State v. Howell

No. 85-293
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IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 85-293
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MICHAEL HOWELL,
Defendant and Appellant.
No. 85-399
IN THE MATTER OF
MICHAEL HOWELL,
Petitioner,
HENRY RISLEY, Warden, Montana
State Prison,
Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C.B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant/Petitioner:
Thomas Alan Kragh, Polson, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Attorney General, Helena
Claude Burlingame, County Attorney, Thompson Falls,
Montana
Submitted on Briefs: April 4, 1986
Decided: June 19, 1986
JuN i 3 1986
Filed:
OPINION AND ORDER
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Michael Howell petitioned this Court for a writ of
habeas corpus in Cause No. 85-399. Howell claims his
imprisonment is unlawful because he was not provided a
preliminary on-site hearing as required by 5 46-23-1103, MCA,
and the due process clauses of the federal and state
constitutions.
We remanded to the District Court of the Twentieth
Judicial District, Sanders County, for an evidentiary
hearing. We also stayed petitioner's related appeal in Cause
No. 85-293 until final judgment is entered on the writ of
habeas corpus. The evidentiary hearing was held before the
Hon. C. B. McNeil, who filed findings of fact and conclusions
of law with this Court.
Michael Howell was convicted of four counts of
aggravated assault in Sanders County District Court on
January 19, 1984. He was given a 20 year suspended sentence,
and placed on probation in Montana. In April, 1984, his
probation was transferred to Sandpoint, Idaho, pursuant to
the Uniform Act for Out-of-State Parolee Supervision in 5
46-23-1101, MCA, et seq.
On September 19, 1984, Howell assaulted his wife.
Howell was arrested by the Sandpoint Police Department
pursuant to an agent's warrant issued by his Idaho probation
officer charging him with violation of his probation. On
September 21, 1984, Howell's Idaho probation officer sent a
Special Report to Montana which recommended Montana take
immediate action to revoke probation and. sentence Howell.
On September 25, the agent's warrant was lifted and the
Idaho deputy prosecuting attorney file a charge against
Howell for aggravated battery. On September 26, he was
arraigned in Idaho for aggravated battery. Meanwhile, on
October 1, 1984, Montana authorities filed a petition to
revoke probation. On October 1, Howell was transported to
the state line by Idaho authorities and retaken by Montana
authorities. Upon his arrival in Montana, Howell's Montana
probation officer authorized a probation violation hold on
Howell. The next day District Jud.ge Wheelis issued a bench
warrant for Howell's arrest for probation violations. On
October 23, he was arraigned for the probation violations. A
hearing on the petition was held on January 22. It was
adjourned until February 5 to secure the attendance of
witnesses. On February 11, District Judge McNeil entered his
findings of fact and conclusions of law. On March 12,
Howell's probation was revoked and he was sentenced to serve
20 years. After his probation was revoked in Montana, Idaho
dropped the aggravated battery charges against Howell.
Petitioner contends he was denied due process because he
was not given a preliminary hearing in Idaho before he was
returned to Montana as required by Morrissey v. Brewer
(1972), 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 and
Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct. 1756, 36
L. Ed. 2d 656. He argues 46-23-1103, MCA, requires a
probationer be given an on-site hearing before he is returned
to the sending state, and that the failure to do so means he
should be reinstated on parole. The State distinguishes
Morrissey and argues that Howell was accorded fundamental
fairness.
When Howell filed his petition for habeas corpus with
this Court, we remanded the same to the District Court,
Twentieth Judicial District, Sanders County, for hearing on
the fact issues raised by the petitioner in his petition for
habeas corpus relief. We requested the District Court to
prepare and file its written findings of fact and
recommendation for disposition of the petition. At the same
time we denied petitioner's motion for reasonable bail and
stayed his appeal in Cause No. 85-293 until the further order
of this Court.
The District Court held a hearing, and prepared findings
of fact and a recommendation which it did return to us. It
found facts substantially as we have reported in the
foregoing recitation.
The District Court recommended that we deny the petition
for habeas corpus. It based its recommendation principally
upon the provisions of S 46-23-1102(3), MCA, which in effect
provides that if Montana sends a person on probation or
parole into another state and decides to retake that person
to Montana the decision to retake is conclusive upon and not
reviewable within the receiving sta.te, in this case the State
of Idaho.
Section 46-23-1102, MCA is a part of the Uniform Act for
Out-of-State Parolee Supervision contained in §§ 46-23-1101,
-1106, inclusive MCA. That Act was ad-opted in this state in
1937. Since that time there have been at least three
decisions in the United States Supreme Court which have an
effect on the provisions of § 46-23-1102(3), MCA.
In Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33
L. Ed. 2d 484, the United States Supreme Court held that a
parolee's liberty involves significant values within the
protection of the due process clause of the Fourteenth
Amendment of the United States Constitution, and that
termination of that liberty requires an informal hearing to
give assurance that the finding of a parole violation is
based on verified facts to support the revocation. In
Morrissey, the Court decided that due process required a
reasonably prompt and informal inquiry conducted by an
impartial hearing officer near the place of the alleged
parole violation or arrest to determine if there is
reasonable ground to believe the arrested parolee had
violated a parole condition. The Supreme Court said in
Morrissey that minimum due process required a full hearing
before a neutral and detached hearing body for which the
parolee had been given written notice of the claim of
violations of parole, disclosure of the evidence against him,
an opportunity to be heard in person and to present witnesses
and to confront and cross-examine adverse witnesses.
Following Morrissey, in Gagnon v. Scarpelli (1973), 411
u.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, the Supreme Court
repeated that due process mandates preliminary final
revocation hearings in the case of a probationer on the same
conditions as specified in Morrissey.
In Moody v. Daggett (19761, 429 U.S. 78, 9 7 S. Ct. 274,
50 L. Ed. 2d 236, however, the Supreme Court decided that a
parolee was not entitled to hearing on revocation when the
parole violator warrant had not been executed but rather was
issued at large and sent to the institution of his
confinement as a "detainer."
This Court held in Owens v. Risley (Mont. 1985), 702
P.2d 1, 42 St.Rep. 1000, that Owens was not entitled to an
on-site hearing in another state because one of the
provisions of his parole was that he not leave Montana.
Since Owens had left the State of Montana without permission,
he had violated his parole by that fact, and was not entitled
to any further hearing.
It is not necessary in this case to determine whether
there is an irreconcilable conflict between United States
Supreme Court decisions in Morrissey and Gagnon and the
interstate compact provisions to which we have referred
above. In any event, the purpose of the on-site preliminary
hearing and the eventual full-blown hearing on revocation is
to provide due process to the parolee, - - protect -
and to his
liberty interest at the time. In this case, Howell did not
have a liberty interest at the time of the proceedings
against him for the revocation of his parole. He was at the
time under arrest in Idaho by reason of a charge against him
for assault. His transfer by the Idaho authorities to the
Montana authorities while he was still under arrest did not
deprive him of any liberty interest since his detention by
the Idaho authorities was at all times lawful. The United
States Court of Appeals for the Ninth Circuit has explained
the meaning of Morrissey in Pierre v. Washington State Board
of Prison Terms and Paroles (9th 1983), 699 F.2d 471. In
that case, the Court of Appeals said:
In Morrissey, the Supreme Court did not intend to
lay down a rigid set of procedures to be followed
ritualistically in every situa.tion. Rather, it
prescribed a general framework to guide future
parole revocation proceedings in order to guarantee
that parolees are not deprived of procedural due
process. The themes of flexibility and informality
run throughout Morrissey: "No interest would be
served by formalism in this process; informality
will not lessen the utility of this inquiry in
reducing the risk of error." Id. at 487, 92 S.Ct.
at 2603. "We have no thought to create an
inflexible structure for parole revocation
procedures." - at 490, 92 S.Ct. at 2604. "We
Id.
cannot write a code of procedure .. . .
Our task
is limited. to deciding the minimum requirements of
due process. " - at 488-489, 92 S.Ct. at
Id.
2603-2604. No formalistic set of procedures need
be followed as long as the minimum due process
reauirements enunciated in Morrissev are met.
~nd-er the facts of Morrissey, the two-hearing
a
requirement was just one way to satisfy minimum due
process; it is not the only way in every case.
We hold therefore that Howell was not deprived of a
liberty interest by the failure of the authorities to provide
for him a preliminary or on-site hearing. We find in fact he
was given a full hearing on the revocation of his parole,
with the opportunity to meet the charges against him which
constituted the reasons for the revocation of his parole, to
cross-examine adverse witnesses, and to produce witnesses of
his own. He has not been deprived of due process.
ACCORDINGLY, IT IS ORDERED:
That the petition of Michael Howell for habeas corpus
relief in this cause is hereby denied; and the order of this
Court on September 24, 1985, staying the appeal of Howell in
Cause No. 85-293 is hereby vacated.
Justice
We Concur:
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