Abel v. Wyrick, 60227

Citation574 S.W.2d 411
Decision Date18 December 1978
Docket NumberNo. 60227,60227
PartiesKeith ABEL, Petitioner, v. Donald W. WYRICK, Respondent.
CourtUnited States State Supreme Court of Missouri

C. Christy Barton, Jefferson City, for petitioner.

John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

This is a habeas corpus proceeding in which petitioner claims that he is being illegally confined because of failure to afford him his due process rights at his probation revocation hearing. This court has jurisdiction and venue, as will be gone into below. The major issues for our consideration on the merits are whether (1) failure to notify petitioner of the violations to be charged against him prior to hearing violated his due process rights, in light of his admission that he committed the violations; (2) whether the trial judge considered, and if not, should have considered, alternatives to incarceration once petitioner admitted the violation of conditions of his probation, including the question whether petitioner was afforded an opportunity to present evidence on this issue; (3) whether the petitioner should have been informed of his right to request an attorney to represent him at the hearing; and (4) whether the hearing judge was required to indicate his reasons for revocation in the formal revocation order itself.

The facts are fairly straightforward. On May 5, 1975, petitioner was convicted of second degree burglary and stealing, for which he was sentenced to consecutive terms of three years and two years, respectively. Execution of both sentences was suspended and petitioner was placed on five years probation under the supervision of the State Board of Probation and Parole. The conditions of probation imposed included the following:

"(1) I shall obey all laws and ordinances of the United States, State, County or municipality. All arrests for any reason must be reported without delay to my probation and parole officer.

(2) I shall obtain advance permission from my probation and parole officer before leaving the state or the area in which I am living. The probation and parole officer is authorized to determine this area.

(9) Special conditions . . . Abstain completely from use of all alcohol and do not frequent any establishment where alcohol is offered for sale."

Abel was arrested for driving while intoxicated sometime prior to October 7, 1976, as a consequence of which he was convicted of public drunkenness, paid a fine of $25.00 and was admitted to the Mid-Missouri Mental Health Clinic. Upon his release from the clinic on October 25, 1976, he entered Phoenix House, a halfway house, on condition that he do no more drinking. His probation violation report states that he left Phoenix House that day without proper permission and visited a number of people in out-state Missouri. He tried to report to his probation officer by telephone the next day, but was unsuccessful, and the following day he returned to Phoenix House, where he was arrested for leaving the area without the permission of his probation officer.

On December 6, 1976 a hearing was held in Gasconade County Circuit Court on the allegations that petitioner had violated certain conditions of his probation, in particular conditions 1, 2, and 9, Supra. Petitioner claims that he received no written notice of the alleged violations of his probation, other than of condition 2, prior to the hearing itself. Respondent counters this assertion with the argument that the hearing officer signed an affidavit to the effect that he directed a copy of his report, which listed the violations, be sent petitioner. Parenthetically, we point out that such an affidavit is not sufficient evidence that the report was actually received even to make the question of receipt a debatable one. Such proof would require either proof of proper mailing, Price v. Ford Motor Credit Co., 530 S.W.2d 249, 250 (Mo.App.1975), or proof of the chain of handling of the report to show that by following normal business custom a direction that a report be sent to a probationer would result in its proper mailing. See, e. g., First National Bank of Independence v. Mid-Century Ins. Co., 559 S.W.2d 50, 52 (Mo.App.1977); Armour and Co. v. American Automobile Ins. Co., 336 Mo. 551, 80 S.W.2d 685, 688-90 (1935). Here the probation officer's statement that he had directed the report be sent petitioner does not afford any basis for finding that petitioner received the report in the face of his contention that he did not receive it. We thus proceed on the basis that no report, and thus no notice, of the charges that petitioner had violated conditions 1 and 9 of his probation was received by petitioner.

Petitioner appeared in person at the hearing. The judge asked petitioner if he was represented by an attorney, to which petitioner replied "No, sir, I can't afford one, in the first place." Petitioner was not informed that he had a right to at least request a lawyer be appointed and no further inquiry was made into whether petitioner desired a lawyer, or whether a lawyer was necessary in his case.

Petitioner admitted violation of conditions of parole 1 and 9, failure to report an arrest and use of alcohol, but did not admit violation of condition 2, leaving the area without authorization, the only claimed violation of which he had written notice prior to the hearing. The judge permitted some explanatory remarks by petitioner, but refused to permit petitioner to read a statement which he had prepared, apparently by way of explanation of his actions. The judge concluded that, as petitioner had violated the conditions of his probation, the court would revoke probation. Therefore on December 6, 1976, the judge ordered petitioner's probation revoked and ordered him to serve the sentences imposed on May 5, 1975.

On June 17, 1977, petitioner filed a Pro se petition for a writ of habeas corpus in this court, alleging that his probation had been revoked illegally because he had not been given credit on his sentence for probation time served and because the court failed to make written findings of the reasons for the probation revocation. On July 11, 1977, this court ordered respondent to show cause why a writ of habeas corpus should not issue, and on October 3, 1977, a preliminary writ issued from this court. In his reply, petitioner dropped his claim for probation time and instead alleged that the violations of due process noted at the outset of this opinion and gone into below had occurred, thus invalidating his probation revocation hearing and necessitating his release under the standards set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). 1 Before we turn to a consideration of these claims, two additional issues raised by respondent must be dealt with.

I.

A. In his jurisdictional statement, respondent asserts that, pursuant to rule 91.59, a petition for habeas corpus should be filed in the first instance in the circuit court for the county in which the prisoner is confined. 2 This argument was rejected by the court of appeals, Kansas City district, in Reiter v. Camp, 518 S.W.2d 82, 84 (Mo.App.1974), on the grounds that (1) rule 84.22, which provides that no original remedial writs, except habeas corpus, will be issued by an appellate court where an adequate remedy could be had by filing in a lower court in the first instance, 3 and (2) Ex parte McCarter v. Hinton, 434 S.W.2d 14, 16 (Mo.App.1968) and Ex parte Hagan, 295 Mo. 435, 245 S.W. 336, 337 (Mo. banc 1922), which hold that "constitutional authority to issue and determine Habeas corpus proceedings cannot be diminished or curtailed by legislative enactment", Reiter v. Camp, 518 S.W.2d at 84, support the jurisdiction of appellate courts to determine writs of habeas corpus in the first instance.

Respondent contends that Ex parte Carter and Ex parte Hagan refer only to Legislative actions to curtail habeas corpus, not to judicial action pursuant to Supreme Court rule, and that in any case, any implication in Reiter that a venue rule for the filing of a writ of habeas corpus would unconstitutionally suspend the writ can no longer be the law in light of this court's decision in Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. banc 1976), that rule 27.26 does not unconstitutionally suspend the writ of habeas corpus. Finally, respondent asserts that rule 91.59 and rule 84.22 can be harmonized; that is, that rule 84.22 simply excepts habeas corpus from its provisions and does not mandate where it can or cannot be filed, but that rule 91.59 supplements rule 84.22 by requiring writs of habeas corpus to be filed in the circuit court of the county in which a petitioner is incarcerated.

Wiglesworth did hold that rule 27.26 goes to venue, not jurisdiction, and therefore does not suspend the writ of habeas corpus. It may be that a similar rule requiring that venue for determining a writ of habeas corpus, in the first instance, would also be found constitutional through application of the principles enunciated in Wiglesworth. However, no such requirement now exists as a mandatory rule. While it would be more expeditious, and therefore more advantageous, in most instances, for a petition for a writ of habeas corpus to be made first to the circuit court in cases in which there is a dispute as to a factual issue, no rule requires that such a petition be first filed therein. In a case in which factual issues are in dispute, this court may refer the matter to a circuit court for determination of fact issues or may appoint a master who will hold a hearing on the evidentiary questions and, in either event, the findings can then be certified to this court. Rule 91.59 does not require a different result. Even if it can be said to supplement rule 84.22 in the manner asserted by respondent, by its terms rule 91.59 applies only to an application for a...

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    ...claim that the Supreme Court of Missouri had concluded was outside the scope of Rule 27.26. See, for example, Abel v. Wyrick, 574 S.W.2d 411 (Mo.1978) (en banc), and Sincup v. Blackwell, 608 S.W.2d 389 (Mo.1980) (en banc), in which the validity of a probation revocation was determined on th......
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