Cole v. Holliday

• Decision Date: 14 October 1969
• Docket Number: No. 53540,53540
• Citation: 171 N.W.2d 603
• Parties: Lee L. COLE, Plaintiff, v. Gibson C. HOLLIDAY, Judge of the Ninth Judicial District of Iowa, Defendant.
• Court: Iowa Supreme Court

Page 603

171 N.W.2d 603

Lee L. COLE, Plaintiff, v. Gibson C. HOLLIDAY, Judge of the Ninth Judicial District of Iowa, Defendant.

No. 53540.

Supreme Court of Iowa.

Oct. 14, 1969.

Rehearing Denied Dec. 8, 1969.

Ben E. Kubby, and John P. Roehrick, Des Moines, for plaintiff.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., for defendant.

LARSON, Justice.

On October 30, 1967, Lee L. Cole was charged with uttering and drawing a forged instrument in violation of section 718.2 of the 1966 Code. Pursuant to indictment and a written plea of guilty to the charge, she was sentenced to a term of not more than ten years in the Women's Reformatory at Rockwell City, Iowa, on March 8, 1968. However, the sentence was suspended and she was granted probation during good behavior under the supervision of the probation officers of the Iowa State Board of Parole, as provided for in section 247.20 of the 1966 Code, 'subject to revocation under the provisions of 247.26 of the 1966 Code of Iowa.'

On December 10, 1968, she was sentenced by the same judge to a term of not more than five years in the Women's Reformatory after she was found guilty of the crime of grand larceny in violation of section 709.1 of the 1966 Code, and this sentence was ordered to run concurrently with the ten year sentence previously imposed. In pronouncing sentence, pursuant to a hearing on the matter of the probation granted Lee L. Cole on December 10, 1968, the respondent judge found 'That the defendant was convicted by jury trial in the Polk County District Court on the 25th day of November, 1968, Criminal No. 55150, and the defendant failed to appear for sentencing and a bench warrant was issued for her arrest and that said probation should be revoked and the defendant required to serve her sentence originally imposed.' The judge then ordered 'the probation granted to the defendant on the 8th day of March 1968, be now revoked * * * and that mittimus issue.'

Defendant appealed to this court on December 20, 1968, but pursuant to her petition for a writ of certiorari on May 21, 1969, hearing was had on June 4, 1969, and on June 9, 1969, three members of this court dismissed the appeal and granted the writ as prayed.

On June 24, 1969, Judge Holliday made a return on the writ.

Generally, the issues before us are whether a suspended sentence with probation, revoked without notice and hearing, is a violation of the due process clause of the Sixth and Fourteenth Amendments of the Constitution of the United States, and whether an attorney representing the parolee at the time of revocation must be present in court.

Plaintiff Lee L. Cole states the sole issues present here are: (1) Is section 247.26 of the Iowa Code 1966 unconstitutional as a violation of the due process clause of the Fourteenth Amendment to the United States Constitution? (2) Was plaintiff entitled to a notice and hearing on the revocation of her sentence suspension under the due process clause of the Fourteenth Amendment of the United States Constitution? (3) Was it necessary that plaintiff have the assistance of counsel at the time her suspended sentence was revoked, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution?

As we view it, the controlling issue in this case is one previously considered by this court but to date has not been passed upon directly by the Supreme Court of the United States. Curtis v. Bennett, 256 Iowa 1164, 1167, 131 N.W.2d 1, 3, and citations. But see McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Contending to the contrary, counsel for the plaintiff asserts that the pronouncements of the Supreme Court of the United States in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), are controlling and that by virtue of that decision and the reasoning therein the plaintiff must be released from custody pending a full hearing on her sentence suspension revocation. We do not agree.

I. In the absence of statutory provisions for notice and hearing on the revocation of sentence suspension or probation, a previously convicted and sentenced person has no right to such a notice or hearing prior to revocation. Curtis v. Bennett, supra, 256 Iowa 1164, 131 N.W.2d 1; State v. Rath, 258 Iowa 568, 139 N.W.2d 468; Pagano v. Bechly, 211 Iowa 1294, 232 N.W. 798; Lint v. Bennett, 251 Iowa 1193, 104 N.W.2d 564, and citations; Rose v. Haskins, 388 F.2d 91 (6th Cir. 1968); Curtis v. Bennett, 351 F.2d 931 (8th Cir. 1965); annotation 29 A.L.R.2d 1074; Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968); Lawson v. Coiner, 291 F.Supp. 79 (D.C.1968); United States v. Brierly, 288 F.Supp. 401 (D.C.1968); Holder v. United States, 285 F.Supp. 380 (D.C.1968); Sammons v. United States, 285 F.Supp. 100 (D.C.1968); Sorensen v. Young, 282 F.Supp. 1009 (D.C.1968); Beal v. Turner, 22 Utah 2d 418, 454 P.2d 624 (1969).

There are no statutory provisions in this jurisdiction for the granting of notice and hearing on the revocation of a suspended sentence. The contrary is set out in section 247.26 of the 1966 Code of Iowa, which provides: 'A suspension of a sentence by the court as herein provided may be revoked at any time, Without notice, by the court or judge, and the defendant committed in obedience to such judgment.' (Emphasis supplied.)

It must be remembered this is not the case of a sentence Deferment. Admittedly, such a case would raise the constitutional issue of whether defendant was represented by counsel at a critical period in the trial. Here the trial had been completed. Defendant had been furnished or had counsel representing her at all proceedings prior to and including sentencing. As to the crime charged against her, defendant had had her full day in court.

In Curtis v. Bennett, supra, 256 Iowa 1164, 1167, 131 N.W.2d 1, 3, we considered the question of revocation of probation or suspension of sentences without notice and hearing and had this to say thereon: 'Iowa is among the majority of states which have consistently held that under statutes relating to revocation of probation or suspension of sentence which contain no express provision for notice and hearing, such a revocation without notice and hearing does not constitute a denial of due process. (Citations) In Pagano v. Bechly, supra (211 Iowa 1294, 232 N.W. 798), it was the claim of plaintiff that he had vested rights by reason of his parole of which he could not be deprived under the constitution without notice and an opportunity to be heard, but this court said on page 1298 of 211 Iowa, page 800 of 232 N.W.: 'Being a matter of grace and forbearance on the part of the sovereign, the defendant acquired no vested rights, and therefore, under the statutory provisions (same as now), he would not be entitled to notice and opportunity to be heard. " Thus, if the court believed it made a mistake in the suspension and concluded the sentence best be served as pronounced pursuant to conviction, that was sufficient.

In Bennett, we fully discussed the holding by most courts that conditional liberty After conviction is an act of grace or clemency extended by the trial court which conferred no vested rights to liberty on the convict, but which could be withdrawn at the discretion of the granting authority, that the convict accepted that liberty under those conditions and is bound by them. We noted that this view, as well as the view that such suspensions create a vested right in the convict, were fully discussed in Anderson v. Alexander, Warden, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051. Our view here that no rights vested in the convict was specifically approved in Curtis v. Bennett, supra, 351 F.2d 931.

In the recent case of State v. Rath, 258 Iowa 568, 139 N.W.2d 468, we reaffirmed our position in Pagano v. Bechly, supra, Lint v. Bennett, supra, and Curtis v. Bennett, supra, and held the granting of a bench parole under section 247.20 is a matter of grace and forbearance on the part of the sovereign, that defendant acquired no vested rights thereunder, and that whatever rights defendant acquired by reason of the parole are necessarily limited and controlled by the provisions of section 247.26 of the Code. Therein we pointed out that when the defendant did not object to the suspension of his sentence, it remained unexecuted during the suspension and could only be satisfied by serving the imprisonment imposed, unless remitted by death or some other conclusive authority citing Bennett v. Bradley, 216 Iowa 1267, 1271, 249 N.W. 651, 652.

In Lint v. Bennett, supra, 251 Iowa 1193, 104 N.W.2d 564, we held a revocation without notice and hearing valid when it appeared a suspended sentence imposed on conviction for assault with intent to commit a felony was revoked when defendant was subsequently convicted of the crime of operating a motor vehicle while intoxicated. There the suspension was also revoked under the provisions of section 247.26 of the Code. We reaffirm our position in Pagano v. Bechly, supra, and its reasoning, where we said: 'In other words, the ultimate outcome of these sections of the statute (247.20 and 247.26) which necessarily become a part of the judgment entry, amounts to this: The court says to the defendant, 'I will suspend your sentence during good behavior, but reserve the power to revoke this suspension of sentence and parole at any time I may see fit without notice to you. " And when it appeared to the court that defendant had been subsequently convicted of another crime, it rightfully revoked the previous suspension without a hearing or notice. There, as here, plaintiff did not allege the trial court acted arbitrarily, capriciously, or without any information in revoking the parole.

It would unduly extend this opinion to discuss the other cases from this jurisdiction which uphold the power of the court to revoke a suspended sentence of one convicted of a crime without prior notice and hearing, and unless it appears...