Johnson v. Stucker

• Decision Date: 12 April 1969
• Docket Number: No. 45530,45530
• Citation: 203 Kan. 253,453 P.2d 35
• Parties: Jack D. JOHNSON, Appellant, v. Nova F. STUCKER, Superintendent of the Kansas State Industrial Reformatory, Appellee.
• Court: Kansas Supreme Court

Page 35

453 P.2d 35

203 Kan. 253

Jack D. JOHNSON, Appellant, v. Nova F. STUCKER, Superintendent of the Kansas State

Industrial Reformatory, Appellee.

No. 45530.

Supreme Court of Kansas.

April 12, 1969.

Syllabus by the Court

1. The right to counsel as a constitutional requirement of due process of law does not extend to a parole revocation hearing before the state board of probation and parole.

2. Under the provisions of K.S.A. 62-2226 et seq., dealing with proceedings before the state board of probation and parole, the parolee is not entitled to have retained counsel present and appear with him as a matter of right at a revocation hearing.

3. Habeas corpus is an appropriate remedy for judicial review of the action of the state board of probation and parole in revoking a prisoner's parole, but the court may only inquire into whether or not the board complied with applicable statutes, and further, whether its action was arbitrary or capricious.

4. In revoking a parole, the state board of probation and parole is presumed to have had before it information which warranted the order of revocation, and its determination of the matter is conclusive unless the prisoner can prove by a preponderance of the evidence the board's action was arbitrary and capricious. The burden of proof rests on the prisoner, and if he fails to sustain that burden, the courts will not interfere with the board's decision.

5. In a habeas corpus proceeding instituted by a prisoner whose parole had been revoked by the state board of probation and parole, the record is examined, and it is held, the refusal of the board to permit the prisoner's retained counsel to be present at the revocation hearing was not a denial of due process, nor was it a violation of any statutes governing such proceedings; and it is further held, the district court did not err in its conclusion that the petitioner failed to sustain the burden of proving the board acted arbitrarily and capriciously.

Dennis O. Smith, Hutchinson, argued the cause, and Frank S. Hodge, H. Newlin Reynolds, Kenneth E. Peirce, and Dan W. Forker, Jr., Hutchinson, were with him on the brief, for appellant.

Raymond F. Berkley, County Atty., argued the cause and Kent Frizzell, Atty. Gen., and Kerry J. Granger, Asst. County Atty., were with him on the brief, for appellee.

Kent Frizzell, Atty. Gen., and Edward G. Collister, Jr., Asst. Atty. Gen., were on the brief for amicus curiae state board of probation and parole.

O'CONNOR, Justice.

Jack D. Johnson filed a petition in Reno county district court for writ of habeas corpus and release from imprisonment in the state reformatory as a result of revocation of his parole by the state board of probation and parole. The writ was duly issued, and after a hearing the court rendered judgment dissolving the writ and ordering the petitioner remanded to the custody of the respondent. From this judgment and the district court's subsequent order denying his motion for new trial, Johnson has appealed.

The principal questions for our consideration center on the board's denial of the petitioner's request to have counsel present at the revocation hearing, and the propriety of the district court's determination that petitioner had failed to show the action of the board in revoking his parole was arbitrary and capricious.

Johnson was originally convicted in September 1964 of second degree burglary and grand larceny and sentenced to the reformatory. After being incarcerated pursuant to the sentence, he was placed on parole by the state board on August 16, 1966, and permitted to return to his home in Story City, Iowa.

In June 1967 Johnson was arrested on a parole violator warrant issued by the state board and returned to the reformatory. Shortly thereafter he was served a statement of charges alleging that he had violated the conditions of his parole in that (1) he failed to keep regularly employed, (2) he failed to cooperate with the parole officer's efforts to assist him, and (3) he was found guilty by jury trial in Iowa of breaking and entering, although the verdict 'was set aside on a legal technicality.' The statement of charges also recited that at the earliest practicable date the board would give Johnson a hearing on the charges and would consider all available information, including any oral or written statements he desired to submit.

The revocation hearing was held July 25, 1967. Although Johnson had retained Mr. Dennis Smith as his counsel, the board denied Johnson's request to have his attorney present at the hearing. By letter dated July 26, Mr. Smith was informed that after giving consideration to the case and 'taking into account the information contained in your (Mr. Smith's) letter of July 25, and attachments thereto,' the board had entered an order revoking Johnson's parole.

In due course, Johnson, through his attorney, filed a habeas corpus petition alleging, inter alia, that he had at all times complied with the terms and conditions of his parole; that although he was arrested for breaking and entering in Story City, Iowa, the information was subsequently dismissed and he was discharged and exonerated of any implication in the crime; that the board in revoking his parole exceeded its statutory power and acted capriciously and in the absence of any information which would entitle it to revoke his parole; and that he was denied the presence of counsel at his revocation hearing, in violation of his constitutional rights. Attached to the petition were the statement of charges and the board's letter to Mr. Smith, to which reference has already been made.

At the habeas hearing, the petitioner, his mother and girl friend testified in support of his allegations. The respondent offered no evidence. Subsequently, the district judge filed a lengthy memorandum opinion in which he concluded that the board's refusal to permit retained counsel to be present at the revocation hearing was not a denial of due process of law, and that the petitioner had failed to sustain the burden of showing the action of the board in revoking his parole was arbitrary and capricious.

We shall first consider petitioner's claim that denial of the presence of counsel was a violation of the constitutional requirement of due process of law.

The United States Supreme Court has made it clear that an accused's Sixth Amendment right to the assistance of counsel not only applies to federal prosecutions but also is made obligatory upon the states by the Fourteenth Amendment. (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The right to counsel in felony cases has been held to exist not only at 'critical' pretrial stages, such as custodial interrogations by law enforcement officers (Escobedo v. Illinois, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, rehearing denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121) and out-of-court identifications of suspects at police lineups (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178), but also at the trial itself (Gideon v. Wainwright, supra). In addition, the accused's right to counsel on appeal from a state court conviction was upheld in Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377.

In 1948 the high court concluded that the absence of counsel during sentencing after a plea of guilty, coupled with 'assumptions concerning his criminal record which were materially untrue,' deprived the accused of due process. (Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690.) In one of its most recent pronouncements on the subject, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the court held the right extended to the time of sentencing where sentencing had been deferred subject to probation. In reaching its decision, the court observed that Townsend illustrates the critical nature of sentencing in a criminal case and 'might well be considered to support by itself a holding that the right to counsel applies at sentencing.'

We do not interpret or construe Mempa as extending the constitutional requirement of counsel to parole revocation hearings before the state board of probation and parole. The Mempa decision concerned a deferred-sentencing situation, whereas here, sentence had been imposed and the petitioner confined pursuant thereto. The adversary system had been terminated and the correctional and rehabilitative processes of the parole system substituted in its place. Thus, we are no longer concerned with the matter of sentencing or the procedures connected therewith. (Williams v. Patterson,389 F.2d 374 (10th Cir. 1968); Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968); Rose v. Haskins, 388 F.2d 91 (6th Cir. 1968).) A hearing before the parole board is a nonadversary proceeding, and as described in Washington v. Hagan, 287 F.2d 332 (3d Cir. 1960), cert. denied, 366 U.S. 970, 81 S.Ct. 1934, 6 L.Ed.2d 1259:

'The period of contentious litigation is over when a man accused of crime is tried, defended, sentenced and, if he wishes, has gone through the process of appeal. Now the problem becomes one of an attempt at rehabilitation. The progress of that attempt must be measured not by legal rules, but by the judgment of those who make it their professional business. So long as that judgment is fairly and honestly exercised we think there is no place for lawyer representation and lawyer opposition in the matter of revocation of parole.' (287 F.2d p. 334.)

Parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace, and no...