Summary
In Gagnon, supra, the United States Supreme Court stated that the automatic requirement of counsel would be an unnecessary financial burden on the State and that it would destroy the informality of the probation revocation proceeding.
Summary of this case from Hughes v. GwinnOpinion
No. State 83 (August Term, 1974).
Argued June 5, 1974. —
Decided June 28, 1974.
ORIGINAL ACTION for writ of habeas corpus. Relief denied.
For the petitioner there were briefs by Howard B. Eisenberg, state public defender, and Kenneth P. Casey, assistant state public defender, and oral argument by Mr. Casey.
For the respondent the cause was argued by Charles R. Larsen, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is an original action for a writ of habeas corpus to review the waiver by the petitioner of his right to an administrative hearing on the revocation of his probation. The pro se petition for a writ of habeas corpus was filed with this court on August 24, 1973. On November 27, 1973, the matter was referred to the Hon. HOWARD J. DuROCHER of the circuit court for Racine county for fact finding on the issue of the voluntariness of the petitioner's waiver of his right to an administrative hearing on the revocation of his probation. Findings of Judge DuROCHER were filed with this court on February 22, 1974.
The petitioner, Marcus Hawkins, hereinafter defendant, was convicted of burglary on a plea of guilty by the county court of Racine county, the Hon. WILLIAM F. JONES, county judge, presiding, on November 3, 1969. Thereafter on November 29, 1969, Judge JONES ordered that the sentence be withheld and that defendant be placed on probation for a period of three years.
While on probation, the defendant left the state of Wisconsin without the permission of his probation officer and knowingly in violation of his terms of probation and resided in the states of California and Tennessee.
On March 15, 1973, the defendant was located in the city of Racine, arrested and confined to the county jail pending proceedings for revocation of his probation. While confined to the county jail, the defendant was visited by Mr. James Drummond, an agent for the bureau of probation and parole, who presented the defendant with a copy of the "Procedure Guidelines in Revocation Proceedings" and explained the document to him. On March 23, 1973, the defendant was given written notice by Mr. Drummond of the preliminary revocation hearing which was to take place on March 26, 1973.
The hearing was held as scheduled and the defendant appeared pro se. Probable cause to believe that the defendant had violated the terms of his probation was found and the defendant held for further proceedings. Following the conclusion of the preliminary hearing, the defendant conferred with the magistrate of said hearing and Mr. Drummond concerning the execution of a waiver of his final administrative hearing.
Thereafter the defendant executed a written waiver of his right to a final administrative hearing and certified that he knew the following:
"1. That I have a right to a preliminary hearing on the issue of whether there is probable cause to believe that I have violated the terms and conditions of my probation . . . with the Department of Health and Social Services, Bureau of Probation and Parole.
"2. That I have a right to a full administrative hearing before an impartial hearing examiner to determine whether the factual allegations of violation set forth in the attached notice have been proved by a preponderance of the evidence, and if such facts are proved by a preponderance of the evidence, to hear and receive mitigating and extenuating evidence for the purpose of making a recommendation to the Secretary of the Department of Health and Social Services as to whether such violation, even though factually established, is sufficiently serious to warrant revocation of my probation.
"3. That I have the right to be represented by counsel at such administrative hearing, and to have counsel appointed to represent me in the event I cannot afford counsel.
"4. That I have the right to confront and cross-examine persons who have given adverse information upon which revocation is based at both the preliminary hearing and the final hearing.
"5. To testify in my own behalf and to present evidence and witnesses in my own behalf and in contradiction to the allegations of the Bureau of Probation and Parole.
"I further certify that I fully understand that waiver of the above rights may result in the revocation of my probation . . . as requested by the Bureau of Probation and Parole."
The petitioner was not represented by counsel during the preliminary probation revocation hearing. While the petitioner was advised of his right to counsel at the final administrative hearing, it was the position of the department at that time that counsel was not required for the preliminary probation revocation hearing. During the time the petitioner was involved in the probation revocation proceedings he was represented by appointed counsel with respect to a separate matter pending in Racine county. Similarly, Judge DuROCHER found that there was some discussion involving petitioner, agent Drummond and petitioner's attorney concerning the possibility of appointment of said attorney to represent petitioner in the revocation proceedings and that petitioner sought some advice from said attorney. Judge DuROCHER additionally found that the petitioner was not advised of the maximum penalty which could be invoked by the court if his probation were revoked. Additionally, the petitioner was not advised of the discretion exercised by the trial court in determining the length of sentence and of giving credit for "dead time" incurred as a result of the probation revocation proceeding.
The sole issue necessary for this court to determine is whether the findings of Judge DuROCHER that neither agent Drummond nor any other representative of the state department of health social services made any attempt to coerce or even encourage petitioner to execute the written waiver of his right to a full administrative hearing concerning the revocation of his probation and that the waiver of the full administrative hearing in revocation proceedings was voluntarily, knowingly and understandingly made and supported by the evidence.
The petitioner herein contends that his waiver of his right to a final administrative revocation hearing was not voluntarily, knowingly and understandingly made on several grounds. Since, he contends, he was not provided with counsel during his preliminary hearing, was not properly advised of the maximum term of imprisonment which could result upon revocation, was coerced into waiving his right to a final hearing and was not advised that the "dead time" which would accrue prior to the final hearing could be taken into consideration by the sentencing judge, that he did not properly waive his right to a final hearing. Such contentions are without merit.
Right to counsel
. In his petition for a writ of habeas corpus, the petitioner relies upon the fact that he was not provided counsel during his preliminary probation revocation hearing as supporting his contention that his waiver was not voluntarily, knowingly and understandingly made.The petitioner relies on Mempa v. Rhay (1967), 389 U.S. 128, 88 Sup.Ct. 254, 19 L.Ed.2d 336, as standing for the proposition that counsel must be provided for those individuals whose sentences were deferred (withheld) during both the preliminary and final administrative probation revocation hearings. While Mempa did require the appointment of counsel for sentencing proceedings, this court has held that the application of Mempa must be limited strictly to its facts. State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306.
Sec. 973.09 (1), Stats., provides that:
"When a person is convicted of a crime, the court may, by order, withhold sentence . . . and . . . place him on probation to the department for a stated period, stating in the order the reasons therefor, and may impose any conditions which appear to be reasonable and appropriate."
Mempa involved a situation similar to that of the petitioner herein. In Mempa the defendant was convicted and placed on probation for two years on the condition, inter alia, that the first thirty days be spent in jail. The imposition of sentence was then deferred under Washington law. This provision is similar to sec. 973.09 (1), Stats. Shortly thereafter Mempa was detained and the court revoked the defendant's probation and sentenced him to ten years' imprisonment.
Mempa predated Morrissey v. Brewer (1972), 408 U.S. 471, 92 Sup.Ct. 2593, 33 L.Ed.2d 484, by five years. Thus the Morrissey requirement of a preliminary revocation hearing was not applicable therein.
On appeal the court reasoned that since counsel is required at every stage of a criminal proceeding where a substantial right of the accused may be affected, and since sentencing is such a stage at which the sixth amendment right to counsel applies, that the accused had a constitutional right to the presence of counsel during the deferred sentencing proceeding.
". . . All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing." Id. at page 137.
Since the Washington probation revocation or deferred sentencing proceeding was singular — that is, the sentencing court both revoked probation and imposed sentence — and not bifurcated as it is in Wisconsin, it was unavoidable that counsel appointed therein would function in both proceedings — the revocation and sentencing. Such, however, was not the holding of the court.
In Wisconsin the administrative revocation hearing takes place in front of a hearing examiner of the department of health and social services. If probation is revoked, sentencing is imposed by the court. Sec. 973.10 (2), Stats.
The fact the appointment of counsel was constitutionally limited to the sentencing proceedings and did not extend to the hearing for the revocation of probation or parole was made clear in Morrissey v. Brewer, supra. While Morrissey intentionally refused to determine whether the assistance of retained counsel was constitutionally required, the inferences arising from its holding that parole (or probation) revocation proceedings are not part of criminal proceedings is inescapable.
"We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . ." Id. at page 480.
Counsel need be provided only in those situations where the effectiveness of the defendant's due process rights necessitates the appointment of counsel therein. Since the administrative revocation proceedings are not a part of criminal proceedings and thus without sixth amendment protection, counsel may be constitutionally required only under the due process clause when necessary to protect his rights to a hearing.
The court in Morrissey went on to delineate the due process requirements at administrative revocation proceedings. While such requirements need not be reproduced in full herein, such rights did include the right to preliminary administrative revocation hearing.
". . . [D]ue process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. [Citations omitted.] Such an inquiry should be seen as in the nature of a `preliminary hearing' to determine 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." Id. at page 485.
Finally in Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 Sup.Ct. 1756, 36 L.Ed.2d 656, the supreme court brought into focus the rights of a defendant to counsel at administrative revocation hearings. Therein it was determined that the right to the appointment of counsel could arise at both the preliminary and final hearings. Such a right to counsel was, however, subject to the discretion of the department:
"The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision." Id. at page 790.
and applicable in specific situations.
"It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." Id. at page 790.
In State ex rel. Cresci v. HSS Department (1974), 62 Wis.2d 400, 215 N.W.2d 361, this court, in conformity with the mandate of Scarpelli, held that the appointment of counsel at administrative revocation proceedings would be made on a case-by-case basis. Such holding was, however, prospective only in application.
"Henceforth, the right to counsel at probation and parole revocation hearings will be determined on a case-by-case basis consistent with the mandate of Scarpelli." Id. at page 413.
Prior to Cresci this court had held, relying on Gunsolus v. Gagnon (7th Cir. 1971), 454 F.2d 416, that an adult probationer was entitled to counsel at the final administrative probation revocation hearing. Oestrich v. State (1972), 55 Wis.2d 222, 198 N.W.2d 664. The holding of Oestrich, however, did not apply to preliminary probation revocation hearings, it having been decided prior to the supreme court's decision in Morrissey. Thus, it is clear that prior to Cresci this court had not extended the right to the presence of counsel to such a preliminary hearing.
Assuming arguendo that Scarpelli is applicable in the instant case, no contrary result is necessary. The petitioner's defense and/or statements in mitigation were not so difficult so as to require the appointment of counsel to represent him therein. Additionally the record indicates no allegation on the part of the petitioner that he requested counsel and in fact the petitioner did confer prior to the hearing with counsel appointed for him to seek his advice. Thus, it is the opinion of this court that the failure to appoint counsel to represent the accused at his preliminary revocation hearing did not violate his rights to due process of law. Remaining contentions
. The petitioner's contention that his waiver was not knowingly and understandingly made because he was not advised of the maximum term which could be imposed by the sentencing judge upon revocation of his probation in such a deferred sentencing proceeding is likewise without merit. While, assuming arguendo, the petitioner's knowledge of the range of punishments which may be imposed by the sentencing court may be material in his determination of whether or not to waive the revocation hearing, the petitioner has no argument herein. The petitioner was advised, though incorrectly, that he would face a term of imprisonment of three years upon revocation — the actual range being ten years. Since, however, the petitioner was sentenced only to three years, the error, if any, is harmless.The petitioner likewise was not, as he contended, coerced by agent Drummond to waive his right to the hearing. The referee found, and such a finding is supported by the evidence, that "the waiver of the full administrative hearing in revocation proceedings was voluntarily made." The record indicates that agent Drummond in fact did all in his power to encourage the petitioner to exercise his rights to a final hearing.
"I recommended to go with preliminary and proceed all the way through because of the opportunities available for abuse of discretion anywhere along the line, for misstatements of evidence, those kind of things, just the opportunities — that is his right and I believe in this. I don't believe in waivers."
Thus, it cannot be contended that the petitioner's waiver was not voluntary.
Finally the petitioner contends and the referee agreed that prior to his waiver of his right to a final administrative hearing that he was under a misapprehension of the fact that in a deferred sentencing proceeding the sentencing court may take into consideration the "dead time" accrued prior to the sentencing proceeding. The petitioner was, however, also not advised that the sentencing court had the absolute discretion not to take such "dead time" into consideration and in fact to sentence the defendant to the maximum term imposed by law. The agent of the department and the hearing examiner were in no fashion responsible for such a misapprehension on the part of the petitioner. While it should be encouraged that such facts are made known to the accused in such a situation, it is our opinion that such information is not material to an accused's waiver of his right to a final administrative probation revocation hearing in a deferred sentencing proceeding. The petitioner was advised, as is evidenced by the signed waiver agreement, of his right to a hearing, to present evidence both in defense and mitigation, to confront witnesses and testify in his own behalf and to the presence of an attorney. The petitioner was likewise advised that waiver of the hearing may result in revocation. Such is sufficient to support the conclusion that the petitioner's waiver was knowingly and intelligently entered into.
See Kruse v. State (1970), 47 Wis.2d 460, 472, 177 N.W.2d 322 (ROBERT W. HANSEN, J., concurring) wherein it was concluded that the defendant's knowledge of parole eligibility dates was a collateral and peripheral factor in determining the voluntariness of a plea of guilty.
By the Court. — Relief denied.
I would hold that Hawkins had a state constitutional right to legal counsel at the probation revocation hearing. This is the position taken by Mr. Chief Justice HALLOWS in his dissenting opinion in State ex rel. Cresci v. HSS Department, with which opinion I joined. However, in the instant case there was a waiver of the right to counsel by Hawkins, and I would, therefore, concur in the result reached.
(1974), 62 Wis.2d 400, 415, 215 N.W.2d 361.