Mottram v. State

• Decision Date: 21 August 1967
• Citation: 232 A.2d 809
• Parties: Robert H. MOTTRAM v. STATE of Maine et al.
• Court: Maine Supreme Court

Page 809

232 A.2d 809

Robert H. MOTTRAM v. STATE of Maine et al.

Supreme Judicial Court of Maine.

Aug. 21, 1967.

Casper Tevanian, Portland, for appellant.

John W. Benoit, Asst. Atty. Gen., Augusta, for appellee.

Julius B. Levine, Waterville, filed brief, Amicus Curiae.

Before WILLIAMSON, C. J., and TAPLEY, MARDEN and DUFRESNE, JJ.

DUFRESNE, Justice.

On appeal from the denial by a single Justice sitting in the Superior Court of Robert H. Mottram's petition for the writ of habeas corpus. The petitioner was convicted of the crime of grand larceny at the September term of the Cumberland County Superior Court in 1960 and sentenced to State Prison. On November 15, 1963 he was released from the penal institution on parole granted by the State Probation and Parole Board (the Board). On January 21, 1965 the State Director of Probation and Parole issued a warrant for the arrest and return of Mottram to Maine State Prison upon proper written authority from a member of the Board. Arrested on February 12, 1965 and returned to prison, Mottram was given a hearing before the Board at the prison on February 26, 1965, and the Board determined that he had violated the terms and conditions of his parole and ordered the same revoked, fixing his new eligibility date for parole hearing and remanding him to the institution to serve the unexpired portion of his sentence. Petitioner claims that it was error for the single Justice to deny his petition for the writ of habeas corpus and argues in support of his contention that the Board's action in revoking his parole and remanding him to the prison for service of the unexpired portion of his sentence was illegal. He first challenges the Board's authority to act on the ground that the warrant of arrest was without seal and did not contain specific allegations of the claimed parole violation. He next contends that he was not accorded a hearing according to law, in that he was not given a formal list of charges of violation of parole prior to hearing, nor was he given the opportunity at the hearing to present witnesses on his behalf or to have counsel representation.

After dismissing the first point as being without merit, the single Justice made the following findings:

'I find that when the petitioner appeared before the Board on February 26, 1965 the proceedings were informal. The petitioner obviously viewed this 'hearing' as in the nature of a trial and in effect demanded the usual formalities attendant thereon such as a written presentation of the charges of parole violation, confrontation by his 'accusers' and the like. The charges were not formalized. The Board verbally asked for his version of certain incidents which had come to their attention and in each instance the petitioner responded either by denial or excuse. I find that by means of this interview method the petitioner was made aware of the matters which were under consideration as possible reasons for revocation and was fully heard as to each. The petitioner was offered the opportunity to present witnesses but he declined on the ground that he had not been formally charged with specific parole violations. In general the petitioner demanded the 'right to counsel'. He was not accompanied by counsel of his own choice nor did he request that any specifically named attorney be permitted to be present. Neither did he request that the Board appoint counsel to represent him. * * * In the instant case the petitioner appeared, full inquiry was made and he was 'heard' as to aspects of his conduct which bore directly upon the advisability of continued parole. In my view the 'hearing' requirement of this particular statute was thereby satisfied.'

It was further candidly admitted by the State Director that a parolee accused of parole violation is not given a written list of the charges upon which the Board is expected to act in determining whether parole has been violated, but that usually he is advised orally at the time of his arrest of the reasons therefor; further that the hearing by the Board consists in a member of the Board reading the respective charges against the parolee and inquiring of him in each instance whether he is guilty of the conduct charged against him and whether in his opinion he believes that he has violated his parole. It has been the policy of the Board to give the parolee full opportunity to explain and excuse his conduct but the Board has not permitted at the institutional hearing witnesses on behalf of the parolee nor representation by counsel.

The issue arises by reason of the provisions of 34 M.R.S.A. § 1675 which reads as follows:

'Violation of parole.

When a parolee violates a condition of his parole or violates the law, a member of the board may authorize the director in writing to issue a warrant for his arrest. A probation-parole officer, or any other law enforcement officer within the State authorized to make arrests, may arrest the parolee on the warrant and return him to the institution from which he was paroled. At its next meeting at that institution, the board shall hold a hearing. The parolee is entitled to appear and be heard. If the board, after hearing, finds that the parolee has violated his parole or the law, it shall revoke his parole, set the length of time he shall serve of the unexpired portion of his sentence before he can again be eligible for hearing by the board, and remand him to the institution from which he was released; * * *

1. Forfeits deductions. Upon revocation of parole by the board the prisoner or inmate forfeites any deductions for good behavior earned while on parole.' (Emphasis supplied)

In final analysis, the issue is, what type of hearing did the Legislature have in mind in parole violation proceedings and what rights did it grant the parolee when it legislated that he is entitled to appear and be heard.

Initially, let us consider the status of the parolee while on parole. Although released from the institution where his sentence demanded his detention, the paroled prisoner remains under the custody of the warden or superintendent, and is serving the unexpired portion of his sentence, less deductions for good behavior, but is under the immediate supervision of and subject to the rules and regulations of the board or any special conditions of parole imposed by the board. 34 M.R.S.A. § 1671.

A parolee has no constitutional right to a hearing on revocation of parole, and such a revocation without notice and hearing does not constitute a denial of constitutional due process. Martin v. State Board of Parole, 1966, 350 Mass. 210, 213 N.E.2d 925; Jones v. Rivers, 4th Cir., 1964, 338 F.2d 862 at page 874; Curtis v. Bennett, 1964, 256 Iowa 1164, 131 N.W.2d 1; Ex parte Anderson, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051 (Cf. Anno. at pages 1074 et seq.); Ex parte Tabor, 173 Kan. 686, 250 P.2d 793; Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963).

Parole however is a legislative program of rehabilitation and restoration of persons convicted of crime to useful membership in society. The purpose of the law is to offer the institutionalized convict the opportunity to make good on his own outside the prison walls but under the immediate supervision of the probation-parole officer to whom the parolee must report and whose guidance he may seek at all times. It is the duty of the probation-parole officer not only to keep informed of the conduct and condition of each person placed under his supervision but he is directed to use suitable methods to encourage him to improve his conduct and condition. 34 M.R.S.A. § 1502(4). To the extent that the parolee must strictly observe all the conditions of his parole and remain within the area of permitted enlargement of the prison walls consistent with effective supervision, he is not a totally free man. The Legislature, in adopting the parole system and providing a rehabilitation program for prisoners undoubtedly took into consideration that at this level the prisoner's guilt had been established, presumably after full compliance with all the constitutional requirements of due process, and that in setting up the mechanics for parole revocation it could rest the same upon the absolute discretion of the Parole Board or it could circumscribe the retaking of a paroled prisoner by such procedural requirements as it deemed necessary in its own uncontrolled wisdom. In short, our lawmakers knew that parolees, if they violated their parole, were not entitled to the same procedural safeguards constitutionally necessary in the case of persons accused of crime.

As stated in State v. Fazzano, 1963, 96 R.I. 472, 194 A.2d 680, at page 684:

'A person imprisoned by a court is turned over to an administrative agency for the execution of the sentence. The imprisonment can, if so authorized by the legislature, be ameliorated by allowing it to be served beyond the confines of the penal institution on parole. * * * This is not a right of a prisoner, but accrues to him through legislative grace and can be withheld or withdrawn by the legislature at will. As part of the act of grace it is within the legislative power to attach conditions to the grant of parole and to provide for the administration thereof. * * * Courts have no power to determine the penological system; this is within the exclusive jurisdiction of the legislature. * * * As part of its power the legislature can grant to the parole board the exclusive right to determine if a parole permit shall be revoked and any such revocation by the parole board made within the limits of the legislative authority given to it cannot be attacked.' See also, commonwealth ex rel. Banks v. Cain, (1942) 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473; Hiatt v. Compagna, U.S.C.A., 5th Cir., (1949), 178 F.2d 42.

We agree with the great weight of judicial authority that the grant, revocation and reinstatement of parole are within the exclusive jurisdiction of the Parole Board subject to...