Riggins v. Rhay, 40374

• Citation: 75 Wn.2d 271,450 P.2d 806
• Decision Date: 30 January 1969
• Docket Number: No. 40374,40374
• Parties: In the Matter of the Application for a Writ of Habeas Corpus of Leslie B. RIGGINS, Petitioner, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent.
• Court: United States State Supreme Court of Washington

Page 271

75 Wn.2d 271

450 P.2d 806

In the Matter of the Application for a Writ of Habeas Corpus

of Leslie B. RIGGINS, Petitioner, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent.

No. 40374.

Supreme Court of Washington, Department 2.

Jan. 30, 1969.

Michael H. Rosen, Edmund J. Wood, American Civil Liberties Union, Seattle, for petitioner.

Slade Gorton, Atty. Gen., Stephen C. Way, Asst. Atty. Gen., Olympia, for respondent.

HAMILTON, Judge.

This cause was consolidated for argument before this court with In re Bailey v. Gallagher, Wash., 450 P.2d 802 (1969). We have separated the causes for opinion purposes because we deem the dispositive issues severable.

By his petition for a writ of habeas corpus, petitioner Riggins challenges the constitutionality of parole revocation procedures followed by the Board of Prison Terms and Paroles of the state of Washington. The circumstances giving rise to the petitioner's challenges are these.

On September 23, 1958, petitioner pleaded guilty to the felony of taking a motor vehicle without permission of the owner. The Superior Court for King County, Washington, deferred sentencing and granted petitioner probation. Probation was revoked on April 17, 1959, following which petitioner was sentenced to not more than 10 years and confined in the state penitentiary. He was granted parole and released from the penitentiary on December 12, 1960.

On August 4, 1962, petitioner was arrested in Seattle, Washington, and charged with robbery. He pleaded not guilty and was tried before a jury and convicted. On appeal, this court reversed the conviction holding that certain evidence introduced at the trial was inadmissible. State v. Riggins, 64 Wash.2d 881, 395 P.2d 85 (1964). On remand for retrial, the Prosecuting Attorney of King County moved that the robbery charges be dismissed. This motion was granted.

On November 17, 1964, the Board of Prison Terms and Paroles (hereafter referred to as the board) suspended petitioner's parole on the conviction of taking a motor vehicle without the owner's permission. Petitioner was then returned to the penitentiary at Walla Walla, Washington, on November 30, 1964. On the latter date, and for the first time, petitioner was served with a formal notice of suspension and a notice that his revocation hearing would be held 2 days later. This notice stated:

By autority (sic) of RCW 9.95.120 you are being scheduled for your parole revocation hearing at the Washington State Penitentiary on Wed. the 2nd day of December, 1964 at 8:00 a.m. or as soon thereafter as the matter may be heard. Accordingly upon such hearing you will be allowed to be heard and may defend yourself, and may be represented by an attorney and you shall have the right to present evidence and witnesses in your behalf. Any expenses incurred by you in the presentation of your case, will have to be financed by sources outside the State Agencies of the State of Washington.

In order to give proper consideration to your case and any extraordinary factors concerning it, you are hereby instructed, that if you are having witnesses or being represented by an attorney, the names of such persons and a brief statement of that about which they will testify, and must be received in writing by the Superintendent of the institution at least 48 hours prior to your scheduled hearing. The Superintendent will then give this information to the Board panel who will be hearing your case.

It is also to be understood that the panel which hears your case, through the senior member of the panel may rule upon the relevancy, materialty (sic) and propriety of the evidence and testimony presented and is empowered to designate how much time shall be allowed for the presentation.

As is apparent, this written notice does not specify the conditions of petitioner's parole which he allegedly breached, nor does it purport to give him more than 2 days within which to comply with its directives if he should desire to be represented by counsel or have witnesses appear on his behalf. The record does not reveal that petitioner received any earlier formal written notice spelling out the nature of the asserted parole violations.

Pursuant to the foregoing notice the revocation hearing was held as scheduled on December 2, 1964. Petitioner was indigent, and was not represented by counsel at the hearing. Neither did he present the testimony of any witnesses. No record was made of what transpired at the hearing; however, petitioner asserts that the only evidence introduced was in the form of a written report from his parole officer, which, petitioner contends, he was not allowed to examine. Likewise, petitioner alleges he was not permitted to confront or cross-examine his parole officer concerning the matter set forth in the written report.

Following the hearing, the board revoked petitioner's parole and fixed his new minimum sentence.

So far as material, the relevant statutory provisions concerning parole and parole revocation procedures are set forth in RCW 9.95.110 and 9.95.120, which read:

The board of prison terms and paroles may permit a convicted person to leave the buildings and enclosures of the penitentiary or the reformatory on parole, after such convicted person has served the period of confinement fixed for him by the board, less time credits for good behavior and diligence in work; Provided, That in no case shall an inmate be credited with more than one-third of his sentence as fixed by the board.

The board of prison terms and paroles may establish rules and regulations under which a convicted person may be allowed to leave the confines of the penitentiary or the reformatory on parole, and may return such person to the confines of the institution from which he was paroled, at its discretion. (Italics ours.) RCW 9.95.110.

Whenever the board of prison terms and paroles or a probation and parole officer of this state has reason to believe a convicted person has breached a condition of his parole or violated the law of any state where he may then be or the rules and regulations of the board of prison terms and paroles, any probation and parole officer of this state may cause the arrest and detention of such convicted person pending a determination by the board whether the parole of such convicted person shall be revoked. All facts and circumstances surrounding the violation by such convicted person shall be reported to the board of prison terms and paroles by the probation and parole officer.

On the basis of the report by the probation and parole officer, or at any time upon its own discretion, the board may revise or modify the conditions of parole or order the suspension of parole by the issuance of a written order bearing its seal which order shall be sufficient warrant for all peace officers to take into custody any convicted person who may be on parole and retain such person in their custody until arrangements can be made by the board of prison terms and paroles for his return to the institution from which he was paroled. Any such revision or modification of the conditions of parole or the order suspending parole shall be personally served upon the parolee.

Whenever a paroled prisoner is accused of a violation of his parole, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state or the laws of any state where he may then be, He shall be entitled to a fair and impartial hearing of such charges within thirty days from the time that he was returned to the institution from which he was paroled before at least two members of the parole board. Upon such hearing such paroled prisoner shall be allowed to be heard and may defend himself, and may be represented by an attorney and he shall have the right to present evidence and witnesses in his behalf. After such hearing the board of prison terms and paroles shall make an order either (1) revoking the parole of such convicted person, or (2) reinstating the parole previously granted. In the event the parole is revoked, the board of prison terms and paroles shall make an order determining a new minimum sentence, not exceeding the maximum penalty provided by law for the crime for which he was originally convicted, or the maximum fixed by the court.

In the event that the board of prison terms and paroles suspends a parole by reason of an alleged parole violation or in the event that a parole is suspended pending the disposition of a new criminal charge, the board of prison terms and paroles shall have the power to nullify the order of suspension and reinstate the individual to parole under previous conditions or any new conditions that the board of prison terms and paroles may determine advisable. Before the board of prison terms and paroles shall nullify an order of suspension and reinstate a parole they shall have determined that the best interests of society and the individual shall best be served by such reinstatement rather than a return to a penal institution. (Italics ours.) RCW 9.95.120.

Petitioner raises several objections to the procedures followed by the board in revoking his parole under the authority of these statutes. Because of the nature of his various contentions, we will discuss the issues raised in three parts. Ultimately, we reach the conclusion that petitioner is entitled to a new hearing for the reason that he was denied due and timely formal notice before hearing of the nature of the alleged parole violations and was thereby precluded from having the 'fair and impartial hearing' provided for by RCW 9.95.120.

I. DUE PROCESS.

Petitioner contends that when a parolee has been accused of breaching the conditions of his parole, the board must make factual determinations in order for it to answer the issues raised by such an accusation, namely: Has a condition of parole been violated; if so, should parole be revoked; and, if so, what should be the minimum sentence or reincarceration?...