Perry v. Williard

• Decision Date: 17 May 1967
• Citation: 247 Or. 145,427 P.2d 1020
• Parties: R. D. PERRY, Appellant, v. Richard J. WILLIARD, Superintendent, Oregon Correctional Institution, Respondent.
• Court: Oregon Supreme Court

Page 1020

427 P.2d 1020

247 Or. 145

R. D. PERRY, Appellant, v. Richard J. WILLIARD, Superintendent, Oregon Correctional Institution, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 4, 1967.

Decided May 17, 1967.

John Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem.

David H. Blunt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

GOODWIN, Justice.

In Gebhart v. Gladden, 243 Or. 145, 412 P.2d 29 (1966), we held that an indigent person on probation must be supplied with appointed counsel at a revocation hearing if sentence had not been previously imposed. Today we have a case in which a sentence had been pronounced after a felony conviction, but the execution thereof had been suspended during good behavior on probation. Probation was later revoked at a hearing, in the absence of counsel, and the indigent prisoner sought postconviction relief. He appeals a circuit court judgment denying relief.

The state relies upon a general proposition that there is no constitutional right to counsel at a revocation hearing after sentence because such a hearing is not a 'criminal prosecution.' A number of state and federal cases so hold. See, e.g., Brown v. Warden, U.S. Penitentiary, 351 F.2d 564 (7th Cir. 1965), cert. denied, 382 U.S. 1028, 86 S.Ct. 651, 15 L.Ed.2d 541 (1966); Shum v. Fogliani, Nev., 413 P.2d 495 (1966). These cases do not, however, dispose of the prisoner's contentions.

The prisoner argues, and the state does not deny, that it is not unusual for a probationer who can retain counsel to have the assistance of counsel at a revocation hearing. The presence of counsel in some cases when it is denied in others gives rise to equal-protection problems. See Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Kamisar and Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1, 94 (1963).

In Barker v. Ireland, 238 Or. 1, 392 P.2d 769 (1964), we took note of the duty of the trial court under ORS 137.550(2) to make a factual determination. While the hearing should be limited to the narrow issue of the misconduct alleged to constitute a violation of the terms of probation, the hearing must provide a fair and trustworthy procedure for discovering the truth of any facts that may be in dispute.

Whether the advantages of continued freedom on probation are deemed to be 'rights' or 'privileges', probation is important both to the probationer and to the court as a tool of rehabilitation. A decision on the continued liberty of an individual should be made judicially, in the light of all relevant factual data, and with adequate procedural safeguards. State v. Edelblute, Idaho, 424 P.2d 739 (1967).

A hearing in which counsel is absent or is present only on behalf of one side is inherently unsatisfactory if not unfair. Counsel can see that relevant facts are brought out, vague and insubstantial allegations discounted, and irrelevancies eliminated. The conceptual distinctions between a summary hearing before sentence is imposed, as in Gebhart v. Gladden, and one after sentence is imposed are not operationally important insofar as such distinctions bear upon the trustworthiness and fairness of the decision to be made on disputed questions of fact concerning a probationer's conduct. In either case, a person about to be deprived of his liberty ought to have a meaningful opportunity to disprove the charges against him. Cross-examination and the production of favorable evidence are difficult for a person without counsel. These difficulties are compounded when a probationer is being held in jail without bail, as normally occurs when a warrant issues under ORS 137.550(2).

Since 1946, the federal courts have construed the relevant statutes which allow a federal parolee to 'appear' as permitting him to appear with retained counsel. See Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961); Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946). In the federal cases since Fleming v. Tate, the courts have, however, rejected the argument that an indigent parolee was entitled to the assistance of appointed counsel. These cases point out that Fleming v. Tate turned upon statutory construction and specifically disclaimed reliance upon constitutional principles. See Jones v. Rivers, 338 F.2d 862 (4th Cir. 1964). Strong dissenting opinions, however, have...