Giboney v. Johnson
| Decision Date | 18 June 1974 |
| Docket Number | No. H--74--251,H--74--251 |
| Citation | 523 P.2d 1151 |
| Parties | Andrew GIBONEY, Petitioner, v. Sam JOHNSON, Warden, Oklahoma State Penitentiary, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Andrew Giboney filed in this Court a petition for Writ of Habeas Corpus alleging that his present incarceration in the state penitentiary at McAlester, Oklahoma, is unlawful because the hearing at which his suspended sentence was revoked was held without notice in his absence.
The facts are these: Petitioner, Andrew Giboney, pleaded guilty in April, 1968, to a charge of Burglary in the Second Degree in Case No. 3015 of the District Court, McIntosh County. The trial judge thereupon sentenced him to a term of three (3) years imprisonment but suspended that sentence.
On August 8, 1968, he was arrested for the crime of Burglary and incarcerated in the county jail of McIntosh County. Shortly thereafter, he escaped from that jail. On August 20, 1968, the District Attorney from McIntosh County filed an application to revoke petitioner's suspended sentence in Case No. 3015, alleging as grounds for revocation, the commission of the crime of Burglary and the escape from county jail. The application recites that Giboney was a fugitive from justice at the time of its filing. The record contains an order revoking petitioner's suspended sentence dated August 20, 1968. That order recites that a hearing was held and testimony heard in open court. That order further recites that the court finds from the testimony heard in open court that the defendant has committed a burglary in Muskogee County and that he has escaped from jail and is a fugitive. Subsequently, Giboney was apprehended and committed to the state penitentiary upon a judgment and sentence of the District Court, Muskogee County, Oklahoma. He completed that term of imprisonment and on June 15, 1972, began serving the sentence of three years' imprisonment imposed by the District Court of McIntosh County in Case No. 3015. On April 30, 1973, he was charged by Information with the crime of escape from a state penitentiary and is presently awaiting trial on that charge.
Petitioner's brief raises two questions: First, is his commitment to the state penitentiary under the judgment and sentence entered in Case No. 3015 unlawful for the reason that the 1968 revocation hearing was held without notice and in his absence, and second, if his commitment to the state penitentiary is held to be unlawful, must the presently pending charge of escape from that institution be dismissed.
Because we have determined petitioner's commitment was not unlawful, we do not reach the second question.
In support of his contention that he had an absolute right to appear with counsel and contest the application filed by the district attorney to revoke, the petitioner relies on Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) and McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). His reliance on those cases is misplaced. In Mempa, it was held that the constitution requires that counsel be afforded a defendant previously convicted of a felony in a state post-trial proceeding for revocation of his probation and the imposition of sentence which had been previously deferred. In McConnell, it was held that the rule of Mempa must be given retroactive application. The decision in Mempa is based upon the reasoning that counsel is required '. . . at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.' 389 U.S. at 134, 88 S.Ct. at 257, 19 L.Ed.2d 336, and that sentencing is one such stage. In the instant case, sentence was in fact imposed on Giboney but execution of that sentence was suspended. In Mempa, in accordance with a statute, sentencing was deferred at the time the defendant was placed on probation, and the hearing at which it was held that Mempa had a right to counsel was one where probation was revoked and sentence imposed. For that reason, Mempa and McConnell are inapplicable to the present case.
More to the point is the decision of the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) announcing due process standards governing probation revocation hearings. The Court there held that due process mandates a preliminary hearing and final hearing on revocation in the case of a probationer under the same conditions as specified in Morrissey v. Brewer 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Gagnon, the Court rejected a per se rule governing the right to counsel in such hearings but held that the body conducting the hearings should decide according to the facts of the individual case whether due process requires that an indigent probationer be...
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