Chase v. Page

Citation456 P.2d 590
Decision Date18 June 1969
Docket NumberNo. A--14729,A--14729
PartiesJames M. CHASE, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary and the State of Oklahoma, Respondents.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Syllabus by the Court

1. Although a parole is conditional, it does not follow from the right to revoke that it may be exercised arbitrarily or upon whim, caprice, or rumor.

2. The recommitment of a paroled convict for the remainder of his sentence can only occur after a finding that the parole conditions have been violated.

3. In the future, before a parolee is recommitted for the remainder of his sentence, he should be advised of the ground upon which revocation is sought and afforded a reasonable opportunity for an administrative hearing on whether the conditions of the parole were in fact violated.

Original proceedings in which James M. Chase seeks his release from confinement by writ of habeas corpus. Writ denied.

James M. Chase, pro se.

G. T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for respondents.

PER CURIAM:

This is an original proceeding in which petitioner, James M. Chase, seeks a writ of habeas corpus to release him from his present incarceration in the state penitentiary resulting from a revoked parole. The primary issues raised in this proceeding are: (1) did the petitioner, while on parole, voluntarily return to imprisonment and is he thus entitled to credit for the time spent on parole as a deduction from his total term of imprisonment under 57 O.S.1961, § 350; and, (2) does constitutional due process of law require a full judicial hearing prior to the revocation of a parole.

I

Petitioner was originally incarcerated in the penitentiary on December 31, 1961, by authority of judgment and sentence imposed in the District Court of Comanche County, Oklahoma, sentencing him to a term of fifteen years imprisonment for manslaughter in the first degree. The conviction was affirmed on appeal. Chase v. State, Okl.Cr., 382 P.2d 457 (1963), certiorari denied 375 U.S. 979, 84 S.Ct. 500, 11 L.Ed.2d 424.

On April 3, 1965, petitioner was paroled and permitted to work and reside in the District of Columbia. Subsequently, an affidavit in support of arrest warrant was made out against petitioner on August 11, 1966, alleging that on August 3, 1966, the Oklahoma Pardon and Parole Board issued a warrant charging petitioner with violation of his parole. Petitioner was taken into custody by District of Columbia authorities who released him to an agent of the Oklahoma Bureau of Investigation for transportation back to the Oklahoma State Penitentiary where he has remained since September 12, 1966.

From a review of the facts we cannot accept the contention that petitioner voluntarily returned to confinement in the penitentiary and that he is therefore entitled to a deduction from his term of imprisonment for all time during which he was free on parole. 57 O.S.1961, § 350, provides as follows:

'Every person (hereinafter referred to as 'convict') who has been or who in the future may be sentenced to imprisonment in any State penal institution shall, in addition to any other deductions provided for by law, be entitled to a deduction from his sentence for all time during which he has been or may be on parole; provided, however, that this Act shall not be applicable to time on a parole which has been or shall be revoked; and further provided, that voluntary return to confinement shall not be deemed to be a revoked parole.'

In the instant case it is apparent that petitioner's parole was revoked by the Governor and his return to confinement in the penitentiary was pursuant to such revocation. A Governor's revocation of a convict's parole cancels credit for good time for the entire period while he was on leave. Simpson v. Page, Okl.Cr., 416 P.2d 635 (1966). Pappan v. Page, Okl.Cr., 422 P.2d 470 (1967).

II

Petitioner's second contention is that revocation of a parole must comply with the full requirements of due process of law including notice, full hearing, assistance of counsel, and confrontation of witnesses. Basically, Oklahoma has taken the view that parole is a matter of grace. Title 57 O.S.1961, § 346, provides:

'If a paroled convict shall at any time be guilty of a violation of any of the conditions of his parole, he may, upon the order of the Governor, be re-arrested and recommitted, without further proceedings, to confinement for the remainder of, and under the terms of, his original sentence.'

In view of this statute this Court held in the fifth and sixth paragraphs of its syllabus in Wright v. Page, Okl.Cr., 414 P.2d 570 (1966), that:

'A prisoner released on parole by the State of Oklahoma remains theoretically a prisoner of the State, while he continues to be free under the terms and conditions of that parole.'

'Governor could revoke prisoner's parole without notice or hearing.' 414 P.2d, at 571.

Many jurisdictions afford the opportunity for a hearing before a parole is revoked. Many of these jurisdictions afford such a hearing pursuant to statutory authorization, as is the case in federal jurisdiction, while others afford such a hearing as a requirement of the courts. For example, the state courts in both Minnesota and Utah require a hearing in the absence of a statutory requirement for such. State ex rel. O'Connor v. Wolfer, 53 Minn. 135, 54 N.W. 1065 (1893). State v. Zolantakis, 70 Utah 296, 259 P. 1044, 54 A.L.R. 1463 (1927).

At the same time, most jurisdictions have rejected the idea that constitutional due process requires that a parolee be afforded a court hearing with full procedural guarantees prior to a revocation of his parole. In Williams v. Dunbar, 377 F.2d 505 (9th Cir. 1967), the United States Court of Appeals held:

'His claim is that constitutional due process would have required that he be afforded a court hearing, with the rights to be represented by counsel, to confront and cross-examine witnesses and to have process to summon witnesses to support his denial of violation of parole.

* * * The appellant's contention has been tested in many litigated cases and has always been rejected. Citations.' 377 F.2d, at 506.

A recent decision of the Utah Supreme Court dealing with probation revocation, Velasquez v. Pratt, 21 Utah 2d 229, 443 P.2d 1020 (1968), held:

'* * * when a person has been found guilty of an offense and sentenced, he is in quite a different status than he is before conviction * * *. He is certainly not entitled to all of the protections accorded one accused of crime in the first instance * * *.

Notwithstanding what we have just said, it is our opinion that justice requires that a person on probation should not be compelled to live in dread of being recommitted on the whim or caprice of a probation officer, or even of a court. Ordinary principles of fair play demand that he should be advised of the ground upon which revocation of probation is sought, and to have a hearing on whether his probation should be revoked * * *.' 443 P.2d, at 1021.

We further note the holding of the United States Court of Appeals in Fleenor v. Hammond, 116 F.2d 982 (6th Cir. 1941), which involved the revocation of a parole granted to a state prisoner:

'* * * It does not follow, however, from the reservation of a right to revoke, that it may be exercised arbitrarily or upon whim, caprice, or rumor. Upon the granting of a pardon, albeit conditionally, the convict was entitled to his liberty and possessed of a right which could be forfeited only by reason of a breach of the conditions of the grant. * * *.'

'It is our conclusion that the petitioner's right to his freedom under the terms of the pardon could not be revoked without such hearing as is the generally accepted prerequisite of due process, if the exercise of such power by the Governor is challenged by unequivocal allegations that the petitioner has complied with the conditions of the grant. This does not mean that he is entitled to a trial in court, or a trial in any strict or formal sense. Due process is satisfied if there is reasonable opportunity extended to Fleenor to explain away accusation that he has violated the conditions upon which his pardon was granted. As was said in Escoe v. Zerbst (295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566) supra, the 'inquiry...

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  • Morrissey v. Brewer 8212 5103
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    ...liberty and possessed of a right which can be forfeited only by reason of a breach of the conditions of the grant.' Chase v. Page, 456 P.2d 590, 594 (Okl.Crim.App.1969). 13. Note, Observations on the Administration of Parole, 79 Yale L.J. 698, 704—706 (1970) (parole officers in Connecticut ......
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