Oestrich v. State

198 N.W.2d 664, 55 Wis. 2d 222, 1972 Wisc. LEXIS 986

Opinions

Hanley, J.

The sole issue presented on this appeal is whether the defendant is entitled to representation by counsel at a probation revocation hearing in a deferred sentencing situation.

In State ex rel. Johnson v. Cady (1971), 50 Wis. 2d 540, 185 N. W. 2d 306, this court determined that, although a person placed on probation or parole after sentencing was entitled to a hearing before his parole or probation was revoked, he was not guaranteed the right to counsel at such hearing. However, the question of the right to a probation revocation hearing and to counsel at such hearing in a situation where a defendant has been convicted but sentence has been withheld was left undecided. The attorney general concedes that counsel is required at sentencing under the holding in Mempa v. Rhay (1967), 389 U. S. 128, 88 Sup. Ct. 254, 19 L. Ed. 2d 336, but contends that Mempa dealt only with counsel at sentencing and does not require the presence of counsel at a probation revocation hearing, even in a deferred sentencing situation. Defendant asserts that the revocation of probation is an integral part of the sentencing process in cases in which the trial court originally withheld sentence and that counsel should therefore be present at the probation revocation hearing.

We think the issue presented herein was disposed of by this court’s opinion in State ex rel. Bernal v. Hershman (1972), 54 Wis. 2d 626, 196 N. W. 2d 721, which was handed down on May 4, 1972, the day after oral argument in this case. In Bernal, it was noted that the United States Court of Appeals for the Seventh Circuit had decided Gunsolus v. Gagnon (1971), 454 Fed. 2d 416, shortly after this court handed down its decision in Johnson. Gunsolus requires that counsel be allowed to participate in probation revocation hearings without regard to whether the hearing occurs in a sentence withheld or a postsentence situation. This court adopted the Gunsolus ruling and held that, as a matter of constitutional right, a defendant is entitled to the assistance of counsel at parole or probation revocation hearings or at other proceedings which might affect the liberty of a person under the supervision of the department of health & social services.

We conclude the case must be remanded for a probation revocation hearing, at which time defendant is entitled to be represented by counsel.

By the Court. — Order reversed and cause remanded.