Riely v. State
| Decision Date | 18 April 1990 |
| Docket Number | No. 07-KA-59140,07-KA-59140 |
| Citation | 562 So.2d 1206 |
| Parties | Anthony Wayne RIELY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Carver A. Randle, John Ed Stillions, III, Indianola, Miss., for appellant.
Mike C. Moore, Atty. Gen., Melanie A. Smith, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.
I. INTRODUCTION
In this case, Anthony Wayne Riely appealed the Sunflower County Circuit Court's revocation of his probation alleging that his constitutional rights to due process were abrogated. This Court affirms the trial court.
On October 15, 1987, Anthony Wayne Riely was convicted in the Sunflower County Circuit Court of burglarizing a residence. Riely was sentenced to a four-year prison term; however, the sentence was suspended and Riely was placed on four years' probation. One condition of probation involved completion of a rehabilitation program at the Greenwood/Leflore County Restitution Center (Center) in Greenwood, Mississippi.
Nearly two months after being placed in the Center, Riely was "locked up" (presumably in the county jail); he was locked up for alleged violations of the Center's rules (i.e., terms of probation). The Mississippi Department of Corrections (Department) filed an affidavit with the circuit court delineating the violations; however, a "forgiving" Department subsequently requested that the affidavit be disregarded and that Riely be returned to the Center.
On December 8, 1987, a hearing was held in the circuit court during which time the Department's request was considered. The following exchange transpired upon commencement of the hearing:
Vol. II, at 1 (emphasis added). Basically, Riely did not want to be imprisoned, nor did he want to be returned to the Center where he felt "uncomfortable."
Further exchanges transpired, after which the court admonished Riely:
I am not going to let [you] select where [you] want[ ] to go and whether [you] can function here or there.... We didn't put you in [custody of the Department] to make you feel "comfortable." That's not the object of it. The object ... is to give you something for what you have done against your [fellow] citizens.
The court concluded that Riely's "bad" attitude reflected that "he is not a good candidate for the ... Center." The court then ordered another hearing on the matter, and "graciously" permitted Riely to return to the Center in the meantime. Vol. II, at 2-6. The hearing was held a few days later--on December 10. The affidavit delineating the violations of probation was presented to the court. The violations included: (1) failing to proceed directly to and from one's place of employment; (2) using abusive and obscene language; (3) refusing to work; (4) leaving or attempting to leave the Center without permission; and (5) possessing "prohibited items." Riely pled "guilty" to the first and fifth allegations, and "not guilty" to the others. During questioning by the court, however, Riely admitted he committed the second and fourth violations as well. See, e.g., Vol. II, at 9-10 & 13-14 (). In addition to Riely's admissions Selby Ware, a Department Field Officer stationed at the Center, provided testimony in support of the allegations. Other evidence presented at the hearing included documentation of the alleged violations--as witnessed and reported by Department officers. See, e.g., Vol. II, at 9-10 & 12 ().
After hearing the testimony and Riely's responses to the allegations, the court concluded:
I think your attitude is bad. You need to be subjected to some rather strenuous discipline, and I am going to try something here. I intended probably to put you in the penitentiary, but I am going to impose a sentence of four years on you, but I am going to provide that you complete the RID program at the Mississippi State Penitentiary, and if you successfully complete that, and that's up to you whether you want to do that or not. If you go up there with the attitude that you have got now, they can't do it. You can't complete that, but I am going to let you try to complete that, and that is a program of rather strenuous discipline, work and study and psychiatric counseling, etc., and let you try that, and if you can complete that, they will inform me, and I will suspend the rest of that time and provide that you go to the Center when you get out and see if you can make it then. Now, I am giving you an opportunity to stay out of the penitentiary. You are going to go to the penitentiary, but it is going to be in a special program. You are not going to be mixed with or housed with prisoners, and they will try to work with you and get your attitude improved, and if you can complete that, I will then suspend the rest and provide that you go to the Center, and if you mess up on either one, I am going to send you four years to the ... penitentiary. It's all up to you. You think you would like to try that?
Riely rejected the court's offer and explained: Riely's wish was the court's command. Vol. II, at 16 & 17.
Before the hearing concluded, Riely complained that he was "coerced into this hearing before I was prepared to get my attorney." He also complained that he signed "waiver-of-rights" documents after being (mis)led to believe that another judge (i.e., Judge Clark, who had presided over the trial for the burglary charge) would preside over the probation-revocation hearing. The court patiently listened and decided to "start all over again" at a later date. In other words, the court: (1) decided to quell any questions of impropriety or accusations of unfairness by "strik[ing] all of this" (i.e., all that transpired at the hearing); and (2) rescheduled another full hearing.
On December 15, the third hearing was held. During the course of the proceeding, Riely informed the court that he was interested in acquiring an attorney and, consequently, he needed more time. The request was denied. The court then reviewed the evidence and determined that Riely's admitted violations and unwavering "bad" attitude warranted revocation of probation. Notably, at the conclusion of the hearing, Riely "lost it"; that is, he became violent, "tussled" with attending deputies, and had to be "carried from the courtroom" while "hollering." Riely's violent actions cost him an added thirty days for contempt.
On March 11, 1988, a fourth hearing was held at the circuit court in response to petitions filed by Riely. A court-appointed attorney represented Riely at the hearing. Basically, Riely was appealing the court's revocation of his probation. The bases for his appeal included nine allegations--all of which were rejected by the court. Vol. I, at 4-6. Riely appealed the circuit court's rejection of two of the nine allegations. At Riely's request, the court appointed an attorney to represent him in his appeal. Vol. I, at 7 & 8-9.
II. ANALYSIS
In his appeal to this Court, Riely presented two issues which are addressed in the following subsections.
Riely first asks "whether the circuit court erred in failing to allow or appoint counsel to represent him at his probation-revocation hearings and, in so doing, violated his constitutional rights."
The record reveals that the circuit court did not actually "disallow " Riely to have legal representation; it merely refused to continue the hearing in response to Riely's belated request for more time to obtain counsel. Specifically, Riely made the following request: "I didn't have time to [obtain] any legal representation, and I need[ ] to [contact] the Legal Aid Service ... so ... give me enough time [to contact the] NAACP so they can appoint an attorney to represent me in this case." Vol. II, at 20. Riely, however, knew about the probation-revocation hearing, at the very latest, on December 9, 1987. See Exhibits 1 & 2. Subsequent to that date, two hearings were held. The issue regarding acquisition of an attorney was not raised until the third hearing. Riely was provided sufficient time prior to the third hearing to acquire representation.
The record also reveals that the court did not refuse to "appoint " an attorney to represent Riely at the revocation hearings. Riely did not ask that one be appointed until prior to the fourth hearing--at which time the court granted his request. And as noted in Section I(B) of this opinion, the court granted a second request and appointed an attorney to represent Riely in his appeal to this Court.
All this notwithstanding, probationers (and parolees) do not "have, per se, a right to counsel at revocation hearings." Lassiter v. Department of Social Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649 (1981) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)); see Ex parte Laird, 305 So.2d 357, 358 (1974) (discussing Gagnon ). Whether probationers have a right to counsel must be answered "on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering...
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