Sincup v. Blackwell , 608 S.W.2d 389 ( 1980 )

RENDLEN, Judge.

This is habeas corpus. Michael Sincup contests the revocation of his probation and resulting confinement in the Missouri State Training Center for Men. The writ is available to challenge the validity of parole or probation revocation proceedings resulting in incarceration, Green v. State, 494 S.W.2d 356, 357 (Mo. banc 1973), and this Court has jurisdiction of the cause under Mo.Const., Art. V, § 4.¹

Sincup pled guilty on July 6, 1979, to a charge of second degree burglary and was sentenced to eight years imprisonment by the Circuit Court of St. Francois County. On September 7, 1979, execution of sentence was suspended and Sincup was placed on five years probation.

The probation order required that he comply with eight standard probation conditions and four special provisions, one of which required that he not consume intoxicants. Sincup signed the probation order with the enumerated conditions, consenting to the conditions and agreeing to comply with its terms. Additionally, the probation officer reviewed the conditions with him and explained the prohibition on consumption of alcohol was imposed because the pre-sentence investigation revealed probationer’s extensive alcohol abuse. As related by the officer, “I told him at the time that he was placed on probation that in order for him to succeed he was going to have to refrain from using intoxicating beverages.” On October 7, 1979, one month after these events probationer was observed drinking beer at the scene of a fire. Following a counseled hearing, the trial judge on November 14,1979, revoked Sincup’s probation and ordered him committed to the custody of the Division of Corrections.

Petitioner first attacks the sufficiency of the evidence supporting revocation. Unlike Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973), cited by petitioner, in which there was no evidence to support a finding of probation violation, the record here sustains the conclusion that Sincup did in fact consume intoxicants. Deputy Sheriff Denver Haus testified he observed Sincup drink from a can labeled Busch beer within 15 feet of the deputy’s patrol car at the scene of a fire. Two other witnesses corroborated Haus’ testimony by recounting their observations of Sincup holding a beer can at the fire. Further, a local store owner stated that on two or three occasions during Sincup’s probationary period a person accompanying Sincup purchased a case of Busch beer and placed it in the vehicle Sincup was driving. While Sincup’s friends and father testified to the contrary, the trial judge found that Sincup consumed alcohol the night in question. As the standard of proof in revocation proceedings requires only that the hearing judge be reasonably satisfied that the terms of probation have been violated, the evidence presented was sufficient to support the judge’s determination. Ewing v. Wyrick, 535 S.W.2d 442, 444. (Mo. banc 1976). State v. Wilhite, 492 S.W.2d 397, 399 (Mo.App.1973). We decline petitioner’s invitation to weigh the evidence or substitute our judgment for that of the hearing judge on questions of credibility.

Petitioner also asserts a want of evidence that Sincup’s beverage was an intoxicant above 3.2 percent in alcoholic content. As discussed above, three persons observed Sincup holding a can labeled Busch beer and one of these three viewed Sincup drink from the can. Petitioner would have us hold additional evidence of the can’s contents, e. g., testimony of one who smelled the contents, was necessary to sustain a finding that the can contained alcohol. However, this ignores that the evidence supported an inference sufficient to reasonably satisfy the judge that the can held an intoxicant. Petitioner presented nothing to the contrary.

We further reject petitioner’s proffered distinction between beers of varying alcoholic content. The absolute proscription on alcoholic beverages in petitioner’s probation agreement was an attempt to arrest an apparent cause of probationer’s criminal conduct, alcohol abuse. Whether petitioner consumed beer of 3.2 percent or of greater alcoholic content is not controlling. Each tends to intoxicate, a condition inconsistent with petitioner’s rehabilitation. Accord: State v. Miller, 45 Ohio App.2d 301, 74 Ohio Ops.2d 476, 345 N.E.2d 82, 85 (1975).

Next petitioner contends the judge abused his discretion because Sincup’s violation was minor or technical in nature and the court failed to consider alternatives to imprisonment. Although petitioner characterizes the infraction as trivial, the trial judge could reasonably conclude otherwise. Petitioner consumed alcohol in public in the immediate presence of the deputy, thereby directly and blatantly contravening his probation agreement one month after promising to abide by its terms. This dilutes his claim that he can be counted on to avoid anti-social activity. Other courts have sustained revocation orders when probationers have breached covenants of total abstinence.² See e. g., Flinchum v. Commonwealth of Virginia, 346 F.Supp. 17, 20 (W.D.Va.1972); Beckworth v. State, 551 S.W.2d 414, 416 (Tex.Cr.App.1977); People v. Hainline, 21 Ill.App.3d 1080, 316 N.E.2d 565, 567 (1974); Smith v. State, 148 Ga.App. 822, 253 S.E.2d 241, 242 (1979).

After the initial determination that a condition of probation or parole has been violated, due process requires that alternatives to incarceration consonant with society’s protection and the probationer’s or parolee’s rehabilitation be considered. Morrissey v. Brewer, 408 U.S. 471, 479-480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). Accordingly, this Court recently held violation of parole or probation conditions does not automatically result in imprisonment without reflection on alternatives. Abel v. Wyrick, 574 S.W.2d 411, 418 (Mo. banc 1978). In Abel, after the probationer admitted violations the Court refused to consider evidence offered in mitigation or alternatives to incarceration. Id. at 419. Here, Sincup, represented by counsel, was provided a full and fair hearing. Suggested substitutes for incarceration were provided in the testimony of Sincup’s probation officer and advocated to the court by Sincup’s counsel.³ Demonstrating the futility of an alcoholic treatment program as an alternative, Sincup never admitted having a drinking problem. In light of these circumstances we cannot conclude the judge abused his discretion or Sincup was denied due process in the revocation proceedings. Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir. 1978); United States v. Burkhalter, 588 F.2d 604, 606-607 (8th Cir. 1978). People v. Hainline, 21 Ill.App.3d 1080, 316 N.E.2d 565, 567 (1974).

Finally, petitioner contends the court’s revocation order is inadequate because, though it states a violation occurred on October 7, 1979, it recites neither the evidentiary basis for the ruling nor the contemplated alternatives to revocation. While the order may be less than model, it is not violative of due process.⁴ The order, explicitly averring the nature of the violation (consumption of intoxicants on October 7, 1979), when conjoined with the transcript, affords an ample basis to gauge the evidentiary support and rationale for the court’s determination. Abel v. Wyrick, 574 S.W.2d 411, 421 (Mo. banc 1978). Ryan v. Wyrick, 518 S.W.2d 89, 94 (Mo.App.1974).

The record of this probation revocation proceeding reveals adherence to the mandates of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and accordance with the required aspects of due process. The record also discloses a sufficient eviden-tiary basis for the hearing judge’s determination that an infraction occurred.

In parole or probation revocation proceedings the trial court has a superior vantage point on the demeanor and credibility of witnesses as well as the predictive judgment whether further violations are apt to occur. Cf. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972). Where, as here, probationer engages in a flagrant public breach of a special condition of probation shortly after the importance of compliance with his agreement has been emphasized to him, this Court is unwilling to supplant the judgment of the hearing judge. The writ of habeas corpus is quashed and petitioner is remanded to the custody of respondent.

WELLIVER, MORGAN and HIGGINS, JJ., and WELBORN, Special Judge, concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, C. J., dissents and concurs in separate dissenting opinion of SEILER, J.

DONNELLY, J., not sitting.

1 . Although not strictly mandated by Supreme Court Rules, a habeas petition involving disputed factual issues should in the first instance be filed in Circuit Court. Abel v. Wyrick, 574 S.W.2d 411, 416 (Mo. banc 1978).

2 . Conditions of probation requiring total abstinence have been sustained in the face of constitutional and statutory challenges. See United States v. Miller, 549 F.2d 105, 107 (9th Cir. 1976); Sargis v. United States Board of Parole, 391 F.Supp. 362, 366 (E.D.Mo.1975). However, a condition of abstinence in the case of a probationer whose chronic alcoholism rendered compliance impossible was found unreasonable. Sweeney v. United States, 353 F.2d 10, 11 (7th Cir. 1965). In the case at bar, no allegation appears that petitioner was an alcoholic.

3 . To the extent petitioner argues a “second step” hearing is mandated to appraise alternatives to revocation, he misconceives the dictates of due process. As our Court of Appeals recognized, “[njeither Gagnon or Morrissey was intended to straight- jacket the States into developing an inflexible, ritualistic system of probation revocation. Neither decision was intended as an iron clad code of criminal procedure.” Brandt v. Percich, 507 S.W.2d 951, 956 (Mo.App.1974). Just because two inquiries are required in the revocation decision (i. e. whether a violation has occurred, and if so, whether revocation is proper in light of all the circumstances), a bifurcated hearing is not compelled.

4 . As previously recognized, the better practice suggests that an order specify the violation, supply the evidentiary basis for that finding, and state the court’s rationale for revocation. Abel v. Wyrick, 574 S.W.2d 411, 42] (Mo. banc 1978); Ryan v. Wyrick, 518 S.W.2d 89, 94 (Mo.App.1974).