Pisano v. Shillinger

• Decision Date: 26 July 1991
• Docket Number: No. 90-294,90-294
• Citation: 814 P.2d 274
• Parties: George PISANO, Petitioner, v. Duane SHILLINGER, Respondent.
• Court: Wyoming Supreme Court

Page 274

814 P.2d 274

George PISANO, Petitioner, v. Duane SHILLINGER, Respondent.

No. 90-294.

Supreme Court of Wyoming.

July 26, 1991.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Mike Cornia, Sr. Asst. Public Defender, for petitioner.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., for respondent.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

THOMAS, Justice.

The essential question in this case is whether an individual who has been released on parole from the Wyoming State Penitentiary is entitled to be admitted to bail after his apprehension and detention as a parole violator. The case comes before the Court as a matter of the original jurisdiction of the Court in habeas corpus. The Court holds that there is no right to bail for a parole violator, and that the Petition for Writ of Habeas Corpus should be denied.

The facts can be stated briefly. On October 17, 1983, George Pisano (Pisano), having been found guilty of the crime of voluntary manslaughter as proscribed by then § 6-4-107, W.S.1977, was sentenced to a term of not less than seven years nor more than fifteen years at the Wyoming State Penitentiary. By order of the Wyoming State Board of Parole entered on September 14, 1988, Pisano was placed on supervised parole. During 1989, and more particularly during 1990, a series of events occurred that are chronicled in a Petition for Preliminary Hearing to Determine Probable Cause/Reasonable Grounds for a Violation of Parole filed by a parole officer on November 29, 1990. These events included the presence of Pisano in a place where intoxicating beverages were sold, the consumption of alcoholic beverages, damaging an automobile, damaging furnishings in a home, leaving the state of Wyoming without permission, and failure to attend prescribed mental health counseling. On December 6, 1990, the Secretary of the Board of Parole filed a verified Recommendation for Revocation of Parole and, on that same day, a member of the Board of Parole executed and issued an Order of Arrest. Pisano was arrested on that warrant and has been in custody since that time. On December 10, 1990, a hearing examiner for the Wyoming Department of Probation and Parole found that the allegations of parole violation, except for one relating to Pisano entering a place where alcoholic beverages were sold and two relating to Pisano having left the State of Wyoming without permission, had been sustained and that there was probable cause to recommend that Pisano be returned before the Wyoming Board of Parole for the hearing.

On December 19, 1990, Pisano presented to this Court a Motion to Set Bail. On December 20, 1990, an Order to Show Cause Why the Amount an Appearance Bond Should Not be Set by Order of This Court was entered. On December 24, 1990, the State filed a Response to Order to Show Cause and in Opposition to Motion to Set Bail together with a Memorandum of Law in Support of State's Response to Order to Show Cause and in Opposition to Motion to Set Bail. On the same day, an Emergency Petition for Writ of Habeas The only real issue now before this court is whether Pisano is unlawfully restrained of his liberty by the Warden because he has not been admitted to bail pending a hearing on the revocation of his parole.

Corpus was filed on behalf of Pisano and, on December 26, 1990, a Motion to Dismiss Emergency Petition for Writ of Habeas Corpus and a Memorandum of Law in Support of Motion to Dismiss Emergency Petition for Writ of Habeas Corpus were filed on behalf of the Warden of the Wyoming State Penitentiary (Warden).

We have recognized the general rule that there is no right to bail following conviction absent statutory authorization. State v. Sorrentino, 32 Wyo. 410, 233 P. 142, 34 A.L.R. 1477 (1925). The thrust of Sorrentino and In re Boulter, 5 Wyo. 263, 39 P. 875 (1895), together with the views articulated in State v. Crocker, 5 Wyo. 385, 40 P. 681 (1895), has been to limit the right to bail articulated in Article 1, Section 14, of the Constitution of the State of Wyoming to bail prior to conviction. This is consistent with the majority rule found in the cases cited in Annotation: Right of Defendant in State Court to Bail Pending Appeal from Conviction--Modern Cases, 28 A.L.R. 4th 227, 237-239 (1984). In State v. District Court of Second Judicial District, 715 P.2d 191 (Wyo.1986), this court did hold that the right to bail is a substantive right subject to the will of the legislature. Consequently, procedural rules adopted by the court would not prevail over statutes that authorized bail following conviction.

The question of right to bail for a parole violation is a novel question in this court. We are satisfied that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in which the Supreme Court of the United States articulated the due process rights of a parolee, is not authority for a constitutional right to bail. In fact, in that case, the court said that a parolee may be detained pending a final revocation hearing. Morrissey. We also are satisfied that Rule 8, W.R.Cr.P., and the statutes (§§ 7-10-101 and 7-10-104, W.S.1977 (June 1987 Repl.)), cited and relied upon by Pisano do not articulate a right to bail pending a parole revocation.

The majority rule with respect to bail pending revocation of parole, in the absence of statute providing for that opportunity, is that there is no authority for a court to order release when bail is sought by a parolee. See, e.g., Aguilera v. California Department of Corrections, 247 Cal.App.2d 150, 55 Cal.Rptr. 292 (1966); People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 11 Ill.Dec. 295, 368 N.E.2d 903 (1977); People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 347 N.Y.S.2d 178, 300 N.E.2d 716 (1973); Hardy v. Warden of Queens House of Detention for Men, 56 Misc.2d 332, 288 N.Y.S.2d 541 (N.Y.Sup.1968); January v. Porter, 75 Wash.2d 768, 453 P.2d 876 (1969); Ogden v. Klundt, 15 Wash.App. 475, 550 P.2d 36 (1976); Gaertner v. State, 35 Wis.2d 159, 150 N.W.2d 370 (1967). See also, N. Cohen & J. Gobert, The Law of Probation and Parole § 9.03, at 417-20 (1983). The pertinent cases are in accord that there is no constitutional right to bail under the Eight Amendment to the Constitution of the United States of America. Galante v. Warden, Metropolitan Correctional Center and United States Parole Commission, 573 F.2d 707 (2nd Cir.1977); Pihakis v. Thomas, 470 F.Supp. 721 (S.D.N.Y.1979); Lee v. Pennsylvania Board of Probation & Parole, 467 F.Supp. 1043 (E.D.Pa.1979); Burgess v. Roth, 387 F.Supp. 1155 (E.D.Pa.1979); In re Law, 10 Cal.3d 21; 109 Cal.Rptr. 573, 513 P.2d 621 (1973); People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 347 N.Y.S.2d 178, 300 N.E.2d 716 (1973); Kunkelman v. Commonwealth of Pennsylvania, Board of Probation and Parole, 40 Pa.Cmwlth. 149, 396 A.2d 898 (1979). See, Argro v. United States, 505 F.2d 1374 (2nd Cir.1974); Roberson v. Connecticut, 501 F.2d 305 (2nd Cir.1974); Hamilton v. New Mexico, 479 F.2d 343 (10th Cir.1973); Bloss v. Michigan, 421 F.2d 903 (6th Cir.1970); In re Whitney, 421 F.2d 337 (1st Cir.1970); United States ex rel. Fink v. Heyd, 287 F.Supp. 716 (E.D.La.1968), aff'd, 408 F.2d 7 (5th Cir.1969), cert. denied, 396 U.S. 895, 90 S.Ct. 192, 24 L.Ed.2d 172 (1969); Genung At best, as the foregoing cases establish, the authority to grant bail is discretionary. See also, N. Cohen & J. Gobert, The Law of Probation and Parole. We hold that Pisano has no right to be admitted to bail and that the record of violations in this instance persuades this court that he should not be admitted to bail. Pisano's parole violations seem to manifest an accelerating diminution of his capacity to control his behavior and to avoid violations of his parole. We conclude that we need not decide in this case what the appropriate rule would be if another court should set bail for a parole violator. We hold only that Pisano has no right to be admitted to bail and, consequently, he is not unlawfully detained by the Warden.

v. Nuckolls, 292 So.2d 587 (Fla.1974); Frank v. Pitre, 353 So.2d 1293 (La.1977). The same construction has attached to the provisions of state constitutions. Law; Liistro v. Robinson, 170 Conn. 116, 365 A.2d 109 (1976).

Therefore, his Motion to Set Bail and his Emergency Petition for Writ of Habeas Corpus appropriately are denied. An order shall be entered forthwith denying the Motion to Set Bail and the Emergency Petition for Writ of Habeas Corpus.

URBIGKIT, C.J., files a dissenting opinion.

URBIGKIT, Chief Justice, dissenting.

I dissent from this decision presented alternatively by a Motion to Set Bail and by an Emergency Petition for a Writ of Habeas Corpus for which this majority denies access to bail following reincarceration during the administrative process directed to revoke parole. The majority phrases inquiry about entitlement as whether "to be admitted to bail after his apprehension and detention as a parole violator." The power of words! The actual issue is right to bail until status of violation of parole has actually been determined. The majority again rephrases since in this case, it actually now determines there is no right for a suspected parole violator to have bail during the administrative revocation process. What happens if a judicial appeal is taken from that administrative revocation is not now addressed.

This decision is symptomatic, as crime increases arithmetically in this nation, of those who find a solution solely through throwing people in jail. First jail, then consideration of a hearing and possible justice or even, heaven forbid, reformation and prevention. Wyo. Const. art. 1, § 15. ¹

The difference between the majority and this writer is my indeterminacy about there having been an actual parole violation until the administrative or judicial proceeding has been completed to make that determination. I do not preliminarily assume guilt or parole...