Romano v. Black, s. 83-2000

• Decision Date: 28 June 1984
• Docket Number: 83-2001,Nos. 83-2000,s. 83-2000
• Citation: 735 F.2d 319
• Parties: Nicholas James ROMANO, Appellee, v. Dr. Lee Roy BLACK and Dick D. Moore, Appellants. Nicholas James ROMANO, Appellant, v. Dr. Lee Roy BLACK and Dick D. Moore, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 319

735 F.2d 319

Nicholas James ROMANO, Appellee, v.Dr. Lee Roy BLACK and Dick D. Moore, Appellants.

Nicholas James ROMANO, Appellant, v.Dr. Lee Roy BLACK and Dick D. Moore, Appellees.

Nos. 83-2000, 83-2001.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1984.

Decided May 31, 1984.

Rehearing Denied June 28, 1984.

John Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., for appellants.

Jordan B. Cherrick, St. Louis, Mo., for appellees.

Before ROSS, JOHN R. GIBSON and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

AppellantsDr. Lee Roy Black and Dick D. Moore of the Missouri Department of Probation and Parole appeal from the District Court's order granting Nicholas J. Romano's petition for a writ of habeas corpus.The District Court held that the sentencing judge denied Romano due process in failing to consider alternatives to incarceration before revoking Romano's probation.Romano v. Black, 567 F.Supp. 882(E.D.Mo.1983).We affirm the District Court's order.Romano cross-appeals, challenging the District Court's finding that one of the witnesses at the probation revocation hearing validly waived her privilege against self-incrimination.We need not discuss this contention, however, since our affirmance of the District Court's order grants Romano all the relief he seeks.

I.Facts and Procedural History

On December 10, 1974, Romano was arrested for transferring and selling marijuana.A two-count indictment charging him with transferring and selling marijuana was issued.On November 15, 1976, Romano pled guilty to both counts before the Honorable Dean Whipple, Circuit Judge of the Twenty-Sixth Judicial Circuit of Missouri, sitting in Laclede County.On April 13, 1977, Romano was given a suspended sentence of two concurrent twenty-year prison terms and was placed on probation for five years.

On June 15, 1977, Romano was involved in an automobile accident.He was arrested and charged with leaving the scene of an accident--a felony in the State of Missouri.At a probation revocation hearing held on July 18, 1977, Judge Whipple revoked Romano's probation and imposed the two concurrent twenty-year suspended sentences.Romano began serving those sentences immediately.The charge of leaving the scene of an accident was reduced later to careless and reckless driving, a misdemeanor, and Romano pled not guilty to that charge.On October 12, 1977, Romano was found guilty of careless and reckless driving and was fined one hundred dollars and assessed costs.

On March 28, 1980, Romano filed with Judge Whipple a pro se motion for post-conviction relief under Mo.R.Crim.P. 27.26(Rule 27.26).In this motion Romano challenged the probation revocation proceeding.Judge Whipple denied this motion on July 11, 1980, holding that although a Rule 27.26 motion is the proper avenue for post-conviction relief in Missouri, an exception to that rule is made when the challenged proceeding is one for probation revocation, in which case relief must be sought by way of a habeas corpus petition.

On the basis of Judge Whipple's ruling, Romano filed a petition for a writ of habeas corpus challenging his probation revocation.The petition was filed in the Circuit Court of Cole County, the county in which Romano was incarcerated.That court denied this petition and instructed Romano to file a Rule 27.26 motion in the county where he was convicted and sentenced.Acting on that instruction, Romano then petitioned the Laclede County Circuit Court for reconsideration of his motion for post-conviction relief.On August 27, 1980, Judge Whipple denied Romano any relief, restating the reasons given when he originally denied Romano's 27.26 motion.Romano then filed a notice of appeal with the Missouri Court of Appeals.The appeal was dismissed without opinion on February 3, 1981.

On April 14, 1980, Romano filed a petition for writ of error coram nobis challenging the constitutionality of his reckless driving conviction.The petition was denied, and Romano filed a notice of appeal with the Missouri Court of Appeals.This appeal was dismissed on November 18, 1980 for failure to prosecute.

On June 13, 1981, Romano filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Missouri under 28 U.S.C. Sec. 2254.In this petition he once again challenged the constitutionality of his reckless driving conviction.The petition was denied on October 2, 1981.The District Court reasoned that it was powerless to affect Romano's incarceration since his petition challenged only the constitutionality of his reckless driving conviction and not the constitutionality of his probation revocation proceeding.A subsequent appeal by Romano to this Court was dismissed without prejudice because Romano had failed to exhaust state remedies.Romano v. Wyrick, 681 F.2d 555, 556-57(8th Cir.1982).On October 4, 1982, Romano filed a petition for a writ of habeas corpus with the Missouri Supreme Court challenging his probation revocation proceeding.The petition was denied without opinion on October 18, 1982.

Having exhausted his state remedies, on November 4, 1982 Romano again filed a petition for a writ of habeas corpus with the District Court under 28 U.S.C. Sec. 2254, this time challenging the probation revocation proceeding.While the petition was pending, Romano was released on parole on December 17, 1982.The District Court granted Romano a writ of habeas corpus on June 20, 1983, and ordered him released unconditionally from the custody of the Missouri Department of Probation and Parole.567 F.Supp. at 887.The present appeals are from the judgment of the District Court.

II.Discussion

A.Adequacy of the Probation Revocation Hearing

The District Court held that Romano was denied due process when, during the probation revocation hearing, Judge Whipple failed to consider alternatives to imposition of the prison terms to which he previously had sentenced Romano.We affirm.

The revocation of probation for violation of a condition of probation is within the discretion of the sentencing judge.United States v. Rifen, 634 F.2d 1142, 1144(8th Cir.1980).If the sentencing judge determines that the probationer has "abused the opportunity granted him not to be incarcerated," the judge may revoke the probation.Schneider v. Housewright, 668 F.2d 366, 368(8th Cir.1981)(quotingUnited States v. Nagelberg, 413 F.2d 708, 709(2d Cir.1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502(1970)).In making this determination the government must present enough evidence " 'to satisfy the [sentencing] judge that the conduct of the probationer has not met the conditions of the probation' "United States v. Strada, 503 F.2d 1081, 1085(8th Cir.1974)(quotingUnited States v. Garza, 484 F.2d 88, 89(5th Cir.1973));Ewing v. Wyrick, 535 S.W.2d 442, 444(Mo.1976).This is a far less stringent test than the reasonable doubt standard used in criminal trials.

In the instant case, it has been established by sufficient evidence that Romano violated the terms and conditions of his probation.The sentencing judge's analysis, however, should not end with the mere finding of a probation violation.The Supreme Court requires that a sentencing judge state the reasons for revoking probation in order to satisfy the due process requirements of the Fifth and Fourteenth Amendments.Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656(1973)(citingMorrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484(1972)).The revocation decision must include both a finding that the probationer violated a condition of his parole and that the probationer should be committed to prison.The Court considered such an analysis vital to preserving the function of the probation and parole systems.As the Court noted Both the probationer or parolee and the State have interests in the accurate finding of fact and the informed use of discretion--the probationer or parolee to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.

Id.411 U.S. at 785, 93 S.Ct. at 1761.Gagnon and Morrissey thus establish that "informed use of discretion" in a revocation proceeding must include consideration of alternatives to incarceration.¹

An example of the efforts of state courts to implement the Gagnon and Morrissey standards may be found in Abel v. Wyrick, 574 S.W.2d 411(Mo.1978).At the probation revocation hearing in Abel the probationer admitted that he had violated his probation.The sentencing judge did not allow him to explain the reasons for his violation, and stated: " 'The only thing I'm interested in is what you have told me; you violated your probation.There's no use wasting any more time, I'm going to revoke your probation.What they do with you up at the institution, I don't know.But a rule is a rule.' "Id. at 419.In holding that the sentencing judge failed to consider alternatives to incarceration, as required by Gagnon and Morrissey, the court stated: "Of course, the judge, in his discretion, may have concluded, after weighing the alternatives, that none would be appropriate and that incarceration was the only realistic alternative.But at least more than a cursory consideration of alternatives is required."Id.

Appellants Black and Moore note correctly that the sentencing judge in the present case made no statements as blatant as those made by the sentencing judge in Abel.We believe, however, that the Abel court did not intend any rigid formula for determining what constitutes adequate consideration of alternatives to incarceration, but instead anticipated case-by-case analyses.Similarly, we must consider carefully the record here in order to determine if it shows compliance with the Constitutional...