dissenting.
122MichaeI Tornavacca urges on appeal that he was denied due-process protection in the form of notice, a hearing, and the right to be present at the staffing meeting when his termination from the drug-court program was decided. The result was his immediate incarceration for a thirty-year sentence. Because I believe that minimal procedural due-process protections apply to drug-court terminations and afford him the right to be present when the termination decision is made, I dissent.
Tornavacca pled guilty to theft of a vehicle and a shotgun and received the maximum thirty-year sentence. His sentence, however, was placed on hold in exchange for his participation in the drug-court program. He was told by the trial judge at sentencing that he would have to serve the full thirty years if he did not meet the conditions of the program.
On November 1, 2010, the trial judge had a “staffing” meeting with various members of the drug-court team, including a prosecutor’s representative and a public defender, where Tornavacca’s violations of the conditions were discussed. Tornavac-ca was not present at this meeting.
After the meeting, the trial judge informed Tornavacca that he had three violations, or “strikes,” against him and that he would be removed from the program and incarcerated immediately to begin his thirty-year sentence. The following colloquy occurred between the trial judge and Tornavacca.
IzsThe COURT: [0]n October 26th we had a surprise call ... [a]nd there was a home visit conducted and you were found to be drunk. At home.
Defendant: Yes, sir.
The Court: Then after that on October the 27th you took a major dose of pills. Some of them pain pills, some of your—
Defendant: Prescribed.
The Court: — your, your pain pills for what?
DefendaNT: Blood pressure and a pinched sciatic nerve in my back.
The Court: And that caused you to go to the hospital and had to be pumped.
Defendant: Intubated.
The Court: And, pursuant to that, that brings about two separate and distinct issues: one related to alcohol, one related to your own prescription medication which you abused. And you already had one strike and now you get two more. And it’s not inconsistent with what this Court’s always done. They are two separate distinct events.
Defendant: Your Honor, the medication that I came off, had a reaction. I was on the medication for a long time. And it had a reaction and it was, it was confusion. It wasn’t taken to get high. It was just, it was taken in confusion. It was confusion. That medication does not — it would remove the pain in the nerve in my back. And—
The Court: That would be the pain medication.
DEFENDANT: Well, it’s a muscle relaxer that relaxes the muscles around the nerve. I need back surgery, but I didn’t want to do that in Drug Court. And the medication made me confused ... I hope you give me another chance. Because I did not take the, I did not take a narcotic to get high. I had no idea what was going on at that point.
The Court: Well, I’m not.
Defendant: And I’ve never, and I’ve never lied to you.
The CouRT: I know that. I’m not giving you another choice. I mean, there were statements made at the hospital that are a matter of hospital records that when you get out you’d do it again. You know, when you abuse the medications that you were given and given permission from this Court to take, and then use them to excess—
DefendaNT: It wasn’t an intentional use, Your Honor, in excess—
The Court: Well, they were.
| {^Defendant: — to get a high. It was in confusion—
The Court: Well, it wasn’t going to get high. It was going to cause death.
Defendant: It almost did.
The Court: I know.
Defendant-. You know.
The Court: That’s the reason you’re getting 30 years in the Arkansas Department of Correction. That’s what you pled to. That’s what you’re going to get. That’s the order of the Court. You have got strike two and three based on your actions in taking that medication....
Contrary to the trial judge’s conclusions, the majority opinion correctly concludes that Tornavacea did not waive his right to contest the alleged violations. The majority, though, refuses to conclude that Torna-vacca was denied procedural due process by the private staffing meeting. Rather, the opinion states that “[ujnder the peculiar circumstances of this case,” post conviction relief is not warranted because both Tornavacea and the State presented evidence at the postconviction Rule 37 hearing that would have been introduced had a hearing been held at the time Tornavacea was ousted from the drug-court program. There are several things wrong with the analysis that postconviction relief is not warranted because a Rule 37 hearing occurred almost four months after the staffing meeting and Tornavacca’s ouster. Is the majority saying that the delayed Rule 37 hearing cured an initial due process violation? It would seem that it the majority’s position, but the opinion should be clear as to whether the staffing procedure constituted a due process infringement. I conclude that it did.
As a second point, I question whether a subsequent collateral hearing (the Rule 37 hearing) on the ineffectiveness of counsel should substitute for a hearing on the violations that was denied him and led to his thirty-year incarceration. This later hearing seems more like |2sa patchwork-quilt remedy for Tornavacea than a legitimate protection at the time his drug-court participation was terminated. Surely, the purpose behind a hearing on the alleged violations of conditions as a part of drug-court termination and the purpose behind a later ineffectiveness hearing are categorically different. Even though similar witnesses might be involved in both hearings, the tenor of the two proceedings is not the same. In addition, today’s precedent suggests that other constitutional violations or errors that occur at an initial proceeding or trial can be “cured” by a later Rule 37 hearing. That should not be.
Without question, the drug-court program serves a laudable purpose and seeks to salvage the lives of drug offenders caught up in the criminal-justice process. Yet minimizing basic protections against loss of liberty, such as notice and the right to be heard on whether conditions have in fact been violated, appears to me to be an extraordinary due-process flaw.
Other states have raised similar concerns about procedural due process and have afforded due-process protection prior to termination from participation in their respective drug-court programs. See, e.g., State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011); Gosha v. State, 931 N.E.2d 432 (Ind.Ct.App.2010); State v. Rogers, 144 Idaho 738, 170 P.3d 881 (2007). In doing so, these three states have recently interpreted and extended the United States Supreme Court’s decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that certain minimum due-process requirements apply to parole revocations) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying the same to probation revocations), to post-guilty-plea programs like drug-court programs.
laJn 2011, for example, after considering the Court’s decision in Morrissey, the Nebraska Supreme Court in Shambley held that participants in drug-court programs are entitled to the same due-process protections as persons facing termination of parole or probation. Shambley, 795 N.W.2d at 894. The court explained that while restrictions on the liberty of drug-court participants may depend on their individual program plans, participants are not imprisoned, and, like parolees or probationers, they may still do a wide range of things. Id. The termination of the conditional liberty granted drug-court participants, the court said, inflicts a “grievous loss” similar to the loss of parole or probation. Id.
The court went on to explain the State’s interests in drug-court programs:
The State’s interests, as in parole or probation, include an interest in being able to terminate participation in the program without the burden of a full adversary criminal trial. But perhaps even more so than in parole or probation, the State has little necessity for summary treatment. Drug court participants must generally plead guilty in order to qualify for the program, and the State thereby avoids the burden of a full adversary trial in the first instance. Furthermore, in order to qualify for the program, the crime cannot be a crime of violence and the offender must not have a significant criminal history of crimes of violence. Thus, the risk inherent to any delay caused by conducting a termination hearing is minimal.
As with parole and probation, it is in the State’s interests that drug court participants are restored to a normal and useful life. This is, after all, the point of the program. Accordingly, the State, like the participant, has an interest in seeing that there is a termination process which ensures participants are not terminated from the program because of erroneous information or because of an erroneous evaluation of the need to terminate.
Shambley, 795 N.W.2d at 894 (internal citations omitted).
After considering the relative interests of the State in the drug-court program together with those of the State in parole or probation, the court concluded that the State’s interests 127in those two areas were essentially the same. Id. at 894-95. As a result, the court held that minimal due process to which a parolee or probationer is entitled under Morrissey and Gagnon also applies to participants in the drug-court program. Shambley, 795 N.W.2d at 895.
Similarly, in 2010, the Indiana Court of Appeals held that minimum due process considerations are required before termination of participation in the drug-court program. See Gosha, 931 N.E.2d at 433. In Gosha, the court, citing Morrissey and Gagnon, explained that a defendant has “a protected liberty interest such that he must be accorded procedural due process before the court may terminate his participation in the Drug Court Program and reinstate his original sentence.” Id. at 434. The same due-process rights which are afforded a defendant in probation revocation proceedings were applied to defendants participating in the Drug Court Program. Id. According to the court, the minimum requirements include “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body.” Id. at 435.
Likewise, in 2007, the Supreme Court of Idaho concluded that a defendant who pleads guilty in exchange for entrance into a diversionary drug-court program has a liberty interest in remaining in that program, and is, therefore, entitled to procedural due process before he or she may be terminated from that program. See Rogers, 170 P.3d at 884-85. The court also explained that the liberty interest involved — remaining in the program — is akin to that in probation and parole revocation hearings. Id. at 885. The court held that the defendant was | ^entitled to the restricted due-process protections as articulated in Morrissey. Id. at 886.
The court further cautioned that the termination process is flexible and is not equated to a separate criminal prosecution and may be informal, as long as the safeguards are provided. Id. As a final point, the court concluded with an explanation of the applicability of its holding to the ultimate sanction of termination from the program:
We understand that similar to the [drug court program], many diversionary programs are informal in nature, and we do not want to unnecessarily impede the functioning of diversionary programs. The principles articulated in this opinion apply only when a participant in a diversionary program is facing termination from the program because that is when the participant faces a loss of liberty. Intermediate sanctions imposed in these programs do not implicate the same due process concerns, and continued use of informal hearings and sanctions need not meet the procedural requirements articulated here.
Id.
Arkansas’s Drug Court Act specifically provides for minimum due-process protection.
(b) The goals of the drug court programs in this state shall be consistent with the standards adopted by the United States Department of Justice and recommended by the National Association of Drug Court Professionals and shall include the following key components:
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(2) Use of nonadversarial approach in which prosecution and defense promote public safety while protecting the right of the accused to due process.
Ark.Code Ann. § 16 — 98—302(b)(2) (Supp. 2011). In the instant case, minimum due-process protection was not afforded to Tornavacca before he was sent to prison.
No doubt the argument will be made that drug-court goals have such merit that an infringement on due-process rights pales when compared to the overall benefit to society realized from the program. And yet here, for example, a man is sent to prison for thirty years ¡^without the opportunity to contest the violations mounted against him at the private staffing conference where the termination decision was made; nor was he provided with a similar opportunity to provide a defense before the judge when he was terminated from the program. A postconviction hearing held almost four months after the fact cannot substitute for that opportunity to immediately contest the staffing decision where termination was decided. The protections outlined in Morrissey and in the drug-court diversionary-program cases should apply before a defendant is removed from participation in the drug-court program in Arkansas.
As a final point, contrary to the assertions made in the concurring opinion, Tor-navacca was not provided notice or the opportunity to be heard prior to being removed from the program because, by the time the trial judge addressed him about his “strikes” following the staffing meeting, the decision to remove him from the drug-court program had already been made. Moreover, the colloquy conducted between the trial judge and Tornavacca on the record at the time of his termination cannot be interpreted as affording Torna-vacca the right to be heard, as he certainly was not given the opportunity to present evidence or cross-examine witnesses.
I conclude that minimum procedural due-process protection as guaranteed under the Arkansas and United States Constitutions was not provided to Tornavacca in the instant case. Accordingly, I dissent.