State of Idaho v. Paul Rogers

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 31264

STATE OF IDAHO, ) ) 2006 Opinion No. 59 Plaintiff-Respondent, ) ) Filed: August 22, 2006 v. ) ) Stephen W. Kenyon, Clerk PAUL LAWRENCE ROGERS, ) ) Defendant-Appellant. ) )

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.

Judgment of conviction for possession of a controlled substance and order terminating defendant from drug court, affirmed.

Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued.

Hon. Lawrence G. Wasden, Attorney General; Courtney E. Beebe, Deputy Attorney General, Boise, for respondent. Courtney E. Beebe argued. ______________________________________________

GUITIERREZ, Judge Paul Lawrence Rogers appeals from his judgment of conviction for possession of a controlled substance, which was entered after he was terminated from the Ada County Drug Court program. Rogers contends the court violated his constitutional right to due process when it discharged him from the drug court program. He also argues that the court’s factual findings, that he had violated conditions of the drug court program, are clearly erroneous. We affirm. I. BACKGROUND Rogers was initially charged with possession of methamphetamine, Idaho Code § 37- 2732(c), and driving without privileges, I.C. § 18-8001(3). Thereafter, the prosecutor filed a motion to transfer the case to the Ada County Drug Court. The Ada County Drug Court Rules

(“rules”)1 provide that a defendant must plead guilty to the charge in order to enter the program and if the defendant is terminated from the program the matter proceeds directly to sentencing. The rules further provide that the presiding drug court judge2 has the final say over who may enter the program and whether a defendant will be terminated from the program for violations of rules. In accord, and in light of a pending plea agreement, the instant case was transferred to drug court, along with a separate case involving unrelated burglary and attempted grand theft charges against Rogers. Rogers pled guilty to the possession of methamphetamine charge and the remaining charges were dismissed. As part of the plea procedure, Rogers filled out and signed a Drug Court Guilty Plea Form, wherein he acknowledged receipt of the Ada County Drug Court Participant Handbook, and a Phase I – Contract. Pursuant to the rules, Rogers was released on his own recognizance. Rogers participated in the drug court program for over ten weeks. The program included, among other things, mandatory drug testing, attendance in treatment programs, and frequent sessions with the drug court judge. Pursuant to the rules, Rogers’ counselor submitted progress reports3 to the drug court judge on a regular basis. Rogers would then meet with the drug court judge on a relatively informal basis and discuss his progress in the program. At the outset, Rogers performed poorly, including among other violations, numerous positive drug tests4 and missed treatment sessions. While the drug court judge repeatedly sanctioned Rogers for violating the program’s conditions, the judge chose not to terminate him from the program at those times. Eventually, however, Rogers appeared to turn himself around and his performance earned praise from the presiding judge. Then, during a regularly scheduled status hearing at

1 There is no document in the record entitled the “Ada County Drug Court Rules,” and we do not know if one exists. Instead, as explained in more detail below, we glean the rules and procedures from three documents in the record: the Drug Court Guilty Plea Form, the Ada County Drug Court Participant Handbook, and the Phase I – Contract. 2 The Ada County Drug Court judge is a sitting Ada County district judge. 3 The record does not reflect whether Rogers was provided copies of these progress reports. 4 The rules provide that no new criminal charges will be filed as the result of any positive drug tests.

about week ten, the court confronted Rogers with information contained in a progress report, reflecting the details of allegations of Rogers’ involvement in a business venture, “Desire, Inc.” In response to the judge’s questioning, Rogers stated that it “was an adult entertainment company with strippers for bachelor parties and an escort business also.” Rogers admitted that he had been recruiting females, including participants in the drug court program, into the business by handing out business cards. Rogers contended that the business was a legal adult entertainment business that he had contemplated before entering drug court. This contemplated business, he said, never got off the ground. The judge did not believe Rogers, stating, “I think what is happening here is that you’re enticing female members of the drug court program into prostitution.” The judge ultimately told Rogers that he would probably be terminated from drug court but that the court would give him an opportunity at a future hearing to show cause why he should be retained. No written report of violation was filed.5 Before the show cause hearing, Rogers wrote a letter to the court stating his desire to stay in the drug court program and further reiterating that Desire, Inc., was not a prostitution ring, that he conceived the idea before entering the drug court program, and that he ended his involvement in the unformed business after entering the program. At the show cause hearing, no witnesses were called, but the judge invited Rogers and his counsel6 to make statements. Rogers once again said the court’s assessment of Desire, Inc., was mistaken and expressed his desire to stay in the program. The judge then terminated Rogers from the drug court program, stating: I just want to tell you why I am kicking you out of drug court. You had numerous additional compliance issues considering the program on February 11th, 2004. A bench warrant was issued on February 23rd, 2004 after you missed a court-ordered orientation program with the drug court coordinator. You missed a UA on February 23rd. You were late for a UA on the 24th. You had positive UAs on the 24th and 25th of Feburary. You had positive UAs on March 29th, 2004, and April 1st, 2004. You missed groups on the 29th of March, the 30th of March, and the 31st of March. You were warned on the first of April about not contacting your mentor. You have missed UAs on the third and fourth of April. You had another bench warrant issued for absconding on the sixth of April. You were given 90 and 90 relapse prevention, daily check-ins, and

5 In two previous instances of misconduct by Rogers, written reports of violation were filed. 6 At the normal status hearings, Rogers, as far as the record reflects, appeared unrepresented by counsel.

start your day with Clara. And in lieu of this charge you were sanctioned for four hours of community service on May 12th, 2004 for failing to contact your mentor as required. You were given one day of SILD on June 9th, 2004 for obtaining unauthorized prescription medication without a doctor’s note stating that you had disclosed your addiction and participation in the drug court program to the doctor. And there were some other matters as well. So with respect to this, I appreciate the fact that you don’t think you did anything wrong. And that’s sort of my point. I’m not going to have you in drug court with 137 people, half of whom are females, where you don’t think there is anything in the world wrong with setting up an adult entertainment business called Desires Inc., and charging $50 apiece for a finder’s fee and having the girls work outside. I think it certainly was an adult entertainment business and you just can’t do anything like that in drug court, particularly where you don’t think you are doing anything wrong. The court then set the matter for sentencing. The case did not, however, transfer to another district court judge for sentencing. Instead, the drug court judge, now apparently acting in his district court capacity, continued to preside over the case.7 Following the show cause hearing, Rogers’ counsel moved for another hearing on Rogers’ discharge or, in the alternative, reconsideration of the discharge.8 This motion was not addressed until the sentencing hearing, where the district court stated: THE COURT: Keep in mind that the issue of the due process that the defendant is entitled to is a dismissal from drug court I think is a really relevant and important issue. And I have likened the dismissal from drug court and due process that should be afforded to the defendant at such a proceeding to be somewhat akin to a jurisdictional review hearing when a person is on a rider and appears before the Jurisdictional Review Committee of the Idaho Department of Corrections. I want to give the defendant an opportunity to speak and be heard and-- however, as a general rule, as a general rule I don’t allow an evidentiary hearing on that issue. This is for several reasons. The statute of the Idaho Drug Court Act specifies and sets forth that nobody is entitled to be in drug court, and the court makes these determinations about whether or not to expel somebody from the drug court program on an ad hoc basis, on a case-by-case basis based on the facts that are in front of the court at the time.

7 The rules are silent on this matter. Instead, they simply state, in summary, that upon termination from the program, “you will be sentenced on the original charge.” 8 Contemporaneous therewith, defense counsel filed a motion for the preparation of expedited transcripts of the previous two hearings, which the judge granted.

And the court felt and still feels that I have sufficient information at the time to make the determination that the defendant was no longer an appropriate person to be in the Ada County drug court program. I believe that I’ve already made those representations on the record at the time of the discharge. Rogers then presented the testimony of three witnesses. The first two testified, generally, that there was no prostitution ring and that Rogers’ adult entertainment business was never started. The third was Rogers’ counselor in drug court, who testified concerning Rogers’ progress in the program and information concerning Rogers’ participation in the business. Thereafter, the district court sentenced Rogers to a five-year term of imprisonment, with a one-year minimum term, subject to a period of retained jurisdiction. On appeal, Rogers asserts that he had a protected liberty interest in remaining enrolled in drug court and that his termination from the program without adequate notice or an evidentiary hearing violated his constitutional right to due process. II. ANALYSIS A. Idaho’s Drug Courts As a preliminary matter, a short discussion of Idaho’s drug court program is warranted. The introduction of the problem-solving approach9 in the courts has given rise to innovative diversion efforts such as drug court programs. In 2001, the Idaho legislature enacted the Idaho Drug Court Act, by 2005 amendment now known as the Idaho Drug Court and Mental Health Court Act (the “Act”). I.C. §§ 19-5601, et seq. The Act provides, inter alia, that the district court in each Idaho county may establish a drug court. I.C. § 19-5603. With the exception of eligibility standards, see I.C. § 19-5604, the Act itself provides no guidance on the inner workings or procedures to be followed by a drug court. Instead, the Act authorized the Idaho Supreme Court to establish a Drug Court and Mental Health Court Coordinating Committee and vested it with responsibility for establishing standards and guidelines and providing ongoing

9 “Problem-solving justice is an umbrella term that describes a wide range of specialized courtrooms that are working to ensure not just that the punishment fits the crime (as courts have always tried to do, with varying degrees of success) but that the process fits the problem.” Greg Berman and John Feinblatt, The Case for Problem-Solving Justice, Good Courts, The New Press, 4-5, 2005.

oversight of the operation of drug courts. I.C. § 19-5606. Effective September 26, 2003, the Committee has adopted guidelines for adult drug courts. See Idaho Adult Drug Court Guidelines for Effectiveness and Evaluation.10 These guidelines do not specify exactly how a drug court program must be run and, as specifically stated therein, the guidelines “are not rules of procedure and have no effect of law.” In addition, effective August 15, 2005, the Idaho Supreme Court adopted an administrative rule to provide additional direction for the development, establishment, operations, and termination of drug courts and mental health courts. See Idaho Court Administrative Rule 55. As relevant to the instant appeal, the rule addresses primarily how a drug court is created and it does not mandate that a drug court program must be operated in any particular way. As of January 2006, Idaho had forty-four drug courts in operation spread out over approximately twenty-three counties and at differing levels of the judicial system within some counties. From the above discussion, it must be assumed that each drug court in Idaho operates uniquely and, therefore, the analysis in this case might not be applicable to any other particular drug court program in the state. Against this backdrop, we proceed to the issue at hand. B. Termination of Drug Court Participation in Ada County This is a case of first impression and the first opportunity for the Idaho appellate courts to address the rights of drug court participants upon termination from a drug court program. Rogers contends the drug court violated his constitutional right to due process when it discharged him from the Ada County Drug Court program. Specifically, he contends that he is entitled to the same process afforded to a probationer or parolee, including notice in writing of alleged violations of the conditions of the drug program and the evidence against him, and the opportunity to present witnesses and evidence on his behalf, and an opportunity to be heard. “To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Thus in this case, taking into account Rogers’ concerns, we hold that the rights of drug court participants can be preserved and advanced by employing a contract analysis which, importantly, will not compromise the effectiveness of drug court programs.

10 This publication, and additional information on Idaho’s drug courts, may be found on the Idaho Supreme Court website, www.isc.idaho.gov/dcmain.htm.

Here, the usual criminal process has been superseded by agreement. At the plea hearing, the court explained to Rogers the consequences of being terminated from drug court, stating: Let me tell you what I mean by that in a drug court context. If you fail the drug court program, you would be sentenced on the felony offense that you’re pleading guilty to this afternoon . . . . And I’ve got to tell you, Mr. Rogers, a good share of the people who enter drug court don’t make it. At least a third, over a third of them, fail it. And they either go to prison or they do a rider. The district court then discussed the Drug Court Guilty Plea Form that Rogers had filled out and signed.11 On this form, Rogers indicated that he was pleading guilty, that he sought admission into the drug court program, that he had received and reviewed a copy of the Drug Court Participant Handbook,12 that he accepted all of the program’s conditions and rules, and that he understood he could be terminated from the program by the drug court judge for any single violation. The court ultimately decided to accept Rogers’ guilty plea and enter him into the drug court program. Rogers and the drug court judge then both signed a document entitled “Phase I – Contract”13 which outlined Rogers’ drug court responsibilities during its initial phase and stated that his “performance on this contract will be reported to the Judge to monitor your status in treatment.” From all of this, it is clear that Rogers’ participation in the drug court program occurred pursuant to a contract; moreover, that contract incorporated the terms of the Drug Court Guilty Plea Form, the Drug Court Participant’s Handbook, and the Phase I – Contract. It is this contract that governs Rogers’ participation and termination from the drug court program. A review of the purposes and policies underlying the Ada County Drug Court program confirms that contract law rather than due process law is applicable in cases such as this. Drug courts in Idaho “closely supervise, monitor, test and treat substance abusers” and are based on partnerships among the courts, law enforcement, corrections and social welfare agencies. I.C. § 19-5602(2). They offer a therapeutic setting involving “a regimen of graduated sanctions and rewards, substance abuse treatment, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements.” I.C. § 19-5603.

11 See Appendix 1. 12 See Appendix 2. 13 See Appendix 3.

The therapeutic effectiveness of these programs relies on a drug court’s ability to immediately reward or punish participants for their behavior--the ultimate sanction, of course, being termination from the program. By contract, drug court participants, like Rogers, agree to subject themselves to this type of treatment regimen with eyes wide open; the signed Drug Court Guilty Plea Form, the Drug Court Participant Handbook, and the Phase I – Contract provide ample notice of the program’s conditions and terms and that failure to comply, i.e., breach of the agreement, could result in sanctions or termination from the program. It is well-settled that agreements between criminal defendants and the State, in the form of plea agreements, are contractual in nature and must be measured by contract law standards. See, e.g., Dunlap v. State, 141 Idaho 50, 63, 106 P.3d 376, 389 (2004); State v. Hosey, 134 Idaho 883, 886, 11 P.3d 1101, 1104 (2000); State v. Lutes, 141 Idaho 911, 914, 120 P.3d 299, 302 (Ct. App. 2005); State v. Doe, 138 Idaho 409, 410-11, 64 P.3d 335, 336-37 (Ct. App. 2003); State v. Fuhriman, 137 Idaho 741, 744, 52 P.3d 886, 889 (Ct. App. 2002). The contract analogy has been used to interpret plea agreements concerning the parties’ responsibilities. Dunlap, 141 Idaho at 63, 106 P.3d at 389. And contract law, not due process law, is normally applied where one party allegedly breaches an agreement. Lutes, 141 Idaho at 914, 120 P.3d at 302; Doe, 138 Idaho at 410-11, 64 P.3d at 336-37; Fuhriman, 137 Idaho at 744, 52 P.3d at 889. For example, in State v. Tyler, 139 Idaho 631, 634, 84 P.3d 567, 570 (Ct. App. 2003), this Court held that a prosecutor was automatically excused from fulfilling his promise of recommending a particular sentence when the defendant first breached the plea agreement by committing a new crime. See also Mata v. State, 124 Idaho 588, 595, 861 P.2d 1253, 1260 (Ct. App. 1993) (prosecutor excused from making promised recommendation where agreement was conditioned on defendant having no prior felonies); State v. Litz, 122 Idaho 387, 388, 834 P.2d 904, 905 (Ct. App. 1992) (same). The Tyler, Mata, and Litz Courts did not require the lower court to conduct a hearing or undertake any other procedural component in order to determine whether the State was excused from performing its obligations under the agreement; rather, in all cases, simple contract law standards dictated that the breach or unfulfilled condition by one party automatically excused the other party’s obligation to perform. Here, Rogers entered an agreement by which the drug court agreed to keep Rogers in the program as long as he did not violate its terms or conditions. The record shows that Rogers had violated drug court terms and conditions numerous times before he actually was terminated.

Instead of terminating Rogers’ participation for these violations, however, the court simply continued the matter and Rogers’ participation in the program, instead choosing to impose intermediate sanctions in order to further the program’s therapeutic goals. Eventually, however, the drug court judge learned of certain behavior by Rogers--that is, his alleged attempt to start an illegal prostitution ring involving other drug court participants--that, taking into account all of Rogers’ previous breaches, provided the catalyst prompting the judge to expel Rogers from the program. Indeed, the record contains evidence that Rogers handed out business cards and discussed matters with other drug court participants pertaining to his fledgling business venture, Desire, Inc. While a review of the Phase I - Contract, Drug Court Participant Handbook, and Drug Court Guilty Plea Form does not reveal that drug court members are prohibited from engaging in illegal activity, such a condition is easily viewed as an implied promise on the part of Rogers. See Tyler, 139 Idaho at 634, 84 P.3d at 570 (holding that a plea agreement may contain an implied promise by a defendant). Rogers’ involvement in illegal activity thus breached the agreement and excused the district court from retaining him in the drug court program. Moreover, even if Rogers’ activities involved nothing more than the formation of a legal escort service, as he claimed, the inappropriate nature of this sort of action revealed a dangerous “attitude” which, by the terms of the Drug Court Participant Handbook,14 constituted grounds for termination. Due to Rogers’ breach of the agreement, the court was excused from its obligation to continue Rogers in the drug court program, and Rogers was thus properly terminated. A contract law analysis in the context of a participant’s termination from drug court adequately addresses the due process concerns raised by the dissent.15 That is, the participant

14 The Drug Court Participant Handbook explains that termination is possible for “non- compliance, attitude, new criminal charges, bench warrants, or drug testing problems.” Ada County Drug Court Participant Handbook, p. 10 (Sept. 2002). 15 Even if due process standards were to apply to Rogers’ termination from drug court, we would disagree with the dissent’s view that he was deprived of due process. From the record, it is apparent that any process that was due Rogers was adequately provided. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands . . . . Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Morrissey, 408 U.S. at 481. Here, Rogers was apprised of his potential termination at a

has remedies available under the law of contracts to ensure that he is not terminated unfairly. As in cases where the State breaches a plea agreement, for example, the court may order specific performance of the agreement or may permit the defendant to withdraw the guilty plea.16 Santobello v. New York, 404 U.S. 257, 263 (1971); State v. Jones, 139 Idaho 299, 302, 77 P.3d 988, 991 (Ct. App. 2003); State v. Seaman, 125 Idaho 955, 957, 877 P.2d 926, 928 (Ct. App. 1994). A drug court participant could move the court to order either of these remedies if he believed he was wrongfully terminated from the program, and either result would satisfactorily remedy the harm. If the guilty plea is withdrawn, the individual is restored to pre-prosecution status; if specific performance is ordered, the drug court would reinstate the individual into the program and continue treatment. These remedies are, in fact, derived from a recognition that due process requires the State to fulfill its promises to defendants if those promises induced the defendant to plead guilty in the first place. See Santobello, 404 U.S. at 263; Jones, 139 Idaho at 302, 77 P.3d at 991. Due process concerns are therefore sufficiently allayed through the contract-based means commonly used to remedy breaches of agreements between the State and a defendant. By this opinion we do not wish to dissuade a judge from following termination procedures in drug court akin to those employed in a probation revocation process. To the contrary, in order to eliminate uncertainty and the appearance of unfairness, we encourage courts to do so. What is recommended is not, however, the equivalent of what is required. We decline

scheduled drug court status hearing, where the drug court judge made Rogers aware of the allegations that Rogers was engaged in illegal activity and scheduled another hearing so Rogers could show cause as to why he should not be terminated from the program. Rogers appeared at the show cause hearing, but did not effectively avail himself of the opportunity to refute the allegations. Subsequent to being terminated, Rogers was able to present witnesses who testified that no illegal prostitution business existed, in support of his motion for reconsideration of the decision to terminate him from drug court. The process afforded Rogers was sufficient to protect his rights. 16 Rogers’ waiver of his right to withdraw his guilty plea in his Drug Court Guilty Plea Form is not absolute, for a court could determine that he did not breach the agreement and was unfairly terminated.

to hold that Rogers was entitled to due process protections regarding his termination from the Ada County Drug Court program. C. The Drug Court Judge’s Factual Findings Rogers also advances an alternative argument on appeal. He asserts that the drug court judge’s factual findings that he had violated conditions of the drug court program are clearly erroneous, and therefore, he was improperly terminated from the program. We disagree. Rogers’ argument is based on two faulty premises. First, he assumes that the only terms and conditions of the Ada County Drug Court program are those set forth in the “Contract - Phase I document. This is not so. As stated above, the rules of the program, i.e., the terms and conditions, are set forth in the three operative documents: the Drug Court Guilty Plea Form, the Drug Court Participant Handbook, and the Phase I – Contract. Second, Rogers asserts that he was terminated from the program solely because of the judge’s belief that Rogers was involved in a prostitution ring and/or had taken steps to start an escort/stripper business. This also is not so. The judge was clear in stating that Rogers was being terminated not only for his conduct regarding Desire, Inc., but also for his repeated violation of program rules including, but not limited to, missed drug tests, positive drug tests, absconding, and missed treatment sessions. There is ample evidence in the record, including Rogers’ admissions, supporting these findings of fact. Rogers’ claim of error in this regard is without merit. The drug court judge did not err in his factual findings providing the basis for Rogers’ termination from the drug court program. III. CONCLUSION For the foregoing reasons, the judgment of conviction for possession of a controlled substance and the order terminating defendant from drug court are affirmed. Judge Pro Tem WALTERS CONCURS.

Judge LANSING, DISSENTING I respectfully dissent because, in my view, Rogers had a protected liberty interest in remaining enrolled in drug court, and he was deprived of that liberty without due process when he was terminated without adequate notice of the evidence against him or an evidentiary hearing at which he could confront his accuser(s).

The Due Process Clause of the Fourteenth Amendment to the United States Constitution forbids states from depriving persons of liberty without due process of law. To determine whether an individual’s liberty has been taken without due process, a court must engage in a two-step analysis. It must first decide whether the individual’s threatened interest amounts to a liberty interest protected by the Fourteenth Amendment. If it finds a liberty interest at stake, the court proceeds to the next step--determining the extent of procedural protections necessary to meet constitutional standards of due process. Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Schevers v. State, 129 Idaho 573, 575, 930 P.2d 603, 605 (1996); Smith v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 714, 722, 918 P.2d 583, 591 (1996). Drug court is a diversionary program. The drug court does not conduct conventional judicial proceedings but, rather, offers a regimen of substance abuse treatment under probation- like supervision with graduated sanctions and rewards, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as may be established by the court. I.C. § 19-5603. As structured in Ada County, the drug court program requires defendants wishing to enter it to waive their preliminary hearing and to plead guilty to the charged offense. Participants are then released on their own recognizance, subject to the conditions imposed by the drug court. Upon successful completion of the program, a participant may have his or her guilty plea set aside and the charges dismissed. Participants who fail or are discharged proceed directly to sentencing in criminal proceedings on the basis of their guilty pleas. In my view, the conditional liberty enjoyed by Ada County drug court participants is analogous to that of conventional probationers and is therefore subject to due process standards.17 I rest this conclusion principally upon two United States Supreme Court decisions, Morrissey, and Gagnon v. Scarpelli, 411 U.S. 778 (1973). In Morrissey, the Court held that an individual’s parole may not be revoked without due process. The Court observed that even though parolees do not enjoy absolute liberty, they nevertheless have “conditional liberty properly dependent on observance of special parole restrictions.” Morrissey, 408 U.S. at 480. The Court described a parolee’s conditional liberty as follows:

The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked. Morrissey, 408 U.S. at 482. The termination of this conditional liberty, the Court observed, “inflicts a grievous loss” on the parolee because the parolee is immediately returned to prison. Id. at 482. Because parole revocation deprives a parolee of liberty, the Court held, it implicates the right to due process. Id. at 480. Subsequently, in Gagnon, the Supreme Court held that probation revocation likewise involves a loss of liberty and therefore may not be ordered without procedural safeguards that satisfy the Due Process Clause. Gagnon, 411 U.S. at 782. Termination from the Ada County drug court program involves a loss of liberty akin to revocation of parole or probation. Participants must first plead guilty to a crime in order to be admitted into the program. They then enjoy conditional liberty while they abide by the terms of the program; they are released on their own recognizance and, like parolees and probationers, “can be gainfully employed and [are] free to be with family and friends and to form the other enduring attachments of normal life.” Morrissey, 408 U.S. at 482. Upon termination from drug court, a participant suffers a serious consequence as he or she proceeds directly to sentencing where the district court has the discretion to impose a sentence consistent with the guilty plea. In nearly every case, the sentence will consist of a term of incarceration. Because diversionary programs differ so greatly from jurisdiction to jurisdiction, it is difficult to directly analogize Ada County’s drug court program to those in other states. Nevertheless, decisions addressing the need for due process in diversionary programs carry a

17 For an analysis of this issue that reaches the same conclusion, see T.J. Oram & Kara Gleckler, Comment, An Analysis of the Constitutional Issues Implicated in Drug Courts, 42

common theme: whether a liberty interest is implicated turns upon whether the participant has already entered the criminal justice process. In Hopper v. State, 546 N.E.2d 106 (Ind. Ct. App. 1989), and Hagar v. State, 990 P.2d 894 (Okla. Crim. App. 1999), for example, the courts found that a liberty interest existed where the defendants had pleaded guilty in order to gain entry to a diversionary program and sentencing was held in abeyance pending completion of the program. The states of Illinois and Iowa also have long recognized that a defendant who enters a court- prescribed drug treatment program following the entry of a guilty plea has a protected liberty interest in continued participation and must be afforded due process upon expulsion. See People v. Beckler, 459 N.E.2d 672 (Ill. App. Ct. 1984); State v. Grimme, 274 N.W.2d 331 (Iowa 1979). On the other hand, in Wood v. United States, 622 A.2d 67 (D.C. Cir. 1993), and in Deurloo v. State, 690 N.E.2d 1210 (Ind. Ct. App. 1998), the courts held that divertees had no liberty interests because the diversionary programs preceded judicial proceedings and were not conducted under the auspices of the courts.18 The Deurloo court specifically noted that the pre- prosecution nature of the program in that case distinguished it from Morrissey and Gagnon.

IDAHO L. REV., 471, 520-23 (2006). 18 There are also at least two jurisdictions holding that even participants in “preadjudicatory” intervention programs have liberty interests in continuing their participation and must be afforded due process upon termination. See People v. Anderson, 833 N.E.2d 390 (Ill. App. Ct. 2005); State v. Lebbing, 385 A.2d 938 (N.J. Super. Ct. Law Div. 1978). A case upon which the State relies, Dunson v. Commonwealth, 57 S.W.3d 847 (Ky. Ct. App. 2001), is inapposite. The defendant there had pleaded guilty and at sentencing was placed on probation with the condition that he participate in a drug treatment program. Subsequently it was reported that he failed to complete the treatment program. The court conducted an evidentiary hearing at which the defendant was able to present his own evidence and to cross- examine the treatment coordinator who had terminated him. Only after conducting this hearing did the district court revoke probation. On appeal, the defendant did not complain of the process afforded by the court; rather he contended that he was entitled to due process in a termination hearing conducted by the treatment provider. The appellate court rejected this argument because although the treatment program was known as “drug court,” it was not a court in the jurisprudential sense but was merely a drug treatment program administered by the court system. Id. at 850. Thus, in Dunson, the defendant’s termination from the treatment program was not done by a judicial officer and had no direct judicial implications; and before his probation was revoked he was afforded the full panoply of due process protections through an evidentiary hearing before the court.

Terminated Ada County drug court participants have already entered the criminal justice process. They have been adjudicated guilty of a crime, and upon expulsion from drug court they go directly to sentencing rather than return to pre-prosecution status. Unlike the diversion program participants in Deurloo and Wood, Ada County drug court program participants occupy a far different position after termination than they occupied before agreeing to enter drug court-- they have already waived many of their constitutional and procedural rights by entering a guilty plea, including the privilege against self-incrimination, the right to a jury trial, the right to confront one’s accusers, and the right to challenge the admissibility of evidence upon which the State might have relied at trial. See State v. Gardner, 126 Idaho 428, 433 n.6, 885 P.2d 1144, 1149 n.6 (Ct. App. 1994). When terminated from drug court, they do not regain any of these rights but are simply sentenced. An Ada County drug court participant’s position is thus precisely equivalent to that of a criminal defendant whose charge has been disposed of by a guilty plea and an order withholding judgment under I.C. § 19-2601(3). Pursuant to that statute, upon entry of a guilty plea a district court may withhold judgment, subject to such terms as the court may prescribe, and may place the defendant on probation. The court neither enters a judgment of conviction nor imposes a sentence pending the defendant’s completion of probation on court-ordered terms. See State v. Wilson, 127 Idaho 506, 509, 903 P.2d 95, 98 (Ct. App. 1995). For a defendant with a withheld judgment, the consequences of compliance or noncompliance with probation terms are identical to those for a drug court participant: if the defendant is successful, judgment is never entered and the case is dismissed, but if the defendant is unsuccessful the court may enter a judgment of conviction based on the guilty plea and sentence the defendant accordingly. See State v. Woodbury, 141 Idaho 547, 548-49, 112 P.3d 835, 836-37 (Ct. App. 2005); Wilson, 127 Idaho at 509, 903 P.2d at 98. This Court has applied the Gagnon rule requiring due process in the revocation of probation where judgment was withheld. See State v. Roy, 113 Idaho 388, 390, 744 P.2d 116, 118 (Ct. App. 1987). I find no characteristics of the Ada County drug court program that make it constitutionally distinguishable from probation pursuant to a withheld judgment. Because there is a liberty interest that is impaired by termination from the Ada County drug court analogous to the liberty interest involved in parole and probation revocations, termination from drug court requires similar procedural safeguards. These are:

(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, 408 U.S. at 489. See also Gagnon, 411 U.S. at 786. Rogers was not afforded these procedural safeguards before his termination from drug court. The only notice that he might be terminated came during a regularly-scheduled drug court status hearing, when the court confronted him with allegations about a prostitution ring. This was insufficient notice because it was not in writing and, more importantly, did not inform him of the evidence or witnesses against him. Of greater significance, Rogers was given no opportunity to confront and cross-examine adverse witnesses. The show-cause hearing afforded him an opportunity to present his own witnesses and documentary evidence, but without more specificity about the allegations against him and the source of those allegations, Rogers could not cross-examine his accuser(s) and may not have been able to identify all of the potentially pertinent rebuttal evidence. The majority’s holding that pre-termination due process is unnecessary because a terminated drug court participant can file a post-termination motion alleging breach of the plea agreement and request specific performance of the agreement is unsatisfactory for a number of reasons.19 First, by requiring no process before the drug court expels a participant, the majority’s

19 It should also be noted that the alternative remedy for the State’s or the court’s breach of the drug court agreement--withdrawal of the guilty plea--is no solution because it would not give a drug court participant the benefit of the plea bargain. A defendant who pleads guilty pursuant to a plea agreement is entitled to receive the promised consideration for which he bargained. Santobello v. New York, 404 U.S. 257 (1971); State v. Holdaway, 130 Idaho 482, 484, 943 P.2d 72, 74 (Ct. App. 1997); State v. Armstrong, 127 Idaho 666, 668, 904 P.2d 578, 580 (Ct. App. 1995). This principle that the State must assiduously adhere to terms of a plea agreement is grounded in the Due Process Clause and the principle that for a guilty plea to be valid it must be voluntary and intelligent. Mabry v. Johnson, 467 U.S. 504, 508-09 (1984); State v. Doe, 138 Idaho 409, 410, 64 P.3d 335, 336 (Ct. App. 2003); State v. Rutherford, 107 Idaho 910, 913, 693 P.2d 1112, 1115 (Ct. App. 1985). In the present case, Rogers’ plea bargain not only promised him entry into drug court if he qualified, it also implicitly promised him a fair opportunity to successfully complete the program, avoid sentencing, and have the charges against him dismissed. Like the parolee in Morrissey, drug court participants rely on an implicit promise that

approach allows termination based on nothing more than unsubstantiated allegations or rumors or simple animus. In other words, it allows drug courts to initially terminate participants capriciously, on little or no grounds, leaving it up to the terminated participant to bring a post hoc challenge to the termination. I do not imply a view that the drug court in this case acted arbitrarily or capriciously; I merely point out that the majority opinion imposes no standards or procedures that would protect against it. Second, the fact that drug court participants enter the program pursuant to a contract does not distinguish them from ordinary probationers who plead guilty pursuant to a plea agreement with the State and who, under Gagnon, are unquestionably entitled to due process before revocation of their probation. As the majority opinion correctly points out, plea agreements are contractual in nature, and Idaho courts have generally employed contract law standards in interpreting and enforcing parties’ responsibilities under plea agreements. Yet, neither the United States Supreme Court nor Idaho courts have ever held that a court may revoke a defendant’s probation without due process merely because the defendant was placed on probation pursuant to the terms of a plea agreement. Nor have we ever held that the State may be excused from its performance under a plea agreement without first demonstrating that the defendant has breached the agreement’s terms. The drug court contract that Rogers signed nowhere says that he thereby waived his right to due process or consented to termination from the drug court program without cause or without a fair opportunity to challenge the alleged grounds for the termination. Therefore, I fail to see how the use of a contract for entering drug court participants bears upon the issue of what process is required before the participants can be discharged. Third, the majority’s analysis will allow a defendant to be returned to drug court after an initial termination only if the defendant shows that the termination was unwarranted. This shifts the burden to the defendant to prove that he did not violate drug court rules, but there is no requirement that he ever be informed of the specific evidence, or the witnesses supplying the

their conditional liberty will be revoked only if they fail to live up to the terms on which it is conditioned. See Morrissey, 408 U.S. at 482. A motion to withdraw the guilty plea, even if

evidence, upon which the court based its termination decision. In the case before us, so far as I can discern, Rogers was never notified of the identity of the witness or witnesses who allegedly provided the information upon which the court based its discharge decision. The burden to go forward with evidence showing just cause for a participant’s removal from drug court more properly rests with the State. Finally, the majority’s approach requires the defendant to shoulder the burden of persuading the drug court (or perhaps a different district court judge) that the drug court itself breached the contract by wrongfully terminating the defendant without valid cause. That is, in many circumstances it will be the drug court judge, not the prosecutor, who is alleged to have acted improperly. Rather than placing this unenviable burden of persuasion on the defendant, it is far more fair, and concordant with ordinary jurisprudential practices, to require the drug court to hear and weigh the evidence for and against termination before the termination decision is made. In summary, I would hold that Rogers suffered a loss of liberty when he was terminated from drug court without the requisite due process safeguards. I would therefore vacate the judgment of conviction and the order terminating Rogers from drug court, and remand for further proceedings.

granted, does not remedy an unjustified deprivation of the defendant’s bargained-for opportunity to complete drug court and gain dismissal of the charge.

20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46