Martin v. Solem

• Decision Date: 14 November 1986
• Docket Number: Nos. 85-5298,86-5014,s. 85-5298
• Parties: Darrell MARTIN, Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 324

801 F.2d 324

Darrell MARTIN, Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Mark V. Meierhenry, Attorney General, State of

South Dakota, Appellants.

Nos. 85-5298, 86-5014.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1986.

Decided Sept. 16, 1986.

Rehearing and Rehearing En Banc Denied Nov. 14, 1986 in No. 86-5014.

Sherri L. Sundem, Asst. Atty. Gen., Pierre, S.D., for appellants.

Mark F. Marshall, Rapid City, S.D., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

McMILLIAN, Circuit Judge.

In appeal No. 85-5298 the state of South Dakota appeals from an order entered in the District Court for the District of South Dakota granting Darrell Martin's request for release on bail from the state penitentiary pending disposition of his petition for writ of habeas corpus. In appeal No. 86-5014 the state of South Dakota appeals from a final order entered in the District Court for the District of South Dakota granting Martin's habeas petition.

For reversal the state argues that the district court erred in (1) granting Martin's request for release on bail pending disposition of his habeas petition, (2) holding Martin had exhausted available state remedies on his first habeas claim, and (3) holding the state courts' findings about why Martin did not make combined restitution and fine payments were not supported by the record. For the reasons discussed below, we reverse the release order in appeal No. 85-5298 and reverse the order granting habeas relief in appeal No. 86-5014.

FACTS

The following statement of facts is taken in large part from State v. Martin, 368 N.W.2d 37 (S.D.1985) (Wollman, J.). ¹ In 1979 Martin was convicted of third-degree burglary and sentenced to 8 years imprisonment and a $7,000 fine. The state trial court later suspended 3 years of the sentence and $4,000 of the fine on the condition that Martin make restitution to the burglary victim, reimburse the county for the cost of his court-appointed defense attorney, and pay the defense attorney the difference between the total amount of attorney's fees and the amount paid by the county. Martin's conviction was affirmed on direct appeal by the South Dakota Supreme Court. State v. Martin, 287 N.W.2d 102 (S.D.1980).

Martin was paroled in September 1980 and remained under parole supervision until December 14, 1982. Martin and the state disagreed about Martin's obligations under the suspended sentence. In July 1982 a state parole officer had notified Martin by letter that, under the terms of his suspended sentence, he was required to make a combined restitution and fine payment of $30 per month and he would be "under supervision" until the suspended sentence expired on December 14, 1985. On January 3, 1983, the state parole officer again notified Martin by letter that supervision of the suspended sentence would continue until December 1985, reminded Martin that he was required to report every month to the state parole office, and enclosed a copy of the certificate issued by the warden of the state penitentiary discharging Martin from parole.

Martin failed to submit a parole report for the month of December 1982. The state parole officer scheduled a meeting for a date in January 1983. Martin failed to appear for the meeting. On January 26, 1983, the state parole officer received a letter from an attorney on behalf of Martin. In this letter the attorney stated that In February 1983 the state parole officer by letter notified the county prosecuting attorney that Martin had failed to comply with the conditions of his suspended sentence. In March 1983 the county prosecuting attorney filed a petition for revocation of probation in state trial court on the ground of failure to make the combined restitution and fine payments as required. The revocation hearing was delayed when Martin failed to appear but was eventually held in August 1984. Martin was represented by counsel. The state trial court found Martin had failed to make the combined restitution and fine payments and had also failed to remain in contact with his parole officer as required. The state trial court specifically found that although there was some evidence of disability, Martin was not totally disabled, was able to work and could have made partial payments. In addition, the state trial court found Martin had intentionally refused to make any additional payments. Id. at 38. The state trial court then revoked the suspended sentence and fine and ordered Martin to be returned to the state penitentiary.

Martin believed that as of December 14, 1982, he was no longer subject to state supervision because he had received a certificate of discharge from parole. The state parole officer then unsuccessfully attempted to inform Martin that Martin's interpretation of the certificate of discharge and the suspended sentence was incorrect.

Martin challenged the reinstatement of the suspended sentence and fine in the South Dakota Supreme Court on three grounds: (1) the state trial court lacked jurisdiction to revoke probation because no probation had been imposed, (2) if probation had been imposed, the state trial court could not lawfully reinstate the suspended sentence and reincarcerate him because he had received a certificate of discharge from parole, and (3) revocation of probation was based solely upon his indigency in violation of due process, citing Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (Bearden ).

The state supreme court held that the first two arguments had been conclusively resolved against Martin in its recent prior decisions. State v. Martin, 368 N.W.2d at 39 (citing state supreme court decisions). The state supreme court then addressed Martin's principal argument that the state trial court unlawfully revoked his probation on the basis of his indigency. The state supreme court held the record supported the state trial court's findings that although Martin was able to work and was able to make partial payments, he had intentionally refused to make any additional payments because he had unilaterally decided that he was no longer bound by the terms and conditions of the suspended sentence. ² Two state supreme court justices dissented, holding, each on slightly different grounds, the state trial court could not lawfully revoke probation and reinstate the suspended sentence. Id. at 40 (Fosheim, C.J., dissenting); id. (Henderson, J., dissenting).

In May 1985 Martin filed a petition for writ of habeas corpus in federal district court. In July 1985 he filed a request for release on bail from the state penitentiary pending disposition of his habeas petition and an amended habeas petition in which he claimed (1) the imposition of the suspended sentence violated due process because the state trial court did not have jurisdiction to revoke his probation and (2) the record did not establish that he had failed to make bona fide efforts to pay or that alternatives to imprisonment were inadequate to satisfy the state's interests in punishment and deterrence.

In August 1985 the district court granted Martin's request for release on bail pending disposition of his habeas petition and ordered his release from the penitentiary subject to certain conditions. Martin v. Solem, No. CIV-85-5089 (D.S.D. Aug. 22, 1985) (release order); id. (Aug. 12, 1985) (memorandum decision). The district court found that the habeas petition raised a substantial question about the enforceability of suspended sentences following release from parole and that exceptional circumstances existed because Martin had already served his sentence and had received a certificate of discharge from parole. Id. (Aug. 12, 1985) (memorandum decision), citing Aronson v. May, 85 S.Ct. 3, 13 L.Ed.2d 6 (1964) (Douglas, J.) (chambers opinion). The state filed a notice of appeal (No. 85-5298) and motion for stay pending appeal. The motion for stay pending appeal was denied on August 30, 1985.

The district court subsequently granted Martin's habeas petition. Martin v. Solem, No. CIV-85-5093 (D.S.D. Dec. 13, 1985). The district court held Martin had fairly presented the substance of his first claim to the state courts and therefore had exhausted available state remedies, the record did not support the state courts' findings about Martin's ability to make the combined restitution and fine payments, and the state trial court did not correctly follow Bearden. Slip op. at 6, 10. The state filed a notice of appeal (No. 86-5014) and a motion for stay pending appeal. On January 27, 1986, we granted the state's motion to consolidate the two appeals, denied the state's motion for stay pending appeal, and denied without prejudice Martin's motion to dismiss appeal No. 85-5298 as moot.

APPELLATE JURISDICTION

The existence of two district court docket numbers has caused some confusion on appeal. For reasons which do not appear in the record, the original habeas petition was docketed in the district court as No. CIV-85-5089, but the amended habeas petition was later docketed separately as No. CIV-85-5093. After examining the district court files in both actions, we conclude the amended habeas petition was mistakenly docketed as a separate action. The designation of a second docket number may have occurred in October 1985 when the case was reassigned to another district judge. The request for release on bail pending disposition of the habeas petition was filed and the order granting release on bail was entered in No. CIV-85-5089, and the order granting habeas relief was entered in No. CIV-85-5093. The state filed a notice of appeal in each action.

With respect to appeal No. 86-5014 involving the order granting habeas relief, that order is the "final decision" of the district court which terminated the underlying habeas action. Thus, we have appellate jurisdiction under 28 U.S.C. Secs. 1291 and 2253.

However, in appeal No....