Shadbolt v. MICH. DEPT. OF CORR.

386 Mich. 232 (1971)

191 N.W.2d 344

SHADBOLT v. MICHIGAN DEPARTMENT OF CORRECTIONS

No. 47 June Term 1971, Docket No. 53,052-1/2.

Supreme Court of Michigan.

Decided November 9, 1971.

*233 Arthur J. Tarnow, State Appellate Defender, and Larry R. Farmer, Assistant Defender, for plaintiff on appeal.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman, Assistant Solicitor General, for defendant.

PER CURIAM:

Plaintiff was paroled by the Michigan Department of Corrections to the custody of the sheriff of Williams County, Ohio. On May 1, 1964, Ohio issued a parole violation warrant against Shadbolt for absconding from supervision. On June 4, 1964, the Michigan Department of Corrections did likewise.

On February 20, 1965, plaintiff was arrested on an Ohio forgery charge and remained in Ohio custody until the Ohio charges were dropped on March 6, 1965. On March 8, 1965, Shadbolt was turned over to a U.S. Marshal to answer to Federal charges. On March 26, 1965, plaintiff was sentenced by the United States District Court in Toledo, Ohio, to a term of five years for interstate transportation of stolen securities. Shadbolt remained in Federal prison until his release on March 12, 1969. During this period, Michigan and Ohio corrections officials knew of plaintiff's whereabouts. Parole violation warrants of both states were filed against plaintiff. No attempt was made to execute the warrants. On March 12, 1969, when released from *234 Federal custody, Shadbolt was turned over to the Michigan Department of Corrections.

By petition for writ of habeas corpus, plaintiff challenged his continued imprisonment in Michigan. The Jackson County Circuit Court denied his petition. Shadbolt appealed to the Court of Appeals, which treated his appeal as a mandamus action and sua sponte, on October 8, 1970, placed his case in abeyance pending our decision in Browning v. Michigan Department of Corrections (1971), 385 Mich 179. Plaintiff then applied to us for leave to appeal prior to the Court of Appeals' decision. We granted leave to appeal. (384 Mich 783.)

The issues raised are right to a timely parole violation hearing, right to counsel at the hearing, and computation of dead time.

Plaintiff was given a parole violation hearing. He was not represented by counsel at the hearing. At the conclusion of the hearing, the parole board found plaintiff guilty of violating parole by reason of his Federal court conviction and fixed the date of delinquency as May 1, 1964, and date of return to custody as March 12, 1969. The intervening four years, 10 months and 11 days were considered dead time, not to be credited to plaintiff's sentence.

In the recently decided case of Browning v. Michigan Department of Corrections (1971), 385 Mich 179, we considered the dead time statute. A majority of this Court held (p 189):

"We decline to accord the dead time statute an unreasonable and strained construction. Rather, we believe that the dead time statute must be read in pari materia with the Compact to effect the constitutionally approved and well-established legislative intent against consecutive sentences, which abides absent some clearly expressed contrary provision. *235 To this end, we construe and so hold that the phrase `date of availability' means actual or constructive availability for return to the Michigan penal system. The arrest of a parolee, irrespective of the location of the arrest, coupled with issuance of a parole violation warrant and good faith effort to retake the parolee constitutes constructive availability." (Emphasis by Court.)

On September 16, 1971, counsel for plaintiff, by supplemental brief and appendix, advised this Court:

"Petitioner Shadbolt is pleased to inform the Court that the Department of Corrections has granted the relief requested of credit for time served pursuant to the Court's decision in Browning v. Department of Corrections, 385 Mich 179 (1971)."

Section 40a, PA 1968, No 192 (MCLA § 791.240a; Stat Ann 1971 Cum Supp § 28.2310[1]), provides:

"Within 30 days after a paroled prisoner has been returned to a state penal institution under accusation of a violation of his parole, other than the conviction for a felony or misdemeanor punishable by imprisonment in any jail, a state or Federal prison under the laws of this state, the United States or any other state or territory of the United States, he shall be entitled to a hearing on such charges before 2 members of the parole board. Hearings shall be conducted in accordance with rules and regulations adopted by the director, and the accused prisoner shall be given an opportunity to appear personally or with counsel and answer to the charges placed against him." (Emphasis added.)

Several courts have recently held that constitutional due process requires that parolees be accorded the right to a hearing where they are represented by counsel before a proper determination of parole *236 revocation can be made. Commonwealth v. Tinson (1969), 433 Pa 328 (249 A2d 549); Menechino v. Warden (1970), 27 NY2d 376 (318 NYS2d 449, 267 NE2d 238); United States ex rel. Bey v. Connecticut State Board of Parole (CA 2, 1971), 443 F2d 1079; Goolsby v. Gagnon (ED Wis, 1971), 322 F Supp 460. However, in none of these recent parole revocation cases was the parole terminated because of a felony or misdemeanor conviction. In each of these cases, parole was terminated as a result of allegations of misconduct which might have been refuted or proven to be of minimum significance had the parolee been represented by counsel.

There is a valid basis for denying a prisoner accused of violating his parole a hearing in the case of a conviction for a felony. Such a conviction cannot occur before the prisoner has been accorded his full constitutional rights, including right to counsel and right to a speedy and public trial. Such conviction and the constitutional rights available to the prisoner before he is so convicted permit the enactment by the legislature of a conclusive statutory presumption that parole has been violated.

There is no merit to plaintiff's claim that he was denied a timely hearing. His violation consisted of a felony conviction while on parole. No hearing was required. His claim of right to counsel must be predicated upon his right to a hearing. Since he had no such right, we do not consider that he has established a meritorious claim of right to counsel.

The circuit judge did not err in denying plaintiff's application for writ of habeas corpus. He is affirmed.

T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.