Dobbs v. Wallace

• Decision Date: 23 January 1974
• Citation: 157 W.Va. 405,201 S.E.2d 914
• Court: West Virginia Supreme Court
• Parties: Joseph Timothy DOBBS v. William O. WALLACE, Acting Warden West Virginia Penitentiary. Mike E. PRESTON v. WARDEN, WEST VIRGINIA PENITENTIARY.

Page 914

201 S.E.2d 914

157 W.Va. 405

Joseph Timothy DOBBS v. William O. WALLACE, Acting Warden West Virginia Penitentiary.

Mike E. PRESTON v. WARDEN, WEST VIRGINIA PENITENTIARY.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 2, 1973.

Decided Jan. 15, 1974.

Dissenting Opinion Jan. 23, 1974.

Syllabus by the Court

1. A parole revocation hearing, being a critical proceeding at which the accused parolee's liberty is in jeopardy, must be conducted within the protections afforded by the state and federal constitutions.

2. Where a state statute permits parolee to retain counsel to represent him at a parole revocation hearing, the equal protection clause of the Fourteenth Amendment mandates that such parolee be informed that counsel will be appointed to assist him if he desires and is without funds to employ such counsel.

3. When, as a result of a parole revocation hearing, parole was revoked by the action of the board of probation and parole which action was predicated upon a transcript of the hearing, including exhibits and documentary evidence, and the recommendation of one member of the board before whom the hearing was held, no constitutional right of the parolee was abridged by reason of the revocation hearing having been held before one member of the board instead of the whole board or a quorum thereof.

DiTrapano, Mitchell, Lawson & Field, W. C. Field, Charleston, for relators.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Chief Justice:

Invoking the original jurisdiction of this Court, the petitioners, Mike E. Preston and Joseph Timothy Dobbs, in separate petitions, each seek a writ of habeas corpus contending that he is being illegally detained by the warden of the state penitentiary in violation of his constitutional rights. Since each petition presents identical issues, both will be considered and disposed of in this opinion.

Writs were issued by this Court in each of these cases, returnable on October 2, 1973, and counsel was appointed to represent the petitioners. The Attorney General, appearing for the respondent, filed an answer and return. On the return date these cases were submitted for decision upon the aforesaid pleadings and upon the arguments and briefs of counsel.

MIKE E. PRESTON

Petitioner, Mike E. Preston, was indicted in the Circuit Court of Fayette County on a charge of breaking and entering. Upon his guilty plea he was sentenced to a term of one to ten years in the state penitentiary. That sentence was suspended and the petitioner was placed on probation, which, upon violation of the terms thereof, was revoked, and he was sent to the forestry camp. Upon his escape therefrom and his recapture, his suspended sentence was reinstated and he was sent to the Huttonsville Correctional Center to serve said sentence. In March, 1971 the petitioner was released on parole. He was arrested for alleged violations The letter from the parole board informing the petitioner of the alleged violation and of the time and place of the hearing contained the following language: 'Please note that under West Virginia Parole Laws you have a right to employ an attorney to represent your interests at this hearing.' He was also informed that he could present witnesses, offer testimony and submit any statement he desired at the hearing.

of the conditions of his parole on August 14, 1971, and, after notice, was, on August 31, 1971, afforded a hearing.

The parole revocation hearing was held before one member of the three member parole board. Thereafter, that member filed with the parole board a transcript of the hearing and his report, including his recommendation that parole be revoked. Acting thereon the parole board revoked the petitioner's parole and returned him to Huttonsville. After an escape therefrom and recapture he was transferred to the state penitentiary to serve the remainder of his sentence.

JOSEPH TIMOTHY DOBBS

In an indictment returned by the grand jury of Mason County, the petitioner, Joseph Timothy Dobbs, was charged with the crime of breaking and entering and, upon conviction thereof, was sentenced to serve one to ten years in the state penitentiary. On February 24, 1969 he was released on parole but was apprehended pursuant to a Pennsylvania detainer where he was subsequently incarcerated on several charges, including burglary and larceny. In December, 1972 this petitioner was returned to West Virginia as a parole violator.

By letter dated December 15, 1972, the petitioner was notified that by reason of alleged violations of the conditions of his parole, a revocation hearing would be held on December 27, 1972. After being informed of the charges against him and told that he 'may have witnesses, offer any testimony, give evidence or submit any statement' at the hearing, the letter said: 'Please note that under West Virginia Parole Laws, you have a right to employ an attorney to represent your interests at this hearing.'

The hearing was held before one member of the three member parole board, a transcript of which was made a part of the record of this proceeding. That member filed with the parole board a copy of the transcript and his report, including his recommendation that parole be revoked. Thereupon, the board revoked the petitioner's parole and returned him to the state penitentiary where he remains.

The two issues, common to each petition, are: (1) Does one have a constitutional right to be represented by counsel at a parole revocation hearing? (2) Does one have a constitutional right to a parole revocation hearing before the parole board as opposed to one member thereof?

That an indigent charged with the commission of a crime is entitled to the appointment of counsel has long been recognized in this country. As early as 1932, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932), the Supreme Court recognized that under certain circumstances the failure to furnish the assistance of counsel to indigent defendants charged with a crime in a state court constituted an infringement of the due process clause of the Fourteenth Amendment. From Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), the recognition by the courts of the right of an indigent to counsel whenever his liberty is in jeopardy has become increasingly apparent. This Court, following the mandate of Gideon, so afforded the assistance of counsel to indigent defendants in State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964) and in many cases decided subsequent thereto.

In the consolidated cases of Mempa v. Rhay and Walkling v. Washington State Board of Prison Terms and Paroles, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), Mr. Justice Marshall, writing for a unanimous court, held that under the constitution a lawyer must be afforded the defendant at proceedings at which probation was revoked and a deferred sentence imposed. He said that this was essential whether the proceeding 'be labeled a revocation of probation or a deferred sentencing.' Pursuant to that decision this Court, in State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968), granted a writ of habeas corpus and discharged the prisoner for the reason that he was not afforded the assistance of counsel at his probation revocation hearing. See State ex rel. Phillips v. Wood, 152 W.Va. 568, 165 S.E.2d 105 (1968) and State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968). Thus, the right of an accused indigent to the assistance of counsel has been extended to revocation of probation hearings.

The consolidated cases now before this Court pose the question as to whether the aforesaid right to the assistance of counsel should be afforded in parole revocation hearings.

Recent decisions have discarded the concept that parole, being a privilege or matter of grace, rather than a right, may be revoked without regard to the parolee's constitutional rights. Although Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), does not directly hold that counsel must be afforded at a revocation hearing, the gravity of such hearing was succinctly characterized as follows:

'We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.'

The above quoted words forcefully persuade us that a hearing designed to revoke one's parole is a critical proceeding at which his liberty unquestionably is in jeopardy.

It is asserted on behalf of the respondent that inasmuch as the parolee is under conviction and supervision he enjoys only a limited freedom during the period of his parole and that a parole revocation hearing is not, therefore, a critical stage of criminal proceedings where substantial rights of the parolee are affected. While revocation of parole may not in every instance rise to the solemnity of a trial initially determining innocence or guilt, we reject the respondent's assertion that a hearing revoking parole is not a critical stage of a proceeding where substantial rights of the accused parolee may be affected.

The parolee's liberty may be limited. He may be enjoined by past transgressions from the pleasures of the full freedoms enjoyed by the unconvicted and he may not be permitted to engage in some of his former activities. However, as a parolee, he is free from incarceration behind bars; ...