John v. State

• Decision Date: 25 April 1968
• Docket Number: Cr. N
• Citation: 160 N.W.2d 37
• Parties: Neil JOHN, Petitioner, v. STATE of North Dakota and J. Dwight Woodley, Warden of the State Penitentiary, Respondents. o. 363.
• Court: North Dakota Supreme Court

Page 37

160 N.W.2d 37

Neil JOHN, Petitioner, v. STATE of North Dakota and J. Dwight Woodley, Warden of the

State Penitentiary, Respondents.

Cr. No. 363.

Supreme Court of North Dakota.

April 25, 1968.

Opinion on Amended Motion July 22, 1968.

Syllabus by the Court

1. The North Dakota statutes which authorize the State Parole Board to revoke the probation under suspended sentence or parole of a convicted person do not violate Section 103 of the North Dakota Constitution on the grounds that they constitute an illegal delegation of judicial authority because the 'original jurisdiction' of the district court is exhausted in criminal cases when a convicted defendant is sentenced.

2. Where the trial court sentenced the defendant, then suspended the sentence on the condition that defendant be admitted to the State Hospital, such condition was surplusage, and jurisdiction of defendant was vested in the State Parole Board immediately following the suspension of sentence. Sec. 12--53--06, N.D.C.C.

3. The 'right to counsel' clauses of Section 13 of the North Dakota Constitution and the Sixth Amendment to the Federal Constitution refer to 'criminal prosecutions' and, therefore, neither clause is the basis for a right to counsel at a probation or parole revocation hearing, except in the case of a deferred imposition of sentence.

4. Where State statutes set out the procedure to be followed at the hearings of the State Parole Board, such procedure constitutes the procedural due process of law which is to be accorded the person being heard. Such due process was accorded in this case.

5. The State laws applying to probation revocation under a suspended sentence and to parole revocation were, in this case, applied to petitioner in the same manner as they have been applied to others in petitioner's position; thus, petitioner was not denied equal protection of the laws.

Thompson, Lundberg & Nodland, Bismarck, for petitioner.

Helgi Johanneson, Atty. Gen., and John E. Adams, Asst. Atty. Gen., Bismarck, for respondents.

PAULSON, Judge.

Neil David John has petitioned this court for a writ of habeas corpus. His prior petition in the Burleigh County District Court, Honorable M. C. Fredricks, Judge, was quashed on December 20, 1967.

On September 23, 1965, John pleaded guilty to the crime of burglary in Grand Forks County District Court and was given an indeterminate sentence of from one to three years by Judge Harold Hager. He commenced serving this sentence in the North Dakota State Penitentiary and was released upon parole on May 24, 1966. On June 10, 1966, the petitioner was charged with burglary of a potato warehouse, and was separately charged with cashing several checks acquired in that burglary. Before resolution of these charges, petitioner pleaded guilty to taking an automobile without the owner's consent (this occurring in July 1966), and was sentenced to 150 days in the county jail in Grand Forks County.

After serving 80 days of his 150-day car-theft sentence, the petitioner was taken from the jail to appear before Judge Hager on the potato warehouse burglary charge, to which he pleaded guilty. There, on October 3, 1966, he received the following sentence:

'* * * the sentence of the Court is that you, Neil John, be imprisoned in the Penitentiary at Bismarck, in said State for the Indeterminate Term of Three (3) to Five (5) years pursuant to Section 12--06--07 of the Century Code of the State of North Dakota. This sentence shall be suspended on the condition that you be admitted to the State Hospital at Jamestown, North Dakota for medical treatment and that you stay there until the Superintendent of said institution is of the opinion that you are ready to take your place in society. If, on your release, the Superintendent feels that you need additional out patient treatment you are to get this from the Mental Health Center of Grand Forks, North Dakota.

'Upon your being released from the State Hospital you will report to the State Parole Officer in the Grand Forks area immediately and be supervised by him and you will abide by the rules of probation adopted by the North Dakota Parole Board.

'On any violation of these conditions or on any of the rules of probation this suspension of sentence will be revoked and you will be sent to the Penitentiary at Bismarck, North Dakota to serve out your sentence. * * *'

The sentencing judge then signed a transport order which directed the sheriff to take Mr. John directly to the State Hospital at Jamestown. None of the above events resulted in a revocation of the parole granted under the sentence and judgment of September 23, 1965.

The petitioner remained in the State Hospital at Jamestown until April 1, 1967, when he and another inmate obtained some liquor and became intoxicated. While in the intoxicated state, Mr. John and his fellow inmate walked away from the State Hospital and into downtown Jamestown, where they purchased a further supply of liquor. They then commandeered a car from the streets of Jamestown and drove to Minneapolis Minnesota. Petitioner voluntarily returned to the State Hospital on May 11, 1967.

On this latter date, officials at the State Hospital contacted Mr. Irvin M. Riedman, the North Dakota Parole Board's executive secretary, and informed him of the presence of Mr. John at the Hospital. Six days later Mr. John was arrested by the representatives of the State Parole Board and was returned to the State Penitentiary at Bismarck.

On June 1, 1967, petitioner appeared before the Parole Board and was declared a parole violator under the sentence of September 23, 1965, and a probation violator under the sentence of October 3, 1966, and the Board ruled that petitioner was to be imprisoned, both sentences to run concurrently. The sentence of September 23, 1965, has since expired.

Petitioner claims numerous violations of law have occurred which entitled him to be released by writ of habeas corpus. These violations are:

(1) That the authority exercised by the State Parole Board in recommitting petitioner was an unconstitutional act, because the statutes under which the Parole Board acts comprise an unconstitutional delegation of judicial authority in violation of Section 103 of the North Dakota Constitution; (2) that the Parole Board had no jurisdiction to revoke the probation under the sentence of October 3, 1966, since said sentence was, as a matter of practical fact, a deferred imposition of sentence and therefore only the trial judge who had heard the case could revoke petitioner's probation; (3) that petitioner was denied due process of law in that he was not represented by counsel, nor advised of his right to be represented by counsel, nor advised of his right to have counsel appointed, not presented with a written notice of the hearing of the charges against him, not provided with an opportunity to confront his accusers, not given an opportunity to subpoena witnesses in his behalf or advised of his right to do so, and not provided with a transcript of the proceedings at the parole and probation revocation hearing of June 1, 1967; and (4) that petitioner was denied equal protection of the law.

We will consider these alleged illegalities in the order above stated. Section 103 of the North Dakota Constitution states:

'The district courts shall have original jurisdiction, except as otherwise provided in this constitution, of all causes both at law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same.'

Petitioner contends that the exercise of authority by the Parole Board is in derogation of the 'original jurisdiction' of the district court, as set forth in the above section of the North Dakota Constitution. Jurisdiction is the power to hear and determine a cause. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849. When the case has been tried, judgment of conviction has been rendered, and sentence has been pronounced, the court loses its jurisdiction. However, where imposition of sentence is deferred under Section 12--53--13, N.D.C.C., the court retains jurisdiction. Thus, vesting control and custody of a parolee or probationer in the State Parole Board is not in derogation of the 'original jurisdiction' of the district courts in this State.

Under the sentence imposed on September 23, 1965, there is no question that the Parole Board had the power, under the statutes, to revoke the parole granted to petitioner on May 24, 1966, following a hearing at which petitioner was present. However, the revocation of the probation granted to the petitioner following the guilty plea to the burglary charge on October 3, 1966, presents a more difficult question. Section 12--53--06 of the North Dakota Century Code provides:

'When a defendant has been found guilty of a felony for which the sentence may be suspended under this chapter, if the facts set forth in section 12--53--01 appear and the court shall suspend the sentence, the order suspending such sentence shall provide that the defendant shall be placed on probation. The effect of the order suspending the sentence and placing the defendant on probation shall be to place said defendant under the control and management of the parole board, and he shall be subject to the same rules and regulations as apply to persons paroled from the penitentiary after a period of imprisonment therein.'

Section 12--53--11, N.D.C.C., provides that the Parole Board may revoke the suspension of sentence granted under Section 12--53--06, N.D.C.C., and may 'cause said person to suffer the penalty of the sentence previously imposed upon him, if the board shall determine at such hearing that the probationer has violated any of the rules and regulations prescribed for the conduct of...