Campbell v. Crist, CV 80-2-M.

• Decision Date: 26 June 1980
• Docket Number: No. CV 80-2-M.,CV 80-2-M.
• Citation: 491 F. Supp. 586
• Parties: Patrick James CAMPBELL, Petitioner v. Roger W. CRIST, Warden of Montana State Prison, and Mike Greely, Montana State Attorney General, Respondents.
• Court: U.S. District Court — District of Montana

491 F. Supp. 586

Patrick James CAMPBELL, Petitioner v. Roger W. CRIST, Warden of Montana State Prison, and Mike Greely, Montana State Attorney General, Respondents.

No. CV 80-2-M.

United States District Court, D. Montana, Missoula Division.

June 26, 1980.

Patrick James Campbell, pro se.

Mark Murphy, Asst. Atty. Gen., Helena, for respondents.

OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

Petitioner was charged with armed robbery in Lake County, Montana. At the time of his arraignment, December 22, 1976, petitioner was represented by an attorney. At that time he was advised that the maximum penalty was 40 years, that he had the privilege against self-incrimination, and that he had a right to confront his accusors. Through his counsel he requested additional time to plead. On December 29, 1976, petitioner was again brought before the court, and at that time counsel indicated that the defense would be a mental disease or defect excluding criminal responsibility and requested a psychiatric evaluation. Over petitioner's denial of any intention of relying on such a defense, and over his opposition to the psychiatric evaluation on the ground that there was no need for it, the court ordered an evaluation. After the examination, and on March 2, 1977, petitioner was returned to court and entered a plea of guilty. The court sentenced petitioner to 10 years in the state prison and advised petitioner that if he voluntarily chose to enter the Galen Lighthouse Drug Treatment Center the court would withhold a commitment, and that if the petitioner successfully completed the Lighthouse program, which would take about a year, the court would seriously consider suspending the execution of the sentence. Petitioner agreed, and a formal judgment to that effect was entered. Petitioner was accepted by the Lighthouse Drug Treatment Center on March 8, 1977, and on June 21, 1977, he, with the consent of the Center, resigned from the program and returned to Lake County. He was brought before the court on his return. The court, through another judge, refused to commit the petitioner to the state prison, but by formal judgment, entered on July 25, 1977, suspended the 10-year sentence on the conditions, first, that petitioner be placed under the supervision of the Adult Parole and Probation Division, subject to all of the conditions and regulations of that agency, and, second, that he enroll as an out-patient in an alcoholic treatment program. The rules imposed by the probation department, of which petitioner was aware, required that petitioner obey the law and refrain from using any alcohol. On October 18, 1978, a petition to revoke the suspended sentence was filed charging that on June 8, 1978, petitioner was convicted of disorderly conduct, that on August 3, 1978, he was convicted of disorderly conduct, and that on October 6, 1978, he was convicted of interfering with a police officer. On November 3, 1978, while the petition for revocation was pending, petitioner pled guilty to the crime of using an automobile without the consent of the owner. This violation was charged in an amended petition for revocation. On January 3, 1979, petitioner was again brought before the court. At this time he was represented by the public defender. Petitioner admitted entering guilty pleas to or being convicted of all of the misdemeanors charged. He was then given an opportunity to speak in his own behalf and, although he charged persecution on the part of the police officers, there was no challenge to the judgments of conviction, no denial of the facts underlying the convictions, and no explanation of the various guilty pleas and convictions. The court then, by formal judgment, revoked the suspension and committed the petitioner for 10 years, but suspended six of those years and designated the petitioner as a dangerous offender.

JURISDICTION

Petitioner contests the jurisdiction of the state courts on the ground that he is an Indian and that for that reason the state courts do not have jurisdiction. This contention fails for two reasons:

First, petitioner has Indian blood but is not a member of the Confederated Salish and Kootenai Tribes (Tribes). His application for membership in the Tribes was denied by the Tribes. The action of the Tribes is final and is not reviewable by this court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). If petitioner is not a member of the Tribes, then the fact that he has sufficient Indian blood to qualify would not deprive the state of jurisdiction. A state is deprived of jurisdiction not because of the race of an Indian but because it is thought that the exercise of jurisdiction by states would interfere with the quasi-sovereign status of the tribes. Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976). It follows that if petitioner is not a member of the Tribes the Tribes have no jurisdiction over him, and the action of the state in no way conflicts with the Tribes' power of self-government.

Second, the result would be the same if the petitioner were a member of the Tribes. Congress, by the Act of August 15, 1953, Pub.L. No. 280, § 7, 67 Stat. 590, granted to the states power to assume criminal jurisdiction on reservations "in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." The State of Montana by legislative act¹ provided a procedure for the assumption of such jurisdiction, and Montana did assume jurisdiction of crimes committed by and against Indians on the Flathead Reservation. The procedures for such assumption on the Flathead Reservation were attacked, and, in the case of State ex rel. McDonald v. District Court, 159 Mont. 156, 496 P.2d 78 (1972), the Montana Supreme Court held that the state had properly assumed jurisdiction. The question of whether the state procedures have been followed properly is a matter for the state court. Quinault Tribe v. Gallagher, 368 F.2d 648 (9th Cir. 1966), cert. denied, 387 U.S. 907, 87 S.Ct. 1684, 18 L.Ed.2d 626 (1967). Since the United States permitted assumption of jurisdiction by the state, and since the Supreme Court of Montana has held that jurisdiction was properly assumed, that ends the matter.

DOUBLE JEOPARDY

Petitioner contends that he was placed in double jeopardy because the orders of March 2, 1977, July 20, 1977, and January 3, 1979, were all judgments of conviction for the offense of robbery. There was but one judgment of conviction and that occurred on March 2, 1977, following the plea of guilty. When petitioner failed to complete the Lighthouse program, he was brought before the court in accordance with the previous judgment. At that time, July 20, 1977, the court had power to order his commitment for 10 years, and certainly the court did not offend the double jeopardy provision of the fifth amendment to the United States Constitution by giving petitioner another chance, by placing him on probation and imposing conditions. The revocation of probation on January 3, 1979, was not a new conviction. It did no more than enforce conditions of the initial judgment. Imposition of a prison sentence or revocation of probation does not offend the double jeopardy clause of the fifth amendment. United States v. Clayton, 588 F.2d 1288 (9th Cir. 1979).

EFFECTIVE ASSISTANCE OF COUNSEL

Petitioner complains that he was denied the effective assistance of counsel at the revocation hearing and grounds this assertion in the failure of counsel to bring before the court his running dispute with his probation officer. Whether the probation officer was right or wrong,² is completely irrelevant to the question of whether petitioner had violated his probation.

LACK OF NOTICE

As to the revocation proceedings themselves, petitioner claims that he did not receive a prior written notice of the proceeding of January 3, 1979, and that the entire evidentiary basis for said proceeding was withheld until May 1, 1979. The record shows that petitioner received a copy of the initial report of the probation officer recommending revocation. He appeared in court with counsel on December 20, 1978, for a hearing on a petition based on that initial report. While in open court counsel was given a copy of an amended petition for revocation which had attached to it the original report and a supplemental report. The supplemental report charged an additional...