Louk v. Haynes

• Decision Date: 06 April 1976
• Docket Number: No. 13651,13651
• Citation: 159 W.Va. 482,223 S.E.2d 780
• Parties: Howard David LOUK v. Lloyd E. HAYNES, Warden, etc.
• Court: West Virginia Supreme Court

Page 780

223 S.E.2d 780

159 W.Va. 482

Howard David LOUK v. Lloyd E. HAYNES, Warden, etc.

No. 13651.

Supreme Court of Appeals of West Virginia.

April 6, 1976.

Syllabus by the Court

1. 'A criminal defendant can knowingly and intelligently waive his constitutional rights, and when such knowing and intelligent waiver is conclusively demonstrated on the record, the matter is Res judicata in subsequent actions in Habeas corpus.' Point 2 Syllabus, Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975).

2. Due process of law and W.Va.Code, 62--3--2, mandate the presence of the accused when he is placed on probation and the terms or conditions of probation are established or modified.

3. The suspension of a sentence coupled with probation is a critical stage of the trial proceedings and due process of law, therefore, requires that an accused be furnished the assistance of counsel and that counsel be present when the terms or conditions of probation are establish or modified.

4. The first point of the syllabus and the correlative portion of the opinion of State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968) are hereby expressly overruled and disapproved.

5. Conditions of probation which are established or modified in the absence of either the accused or his counsel are void and unenforceable.

6. W.Va.Code, 62--12--9, As amended, permits a trial judge to impose any conditions of probation which he may deem advisable, but this discretionary authority must be exercised in a reasonable manner.

7. Imposition of a condition of probation which requires a probationer to live and work at a specific place of employment constitutes an abuse of the discretionary authority granted a trial judge under W.Va.Code, 62--12--9, As amended, and such a condition is void and unenforceable.

8. A convicted offender may be confined in a penitentiary or, in certain circumstances as provided by statute, in other county and state penal or rehabilitative institutions, but the confinement authority of the trial judge is limited to such facilities.

9. A person who is arrested for violating his conditions of probation is entitled to a preliminary and a final revocation hearing.

10. To the extent that W.Va.Code, 62--12--10, As amended, fails to require a preliminary hearing before an independent hearing officer as promptly as convenient after arrest to determine probable cause for revocation of probation, it is violative of the due process clause of the Fourteenth Amendment of the Constitution of the United States.

11. In a habeas corpus proceeding where the state confesses error and urges that the petitioner be granted relief from the erroneous action of a trial court, this Court, upon ascertaining that the errors confessed are reversible errors and do in fact constitute a basis for vitiating certain acts taken by a trial court, will grant such relief in habeas corpus as is necessary to relieve the petitioner from the erroneous acts.

12. The final revocation proceeding required by the due process clause of the Fourteenth Amendment and necessitated by W.Va.Code, 62--12--10, As amended, must accord an accused with the following requisite minimal procedural protections: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (5) a 'neutral and detached' hearing officer; (6) a written statement by the fact-finders as to the evidence relied upon and reasons for revocation of probation.

13. A revocation proceeding in which a probationer was not provided written notice of the charges against him and was not afforded a preliminary hearing before an independent hearing officer is constitutionally defective.

14. A sentencing judge is not per se ineligible from hearing and deciding an issue of probation revocation, but where a challenge to a judge's impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself.

15. Evidence at a probation revocation hearing must be confined to relevant testimony concerning written charges of which the accused has notice.

Robert M. Steptoe, Jr., Steptoe & Johnson, Clarksburg, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Fredric J. George, Asst. Attys. Gen., Charleston, for respondent.

FLOWERS, Justice.

Howard David Louk, the petitioner in this habeas corpus proceeding, was sentenced by the Circuit Court of Randolph County to serve a term of one to five years in the State penitentiary upon a plea of guilty to an indictment charging him with the sale of marijuana. His sentence was suspended and he was placed on probation subject to certain terms and conditions established by the circuit court. Probation was subsequently revoked by the circuit court and the petitioner was remanded to the custody of the respondent, Lloyd E. Haynes, Warden of the Huttonsville Correctional Center to serve the sentence previously imposed. The petitioner seeks relief from that custody on the ground that his sentence, probation and revocation of probation were effected by the circuit court in a manner which deprived him of his right to due process of law. The Attorney General, counsel for the respondent, confesses error on the ground that the lack of a preliminary probable cause probation hearing constituted a denial of due process of law.

The numerous issues presented in this case necessitate a close review of the proceedings in the trial court to determine whether procedural guarantees mandated by due process were observed. A concise analysis of these issues establishes four major areas in which the actions of the trial court are subject to constitutional scrutiny: (1) The manner in which the plea was accepted and the sentence imposed; (2) the validity of the terms of probation and the manner in which they were established; (3) the procedural regularity of the revocation proceedings; and (4) the substantive basis upon which probation was revoked. The latter two areas are also subject to a determination of whether the trial judge lacked the judicial impartiality required by due process standards.

On January 21, 1975, the petitioner was indicted and charged with possession of marijuana with intent to deliver in violation of the Uniform Controlled Substances Act. ¹ Subsequently he entered a plea of guilty and the court ordered preparation of a presentence investigation report.

On March 31, 1975, the petitioner appeared before the circuit court for sentencing. During the course of the hearing, the circuit court commented on the prior conduct of the petitioner, acknowledging receipt of information that the petitioner had been 'shacking up at D & E College,' and characterized the petitioner as 'a hippie, a drug pusher.' The circuit court inquired of the petitioner whether he was willing to abide by certain terms of probation, including attending church every Sunday, abstaining from 'drinking' and 'boozing', working two jobs a day commencing the next day, observing a 10 p.m. curfew, avoiding injurious and vicious habits and persons and places of disreputable or harmful character, staying away from places serving alcoholic beverages with the exception of his father's tavern, staying away from college campuses and girls' dormitories, getting a haircut, and becoming a '16-hour-a-day (working) man for the next five years.' The court also mentioned that Mr. Ray Louk, who was not otherwise identified except as living 'up at Mill Creek', would serve as volunteer probation officer. The petitioner acknowledged a willingness to comply with these terms and stated that he had a job with a building contractor as soon as the ground 'dries up a little bit'. The probation officer verified that the contractor would employ Louk 'immediately'.

At the conclusion of the hearing, the petitioner was sentenced to a term of one to five years in the State penitentiary, but the execution of the sentence was suspended and the petitioner was placed on probation. He was further required to return to the court at 1:00 p.m. to prove compliance with the 'haircut' order of the judge.

According to the petitioner's deposition, he attempted to get a haircut but all the barber shops were closed. He returned to the circuit court that afternoon and was instructed to return the next morning with a haircut and two jobs.

The following day the petitioner, without his counsel, and his father reported to the circuit judge. He had complied with the 'haircut' requirement. He again advised the court that he had a job with a building contractor and a job in his father's restaurant. The judge was apparently dissatisfied with the nature of the employment. The petitioner stated that the judge thought working on a farm or cutting timber was the proper work for someone who needed 'behavior modification'.

At the suggestion of the trial judge, the petitioner contacted Mr. Herman Isner, who hired him to work on his farm. Although there is some dispute about the amount of wages the judge implied the petitioner would be paid, he accepted the job for $20 a week and $5 extra for each Saturday he worked. His housing was to be furnished on the farm.

A final order establishing the terms of the probation was entered on April 4, 1975, Nunc pro tunc for March 31, 1975. The terms set forth in the order required the petitioner to be of good behavior, avoid injurious or vicious habits, comply with the rules and regulations prescribed by the court and the Department of Probation and Parole (sic), seek gainful employment and work satisfactorily, appear and abide by the action...