Hughes v. Gwinn

• Decision Date: 17 March 1982
• Docket Number: No. 15060,15060
• Citation: 290 S.E.2d 5,170 W.Va. 87
• Parties: Christine E. HUGHES v. Philip GWINN, Warden, W. Va. Penitentiary for Women at Pence Springs.
• Court: West Virginia Supreme Court

Page 5

290 S.E.2d 5

170 W.Va. 87

Christine E. HUGHES v. Philip GWINN, Warden, W. Va. Penitentiary for Women at Pence Springs.

No. 15060.

Supreme Court of Appeals of West Virginia.

March 17, 1982.

Syllabus by the Court

1. A probationer's right to counsel attaches at any proceeding at which the terms

of probation are established, modified, or revoked and if the probationer is an indigent the assistance of counsel must be furnished by the State.

2. Statements by a probationer, obtained by probation officers without first advising the probationer of his rights as prescribed under Miranda, are admissible in probation revocation proceedings.

3. Evidence obtained under circumstances which would be in violation of rights secured by U.S.Const., Amend. IV and V and our equivalent W.Va.Const., Art. 3 § 5 and Art. 3 § 6 with regard to a person who is not on probation is still admissible in a probation revocation proceeding.

4. While a probationer waives certain constitutional rights which are inconsistent with a rehabilitative, social welfare relationship with his probation officer, he retains the same constitutional rights as any other citizen against outrageous conduct by state officers or deliberate harassment by state officers.

Don R. Sensabaugh, Jr., Kay, Casto & Chaney, Charleston, for petitioner.

Chauncey H. Browning, Atty. Gen., Richard S. Glaser, Jr., Asst. Atty. Gen., Charleston, for respondent.

NEELY, Justice:

In this original habeas corpus we are asked to determine the scope of a probationer's constitutional rights before a probation revocation proceeding has been initiated. Specifically, we are asked to consider: (1) when the right to counsel attaches; (2) whether there is the right to be advised of constitutional rights pursuant to the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and, (3) the degree of protection afforded probationers from unreasonable searches and seizures.

Christine E. Hughes pled guilty to the offense of passing a forged instrument in the Circuit Court of Kanawha County in December, 1978. On 5 February 1979 she received a suspended sentence and was placed on probation for a period of five years. On 20 June 1979, petitioner was arrested for the crime of forgery. On 1 October 1979 a capias for probation violation was issued for her and she was subsequently incarcerated in the Kanawha County Jail. On or about 2 October 1979 petitioner's probation officer brought twenty-two pieces of petitioner's mail, part of which had already been opened, to petitioner at the Kanawha County Jail. In the absence of counsel, and without informing petitioner that the subsequent conversation could be used against her in a probation revocation hearing, the probation officer proceeded to discuss the contents of the mail. Among the various pieces of mail were numerous notices from petitioner's bank informing her of insufficient funds for the checks she had written. According to the testimony of the probation officer, petitioner admitted that she had written the checks knowing that she had insufficient funds.

Petitioner was released on bond from the County Jail on 5 October 1979 and on 15 October 1979 she received a copy of the formal charges for violation of probation. On 2 January 1980 there were discussions between petitioner and the probation officer, again without counsel present and without petitioner being advised of her constitutional rights. Subsequently, the probation officer's testimony concerning conversations had with petitioner that occurred after the incarceration of petitioner were introduced at the final probation revocation hearing, over objection of petitioner's attorney. On 29 January 1980 petitioner's probation was revoked and the Court ordered a sentence of not less than one year nor more than ten years for the offense of passing a forged instrument.

As we recognized in Sigman v. Whyte, 165 W.Va. 356, 268 S.E.2d 603 (1980), probationers do not enjoy the same rights enjoyed by defendants before conviction. Thus, any discussion of probation must begin with obligatory homage to the underlying principle of the probation system, namely that it "is an act of grace upon the part of the State to a person who has been convicted of a crime." Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968). ¹

I

Petitioner contends that her probation revocation is constitutionally infirm because she was not provided counsel during meetings with her probation officer which occurred after her incarceration. While a criminal defendant "is entitled to counsel at all critical stages of the proceeding against him," State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314 (1976), a probationer's right to counsel has been limited to "any proceeding at which his probation is revoked." State ex rel. Strickland v. Melton, 152 W.Va. 500, 509, 165 S.E.2d 90, 96 (1968) (emphasis supplied). As petitioner's own research revealed, and ours confirms, no jurisdiction has established a probationer's right to counsel in advance of a formal hearing. ²

Our Court has extended the right to counsel at a number of additional stages beyond simply the actual trial of a criminal case. State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314, 321 (1976). While the United States Supreme Court has established a qualified right to counsel at probation revocation hearings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), we have held that counsel is required at every probation revocation hearing, and at each hearing at which probation conditions are modified. Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). We have been leaders in protecting the rights of probationers, but we do not find that a probationer's right to counsel extends beyond formal proceedings. Right to counsel becomes essential when the probationer must depend on skills he is unlikely to possess, such as where the presentation of a defense requires the examination or cross-examination of witnesses. Gagnon v. Scarpelli, 411 U.S. 778, 786-87, 93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656 (1973). Following that analysis, we have held that a youthful offender is entitled to counsel at a hearing to consider transfer from a forestry center and re-sentencing to a penitentiary precisely because "the defendant will be confronted by a government prosecutor." Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978).

We do not perceive a similar adversarial relationship between a probationer and a probation officer. Indeed, we agree with the United States Supreme Court's interpretation of the role of a probation officer, i.e., as an advocate for the probationer who recognizes his double duty to the welfare of his clients and to the safety of the general community, but whose "concern for the client dominates his professional attitude." Gagnon v. Scarpelli, 411 U.S. 778, 783-84, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973). The probation system is designed to promote rehabilitation and the imposition of counsel into the delicate relationship between probationer and his probation officer would clearly destroy that goal. Obviously, the relationship between the probation officer and his client is ambivalent at best because the probation officer is at once friend and foe; if the probation officer believes that the probationer has violated any of the conditions of his probation, "the probation officer may arrest him with or without an order or warrant." W.Va.Code, 62-12-10 [1955]. Our experience in these matters, however, while not totally unmixed, instructs us to conclude that most probation officers have a genuine concern for the rehabilitation of their clients and that frank and informal discussions, notwithstanding that such discussions may elicit incriminating information, probably serve the liberty interest of probationers as a class better than the adversary model urged by petitioner. This conclusion is inescapable since there is no middle ground between the social welfare model and the adversary model.

In addition to our adherence to the theory of the social welfare model, we are well aware of the significant mechanical problems that would be generated in imposing the adversary model throughout the probation system. If counsel is needed to protect the probationer from revealing his violations to the probation officer, counsel would need to be present at every meeting. Beyond the substantial financial cost to the State for maintaining such a system, ³ we do not believe it is the duty of the State to protect the probationer from self-incrimination exactly because the whole activity of "probation" is an act of grace. While the "act of grace" language inspires misgivings because similar characterizations (such as "privilege" versus "right") have been used historically to foreclose judicial redress for wrongs, in the area of probation we in effect infer that all probationers would contract with the sentencing judge to waive certain constitutional rights in return for continued liberty. To hold that probationers have more limited rights than the unconvicted population at large is merely to make explicit a contract to waive certain rights which heretofore has been merely implicit. All constitutional rights can be knowingly and intelligently waived, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and acceptance of probation status is a knowing and intelligent acceptance of a social welfare model of relationships, one of which is with the probation officer, in place of the adversary model.

II

Petitioner also contends that her confession to her probation officer to the offense of knowingly writing "bad" checks should be inadmissible because it was obtained in violation of the Miranda rule. Every other jurisdiction has uniformly held, for a variety of reasons, that statements taken by a probation officer without first giving Miranda rights to the probationer,...