Foskey v. Sapp, 31227

• Decision Date: 22 October 1976
• Docket Number: No. 31227,31227
• Parties: Howard Lane FOSKEY v. Lewis SAPP, Sheriff.
• Court: Georgia Supreme Court

Page 635

229 S.E.2d 635

237 Ga. 788

Howard Lane FOSKEY v. Lewis SAPP, Sheriff.

No. 31227.

Supreme Court of Georgia.

Oct. 22, 1976.

E. Kontz Bennett, Jr., Waycross, for appellant.

Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM.

This court granted a certificate for review of a habeas corpus judgment that remanded the appellant to custody.

In March of 1975, the appellant entered a plea of guilty to motor vehicle theft and received a sentence, to be served on probation, of three years. In September of 1975, two indictments were returned against appellant charging him with possession of vehicles from which the manufacturers' serial numbers had been removed for the purpose of concealing the identity of the vehicles.

On October 1, 1975, appellant's parole supervisor filed an application with the court to revoke appellant's probation because he had been indicted for two felonies on September 23, 1975. The trial judge ordered the appellant to show cause on October 7, 1975, why his probation should not be revoked for the reasons stated in the application for revocation. The appellant was in custody on the charges contained in the September 23 indictments, and the probation supervisor served a copy of the show-cause order on the appellant at the jail on October 3, 1975.

Appellant signed an acknowledgment of service of the show-cause order, and this acknowledgement also contained the following: 'I am aware that I am entitled to legal representation at said hearing.'

The trial judge conducted the revocation hearing on October 7, and thereafter entered an order revoking appellant's probation. Appellant was not represented by counsel at the revocation hearing.

Appellant thereafter filed an application for a writ of habeas corpus in which he contended that he was not represented by counsel at the revocation hearing, that he was indigent and entitled to have counsel appointed for him, and that though he knew he was entitled to employ counsel, he was not advised that he had the right as an indigent to appointed counsel.

The probation supervisor testified at the habeas hearing that appellant knew that he had the right to employ counsel, that appellant was not advised that if he could not afford to employ counsel he was entitled to appointed counsel at the revocation hearing, and that he, the supervisor, thought that appellant or appellant's father would employ counsel to represent appellant at the revocation hearing.

The habeas judge rendered a finding that the appellant had 'indicated to the Probation Supervisor that he would employ private counsel for the Probation Revocation Hearing,' and he entered a judgment remanding the appellant to custody.

The rule in this state is that an indigent is not entitled to appointed counsel at his probation revocation hearing. Dutton v. Willis, 223 Ga. 209, 154 S.E.2d 221 (1967), Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841 (1972), and Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975).

Judgment affirmed.

All the Justices concur, except JORDAN and HILL, JJ., who concur specially, HALL, J., who concurs in the judgment, and GUNTER and INGRAM, JJ., who dissent.

JORDAN, Justice (concurring specially).

In the light of the holding in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, I do not think that this court can continue to adhere to the broad rule laid down in Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975) and similar cases. However, where the revocation is based upon grand jury indictments, as in this case, the appellant does not bring himself within the Scarpelli ruling.

I therefore concur in judgment of the habeas court remanding the appellant to custody.

I am authorized to state that Justice HILL joins in this special concurrence.

HILL, Justice (concurring specially).

I concur with what Justice Jordan says-the rule stated in Mercer v. Hopper, 233 Ga. 620, 212 S.E.2d 799 (1975), cannot be sustained. What then is the correct rule as to the appointment of counsel in probation revocation proceedings?

Parole revocation proceedings are not a part of a criminal prosecution but arise after the criminal prosecution has been concluded. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971). Hence the state is not required to provide counsel to an indigent in a parole revocation proceeding as part of the requirement that counsel be provided at each critical stage of a criminal proceeding. See Morrissey, supra.

There is no due process distinction between parole revocation and probation revocation where the sentence was previously imposed. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1972). Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Therefore, a probation revocation proceeding is not a criminal prosecution (Gagnon v. Scarpelli, supra), and the state is not required to provide counsel to an indigent in a probation revocation proceeding as part of the requirement that counsel be provided at each critical stage of a criminal proceeding.

In noncriminal proceedings, the state is not required to provide counsel to indigents, even though the state permits others to retain and use counsel in such proceedings; e.g., citation for contempt for nonpayment of alimony. ¹ Therefore, the state is not required to provide counsel to indigents in probation revocation proceedings to afford equal protection. It should be noted in this connection that Cottle v. Wainwright, 477 F.2d 269 (5th Cir. 1973), was vacated and remanded by the Supreme Court, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973), following Gagnon. As the Cottle dissent points out, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138, in vacating Cottle the Supreme Court found that the question of counsel at probation revocation hearings is to be decided on due process considerations, not equal protection.

However, Gagnon v. Scarpelli amplified the holding in Morrissey v. Brewer that both a preliminary and a final hearing would generally be necessary to insure that the 'conditional liberty' of a parolee or probationer was not taken from him without due process of law. ² In Gagnon, the Court ruled that although the appointment of counsel will be unnecessary in most revocation hearings, in some circumstances counsel must be provided for parolees and probationers in order to preserve the fairness of the hearings. 411 U.S. at 790, 93 S.Ct. 1756. Where fundamental fairness requires, counsel must be provided.

Nonetheless, in all cases a parolee/probationer must be 'informed of his right to request (the appointment of) counsel,' Gagnon, supra at 790, 93 S.Ct. at 1764 (matter in brackets added), so that it was error in this case that petitioner was not so informed. Gagnon points out two circumstances where, after the parolee/probationer has been informed of his right to request counsel and makes such request, counsel will be presumed to be required. 'Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that ...