Huckaby v. Newell

• Decision Date: 11 March 1974
• Citation: 16 Or.App. 581,519 P.2d 1290
• Parties: In the Matter of the Application of Mark Warren Huckaby for a Writ of Habeas Corpus. Mark Warren HUCKABY, Appellant, v. William NEWELL, and others constituting Oregon Board of Parole and Probation, and Hoyt Cupp, Superintendent, Oregon State Penitentiary, Respondents.
• Court: Oregon Court of Appeals

Page 1290

519 P.2d 1290

16 Or.App. 581

In the Matter of the Application of Mark Warren Huckaby for a Writ of Habeas Corpus Mark Warren HUCKABY, Appellant, v. William NEWELL, and others constituting Oregon Board of Parole and Probation, and Hoyt Cupp Superintendent, Oregon State Penitentiary, Respondents.

Court of Appeals of Oregon.

Argued and Submitted Jan. 21, 1974.

Decided March 11, 1974.

Charles N. Hilke, Marion-Polk Legal Aid Service, Inc., Salem, argued the cause and filed the briefs for appellant.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and TANZER, JJ.

TANZER, Judge.

This is an appeal from the dismissal of a petition for a writ of habeas corpus. The basis for the petition is petitioner's contention that the revocation of his parole did not meet the constitutional standards of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), because he was not afforded an on-site hearing shortly after he was arrested in California for violation of parole. As a result, he asserts, he was denied the benefits that would have flowed therefrom: (1) prior written notice of the claimed violations, (2) disclosure of evidence to be used against him at the formal revocation hearing, and (3) confrontation and cross-examination of persons furnishing adverse information. He further asserts that the Oregon State Board of Parole and Probation (hereinafter Board) was not a 'neutral and detached hearing body,' and that the evidence heard by the Board was not 'substantial, reliable or probative.'

The trial court heard the testimony of the petitioner and others and considered the transcript and exhibits from the Board hearing. It then made the following findings of fact:

'1. Petitioner was paroled by the Oregon Board of Parole and Probation to the supervision of the State of California.

'2. Petitioner received permission to go to the State of Nevada for approximately one week, the time to expire and petitioner to return by May 9, 1972.

'3. Petitioner did not return to California until some time in July when he made one unsuccessful attempt to contact his parole officer and then re-enlisted in the service and was processed for overseas transport when arrested.

'4. Based on routine reports of failure to report and submit to supervision filed by the California parole officer, the Oregon Board of Parole and Probation entered an order of revocation on June 30, 1972.

'5. Petitioner was not afforded a hearing in California prior to his arrest and return to Oregon August 17, 1972.

'6. The revocation order in this case was issued the day after the Morrisey v. Brewer (sic) decision was handed down and was made without knowledge of that decision.

'7. The procedure employed by the Queen Board of Parole and Probation in revoking petitioner's parole was consistent with the then established procedures.

'8. Petitioner appeared before the Oregon Board of Parole and Probation with an attorney on September 26, 1972, and at his request, the case was continued until October 12, 1972, for hearing.

'9. Petitioner was aggressively rpresented by counsel and was given an opportunity to develop evidence bearing upon the question of violation of the terms of parole and mitigation of the effect of any violation.

'10. The presentation and argument of petitioner at his revocation hearing was related primarily to explaining and mitigating the violation rather than denying the same. Petitioner attempted to justify his failure to report by contending that he reported to and submitted to supervision in Nevada though this was never approved by the supervising authorities.

'11. Petitioner was apparently attempting to lose himself in the military service and leave the country at the time he was arrested.

'12. The Oregon Board of Parole and Probation did receive some reports from out-of-state officials which were received and relied upon at petitioner's parole revocation hearing and petitioner was not given a traditional opportunity to cross-examine. The reports were submitted in the ordinary course of business and contained nothing relied upon which petitioner was not well aware of in advance.

'13. Petitioner's parole revocation hearing was more than fair.'

The transcript of the circuit court proceedings was not designated as part of the record on appeal. In the absence of a transcript or an agreed narrative, we cannot hold that the trial court erred in making its findings. Cf. Blehm v. Ringering, 260 Or. 46, 50, 488 P.2d 798 (1971). We therefore accept those findings.

The basic purposes of the parole revocation procedure are (1) the fact-finding function by which it is determined whether the parolee violated one or more conditions of his parole and, if it is found that he has, then (2) the dispositional function by which the parolee is either returned to prison or continued on parole, perhaps with new conditions. Morrissey v. Brewer, 408 U.S. at 479--480, 92 S.Ct. 2593.

Morrissey v. Brewer, supra, establishes the right of a parolee ot an on-site hearing by which a person other than the parole officer who recommends revocation can decide whether there is probable cause to revoke....