Warden v. Meegan II (James) ( 2015 )

 against him in California had been dismissed. Further, the district court
considered the factors that the Parole Board is to consider when
establishing regulations as .set forth in NRS 213.10885(2) and concluded
that the factors largely weighed in Meegan's favor. The district court
ordered that Meegan receive a new parole revocation hearing. The State
argues that the district court erred in granting relief because there was a
written statement of the evidence relied upon and the reason for revoking
parole. We agree.
Revocation of parole involves a two-step process. Morrissey v.
Brewer, 408 U.S. 471, 479-80 (1972). The first step "involves a wholly
retrospective factual question: whether the parolee has in fact acted in
violation of one or more conditions of his parole." Id. at 479. The second
step is a discretionary determination by the factfinder as to whether the
violation warrants revocation of parole. Id. at 480. The decision of
whether to revoke parole is a discretionary decision and will not be
disturbed absent a showing of an abuse of discretion. Lewis v. State, 90
Nev. 436, 438, 529 P.2d 796, 797 (1974).
Minimal due process at a final parole revocation hearing
requires: (1) written notice of the claimed violations of parole; (2)
disclosure to the parolee of the evidence against him; (3) an opportunity to
be heard in person and to present witnesses and documentary evidence;
(4) a qualified right to confront and cross-examine adverse witnesses; (5) a
neutral and detached hearing body; and (6) a written statement by the
factfinders of the evidence relied on and reasons for revoking parole.'
1 The preliminary inquiry in this case occurred in California as
Meegan was residing in California under an Interstate Compact when the
arrest occurred.
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Morrissey, 408 U.S. at 488-89. Due process requires that revocation be
based upon "verified facts," id. at 484; see also Anaya v. State, 96 Nev. 119,
122, 606 P.2d 156, 157 (1980), and the "evidence and facts must
reasonably satisfy the [factfinder] that the conduct of the [parolee] has not
been as good as required by the conditions of [parole]," Lewis, 90 Nev. at
438, 529 P.2d at 797; see also United States v. Gallo, 20 F.3d 7, 14 (1st Cir.
1994). The written statement by the factfinder "helps to insure accurate
factfinding with respect to any alleged violation and provides an adequate
basis for review to determine if the decision rests on permissible grounds
supported by the evidence." Black v. Romano, 471 U.S. 606, 613-14
(1985). The reviewing court may consider the written report as well as
any transcripts of the proceedings. Id. at 616; United States v. Sesma-
Hernandez, 253 F.3d 403, 408-09 (9th Cir. 2001); United States v.
Copeland, 20 F.3d 412, 414 (11th Cir. 1994). "A due process violation at a
revocation proceeding is subject to harmless error analysis." United States
v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998).
While the board's written statement in this case is not a model
of due process, it is sufficient when considering the record as a whole. The
written statement identified 4 pieces of evidence relied upon: the parole
violation report from California, the police report of the incident with
Meegan's mother, the docket entries for the California case, and a 2011
protective order issued in Clark County. The written decision further
articulates a reason to revoke parole, "arrest for battery with family
member and criminal history consists of violence—creating threat to
public safety." Contrary to the assertion of the district court that Meegan
had not committed a violation of the law condition because the California
charges had been dismissed, a conviction is not a precondition for charges
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to be considered in determining whether to revoke parole. See Dail v.
State, 96 Nev. 435, 440, 610 P.2d 1193, 1196 (1980) (holding that due
process is not violated when revocation is conducted in advance of a trial
conducted on the charges that were also alleged as a probation violation);
see also Kartman v. Parratt, 535 F.2d 450, 458 (8th Cir. 1976); Standlee v.
Rhay, 557 F.2d 1303, 1305-07 (9th Cir. 1977). Meegan was provided an
opportunity to explain the circumstances of the incident and arrest in
California and he provided letters from friends and family for
consideration by the Parole Board. 2 While the Parole Board could have
better articulated their findings at both the hearing and in the written
statement, when reviewed as a whole the record reveals that the evidence
supported a finding that Meegan had violated conditions of his parole due
to the altercation with his mother and subsequent arrest and charges and
that his parole was revoked due to concerns about public safety given his
criminal history. 3 Therefore, we reverse the district court's decision to
grant the petition.
2 Due process would allow consideration of "letters, affidavits, and
other material that would not be admissible in an adversary criminal
trial." Morrissey, 408 U.S. at 489.
The police report is not required to be "verified," rather due process
requires a violation be established by verified facts. Morrissey, 408 U.S. at
484; see also Anaya, 96 Nev. at 122, 606 P.2d at 157. Meegan's own
statements at the hearing supported a finding that Meegan had violated
the conditions of his parole when he engaged in a fight with his mother
and broke a bottle on the ground during the fight.
3 TheParole Board was not required to provide a written statement
regarding the factors set forth in NRS 213.10885(2) as those factors are
meant to guide the Parole Board in establishing guidelines to review
parole-revocation decisions in general. The factors set forth in NRS
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To the extent that Meegan argues that he was not provided
notice that the Parole Board would consider the 2011 protective order and
that this provides an alternative ground to affirm the decision of the
district court, we conclude that any due process violation in this regard
was harmless. 4 Havier, 155 F.3d at 1092; see also Kartman, 535 F.2d at
454 (finding that although a third violation was impermissibly vague as
charged, the error would not justify relief if revocation based on two other
violations was proper). It does appear that there was a notice problem
regarding the 2011 protective order. It does not appear from the
documents before this court that Meegan received notice that the
protective order would be considered as it is not mentioned in any of the
violation reports. Further, the protective order was never mentioned on
the record at the parole revocation hearing. However, the Parole Board's
decision, as discussed more fully in this order, rested upon the incident
with his mother as well as his criminal history—which includes a
conviction of first-degree murder involving the death of his child. Under
these circumstances, where there were verified facts presented that he
had violated the directives, laws, and conduct conditions of parole based
upon the incident with his mother that resulted in his arrest and charges
...continued
213.10885(2) are not a checklist and they do not narrow the discretion of
the Parole Board.
4To the extent that Meegan claims he did not receive notice of the
California charges, the record belies this claim. Meegan had a
preliminary inquiry in California. Further, there is a signed document
acknowledging Meegan's receipt of the parole violation report. Meegan
did not argue on appeal any other claims rejected by the district court, and
therefore, our review is limited to the issues raised on appeal.
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in California, we conclude that any error in failing to provide notice of the
2011 protective order was harmless. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Saitta
, J.
cc: Hon James Todd Russell, District Judge
Attorney General/Carson City
Belanger & Plimpton
Carson City Clerk
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