McCoy v. Harris, Warden

• Decision Date: 06 July 1945
• Docket Number: 6836
• Citation: McCoy v. Harris, Warden, 108 Utah 407, 160 P.2d 721 (Utah 1945)
• Court: Utah Supreme Court
• Parties: McCOY v. HARRIS, Warden

160 P.2d 721

108 Utah 407

McCOY v. HARRIS, Warden

No. 6836

Supreme Court of Utah

July 6, 1945

Writ recalled and petition for discharge of prisoner denied.

Lee N. Taylor, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Herbert F. SmartDeputy Atty. Gen., for respondent.

Larson Chief Justice.McDonough, Turner and Wade, JJ., concur.Wolfe, Justice (concurring).

OPINION

Larson Chief Justice.

By petition for a writ of habeas corpus, McCoy questions the right of the warden to detain him in the State Prison.The return of the warden shows as his authority for detaining McCoy a judgment and sentence of the district court, and a warrant of arrest issued by the State Board of Pardons.The traverse to the return attacks the validity of this warrant of arrest and the proceedings thereunder raising the following questions:

1.Was McCoy brought back into the state without extradition proceedings and against his will and, if so, does such action invalidate the order of the Board of Pardons revoking his parole and ordering his arrest?

2.Is a parolee from the State Prison entitled as a matter of law to hearing before the Board of Pardons before revocation of his parole?

3.Is an inmate of the State Prison, serving a term less than life, entitled as of right to good time allowance?

The facts giving rise to this proceeding are as follows: McCoy had been given a life sentence in the prison; this sentence was commuted by the Board of Pardons to 25 years; later he was paroled; he left the state and went into Wyoming, where he was arrested on a criminal charge.His parole was revoked by the Board of Pardons and the parole officer brought him back to Utah and he has since been confined in the State Prison.

Question 1 presents firstly a factual question -- Was McCoy brought back into the state of Utah against his will or without waiver of extradition?To hear evidence upon this matter, a referee was appointed to take testimony, make advisory findings, and certify to this court a transcript of the evidence and the findings of the referee.In substance, the finding of the referee is that plaintiff waived his rights, if any, to remain in Wyoming until extradited and voluntarily came back into the state.In a proceeding of this nature the finding of the referee is advisory only, and we may examine the record de novo and make our own determination from the evidence.We have read the transcript and considered the findings of the referee.This court adopts the finding number 3, as follows:

"* * * that the Petitioner, Robert H. McCoy did not desire to fight or test the legality of his return to the State of Utah, nor did he object to returning to the State of Utah as a parole violator."

This conclusion disposes of question number 1 and we shall now discuss the second proposition herein.

Regarding the second question, whether a parolee is entitled to hearing before the Board of Pardons before revocation of his parole, there is a division of authority.Statutory provisions in the various jurisdictions differ, some specifically granting a hearing, others denying the right to hearing before revocation.Section 67-0-7, U. C. A. 1943, provides that the Board of Pardons may permit prisoners to be paroled outside of the prison buildings under certain conditions.Section 67-0-8, U. C. A. 1943, reads:

"A prisoner while on parole shall remain in the legal custody and under the control of the chief adult parole and adult probation agent and the board of pardons, and shall be subject at any time to be taken back to the institution from which he was paroled.Full power to retake and reimprison any convict upon parole is conferred upon the board, whose written order certified by its secretary shall be sufficient warrant for all officers authorized to make arrests, or other persons named therein, to return to actual custody any such prisoner."

From the above provisions, it is clear that a parole is in the nature of a grant of partial liberty or a lessening of restrictions to a convicted prisoner.Granting of a parole does not change the status of a prisoner; it merely "pushes back the prison walls" and allows him the wider freedom of movement while serving his sentence.The paroled prisoner is legally in custody the same as the prisoner allowed the liberty of the prison yard, or of working on the prison farm.The realm in which he serves has been extended.He is in the custody of the state and serving his sentence outside of the prison rather than within the walls.The parole system is reformatory and founded upon a plan and policy of helping the inmate to gain strength and resistance to temptation, to build up his self control, to adjust his attitudes and actions to social controls and standards; and it aims to extend his liberties and opportunities for normal living within the social fabric as his strength to meet new responsibilities grows and develops.

While we have never passed on this question, it has been held in other jurisdictions that similar statutory provisions confer authority to revoke a parole without giving the prisoner any hearing.In Fuller v. State, 122 Ala. 32, 26 So. 146, 147, 45 L. R. A. 502, 82 Am. St. Rep. 17, under a statute providing:

"* * * the governor shall have authority to direct the rearrest and return of such convict to custody, and thereupon said convict shall be required to carry out the sentence of the court * * *", it was held that revocation of a parole without hearing was proper.The court said that the statute gave that power to the governor, and that the statute did not infringe upon the constitutional guarantees of the convict.And in Owen v. Smith, Warden, 89 Neb. 596, 131 N.W. 914,915, the statute involved provided that the governor had authority:

"* * * to allow any such prisoner to go upon parole, outside of the inclosure of said penitentiary, to remain while on parole, within the state under the control and in the legal custody of the Governor, and subject at any time to be taken back within the inclosure of said institution; and full power to retake and reimprison any convict so upon parole is hereby conferred upon the Governor, whose written order shall be a sufficient warrant, for all officers named therein * * *."

The court held under such provisions that the governor might revoke a parole when he saw fit, without giving notice thereof or a hearing thereon to the convict.While the language of the above provisions is somewhat stronger than that of our statute, the power granted is the same.Under similar provisions, it was said in Johnson v. Walls, 185 Ga. 177, 194 S.E. 380, 381:

"Since this statute, thus operating, does not contain any provision for any prior notice or hearing before the revocation of a parole, such a requirement should not be read into the law."

The court goes on to say that therefore the prison commission may revoke paroles without such notice or hearing, subject only to the provision that it may not act fraudulently, corruptly, or on personal caprice.For similar holdings, see alsoEx parte Smith, 65 Okl. Cr. 393, 87 P. 2d 1106;Ex parte Horine, 11 Okl. Cr. 517, 148 P. 825, L. R. A. 1915F, 548 Practically all statutes authorizing and controlling the granting of paroles prescribe the persons by whom, and procedure by which, a parole violator may be recommitted.The Federal statute gives the Federal parole board and its members sole authority to issue a warrant and return a violator to prison.Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A. L. R. 808.It is generally held that when the statute and parole are silent on the matter, the parole violator is entitled to notice and a hearing on the issues of his alleged violation.Ex parte Ridley, 3 Okl. Cr. 350, 106 P. 549, 26 L.R.A. N.S. 110; Anno. 54 A. L. R. 1474 et seq., and Anno. 132 A. L. R. 1254.But where the power to revoke is reserved in the parole or in the statute, the parole may be revoked by the parole authority for breach of condition without notice or hearing of any kind to the parolee.Zerbst v. Kidwell, supra;In re Patterson, 94 Kan. 439, 146 P. 1009, L. R. A. 1915F, 541;Ex parte Horine, supra;Owen v. Smith, supra;Fuller v. State, supra;Annotations54 A. L. R. 1483, and132 A. L. R. 1257;L. R. A. 1915F, 546.

In State v. Zolantakis, 70 Utah 296, 259 P. 1044, 54 A.L.R. 1463, this court held that before a probation may be revoked, the convicted defendant is entitled to hearing upon whether or not he has violated the conditions of the probation.And in Williams v. Harris, 106 Utah 387, 149 P. 2d 640, we held the same rule applies to probation in cases of the suspension of imposition of sentence.There are, however, some essential differences between the status of a parolee and a probationer.As noted in the Zolantakis case, the probationer is in that position by virtue of a judgment of a competent court.When judgment was imposed by the court that judgment included the stay of execution of the sentence upon conditions prescribed.Since a court judgment fixes certain legal rights and responsibilities, they can only be modified or abrogated by the judicial process of notice and hearing.

In the case of a parolee, the judgment is a sentence and commitment.The legal position conferred upon the party by such judgment is the obligation to serve the designated term...