Long v. Arizona Bd. of Pardons and Parole

• Decision Date: 08 November 1994
• Docket Number: CA-HC,No. 1,1
• Citation: 180 Ariz. 490,885 P.2d 178
• Parties: Robert E. LONG, II, Plaintiff-Appellee, v. ARIZONA BOARD OF PARDONS AND PAROLE; Charles Ryan, Defendants-Appellants. 94-0005.
• Court: Arizona Court of Appeals

Page 178

885 P.2d 178

180 Ariz. 490

Robert E. LONG, II, Plaintiff-Appellee, v. ARIZONA BOARD OF PARDONS AND PAROLE; Charles Ryan, Defendants-Appellants.

No. 1 CA-HC 94-0005.

Court of Appeals of Arizona Division 1, Department D.

Nov. 8, 1994.

[180 Ariz. 491] Robert E. Long, II, in pro. per. plaintiff-appellee.

Grant Woods, Atty. Gen. by Gordon S. Bueler, Asst. Atty. Gen., Phoenix, for defendants-appellants.

OPINION

FIDEL, Presiding Judge.

Robert E. Long, II, an inmate at the Arizona State Prison Complex ("ASPC") in Winslow, brought the underlying habeas corpus proceeding to challenge the termination of his community release status and return to prison confinement. The State of Arizona appeals from the trial court's conclusion that Long was denied due process and the trial court's order that Long be returned to community release.

I.

In November of 1991, Long received a five year prison term. Upon application to the Arizona Department of Corrections ("ADOC"), he was accepted into shock incarceration, a boot camp and community release program "designed to divert youthful offenders from future criminal activity." Ariz.Rev.Stat.Ann. ("A.R.S.") § 41-1604.08(I)(2). In April of 1992, Long completed boot camp, achieved community release, and signed an agreement to abide by certain conditions of supervision, one of which prohibited his use of controlled substances.

On December 21, 24, and 28, 1992, Long's urine tested positive for amphetamine. His parole supervisor had Long arrested and transported to ASPC-Perryville, where Long signed a waiver of his probable cause hearing.

On February 2, 1993, Long was notified that an Institutional Classification Committee ("ICC") hearing was scheduled for February 9. The notice provided the following general list of possible subjects for the hearing:

transfer to a higher/lower degree of security/custody within the institution, transfer to another institution, changes in work, training or treatment programming assignments, change of your parole eligibility classification to a lower/higher class and/or review of your provisional release eligibility status.

The record does not reflect whether the ICC hearing was held, but on February 20, 1993, Long was transferred to ASPC-Winslow. On March 12, 1993, Long filed a complaint form questioning why he had not yet received his parole revocation hearing.

On June 23, 1993, Long filed a Petition for a Writ of Habeas Corpus with the Superior Court in and for Navajo County. More than eight months later, on March 2, 1994, the trial court issued a Writ of Habeas Corpus to the ASPC-Winslow warden, requiring Long to be brought before the court. ¹

On March 16, 1994, a continued hearing date, the Navajo County sheriff's office transported Long to the superior court, but no ADOC representative appeared. After confirming that the warden had been served with the writ, petition, and notice of the hearing, the court proceeded in the State's absence. Finding that Long had not knowingly waived his probable cause or revocation hearing and that Long was incarcerated without a finding of probable cause, the court ordered ADOC to return him to community release.

The State initially moved for reconsideration, but on April 15, 1994, before the trial court resolved that motion, the State filed this appeal.

II.

The State first argues that Long waived his probable cause hearing. Second, it argues that, because he was only entitled to a probable cause hearing, no further hearing was required. Third, it argues that, even if Long was entitled to some form of a hearing, the trial court exceeded its jurisdiction in bypassing such a hearing and ordering Long returned to community release.

We review the issuance of a Writ of Habeas Corpus for abuse of discretion by the issuing court. Salstrom v. State, 148 Ariz. 382, 384, 714 P.2d 875, 877 (App.1986).

A. Procedural Due Process Right to Hearings

Parole, though not an unqualified liberty, is sufficiently "within the protection of the Fourteenth Amendment" to require an informal hearing for one whose parole is being revoked. Morrissey v. Brewer, 408 U.S. 471, 482-84, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). The hearing requirement serves to assure that any revocation is "based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Id. at 484, 92 S.Ct. at 2602. Both a preliminary and revocation hearing are required. ² Id. at 485-87, 92 S.Ct. at 2602-03. The shock incarceration program allows convicted persons to serve 120 days in a rigorous and intensive program and to complete their sentence on supervised community release or intensive probation. A.R.S. §§ 41-1604.08, 13-915(E). While in the program, an "offender waives any other form of release" and is not subject to parole board review. See A.R.S. § 41-1604.08(A)(10).

The shock program contains two distinct categories of participants, court ordered and ADOC admitted. When a court commits an offender to the program, both boot camp and community release are aspects of probation, and the court retains jurisdiction to decide what consequences result from any violation of the conditions of community release. A.R.S. § 13-915. By contrast, when, as here, ADOC admits an offender to the program, ADOC retains supervision of the offender on community release through ADOC parole officers. A.R.S. § 41-1604.08(C), (F).

The State asserts that an ADOC supervised offender, as an administrative releasee, is not entitled to the same level of process as a parole violator. We disagree. The due process requirements outlined in Morrissey apply to supervised release by any "administrative agency," whether an arm of the court or the executive. 408 U.S. at 480, 92 S.Ct. at 2600. The liberty interests of offenders on community release from shock incarceration are identical to those that Morrissey identified for parolees: gainful employment, association with family, and the ability to form enduring attachments. See id. at 482, 92 S.Ct. at 2600-01. Therefore, even though shock release is outside the normal parole system, once an offender has earned community release through successful completion of the boot camp, that offender has a qualified liberty interest in remaining on community release and is entitled to due process. See id. at 480-82, 92 S.Ct. at 2600-01.

Due process requirements are satisfied for court ordered shock participants through the medium of arraignment and a probation violation hearing before the court. But the record does not establish whether equivalent protection is provided to shock participants under the supervision of ADOC. Such participants are offered a probable cause hearing. ³ But whether they are also offered a revocation hearing is unclear.

Section 41-1604.08(D) provides three grounds for reclassification or termination from the shock program:

An inmate who fails to complete the shock incarceration program, who is administratively terminated from the program or who violates any condition of supervision shall be reclassified to serve the unexpired term of his sentence as ordered by the sentencing court.

(Emphasis added). The first ground, failure to complete, is statutorily defined as termination following "an administrative hearing." A.R.S. § 41-1604.08(I)(1). The statute, however, does not address whether a hearing is also required for administrative termination or for termination based on violation of supervisory conditions.

The State argues that any violation of supervisory conditions requires immediate removal from the program. This argument is undercut, however, in two respects. First, there is no such presumption in the statute governing court supervised shock incarceration as a condition of intensive probation. To the contrary, when a court supervised probationer violates a term of his probation, the probation officer submits a recommendation, and the court determines the appropriate disposition. See A.R.S. § 13-915(F). The court has discretion to return a court supervised offender to shock incarceration. Id. Such discretion belies the assertion that removal must be an automatic response to any violation.

Second, in the very "Conditions of Supervision" that ADOC supervised participants must sign when entering community release, ADOC retains discretion to reinstate a violator in the program. Specifically, the participant agrees, "If I fail to abide by any of these conditions of supervision, I am aware that I may be returned to an institution...." (Emphasis added). An ADOC supervised offender thus enters community release with the expectation that the department will exercise discretion over disposition of a violation. And under Morrissey, before such discretion is exercised, the offender is entitled to be heard. 408 U.S. at 484, 92 S.Ct. at 2601-02.

B. Long's Due Process Rights

The State argues that the superior court abused its discretion in finding that Long had not knowingly waived his probable cause hearing. Long does not dispute the point. The day Long was taken to ASPC-Perryville, he was served with a copy of the arrest warrant and an acknowledgement of service/waiver form, which Long signed in two places. The waiver described Long's right to a probable cause hearing and the procedures for that hearing. Just below this description, Long made an "X" and initialed a box next to a boldly printed "WAIVER OF PRELIMINARY/PROBABLE CAUSE HEARING" statement reading as follows:

I wish to waive my preliminary/probable cause hearing. This statement is no[t]...