Robinson v. Cox

• Decision Date: 17 October 1966
• Docket Number: No. 8237,8237
• Citation: 1966 NMSC 210,419 P.2d 253,77 N.M. 55
• Parties: Fred W. ROBINSON, Petitioner, v. Harold A. COX, Warden of the New Mexico State Penitentiary, Respondent.
• Court: New Mexico Supreme Court

Page 253

419 P.2d 253

77 N.M. 55

Fred W. ROBINSON, Petitioner, v. Harold A. COX, Warden of the New Mexico State Penitentiary Respondent.

No. 8237.

Supreme Court of New Mexico.

Oct. 17, 1966.

E. T. Johnson, Santa Fe, for petitioner

Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for respondent.

OPINION

NOBLE, Justice.

Petitioner, Fred W. Robinson, was convicted of robbery and sentenced to imprisonment in the state penitentiary. Pursuant to § 41--17--24.1, N.M.S.A.1953, he was paroled to a detainer to serve another sentence in Tennessee. Thereafter, the Tennessee penal farm, by letter, advised the warden of the New Mexico State Penitentiary of petitioner's escape from the Tennessee custody. A warrant was then issued for petitioner's arrest under authority of § 41--17--28(B), N.M.S.A.1953. He was apprehended in the State of Texas, returned to New Mexico, and his parole revoked by the State Board of Probation and Parole, following a hearing on violation of the terms of his parole. He filed an original petition for habeas corpus in the Supreme Court, contending that his imprisonment was unlawful for the reasons that: (1) He was neither furnished nor advised of his right to be represented by counsel at the hearing for parole revocation; and (2) there was no substantial support in the evidence of a violation of any condition of his parole.

The issue of the right to representation by counsel at the parole board hearing presents two questions: (1) Is there a constitutional right to counsel; and (2) if not, does the New Mexico Statute require either appointment of counsel or the right to employ counsel for such a hearing? Both questions are answered in the negative.

Mr. Justice Cardozo made it clear in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, that a prisoner on probation has no constitutional right to a hearing prior to its revocation, and any such right depends entirely upon the existence of a statutory provision. The courts generally have rejected the contention that due process requires that indigent parolees be provided with appointed counsel when they appear before the parole board in revocation proceedings. The federal decisions were extensively reviewed in Jones v. Rivers, 338 F.2d 862 (4th Cir.), as recently as November, 1964. That court said:

'Certainly, a Board of Parole is not a judicial body. It has no right, statutory or otherwise, to appoint an attorney to represent a parolee at a revocation hearing and we reject the thought or suggestion that the Board should ever be clothed with any such power or authority. Nor should any court be emplowered to require one of its attorney officers to undertake such representation before this administrative agency. * * *'

See, also, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963).

Thus, petitioner's right to counsel must arise, if at all, from the New Mexico Probation and Parole Act, Ch. 232, Laws 1955 (§§ 41--17--1 to 41--17--36, incl., N.M.S.A. 1953). Section 41--17--28(C), N.M.S.A. 1953, requires that parolees accused of parole violation be brought before the board for 'a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt.' Arguing that the statute requiring a 'hearing on the parole violation charged' implies a right to an effective appearance before the board, the petitioner asserts this necessarily contemplates at least the right to be represented by employed counsel.

Section 41--17--27, N.M.S.A.1953, however, makes it clear that the legislature not only did not intend to require the appointment of counsel to represent an indigent parolee but, to the contrary, expressly provided that the board need not permit any counsel to appear before it. The pertinent portion of the statute reads: 'The board shall not be required to hear oral statements or arguments by attorneys or other persons not connected with the correctional system.' Certainly, if we were to construe § 41--17--28, supra, as a grant of right to counsel only to those who can pay, substantial constitutional questions would arise. Nor can we agree with petitioner's contention that this statutory provision was intended to apply only to original requests for parole and not to revocation hearings. Statutes affording one accused of parole violation a right to appear before the board have been interpreted by many courts. In Washington v. Hagan, 287 F.2d 332 (3d Cir. 1960), it was held that the 'opportunity to appear' did not embrace the right to assistance of counsel. The Third Circuit considered an appeal based upon the sole ground that the habeas corpus petitioner, as here, did not have counsel and was not advised of his right to counsel at a parole revocation hearing. That court held that the parolee was not entitled to counsel at such a hearing. After pointing out that it had been the practice for more than fifty years to allow a prisoner a hearing but not representation by counsel, the court said:

'* * * We think the practice is right because this matter of whether a prisoner is a good risk for release on parole or has shown himself not to be a good risk, is a disciplinary matter which by its very nature should be left in the hands of those charged with the responsibility for deciding the question. * *

See, also, Gibson v. Markley, 205 F.Supp. 742 (S.D.Ind.1962); Hock v. Hagan, 190 F.Supp. 749 (M.D.Pa.1960); Martin v. United States Board of Parole, 199 F.Supp. 542 (D.D.C.1961).

Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A.1918C, 549, and Blea v. Cox, 75 N.M. 265, 403 P.2d 701, involving the revocation of a suspended sentence, relied upon by petitioner, are distinguishable and neither controlling nor persuasive under the facts here present. The reasons are clear. A release on parole is an act of clemency or grace resting entirely within the discretion of the parole board. One who is paroled is not thereby released from custody but is merely permitted to serve a portion of his sentence outside the walls of the penitentiary, under such conditions as the board may impose and during the pleasure of the board. Owens v. Swope, 60 N.M. 71, 287 P.2d 605. A paroled prisoner is not discharged from the custody of the prison authorities, but is at all times under the complete custody and control, and subject to the orders of the parole board, Sec. 41--17--24, N.M.S.A.1953; whereas, in the case of a suspension of sentence, the person has never commenced service of the sentence and has, therefore, the right of personal liberty. He is not in custody as is a parolee.

We reject the contention that a right to counsel at a revocation hearing springs from the due process requirements. In so doing, we must reject the argument that either the board's rules or § 41--17--27, supra, are unconstitutional as thus construed. Escoe v. Zerbst, supra; Jones v. Rivers, supra. We hold that neither due process nor the applicable statutes require that parolees be provided with appointed counsel or represented by employed counsel when they appear before the parole board in a revocation hearing. See 29 A.L.R.2d 1074, 1097.

We turn next to petitioner's assertion that the only evidence before the parole board was the letter from...