Gunsolus v. Gagnon

• Decision Date: 28 December 1971
• Docket Number: 18502,18501,No. 18523,18875.,18523
• Citation: 454 F.2d 416
• Parties: James C. GUNSOLUS, Petitioner-Appellant, v. John R. GAGNON, Warden, Respondent-Appellee. Vern Levi FINK and Thomas F. Hoppe, Petitioners-Appellants, v. Elmer O. CADY, Warden, Respondent-Appellee. Gerald H. SCARPELLI, Petitioner-Appellee, v. John R. GAGNON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.2d 416 (1971)

James C. GUNSOLUS, Petitioner-Appellant, v. John R. GAGNON, Warden, Respondent-Appellee.

Vern Levi FINK and Thomas F. Hoppe, Petitioners-Appellants, v. Elmer O. CADY, Warden, Respondent-Appellee.

Gerald H. SCARPELLI, Petitioner-Appellee, v. John R. GAGNON, Warden, Respondent-Appellant.

Nos. 18523, 18501, 18502, 18875.

United States Court of Appeals, Seventh Circuit.

December 28, 1971.

William M. Coffey, Milwaukee, Wis., James C. Gunsolus, Jerome H. Kringel, Milwaukee, Wis., for appellants.

Robert W. Warren, Atty. Gen., and William A. Platz, Asst. Atty. Gen., Madison, Wis., for appellee.

Before FAIRCHILD and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge.¹

FAIRCHILD, Circuit Judge.

These consolidated appeals raise several questions of importance concerning the probation revocation process in Wisconsin. In Hahn v. Burke, 430 F.2d 100 (7th Cir., 1970), cert. den. 402 U.S. 933, 91 S.Ct. 1522, 28 L.Ed.2d 868, this court held that basic requirements of due process entitle a probationer to a hearing before his probation is revoked. These appeals present the related issues of (1) whether Hahn should be applied retroactively, (2) whether the probation revocation hearing must be judicial, or whether an administrative hearing will suffice, (3) whether retained counsel must be allowed to participate in the probation revocation hearing, and (4) whether indigents are entitled to the appointment of counsel to assist them at the hearing.

The basic factual pattern with respect to all four petitioners involved in the instant appeals is as follows: Petitioners were convicted of felonies in various Wisconsin courts outside of Milwaukee county and sentenced to terms of imprisonment. Execution of sentence was stayed and petitioners placed on probation in the custody of the Wisconsin Department of Health and Social Services. Each petitioner was alleged later to have committed some act or acts which violated a condition of his probation. Thereupon, the department revoked probation and petitioners were incarcerated to serve the full term of the sentence previously imposed. No hearing was conducted for any petitioner before probation was revoked. Revocation of probation with respect to all petitioners occurred prior to our ruling in Hahn. Each petitioner exhausted his state habeas corpus remedies and then sought federal habeas corpus. Each federal petition was filed prior to our ruling in Hahn. The district court denied the petitions of petitioners Fink, Hoppe, and Gunsolus in orders which pre-dated Hahn. In the case of Scarpelli, the district court ruled, after our decision in Hahn, that petitioner was entitled to a hearing prior to probation revocation and entitled to appointment of counsel for such hearing. The district court opinion is reported at 317 F.Supp. 72 (E.D.Wis., 1970).

Nos. 18501 and 18502, Fink and Hoppe

In April, 1969 petitioners Fink and Hoppe were convicted of burglary and sentenced to indeterminate terms of not more than 4 and 3 years respectively. Execution of sentence was stayed and petitioners placed on probation to the department. As one condition of probation, each petitioner was to remain in the custody of the sheriff for one year during the time he was not employed. During this year, the department decided that each had violated this condition by absenting himself from jail "under deceptive and improper circumstances." Thereupon the department revoked probation.

No. 18523, Gunsolus.

Petitioner Gunsolus was convicted of theft and sentenced to a term of not more than 3 years imprisonment. Execution of the sentence was stayed and petitioner placed on probation for a period of 2 years, upon the condition, inter alia, that he spend his non-working hours in jail for the first six months. During this period the department decided that petitioner had absconded, and revoked probation.

No. 18875, Scarpelli.

In July, 1965 petitioner Scarpelli was convicted of armed robbery and sentenced to imprisonment for an indeterminate term not to exceed 15 years. Execution of the sentence was stayed and petitioner placed on probation for a period of 7 years. In September, 1965, the department decided that he had associated with known criminals and had been involved in a burglary. The department revoked probation. At the time of the filing of his petition for writ of habeas corpus, petitioner was incarcerated in a Wisconsin prison. On June 4, 1969 petitioner was paroled to a federal detainer. Petitioner is thus currently a parolee of the state of Wisconsin incarcerated in a federal prison. We agree with the district court that petitioner's parole does not moot this petition.

Retroactivity of Hahn v. Burke.

In Hahn v. Burke we held that constitutional dictates of due process require a state to hold a hearing before revoking probation. The state urges us to limit the effect of this holding to only those probation revocations which occur after the date of Hahn, August 19, 1970.

In Stovall v. Denno², the Supreme Court listed the criteria for determining the extent to which changed interpretations of the constitution with respect to criminal procedure should be applied retroactively. They are as follows: "(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of the new standards."

Although Mempa v. Rhay³ requiring that counsel be made available at a revocation hearing which culminates in sentencing has been given full retroactive application⁴ it does not necessarily follow that the Hahn requirement of a revocation hearing where revocation terminates the stay of a sentence already imposed must be retroactively applied.

On April 2, 1971, the Supreme Court of Wisconsin decided State ex rel. Johnson v. Cady⁵, and held that there is a right to a hearing on revocation of probation (and of parole as well). On the question of retroactivity, the Court evaluated the situation in terms of Stovall criteria, and determined "that the hearing granted by this decision shall be prospective only except as to those petitions on file in this court or any trial court in the state as of the date of this mandate."⁶ We understand "on file" to mean pending, and to exclude petitions previously filed, denied, and beyond direct review. If we misconstrue the phrase, then present petitioners, who presented petitions to state courts long ago, would only have to go back to state court to receive the benefit of Johnson.

We are not prepared to disagree with the evaluation by the Wisconsin Court of the various factors, leading to its conclusion that full retroactivity for Hahn is inappropriate. If we were so to decide similarly, the normal pattern would be to limit the Hahn decision to prospective effect except that it would be applied to Hahn himself. It is the doctrine of Stovall, p. 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199, that if full retroactivity be deemed inappropriate, the arguable inequity, to other petitioners similarly situated, of applying the new rule to the party in the case in which the new rule is announced, and the fact that he is a chance beneficiary of the new rule, are not adequate reasons for applying the new rule retroactively to all who have already brought their cases to court.

Our present situation has, however, unusual elements. The dates of the Hahn and Johnson decisions, rejecting ex parte revocations of probation, are different. Johnson is to be applied retroactively to a limited class of persons other than the Johnson petitioners in order to avoid inequity to that class. And those who properly raise the challenge in federal courts necessarily have previously pursued it in state courts.

We do not attempt to pose and analyze all the hypothetical situations in which a purely prospective Hahn, side by side with a limited retroactivity for Johnson, would cause some degree of inequity. There would exist one glaring inequity, however, among Wisconsin prisoners whose probation was revoked ex parte before the date of Hahn. Those whose state court petitions were still pending by the date of Johnson, either because filed later, perhaps relying on Hahn, or because more slowly processed, would get the benefit of the new rule by virtue of Johnson's retroactivity formula. Those who filed in state court earlier and whose petitions were denied more promptly, and who brought their claim to the federal district court before the date of Hahn, would not, except for Hahn himself, get such benefit.

We think that under the facts peculiar to this case, Stovall does not prevent our considering the inequity just referred to, and making Hahn retroactive to the limited extent necessary to avoid it. Therefore we hold that Hahn is retroactive at least so as to apply to all who, having exhausted state remedies, had filed petitions in federal district court before August 19, 1970 raising the claim here involved, which petitions had not been denied, or if denied, were still open to direct review. Hahn would thus be applied to petitioners in this case. Whether there is sound reason for according full retroactivity to Hahn would better be considered when the facts presented make it necessary squarely to face and decide the question.

Whether the revocation hearing may be administrative rather than judicial.

As to all courts in Wisconsin except those in Milwaukee county, the statutes provide that a person placed on probation shall be in the custody of the state's department of health and social services.⁷ It is the department, rather than the court, which revokes probation for violation of a condition. In cases like petitioners', where the court has already imposed sentence, the department orders the probationer to prison and his sentence begins. In cases where the court has withheld sentence, the department orders him brought before the court for sentencing.⁸ In counties exceeding 500,000...