Mercer v. Hopper

• Decision Date: 04 February 1975
• Docket Number: No. 29513,29513
• Citation: 212 S.E.2d 799,233 Ga. 620
• Court: Georgia Supreme Court
• Parties: Tommy Lee MERCER v. Joe S. HOPPER.

Page 799

212 S.E.2d 799

233 Ga. 620

Tommy Lee MERCER v. Joe S. HOPPER.

No. 29513.

Supreme Court of Georgia.

Feb. 4, 1975.

Tommy Lee Mercer, pro se.

Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

The controlling issue for decision in this habeas corpus appeal is whether the defendant was entitled to counsel at his probation revocation hearing.

This case is controlled by Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841, where this court, with two Justices dissenting, held adversely to appellant's contention in this case. There is no right to counsel at a probation revocation hearing in Georgia.

The judgment of the habeas corpus trial court is correct and will be affirmed.

Judgment affirmed.

All the Justices concur except HALL, J., who concurs specially and GUNTER and INGRAM, JJ., who dissent.

HALL, Justice (concurring specially).

I do not agree with either the majority opinion in Reece v. Pettijohn, 229 Ga. 619, 193 S.E.2d 841 or the dissent therein. The majority opinion in that case held that no person is entitled to counsel at a hearing to revoke probation. The dissent stated that counsel must be afforded at a proceeding to revoke probation. Both premises were rejected by the Supreme Court of the United States in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. In rejecting the latter the court said that to hold otherwise 'would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel.' Id. p. 787, 93 S.Ct. p. 1762. The court held: 'It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.' Id. pp. 790-791, 93 S.Ct. p. 1764.

At the evidentiary hearing on his petition, Mercer testified that at his probation revocation hearing (which followed not one but two post-conviction arrests for drunkenness) a law officer testified that at the time of Mercer's arrest he (the officer) requested a blood test at a hospital but was told the hospital lacked facilities to make the test; but he did smell liquor on Mercer's breath. Mercer then testified that when the judge asked him (Mercer) what he had to say, he stood mute, saying nothing in his own defense, and not denying the truth of the charge against him nor requesting counsel. On the question whether Mercer was capable of speaking effectively for himself, his testimony showed him not fluent, but able to articulate his claims. I conclude that Mercer could have spoken up in his own defense, at the time revocation of his probation was under consideration, and he elected not to do so. Therefore, the judge had nothing to consider except the officer's testimony. Under these facts, I conclude that Mercer did not by his conduct bring himself within the rule of Scarpelli, and due process did not require that counsel be furnished him.

INGRAM, Justice (dissenting).

Appellant was charged with driving under the influence of intoxicants on the dates of March 30, 1973; April 14, 1973; and April 24, 1973. On May 19, 1973, appellant was charged with forgery in that he signed his mother's name to a $10 check drawn on her account. Subsequent to the forgery charge on June 5, 1973, appellant entered guilty pleas to all four charges. Appellant was represented by counsel at trial. Counsel testified at the habeas hearing that he conferred with appellant in the courtroom and after learning that the sheriff planned to recommend probation of all sentences, advised him to plead guilty 'in light of (appellant's) past record of drinking.' Appellant was sentenced to five years for forgery and received three 12-month sentences for the DUI charges, the DUI charges to run consecutively but concurrently with the 5-year forgery sentence. The sentences were ordered to be served on probation.

Subsequently, and while on probation, appellant was arrested on June 30, 1973, for public drunkenness. On July 7, 1973, the sheriff's office answered a call placed by appellant's mother regarding appellant's brother who was apparently drunk and was riding around on a tractor. The sheriff was unable to locate appellant's brother, but arrested appellant for public drunkenness. A probation revocation hearing was held and appellant's probation was revoked and he was imprisoned to serve the remainder of the sentences originally imposed.

In his petition for habeas corpus relief, appellant contended that he should have been allowed counsel to represent him at the probation revocation hearing. Appellant argued, pro se, that he had not committed any crime when the sheriff arrested him; that he had not been drinking; that he requested a blood test from the hospital; and, that he was charged and subjected to probation...