Baxter v. Com.

• Decision Date: 05 April 1971
• Citation: 359 Mass. 175,268 N.E.2d 670
• Parties: Robert BAXTER v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 670

268 N.E.2d 670

359 Mass. 175

Robert BAXTER v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1971.

Decided April 5, 1971.

John C. Cratsley, Cambridge, for petitioner.

Charles E. Chase, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL, and BRAUCHER, JJ.

CUTTER, Justice.

Baxter, on January 11, 1967, was sentenced to an indeterminate term at the Massachusetts Correctional Institution, Concord, on indictments charging (a) receiving a stolen motor vehicle, and (b) breaking and entering and larceny. On October 20, 1967, he was granted a parole. On January 1, 1970, Baxter was arrested and arraigned in the Municipal Court of Brookline for drunkenness in public and assault and battery. He was found guilty on both charges. He paid a fine of $5 on the drunkenness conviction, which he did not appeal. He appealed a sentence of six months in the house of correction on the assault and battery charge. He is awaiting jury trial in the Superior Court on that charge. He has also been indicted on other charges (assault and battery and unarmed robbery) and is awaiting a Superior Court trial on these charges also.

Baxter, early in January, 1970, discussed with his parole officer, Chester B. Gillis, the two charges on which he was convicted in the Municipal Court. Gillis also visited Baxter at his house to discuss these charges. Gillis recommended in one report that the parole board postpone action until after the disposition of the Brookline Municipal Court charges, and in a later report (informing the board of the two indictments) again recommended deferment of action. When the Brookline court proceedings were finished on February 3, 1970, Gillis recommended that Baxter's parole be revoked. The board voted to do this on February 4, 1970. Baxter was not present when this vote was taken 'and * * * received no notice of it.' On February 13, 1970, Baxter was arrested and returned to confinement at Concord. On March 15, 1970, three members of the board interviewed Baxter at Concord, declined to grant him a new parole at that time, and recorded the meeting as a 'revoke interview.'

In accordance with parole board rules, ¹ Baxter was not represented by counsel during any board meetings or during the 'revoke interview.' He was represented by retained counsel in the Brookline court proceedings. He has not received formal notification from the board of the specific reasons for revoking his parole or of any evidence against him relied upon by the board. The board has not given Baxter 'opportunity to present witnesses in his own behalf or to confront and cross-examine anyone who may have supplied information to the (b)oard on the subject of * * * (his) parole.'

Baxter filed in the county court this petition for a writ of error. A single justice permitted Baxter to be released on his personal recognizance during the pendency of the proceedings. The facts outlined above are set forth in a statement of agreed facts. At the request of the parties, another justice reserved and reported the case, without decision, for the determination of the full court.

Baxter denies any violation of his parole. He contends that he was denied due process of law when his parole was revoked by the parole board without (1) a hearing prior to revocation before an impartial officer, (2) the assistance of counsel, (3) a complete statement of the charged parole violations, (4) the opportunity to confront and cross-examine adverse witnesses and present his own evidence through witnesses and oral testimony, and (5) reasons being given for any decision to revoke parole supported by sufficient evidence adduced at the hearing.

1. The general questions here raised were presented and decided (on February 7, 1966), adversely to Baxter's present contentions, in Martin v. State Bd. of Parole, 350 Mass. 210, 213 N.E.2d 925, ² discussed later in this opinion. We are reluctant to reconsider these issues, so recently dealt with, in the absence of later controlling legislative or decisional changes requiring new study of the issues. Nevertheless, we discuss certain matters which Baxter's brief suggests may be affected by developments since our 1966 decision in the Martin case.

2. It is urged upon us that, unlike Martin (see 350 Mass. 210, 213 N.E.2d 925), Baxter had not disappeared at the time when his parole was revoked. He, however, had been convicted in the Municipal Court of Brookline of drunkenness, a clear violation of the terms of his parole, ³ and had not appealed. There was no necessity for the parole board to retry that unappealed conviction or to await (a) disposition in the Superior Court of the de novo trial of the other charge of which Baxter had been found guilty in the Brookline court and (b) trial of the pending indictments.

3. It is argued to us that the language of Mr. Justice Cardozo in Escoe v. Zerbst, 295 U.S. 490, 493--494, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (which dealt with probation under judicial control, rather than administrative action revoking a parole under the control of the Executive branch), no longer is law. That case suggested that the necessity of a hearing upon a revocation of the suspension of a Federal sentence has no 'basis in the Constitution, apart from any statute.' It was stated in the opinion that 'suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose.' This principle, Baxter argues, has been eroded by decisions like Goldberg v. Kelly, 397 U.S. 254, 262--263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (holding that welfare benefits are a matter of statutory entitlement for persons qualified to receive them and that a pretermination hearing is necessary to provide due process). The Goldberg case dealt with an interest which the court treated as one to which the welfare recipient was entitled absolutely if he continued to satisfy the statutory standards. See Sherbert v. Verner, 374 U.S. 398, 404--406, 83 S.Ct. 1790, 10 L.Ed.2d 965; Shapiro v. Thompson, 394 U.S. 618, 627, 89 S.Ct. 1322, 22 L.Ed.2d 600.

Parole in Massachusetts is a statutory administrative method of mitigation or adjustment (for purposes of rehabilitation) of a sentence which has been imposed by a court and is being executed under the direction of the Executive branch. In administering parole, the parole board performs a wholly executive function. In this Commonwealth, parole is designed to be a highly discretionary method (see Woods v. State Bd. of Parole, 351 Mass. 556, 559, 222 N.E.2d 882) of affording to a prisoner, in custody under sentence, an opportunity for rehabilitation outside of confinement. Parole is to be granted only after a prisoner is eligible (see G.L. c. 127, § 133, as amended through St.1969, c. 184), and after the board's consideration of specified information mentioned in the statute. 'The parole board shall reach its own conclusions as to the desirability of granting * * * (the) prisoner a parole permit.' G.L. c. 127, § 136 (as amended through St.1955, c. 770, § 73). See the power given by G.L. c. 27, § 5, to the board not only to grant a permit but 'to revoke, revise, alter or amend the same, and the terms and conditions on which it was granted * * * until the expiration of the maximum term of the sectence.' See also c. 127, § 130 (as amended through St.1955, c. 770, § 67). By G.L. c. 127, § 148, the 'board * * * granting to a prisoner a permit to be at liberty may revoke it at any time previous to its expiration.' It 'may be revoked with or without cause shown.' See Kozlowsky, petitioner, 238 Mass. 532, 537, 131 N.E. 188, 190. See also c. 127, § 149, as appearing in St.1946, c. 424, § 1, concerning arrest of parolee. Such a permit to be at large, in the discretion of an executive administrative agency, is not a benefit to which the prisoner is entitled except as a discretionary matter. The decisions (see G.L. c. 127, § 130, as amended), to be made by the board (even if it be assumed that they may not be arbitrary or capricious) require the exercise of judgment and discretion. We conclude that the revocation of a parole permit is under our statutes a discretionary matter, not controlled by the Goldberg case, 397 U.S. 254, 90 S.Ct. 1011, 25 L.E.2d 287, particularly where no statutory requirements (or written rules or regulations thereunder) entitle a parolee to a prerevocation hearing or to counsel at such a hearing. See Martin v. State Bd. of Parole, 350 Mass. 210, 211, fn. 1, 213 N.E.2d 925. ⁴

Baxter also places reliance upon Mempa v. Rhay, 389 U.S. 128, 131, 135--137, 88 S.Ct 254, 19 L.Ed.2d 336, decided in 1967. In that case, Mempa had pleaded guilty. His sentencing was deferred in accordance with a practice in the State of Washington and he was placed on probation. It was held that he was entitled to counsel at the combined hearing on revocation of probation and sentencing. We have already (see fn. 2, supra) dealt with essentially this question in our 1966 decision in Williams v. Commonwealth, 350 Mass. 732, 733, 216 N.E.2d 779, involving a defendant who was not afforded counsel at a court hearing, constituting both a trial on new complaints and a revocation of probation on a suspended sentence on earlier complaints. There we reached the same result as did the later Mempa case, supra, although we placed our decision on noncompliance with General Rule 10, now S.J.C. Rule 3:10 (351 Mass. 791; see 347 Mass. 809). We think that the Mempa and Williams cases, relating to revocation of probation during judicial proceedings, do not control Baxter's situation. He is complaining, not about revocation of probation by a court, but about the discretionary revocation of discretionary executive action granting him a revocable permit to be at large during the balance of a sentence as which judicial action has been completed. ⁵

4. The weight of authority...