Owens v. Risley

No. 84-547
I N THE SUPREME COURT O THE STATE O F M N A A
F OTN
1985
DANNE WILLIAM OWENS,
Petitioner,
-vs-
HENRY RISLEY ,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL O RECORD:
F
For P e t i t i o n e r :
Conde F. Mackay, P u b l i c D e f e n d e r , Anaconda, Montana
F o r Respondent:
Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
K a r l N a g e l , Dept. of I n s t i t u t i o n s , H e l e n a , Montana
Submitted: A p r i l 9 , 1985
Decided: July 2 , 1985
J.k\$
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Filed: , .
Clerk
M r . J u s t i c e Frank B. Morrison, Jr., d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant, Danne W i l l i a m O w e n s , was c o n v i c t e d of bur-
g l a r y and s e n t e n c e d t o t e n y e a r s a t t h e Montana S t a t e P r i s o n
on May 2 7 , 1981. H e was p a r o l e d J u n e 23, 1983, on t h e c o n d i -
tion that he e n t e r and c o m p l e t e t h e L i g h t h o u s e Program a t
Galen S t a t e H o s p i t a l . D e f e n d a n t e n t e r e d Galen on J u n e 27,
1983, and at 7:15 p.m. t h a t e v e n i n g was reported missing.
Defendant's supervising parole o f f i c e r issued a report
of violation on July 5, 1983. D e f e n d a n t was subsequently
arrested in Bellevue, Washington, on October 11, 1983.
Following extradition, defendant was returned to Montana
S t a t e P r i s o n on December 3 , 1983, and a f i n a l p a r o l e r e v o c a -
t i o n h e a r i n g was h e l d December 29, 1983. Defendant's parole
was r e v o k e d a t t h a t h e a r i n g .
D e f e n d a n t f i l e d a p r o se p e t i t i o n f o r a w r i t o f habeas
c o r p u s w i t h t h i s C o u r t on December 1 9 , 1984. The D e p a r t m e n t
of Institutions responded on January 23, 1985. We then
i s s u e d a n o r d e r on J a n u a r y 3 0 , 1 9 8 5 , remanding t h i s c a s e t o
t h e Third J u d i c i a l D i s t r i c t Court f o r an e v i d e n t i a r y h e a r i n g
to determine if petitioner received a preliminary on-site
hearing f o r parole violation, pursuant t o § 46-23-1024, MCA.
That hearing was held March 7, 1985. A stipulation was
e n t e r e d i n t o by b o t h p a r t i e s s t a t i n g t h a t no s u c h p r e l i m i n a r y
on-site hearing had been held and that defendant had not
waived h i s r i g h t t o s u c h a h e a r i n g .
I n h i s p e t i t i o n f o r a w r i t o f h a b e a s c o r p u s and memoran-
dum i n s u p p o r t , d e f e n d a n t r a i s e s two b a s i c i s s u e s :
1. Whether d e f e n d a n t was w r o n g f u l l y d e n i e d a p r e l i m i -
nary on-site hearing on t h e r e v o c a t i o n of h i s appeal; and
2. Whether defendant was denied his due process rights
enunciated in Morrissey v. Brewer (1972), 408 U.S. 471, 92
S. Ct. 2593, 33 L. Ed. 2d 484, at his final revocation hearing?
The State conceded that defendant received no prelimi-
nary on-site hearing. However, the State contends that no
hearing was required because defendant had absconded from
supervision and was arrested in another jurisdiction where he
had no permission to be. Since the fact of his arrest in
another jurisdiction established probable cause that Owens
had violated his parole (he obviously was not at the Light-
house Project in Galen), there was no need to hold a prelimi-
nary hearing on the issue of whether or not probable cause
existed.
Regarding issue number two, the State contends first
that defendant was not constitutionally entitled to an attor-
ney, and second, that Owens was given every opportunity to
present evidence or witnesses on his behalf, but failed to do
SO.
A preliminary on-site hearing was not necessary in this
situation. The purpose of an on-site hearing is to "deter-
mine whether there is probable cause or reasonable ground to
believe that the arrested parolee has committed acts that
would constitute a violation of parole conditions. Cf.
Goldberg v. Kelly, 397 U.S., at 267-271, 90 S.Ct. at
1020-1022, 25 L.Ed.2d at 287." Morrissey v. Brewer, 408 U.S.
at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 497. The Eighth
Circuit has held that "where obtaining permission before
leaving the state is a condition of parole, a parolee's
presence in another state without such permission is suffi-
cient probable cause to believe he committed an act which
constituted a violation of his parole such that a preliminary
probable cause hearing is not required." (Citation omitted.)
Chilembwe v. Wyrick (8th Cir. 1.978), 574 F.2d 985, 987.
In a special concurrence to Chilembwe, supra, Judge Lay
raises an important issue. He believes Morrissey to require
an on-site hearing in order to avoid:
"the possibility of any mistake or misun-
derstanding which might arise and the
concomitant hardship resulting from
returning the parolee to prison. A
parolee may be able to show mitigating
circumstances which would alter the
initial decision to revoke the parole.
For example, the inability to notify the
officer of a dire emergency or some
misunderstanding by the parolee or offi-
cer might possibly be aired at the situs
of arrest." Chilembwe, 574 F.2d at 987.
However, here defendant's presence in another state clearly
established probable cause that defendant had violated his
parole. Not only was he not suppose to be outside of
Montana, he was not suppose to be away from Galen State
Hospital. He would have had no mitigating circumstance or
misunderstanding to voice at an on-site hearing.
Regarding issue two, there is clearly no constitutional
right to counsel at a final parole revocation hearing.
Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct. 1756, 36
L. Ed. 2d 656; Petition of Spurlock (1969), 153 Mont. 475, 458
P.2d 80; Petition of High Pine (1969), 153 Mont. 464, 457
P.2d 912. However, the United States Supreme Court stated in
Gagnon, supra, that:
"We think ... that the decision as to
the need for counsel must be made on a
case-by-case basis in the exercise of a
sound discretion by the state authority
charged with responsibility for adminis-
tering the probation and parole system.
Although the presence and participation
of counsel. will probably be both undesir-
able and constitutionally unnecessary in
most revocation hearings, there will
remain certain cases in which fundamental
fa irness--the touchstone of due
process--will require that the State
provide at its expense counsel for
indigent probationers o r parolees." 411
U . S . a t 7 9 0 , 9 3 S . C t . a t 1 7 6 3 , 36 L.Ed.2d
a t 666.
Montana l a w p r o v i d e s f o r s u c h a c a s e - b y - c a s e determina-
tion. A.R.M. 5 20.25.801 ( 4 ) s t a t e s :
" I f n o t r e p r e s e n t e d by c o u n s e l , an i n d i -
g e n t p a r o l e e may r e q u e s t s u c h , a n d a
d e c i s i o n on t h e r e q u e s t w i l l b e r e n d e r e d
by t h e board a f t e r due c o n s i d e r a t i o n . "
Where, as here, defendant has admitted violating a
condition of parole and is capable of speaking e f f e c t i v e l y
f o r h i m s e l f , t h e r e i s no a b u s e o f d i s c r e t i o n by t h e Board i n
refusing t o g r a n t defendant counsel. See Barton v. Malley
(10th C i r . 1 9 8 0 ) , 626 F.2d 151, 158.
Finally, defendant was not denied an opportunity to
present h i s case. D e f e n d a n t was a s k e d o n e q u e s t i o n , w h e t h e r
o r n o t h e had v i o l a t e d p a r o l e . H e answered y e s . The B o a r d
then pronounced that defendant's parole would be revoked.
Defendant subsequently declined the opportunity to speak,
stating that he would wait for "a court of law." Since
defendant admitted violating a condition of h i s parole and
declined the opportunity to defend himself, there was no
error.
The r e v o c a t i o n o f d e f e n d a n t ' s p a r o l e i s a f f i r m e d .
W e concur: /