matters---If the people are kicked out, Judge Moody hears the case back in Circuit Court. We figured that it was too hard for one judge to hear both the drug court evidence, then have to sentence the guy/gal when they are back in circuit court. Ethically, it is probably not a conflict for one judge to hear both cases, as generally nothing a judge hears on the bench causes a conflict. But, it was pretty tough for one judge to forget the sealed evidence he had heard during drug court while back in circuit court. Judge Kelly Carter 42nd Circuit Court Iron Co. (Ironton), Mo. Kelly.Parker@courts.mo.gov I take the pleas of anybody who wants to enter our drug court program. If they are terminated from the program I preside over the revocation hearing. The confidential information I obtain has never been an issue. The only issue before me at the revocation hearing is whether or not the defendant successfully completed the drug court program. Robert M. Clayton II, Presiding Judge 10th Judicial Circuit Hannibal, Missouri Robert.ClaytonII@courts.mo.gov The drug court judge, upon termination of a participant normally revokes the probation and sentences the offender or orders execution of the sentence previously received. Some of our participants have already been sentenced, some have had imposition of sentence suspended, but all are on probation and have pleaded guilty. No ethical concerns have been raised about the sentencing judge having confidential information, but we haven’t had too many terminations, either. Judge Fred Westhoff Second Judicial Circuit Court Lewis (Monticello) Co., Mo. Fred.Westhoff@courts.mo.gov The Drug Court Judge also performs the sentencing of terminated participants. No ethical concerns have been raised regarding this practice. Judge David H. Ash 45th Circuit Drug Court Lincoln County (Troy), Mo. David.Ash@courts.mo.gov In our Drug Court, the Judge who took the original plea does the sentencing. Because that varies, I have one case where I sentenced a terminated participant. No one raised any concerns and no presentence report was requested. ___________________________ 12 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. We attempt to avoid my taking cases for plea that are going to drug court because of that possible issue but because of manpower concerns sometimes that is unavoidable. Judge Werner A Moentmann 8th Circuit Court Ray Co. (Richmond), Mo. Werner.Moentmann@courts.mo.gov The same judges does the sentencing. No concerns have been raised. Judge Philip Ohlms 11th Judicial Circuit Court St. Charles Co. (St. Charles), Mo. Philip.Ohlms@courts.mo.gov In deferred cases, a new Judge is assigned after termination to take a plea or to conduct the trial. NEW JERSEY Carol Venditto State Drug Court Coordinator State of New Jersey Carol.Venditto@judiciary.state.nj.us 1. In your drug court program, does the drug court judge also sentence participants who are terminated for failure to comply with program requirements? Or does a different judge perform the sentencing function? With a possible rare exception, drug court judges will re-sentence participants who have violated their drug court probation and are facing resentencing on that VOP. 2. If the drug court judge also performs the sentencing function, have any ethical concerns been raised regarding the judge’s potential use of confidential information for sentencing purposes which was made available to the judge while the participant was enrolled in the drug court program? No ethical concerns have been raised to my knowledge. OREGON Alex Bassos abassos@MPDLAW.com Jim Hennings email@example.com Metropolitan Public Defender Portland Oregon Here in Portland, Oregon the drug court judge does handle the sentencing but he or she would not supervise the probation. No ethical concerns have ever been raised. I presume that’s because the sentence that will be imposed upon revocation is set forth in the plea agreement, agreed to by the judge ___________________________ 13 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. and entered 14 days after the start of the drug court program. That is, all parties know what the sentence will be and the judge has no discretion to impose an alternative sentence. The sentence upon revocation is always 10 days jail, 18 months formal probation, the standardized package of drug conditions created by the probation office and imposition of remaining drug court fees as a term of probation. PENNSYLVANIA Judge Louis Presenza Drug Court Judge and Presiding Judge Philadelphia Municipal Court Philadelphia, Pa. Louis.Presenza@courts.phila.gov In response to question no. 1, yes, as the presiding Drug Court Judge, I am also the judge who determines whether or not the client should be terminated and if so, imposes a sentence which always involves incarceration. From an historical perspective, this process was determined by our Planning Committee back in 1996 when all agreed that the most logical person to determine whether or not one should be terminated and the sentence to be imposed, would in fact be the presiding judge who is totally familiar with the background of the participant. Also, we do not have a predetermined sentence. However, each participant is fully advised orally and in writing, that failure to complete the program will involve incarceration. The participant is also advised as to the minimum and maximum sentences that can be imposed. As for question no. 2, in over 9 years of presiding in our Treatment Court , this question has never been raised. Hypothetically speaking, if the confidential information concerned treatment information about the participant, i.e., aids, child abuse, etc., this theoretically could be beneficial to the client at the time of sentencing, since it may explain one or more of the reasons for his/her failure. Also, hypothetically, if, in fact a participant, or his attorney requested me to recuse myself, then obviously I would consider the request and more likely than not, in order to avoid any potential problems, grant the request. Likewise, if I believed there was a conflict I would recuse myself. In both of these hypotheticals, sentencing would then be assigned to the other judge who assists me in the Treatment Court. Lastly, though not directly on point, I want to bring to your attention the case of L.B. Alexander, Appellant vs. State of Oklahoma, Appellee, §2002 OK CR 23; 48 P.3d110. In this matter a defendant was terminated from drug court and sentenced to a lengthy period of incarceration. On appeal he raised 5 issues including due process and the ethical/fairness question of whether or not the drug court judge should have removed himself “as an adjudicatory body when he became a participant in the proceeding, thus infringing on the Appellant’s right to a fair and impartial trial.” The Appellate Court in its ruling determined that there was no due process violation. “However, we recognize the potential for bias to exist in a situation where a judge, assigned as part of the Drug Court team, is then presented with an application to revoke a participant from Drug Court. Requiring the District Court to act as Drug Court team member, evaluator, monitor and final adjudicator in a termination proceeding could compromise the impartiality of a district court judge assigned the responsibility of administering a Drug Court participant’s program.” “Therefore, in the future, if an application to terminate a Drug Court participant is filed, and the defendant objects to the Drug Court team judge hearing the matter by filing a Motion to Recuse, the defendant’s application for recusal should be granted and the motion to remove the defendant from the ___________________________ 14 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. Drug Court program should be assigned to another judge for resolution….Failure to request recusal waives the issue for appellate review.” TENNESSEE Judge Seth Norman Drug Court Judge Davidson County (Nashville), Tennessee SethNorman@jis.nashville.org 1.The Davidson County Drug Court is a “pre-plea” court. The defendant has already entered a plea of guilty before he or she is assigned to the program. In Tennessee individuals assigned to the Davidson County Drug Court are placed in our community corrections program. Under the Community Corrections Act if a person violates the trial judge has the authority to re-sentence. 2. If a person is charged with a violation, I, as the drug court judge, hear the violation. A person who violates the terms and conditions of the drug court agreement is tried just like any other person charged with a violation of probation. As the hearing judge I must make my decision only on the proof put before me at the violation hearing. Just like any other matter that I hear I must be satisfied with the required burden of proof. I don’t see the problem. TEXAS John C. Creuzot Criminal District Court No. 4 Dallas TX 75207 firstname.lastname@example.org In Dallas Texas we have a diversion program and three re-entry programs. Upon termination from the diversion program the participant’s file is sent to the Grand Jury for review and possible indictment. If indicted the case may go to any of the 17 felony courts. The defendant may opt to have another Judge handle the case. Upon termination from the re-entry court same the Judge can revoke probation and sentence. The revocation must be based on allegations in a motion to revoke probation. These defendants are usually revoked for picking up new cases, being terminated from treatment or for absconding from probation. Nothing said in the re-entry court is used to revoke. UTAH Deborah Mendez Assistant Public Defender Salt Lake Legal Defender’s Association Salt Lake County, Utah Dmendez@sllda.com The Salt Lake Felony Drug Court judges impose the sentences on clients who are removed from drug court. ___________________________ 15 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. Regarding the ethics of the same judge imposing the sentence, our clients know that the same judge will sentence them. Our judges obtain a presentence investigation from investigative services and make their decision based on that report and argument of counsel. It has always been my belief that because the client is aware of the situation and they waive any objection to this procedure, there is no conflict. We are fortunate in our jurisdiction that our drug court judges are fair and treatment oriented and each is a better judge to be in front of for sentencing. We debated this issue in one of the defense lawyer breakout sessions last year and there were as many views on the issue as people in the room. VIRGINIA Anna Powers Drug Treatment Court Coordinator Supreme Court of Virginia Apowers@courts.state.va.us In Virginia the drug court judge does sentence the terminated drug court participant. This is in the order for drug court assessment, that this case will be transferred to the drug court judge for (all purposes), including disposition upon successful completion or termination. Upon acceptance into the drug court, the participant signs the waivers, agreements and drug court participation contract. As a result, no reports of ethical concerns have been raised. PART TWO: RELEVANT CASES: Court of Criminal Appeals of Oklahoma. L.B. ALEXANDER, Appellant, v. STATE of Oklahoma, Appellee. No. F-2000-472. May 30, 2002. Court of Appeals of Iowa. STATE of Iowa, Appellee, v. Toby Lynn MERRITT, Appellant. No. 04-1664. June 15, 2005. Court of Appeals of Kentucky..Jerel Patrick HARPRING, Appellant v. COMMONWEALTH of Kentucky, Appellee. No. 2004-CA-000898-MR. Aug. 12, 2005. *************** Court of Criminal Appeals of Oklahoma. L.B. ALEXANDER, Appellant, v. STATE of Oklahoma, Appellee. No. F-2000-472. May 30, 2002. Denies defendant’s appeal of termination from drug court as (1) abuse of discretion by not recognizing the “relapses and restarts that commonly occur with drug addicts”; and denial of fair and impartial trial because judge “removed himself as an adjudicatory body when he became a participant in drug court “team”, particularly since defendant did not request recusal. Court of Appeals of Iowa. STATE of Iowa, Appellee, v. Toby Lynn MERRITT, Appellant. No. 04-1664. June 15, 2005. ___________________________ 16 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. Toby Merritt appealed his convictions, following a guilty plea, to various drug offenses. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Background Facts and Proceedings. Early in the morning of September 6, 2002, Sheriff's Deputy Scott DeLong arrested Toby Merritt and Nathan Callahan at an anhydrous ammonia storage area after he observed them drain anhydrous ammonia into two containers. DeLong had earlier observed Jason Andrews drop the two off at the anhydrous site. Other officers stopped Andrews' car, in which they discovered camp fuel, cut batteries, crushed pseudoephedrine tablets, and a length of hose. Based on this incident, the State charged Merritt with the following charges: Count I, possession of a precursor, to wit: lithium; Count II, prohibited acts; Count III, possession of drug paraphernalia; Count IV, conspiracy to manufacture methamphetamine and Count V, tampering with anhydrous ammonia equipment. Merritt appeared before the district court and entered guilty pleas to all charges as part of an agreement to transfer the charges to Drug Court. However, Merritt subsequently violated the conditions of his Drug Court probation and the district court sentenced him on all five charges. This appeal followed, asserting four claims which included one relating to the appropriateness of the imposition of consecutive sentences. Although the Court upheld the appropriateness of the consecutive sentences pursuant to the Defendant’s plea agreement, it remanded the case to the Trial Court to provide an opportunity for allocution by the defense. The following is an excerpt from the opinion, with pertinent findings highlighted by underlines: “…..4. Consecutive Sentences. …Our scope of review of a district court's decision regarding sentencing is for an abuse of discretion or for defects in the sentencing procedure. …Here, Merritt was initially informed that as part of the Drug Court program he would be sentenced to consecutive sentences if he failed to complete the program. He agreed on the record to this arrangement. As the district court explained at the time Merritt pled guilty, he was receiving an opportunity to have his charges dismissed if he complied with and completed the requirements of his probation with the Drug Court. The following colloquy occurred between the court and Merritt prior to receiving Merritt's plea: The Court: I want you to know now before I ask you how you plead that we don't--we don't accept the pleas here as a plea bargain. You plead straight up to the charges that are charged against you unless your attorneys have advised you and will advise me that the minutes of testimony can't support a conviction on those particular charges. Likewise, if you don't successfully complete this Drug Court program, you're going to be sent to prison and the charges will be stacked against you. That means that they'll run consecutively, not concurrent. They won't all be run together but they'll be stacked and you'll spend your time down there based upon the rules of the prison and it will be a lot longer than you would anticipate if you were to plead guilty and be sent to prison now. You understand that? Merritt: Yes, sir. The Court: So you're making a concession here that may not otherwise be available to you by coming to this Drug Court program and I've told all of the other people and they've heard me say this before and I'll say it to you. It isn't a cakewalk. It isn't a sweetheart deal that--that you're getting now but it is the greatest opportunity you've ever had in your lifetimes to straighten out, fly right and be clean and sober and enjoy--and enjoy the family and friends who have come here to see you get into these programs. You understand that? Merritt: Yes, sir. ... T he Court: So what you have done here is pled guilty to two Class D felonies, five years each; a C felony which is ten and a total of 20 years plus two--or one serious misdemeanor which is a one-year sentence and a simple misdemeanor possession of drug paraphernalia which is a 30-day sentence in the county jail. So you have pled guilty essentially to a term of 21 years plus six months; is that right? Mr. Feistner [Merritt's attorney]: Correct, your Honor. ... The Court: Do you have any questions, Mr. Merritt, about any of it? Merritt: No. ___________________________ 17 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. As reflected in the court's colloquy, Merritt was offered to have all five charges against him dropped if he completed the Drug Court program. If he failed to comply, he would accept the consequences of going to prison for the full terms of his collective sentences. Although it may appear somewhat harsh, it appears to be not only the agreement of the parties, but also part of the incentive for Merritt to comply with the Drug Court program. However, we nonetheless believe remand for resentencing is required. The district court does not lose its sentencing discretion merely because it warns an individual entering Drug Court that he or she will face a stiff sentence if unsuccessful in the Drug Court program. In State v. Thomas, 659 N.W.2d 217 (Iowa 2003), a scenario similar to that presented in this case was addressed. There, like here, before the defendant agreed to plead guilty and enter drug court, the district court informed him of the specific sentence he could expect, stating "he would end up doing 20 years in the penitentiary if he failed to successfully complete the program." Id. at 219. Our Supreme Court remanded for resentencing in order to, among other things, allow the defendant his right to allocution. … Of course, the purpose of the right to allocution is to allow the defendant to argue in mitigation of punishment. See Iowa R.Crim. P. 2.23(3)(d ). Clearly, if the court had no discretion in imposing a predetermined sentence, the right to argue for mitigation of that sentence would be useless. Here, it appears the sentencing court imposed the sentence it did due solely to the previous indication of what sentence would be imposed if Merritt proved unsuccessful in the Drug Court program. It did not appear to consider either additional factors or alternative sentencing options. We believe the district court's failure to exercise discretion in imposing sentence was, in fact, an abuse of its discretion. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 631 (Iowa 2000) (stating a failure to exercise discretion is an abuse of discretion). Moreover, its failure to state reasons for the particular sentence imposed was error. See State v. Uthe, 542 N .W.2d 810, 816 (Iowa 1996) (noting the purpose of a statement of reasons for the sentence is to enable a reviewing court to adequately perform its duties). Accordingly, we remand for resentencing…. AFFIRMED IN PART, REVERSED IN PART, AND REMAND Court of Appeals of Kentucky.Jerel Patrick HARPRING, Appellant v. COMMONWEALTH of Kentucky, Appellee. No. 2004-CA-000898-MR. Aug. 12, 2005. Appeal from Jefferson Circuit Court, Civil Action No. 03-CR-001247; Ann O'Malley Shake, Judge. Before GUIDUGLI and MINTON, Judges; EMBERTON, Senior Judge. Jerel Harpring appealed the trial court's decision to revoke his felony probation, arguing that the revocation was unconstitutional and that the presiding judge should have recused herself. The Court disagreed with his contentions and affirmed the decision of the circuit court. Background: Harpring pled guilty to illegal possession of a controlled substance in the first degree and tampering with physical evidence. He was sentenced, concurrently, to a maximum of one year for each offense. But on the Commonwealth's recommendation, the circuit court probated Harpring for five years, conditioned upon his compliance with specified provisions, including that he successfully complete the Drug Court program. Six months later, Harpring was arrested on charges of trafficking in a controlled substance and trafficking in a controlled substance within 1000 yards of a school. Because of this arrest on new drug-related charges, his participation in Drug Court was terminated and, on its own motion, the court moved to revoke Harpring's probation. Following a hearing, Harpring was then sentenced to a maximum of one- year imprisonment, with credit for time served. This appeal follows. Among his claims on appeal, Harpring argued that the trial court judge should have disqualified herself. Specifically, Harpring contended that because "the trial court judge was the Drug Court judge, and the Drug Court judge was also the probation revocation hearing judge," he was not afforded due process. The Court disagreed. The following is an excerpt from the Court’s opinion.. ___________________________ 18 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006. “….Pursuant to KRS 26A.015(2)(a) reads: (2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding: (a) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding. Subsection (e) of the statute further states that a judge must disqualify "[w]here [s]he has knowledge of any other circumstances in which [her] impartiality might reasonably be questioned." In Robinson v. Commonwealth, this Court held that defendants at risk of probation revocation must be afforded the minimum requirements of due process. [FN6] Those requirements include: (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] 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 ...; (e) a "neutral and detached" hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation]. KRS 533.050(2) also states that "[t]he court may not revoke or modify the conditions of a sentence of probation ... except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification." Harpring asserts that he did not have a "neutral and detached hearing body" and, therefore, was not afforded the minimum requirements of due process. He claims that because the judge presided over the entirety of his court proceedings, "[i]t would seem most unlikely, irrespective of how balanced and excellent a judicial temperament one may possess, to be a neutral and detached trier of fact...." We do not believe the fact that the same judge presided over Harpring's trial proceedings, Drug Court sessions, and probation revocation hearing necessarily violates the requirement for an unbiased judge, nor do we believe Harpring was denied due process. There is no evidence in the record to suggest that the judge harbored any personal bias or prejudice against Harpring, had personal knowledge of disputed evidentiary facts outside the record, or expressed any opinions showing pre-judgment of Harpring's case. In fact, there is nothing that draws the judge's impartiality into question…. Therefore, we disagree with Harpring's contentions. There was no reason the trial judge should have disqualified herself; and, absent a motive for disqualification, there is no proof that Harpring was denied a "neutral and detached" probation revocation hearing. We welcome any additional comments or perspective on this issue. Bureau of Justice Assistance (BJA) Drug Court Clearinghouse Justice Programs Office, School of Public Affairs American University 4400 Massachusetts Avenue NW, Brandywine, Suite 100 Washington D.C. 20016-8159 Tel: 202/885-2875Fax: 202/885-2885 e-mail: email@example.com Web: www.american.edu/justice ___________________________ 19 FREQUENTLY ASKED QUESTIONS SERIES: Sentencing Judges For Drug Court Participants Who Are Terminated. BJA Drug Court Clearinghouse. American University. July 31, 2006.
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