McGee v. Arizona State Bd. of Pardons and Paroles

• Citation: 376 P.2d 779,92 Ariz. 317
• Decision Date: 07 December 1962
• Docket Number: No. 7798,7798
• Parties: Patrick Mahon McGEE, Petitioner, v. The ARIZONA STATE BOARD OF PARDONS AND PAROLES, and Walter Hoffman, Chairman, and Robert W. Pickrell, and W. W. Dick, Members of said Board, Respondents.
• Court: Supreme Court of Arizona

Page 779

376 P.2d 779

92 Ariz. 317

Patrick Mahon McGEE, Petitioner, v. The ARIZONA STATE BOARD OF PARDONS AND PAROLES, and Walter Hoffman, Chairman, and Robert W. Pickrell, and W. W. Dick, Members of said Board, Respondents.

No. 7798.

Supreme Court of Arizona, In Banc.

Dec. 7, 1962.

Rehearing Denied Dec. 27, 1962.

John H. Grace, Flagstaff, for petitioner.

Robert W. Pickrell, Atty. Gen., for respondents.

STRUCKMEYER, Justice.

Patrick Mahon McGee petitioned this Court for a Writ of Mandamus to compel respondents, State Board of Pardons and Paroles and the members thereof, to hear and determine his application for commutation of death sentence. After an oral hearing on December 5th, 1962, this Court ordered that the peremptory writ issue forthwith with a written opinion to follow. The peremptory writ was predicated on the facts as set forth in McGee's verified petition, the response thereto of the Attorney General, and the records in this Court.

On the 16th day of December, 1959, petitioner was convicted in Coconino County, Arizona, of murder in the first degree, the jury fixing the punishment at death. The conviction was affirmed by this Court and a re-hearing denied on April 24th, 1962. State v. McGee, 91 Ariz. 101, 370 P.2d 261. Petitioner then commenced a series of applications to the federal courts which culminated on November 30th, 1962, in a denial of further review by the Supreme Court of the United States. McGee v. Eyman, 83 S.Ct. 230.

By statute, the Board of Pardons and Paroles consists of the Attorney General, the Superintendent of Public Instruction and a third member selected by them, known as the citizen member, who is chairman, A.R.S. § 31-401. Although the Governor may grant reprieves, commutations and pardons, A.R.S. § 31-443, it is the exclusive power of the Board to pass upon and recommend such and they may not be granted by the Governor unless first so recommended by the Board, A.R.S. § 31-402, subd. A.

It also is the duty of the Board to meet quarterly at the State Prison and at such meeting '* * * every prisoner confined upon an indeterminate sentence, whose minimum term of sentence has expired, shall be given an opportunity to appear and apply for release upon parole, or for an absolute discharge. * * *' A.R.S. § 31-411. While the power to pass upon commutations of sentence is recognized in the statutes, no specific procedure in the exercise of such power has been prescribed by the Legislature. However, the Board is authorized to make rules and regulations not inconsistent with law as it deems proper for the conduct of its business, A.R.S. § 31-403.

By A.R.S. § 41-1004 the rules and regulations of state agencies must be filed in the Office of the Secretary of State. No rules or regulations of any kind have been filed by the Board in compliance with the statute. Presumably, it has not adopted rules or regulations. The failure to adopt formal rules by which commutations of sentences may be heard and determined has necessitated petitioner's present application to this Court.

Seemingly, the Board at its regular quarterly meeting at the State Prison on May 23rd, 1962, undertook sua sponte to consider a commutation of petitioner's death sentence. The Attorney General has not furnished this Court with a record of the proceedings. It is asserted by petitioner that because of further legal proceedings then pending, the time was not ripe for a hearing and no evidence or testimony was presented to show why petitioner's sentence of death should be commuted to life imprisonment. Petitioner and his counsel were advised that the Board would take no action and, in fact, the Board took no action then other than to interview petitioner.

On November 20th, 1962, petitioner sent to the Governor with copies to the Chairman of the Board an application for commutation of sentence setting out that the hearing at the State Prison on May 23rd was token in that no witnesses were called. He then requested a full hearing. Notwithstanding, the Board refused and continues to refuse petitioner a hearing and any further...