OWENS v RISLEY

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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: Decided: Filed: J.k\$ Q ) , . Clerk A p r i l 9 , 1985 July 2 , 1985 M r . J u s t i c e Frank B. t h e Court. Defendant, Morrison, Jr., d e l i v e r e d t h e Opinion o f was c o n v i c t e d of Danne W i l l i a m O w e n s , 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 H e was p a r o l e d J u n e 23, on May 2 7 , 1981. tion that he e n t e r and c o m p l e t e Galen S t a t e H o s p i t a l . 1983, and at 7:15 Defendant's of violation arrested in Following 1983, on t h e c o n d i - t h e L i g h t h o u s e Program a t D e f e n d a n t e n t e r e d Galen on J u n e p.m. t h a t e v e n i n g was 27, reported missing. supervising parole o f f i c e r issued a report on July 5, Bellevue, extradition, 1983. D e f e n d a n t was Washington, defendant on was subsequently October returned 11, to 1983. 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 . f o r a w r i t o f habeas 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 c o r p u s w i t h t h i s C o u r t on December 1 9 , 1984. of Institutions responded on i s s u e d a n o r d e r on J a n u a r y 3 0 , January 23, The D e p a r t m e n t 1985. We then 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 hearing f o r parole violation, pursuant t o § That A hearing was held March 7, 1985. on-site 46-23-1024, stipulation MCA. 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. nary 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 - 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. S.Ct. 2593, 33 L.Ed.2d 471, 92 484, at his final revocation hearing? The State conceded that defendant received no preliminary 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 Lighthouse Project in Galen), there was no need to hold a preliminary 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 attorney, 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 Goldberg v. Kelly, 397 U.S., 1020-1022, 25 L.Ed.2d at 287." of parole at 267-271, that 90 S.Ct. Cf. at Morrissey v. Brewer, 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d Circuit has held conditions. at 497. The Eighth "where obtaining permission before leaving the state is a condition of parole, a parolee's presence in another state without such permission is sufficient 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 misunderstanding which might arise and the concomitant hardship resulting from A returning the parolee to prison. 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 officer 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: ... that the decision as to "We think 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 administering the probation and parole system. Although the presence and participation of counsel. will probably be both undesirable 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 tion. A.R.M. determina- 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 condition of here, parole defendant has admitted is capable of and violating a 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. (10th C i r . 1 9 8 0 ) , 626 F.2d Finally, defendant present h i s case. pronounced Defendant stating was not defendant declined he that would admitted the denied an opportunity H e answered y e s . defendant's declined wait opportunity to the for violating a parole "a would be opportunity court of condition of defend The B o a r d himself, revoked. to law." there 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 . / speak, Since h i s parole error. W e concur: to 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 subsequently that Malley 151, 158. o r n o t h e had v i o l a t e d p a r o l e . then See Barton v. was and no

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