Anthony Earl Wrone, Appellant-petitioner, v. Park J. Anderson, Warden, Oklahoma State Penitentiary,mcalester, Oklahoma, Appellee-respondent, 478 F.2d 291 (10th Cir. 1973)

Wrone, presently an inmate in the Oklahoma State Penitentiary, brought an action under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma against Park J. Anderson, the Warden of the state penitentiary. Based on the allegations in Wrone's petition, the trial court directed that an order to show cause be served on the respondent, and in due time the Attorney General of Oklahoma filed a response on behalf of the Warden. Based on such response and the exhibits attached thereto, the trial court denied the relief prayed for on the ground that there existed no federal constitutional question and dismissed the action. Wrone now appeals. We affirm.

Though the trial court held no evidentiary hearing, the essential facts are in nowise in dispute. On January 10, 1961, Wrone pleaded guilty to an Oklahoma state charge of larceny of narcotic drugs and was sentenced to a term of five years in the state penitentiary. The sentence thus imposed was suspended during good behavior under the provisions of 22 O.S. Sec. 991.

On April 19, 1964, Wrone was indicted by a federal grand jury in the Western District of Oklahoma for a drug violation. Thereupon, and prior to his subsequent conviction in the federal court, application was made by the county attorney, in the state court where Wrone had previously received the suspended sentence, to revoke the suspended sentence, the application to revoke reciting that Wrone had been thus indicted and additionally that during the month of April 1964 had been observed by federal agents in the company of known criminals and persons using narcotics. This application to revoke was granted on June 25, 1964, without hearing, as such, with Wrone not being present and not having been previously served with any notice of proposed hearing.

As indicated, as of the time when Wrone's suspended sentence was revoked, Wrone was in the custody of the federal authorities. Thereafter, he was convicted in the federal court and served a term in a federal penitentiary. A state detainer was placed on Wrone at the federal institution wherein he was then confined, and when he was thereafter released from the federal penitentiary on August 17, 1970, he was turned over to the Oklahoma authorities who placed him in the Oklahoma state penitentiary to begin serving the five year sentence above referred to.

On June 15, 1968, Wrone, while in federal custody, appealed the revocation of his suspended sentence, which appeal was denied by the Oklahoma Court of Criminal Appeals on January 29, 1969. Thereafter, Wrone sought state habeas corpus relief which, after hearing, was denied again by the Oklahoma Court of Criminal Appeals. Wrone v. Page, 481 P.2d 479 (Okl.Cr.App.1971). It was in this setting that Wrone turned to the federal courts for relief. As indicated, his action was dismissed by the trial court and Wrone now appeals that order of dismissal.

By way of additional background, 22 O.S. Sec. 992, which was in effect at the time Wrone's suspended sentence was revoked, permitted a more or less summary revocation of a suspended sentence with no requirement that the defendant be personally present in court. That statute has since been repealed and was replaced by that which now appears as 22 O.S. Sec. 991b, the latter statute providing for a hearing when application is made to revoke a suspended sentence. However, in Wrone v. Page, supra, it was held by the Oklahoma Court of Criminal Appeals that the procedural statute in effect in 1964, when Wrone's suspended sentence was revoked, was controlling, rather than the subsequently enacted statute, which was held not to be given retroactive effect.

In this court Wrone argues that the revocation of his suspended sentence, without hearing and without notice to him so as to permit him to appear with counsel and contest the application by the county attorney to revoke, was unconstitutional under the provisions of the Sixth Amendment as applied to the states through the Fourteenth Amendment. In thus arguing, counsel relies primarily upon Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967), and McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968). In Mempa, it was held that the Constitution did require that counsel be afforded a defendant previously convicted of a felony in a state post-trial proceeding for revocation of his probation and the imposition of a sentence which had been previously deferred. In McConnell, it was held that the rule of Mempa should be given retroactive application.

We deem Mempa and McConnell to be inapplicable to the present controversy. Those cases were concerned with defendants who had not been sentenced, as such, but placed on probation. The rationale of those cases was that the imposition of a sentence was a critical stage in any criminal proceeding and as such was subject to the Sixth Amendment as applied to the several states through the due process clause of the Fourteenth Amendment.

Though the revocation of Wrone's suspended sentence may bear some resemblance to the revocation of Mempa's probation, there is one very important difference between the facts in the instant case and those in Mempa. In the instant case, sentence was in fact imposed on Wrone and the sentence thus imposed was thereafter suspended, conditioned on good behavior. In Mempa, pursuant to statute sentence was deferred at the time the defendant was placed on probation, and the hearing at which it was held that Mempa had a right to counsel was one where probation was revoked and sentence imposed. In our view, the revocation of the suspended sentence imposed on Wrone is not governed by Mempa and McConnell. Rather, the suspended sentence here involved is more akin to parole, than probation, for the reason that in the case of a parolee a sentence has already been previously imposed, and similarly a sentence, though suspended, was imposed against Wrone some three years prior to its revocation. Accordingly, we deem the instant case to be governed by the case law relating to parole, rather than the case law relating to probation. In this particular regard we have heretofore held in Earnest v. Willingham, 406 F.2d 681 (10th Cir. 1969), that Mempa dealt with probation, and did not apply to a parole revocation.

We have previously held that a parolee, i. e., one who has been sentenced and later released on parole, whose parole is about to be revoked, is entitled under the Constitution to be afforded a hearing when his parole is in jeopardy, to be personally present at such hearing, to be informed in advance of the charges, and the like. Alverez v. Turner, 422 F.2d 214 (10th Cir. 1970), cert. denied sub nom. McDorman v. Turner, 399 U.S. 916, 90 S. Ct. 2221, 26 L. Ed. 2d 574 (1970). Subsequent to Alverez, the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), also held that under the Constitution a parolee is entitled to at least an informal hearing to give assurance that the finding of a parole violation is based on facts, though a parolee is not entitled to the full panoply of rights due a defendant in a criminal proceeding.

So, then, even though Wrone's status be akin to that of a parolee, under Alverez, as well as Morrissey, of course, Wrone would still be entitled to at least an informal hearing before his suspended sentence could be revoked, if the rule of Alverez and Morrissey is given retroactive application. In this regard we find nothing in Morrissey to indicate that the rule of Morrissey is to be given retroactive effect. However, we have specifically held that our pronouncement in Alverez is not to be retroactively applied. Murray v. Page, 429 F.2d 1359 (10th Cir. 1970), cert. denied, 402 U.S. 934, 91 S. Ct. 1530, 28 L. Ed. 2d 869 (1971).

In Murray, we recognized that the Oklahoma courts had declined to give retroactive effect to the statutory change whereby a parolee was thereafter to be afforded a hearing before the parole was revoked and held that such afforded the petitioner no right to federal relief. Similarly, in that case we declined, in effect, to give retroactive effect to our holding in Alverez. Accordingly, then, the summary revocation of Wrone's suspended sentence in 1964 in the Oklahoma state courts was in accord with the Oklahoma statutes then in effect, and under Murray, our pronouncement in Alverez would not in anywise affect the validity of the revocation of Wrone's suspended sentence.

We recognize that in a sense the instant case is somewhat academic in nature. Wrone's sentence was suspended on good behavior, and the statute then in effect permitted a revocation thereof if the "person so released has been guilty of a violation of any law after his release * * *" It is true that in the instant case Wrone's suspended sentence in the state court was revoked before he was subsequently convicted in federal court. It is equally true that Wrone was in fact convicted in federal court subsequent to the imposition of a suspended sentence in the state court. This is not in dispute. So, if Wrone had prevailed in this court he would not be entitled to release. Rather, the matter would merely be remanded to the trial court with direction that it afford the state court opportunity to hold a hearing on the application to revoke Wrone's suspended sentence. And at such hearing the only issue would be whether Wrone in fact suffered a federal conviction subsequent to the imposition of his suspended sentence, for such subsequent conviction, if true, is without doubt sufficient grounds to revoke a suspended sentence. That Wrone suffered such subsequent conviction is admitted. It is for this reason that we say the controversy in the present case is more imaginary than real.

Judgment affirmed.